[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
DRAFT LEGISLATION TO AMEND THE INDIAN GAMING REGULATORY ACT TO
RESTRICT OFF-RESERVATION GAMING.
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Thursday, March 17, 2005
__________
Serial No. 109-5
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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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
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Devin Nunes, California Mark Udall, Colorado
Henry Brown, Jr., South Carolina Dennis Cardoza, California
Thelma Drake, Virginia Stephanie Herseth, South Dakota
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
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 Thursday, March 17, 2005......................... 1
Statement of Members:
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan, Prepared statement of................... 53
Miller, Hon. George, a Representative in Congress from the
State of California........................................ 2
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Statement of Witnesses:
Forster, Richard, Chairman, Amador County Board of
Supervisors................................................ 4
Prepared statement of.................................... 6
Response to questions submitted for the record........... 9
Jaimes, Lori, Chairwoman, Greenville Rancheria of Maidu
Indians.................................................... 12
Prepared statement of.................................... 14
Response to questions submitted for the record........... 18
Leecy, Kevin, Chairman, Bois Forte Band of Chippewa Indians
of Minnesota............................................... 28
Prepared statement of.................................... 29
Response to questions submitted for the record........... 35
Luger, J. Kurt, Executive Director, Great Plains Indian
Gaming Association......................................... 62
Prepared statement of.................................... 65
Response to questions submitted for the record........... 69
Martin, James T., Executive Director, United South and
Eastern Tribes, Inc........................................ 71
Prepared statement of.................................... 73
Response to questions submitted for the record........... 81
Quan, Jean, Council Member, City of Oakland, California...... 42
Prepared statement of.................................... 43
Response to questions submitted for the record........... 45
Stevens, Ernest L., Jr., Chairman, National Indian Gaming
Association, Prepared statement of......................... 92
Response to questions submitted for the record........... 99
Van Norman, Mark, Executive Director, National Indian Gaming
Association................................................ 90
Additional materials supplied:
List of miscellaneous letters and statements submitted for
the record that have been retained in the Committee's
official files............................................. 121
OVERSIGHT HEARING ON DRAFT LEGISLATION TO AMEND THE INDIAN GAMING
REGULATORY ACT TO RESTRICT OFF-RESERVATION GAMING, AND FOR OTHER
PURPOSES.
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Thursday, March 17, 2005
U.S. House of Representatives
Committee on Resources
Washington, D.C.
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The Committee met, pursuant to notice, at 2:05 p.m., in
Room 1324, Longworth House Office Building, Hon. Richard W.
Pombo [Chairman of the Committee] presiding.
Present: Representatives Pombo, Radanovich, Gibbons,
Walden, Hayworth, Pearce, Nunes, Brown, Kildee, Faleomavaega,
Pallone, Christensen, Kind, Tom Udall, Costa, Miller, DeFazio,
and Herseth.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
The Chairman. The Committee on Resources will come to
order.
The Committee is meeting today to hear testimony on off-
reservation Indian gaming and more specifically on a discussion
draft bill I wrote to address this issue.
Under Rule 4(g) of the Committee Rules, any oral opening
statements at the 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 to their schedules.
Therefore, if other Members have statements, they can be
included in the hearing record under unanimous consent.
The Indian Gaming Regulatory Act (IGRA) prohibits gaming on
off-reservation trust lands acquired after October 17, 1988. A
number of exceptions were made, but it was thought that off-
reservation gaming would be rare. So far, only a handful have
been approved. However, there is a growing number of tribes
claiming one of the several exceptions to the off-reservation
gaming ban. The locations of the proposed casinos are most
often chosen for their favorable markets as opposed to any
ancestral connection to the land. In some cases, the proposed
sites are within the aboriginal territory of other tribes. This
seems to turn the notion of Indian gaming as a sovereign
government revenue tool on its head. This is a troubling
development to a number of tribal leaders I have consulted with
in the last 2 years. It is also a source of distress for city
and county officials who have been contacting their
Representatives in Congress with increasing frequency to seek
help.
The draft bill I have authored is meant to protect the
integrity of Indian gaming. It prohibits Indian gaming outside
a tribe's reservation except in certain Indian economic
development zones, which are subject to approval from State and
local governments and from the affected tribal governments. The
purpose of the zones is to consolidate gaming where it is
welcome by all affected governments and to offer an alternative
to tribes that are stuck in bad locations.
By distributing a discussion draft bill, I want to
emphasize that it is a work in progress. It introduces new
concepts, and I welcome input in what will be a deliberative
process of crafting a bill that Congress can pass and that will
put the off-reservation controversies to rest.
With that in mind, I want to hear from today's witnesses
about the severity of the problems posed by off-reservation
casinos and what they think of the discussion draft. I would
like to at this time recognize Mr. Miller.
[The prepared statement of Mr. Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
The Indian Gaming Regulatory Act prohibits gaming on off-
reservation trust lands acquired after October 17, 1988. A number of
exceptions were made, but it was thought that off-reservation gaming
would be rare. So far, only a handful have been approved.
However, there is a growing number of tribes claiming one of the
several exceptions to the off-reservation gaming ban. The locations of
the proposed casinos are most often chosen for their favorable markets
as opposed to any ancestral connection to the land.
In some cases, the proposed sites are within the aboriginal
territory of other tribes. This seems to turn the notion of Indian
gaming as a sovereign government revenue tool on its head.
This is a troubling development to a number of tribal leaders I
have consulted with the last two years. It's also a source of distress
for city and county officials, who have been contacting their
Representatives in Congress with increasing frequency to seek help.
The draft bill I have authored is meant to protect the integrity of
Indian gaming. It prohibits Indian gaming outside a tribe's reservation
except in certain Indian Economic Development Zones, which are subject
to approval from State and local governments, and from the affected
tribal governments.
The purpose of the zones is to consolidate gaming where it is
welcomed by all affected governments, and to offer an alternative to
tribes that are stuck in bad locations.
By distributing a discussion draft bill, I want to emphasize that
it's a work in progress. It introduces new concepts, and I welcome
input in what will be a deliberative process of crafting a bill the
Congress can pass and that will put the off-reservation controversies
to rest.
With that in mind, I want to hear from today's witnesses about the
severity of the problems posed by off-reservation casinos, and what
they think of the discussion draft.
______
STATEMENT OF THE HON. GEORGE MILLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Miller. Thank you, Mr. Chairman, and I want to begin by
commending you for making this effort, and I appreciate your
emphasis on the fact that this is a discussion draft, and I
think it has wisely been presented as that because, clearly,
this will help us formalize those discussions. There have been
ongoing discussions all across this country on this very
subject and the best way and manner to handle the questions of
remote reservations, landless tribes, and off-reservation
gaming, and then, of course, all of the questions of
competition, local impact, community impact, and who should
have a say and who should not have a say in these decisions.
As we all know on this committee, because of past treatment
and policies by the Federal Government, we find Indian tribes
and bands in very varied situations with respect to their
standing before the Government. And we have used a number of
different means by which to provide for recognition of those
tribes, to provide for a land base for those tribes. Many of
those tribes which had a rather significant land base at one
time, that land base was terminated or for other reasons was
dissipated wrongfully and without much control by those tribes,
and now they are trying to reconstruct that land base, trying
to provide housing, trying to provide economic opportunity for
their tribes.
That has raised the question, obviously, within IGRA, and I
would say for the most part IGRA probably is working about as
it was intended. And it does, however, continue to raise the
questions of whether or not either on-reservation or off-
reservation gaming would be viable or not. And I think it is
certainly worth our attention to understand that.
I also think that there is a fair amount of this that is
being--certainly in our State that is causing this activity,
there is a significant number of private parties now that have
engaged with various tribes, hoping to be able to promote their
restoration of lands or development of the land base, either
off-reservation or a land base for the first time, restored
lands, if you will, and then trying to use that as an economic
lever to locate an Indian casino at various locations--there is
no end to the locations suggested--in California.
A lot of that I think is promotion that is beyond the
realities of the law. People are suggesting that if you have
the land base and you can go to an area that it is almost
automatic you are going to get a casino. That is not very
likely. There have only been three tribes, I think, that have
made it through the IGRA process for that purpose. But hope
does spring eternal both in the eyes of the investors and in
the eyes of the tribes who are trying to find a way to provide
for that economic development of their lands and of their
people.
So I think this is an important discussion. I think it is a
very difficult one. I think the bill raises almost as many
issues as it seeks to answer. I have some concerns. At some
point, I would hope that the hearings would invite individuals
that have been working very hard on maintaining, and the
concern over the erosion of, sovereignty as to exactly how many
people get to make decisions with these sovereign nations and
override these sovereign nations. That may or may not be an
issue that the Indian nations are concerned about, but I think
it is certainly raised in this legislation.
I also would raise the question of, as you anticipate in
this legislation, the designation of these areas. What is that
process? Is that a Federal action? Is that an action that
requires serious review before it can take place? And which
entities would it be that would have a veto over that? It is
quite conceivable that by the time you have satisfied all the
parties, there would be no revenues left for the Indian tribes.
If they ever did get the casino, there would be so many people
with their hand out.
So I look forward to hearing from the witnesses in the
panels that you have assembled today. Unfortunately, I am going
to have to leave at 2:30 for a leadership meeting. I have read
some of the testimony that has been submitted, and I will read
the rest of the testimony, and thank you very much, Mr.
Chairman.
The Chairman. Thank you.
I would like to introduce our first panel of witnesses
representing several elected officials. They are Richard
Forster, Chairman of the Amador County Board of Supervisors;
Lori Jaimes, Chairperson of the Greenville Rancheria; Kevin
Leecy, Chairman of the Bois Forte Tribe; and Jean Quan, Council
Member of the City of Oakland.
I would like to take a minute to remind all of today's
witnesses that under Committee Rules oral statements are
limited to 5 minutes. Your entire statement will appear in the
record. If I could have all of you rise and raise your right
hand.
[Witnesses sworn.]
The Chairman. Let the record reflect that they all answered
in the affirmative. Welcome to the Committee. Thank you very
much for being here, and we are going to start with Mr.
Forster.
STATEMENT OF RICHARD FORSTER, CHAIRMAN,
AMADOR COUNTY BOARD OF SUPERVISORS
Mr. Forster. Thank you. Chairman Pombo and distinguished
members of the House Resources Committee, my name is Richard
Forster, and I am the Chairman of the Amador County Board of
Supervisors. Chairman Pombo, first I would like to thank you
for providing the opportunity to address this very important
issue of off-reservation Native American gaming and the direct
ramifications this activity is having on our small, rural
county.
In addition to representing Amador County, I have been
asked by the California State Association of Counties, which
represents all 58 counties, to address their recently adopted
policy that is consistent with the intent of your draft bill.
Their policy statement reads: ``CSAC opposes the practice
commonly referred to as `reservation shopping' where a tribe
seeks to place land into trust outside its aboriginal territory
over the objection of the affected county.''
CSAC plans to present detailed written testimony to the
Committee within the week.
Through my testimony today, I will attempt to provide you
an understanding of the impact of Indian casinos on Amador
County. Chairman Pombo, we believe our circumstances support
your initiative to provide local government with the ability to
have significant input in the approval process of Federal
Indian gaming on land that otherwise would be within its
jurisdiction. Amador County and CSAC view your draft
legislation as a serious effort to balance local and State
concerns regarding reservation shopping with the economic
development needs of tribes.
Amador County is a rural county of approximately 35,000
people located on the western slope of the Sierra Nevada,
roughly midway between Sacramento and Lake Tahoe. There are
three separate federally recognized Bands of Miwok Indians that
are either operating or seeking to operate casinos within the
county.
Currently, two separate tribes are proposing to open large
Indian gaming facilities within 12 miles of each other and the
existing Jackson Rancheria casino. The county is very concerned
about the harmful impacts of multiple casinos on the quality of
life for our small, rural community. The following is a brief
summary of the status of the proposed casinos and information
on the position of the county.
The Jackson Rancheria Band of Mi-Wuk Indians opened the
Jackson Rancheria casino in 1997 and has entered into a local
partnership through which it pays the local governments for
services delivered to the casino property. The county has
worked to build a positive working relationship with the
Jackson Rancheria Band in the past on various issues of mutual
interest and anticipates a continuation of this good working
relationship. We appreciate the efforts of Tribal Chairperson
Margaret Dalton and the Tribal Council in fostering a mutually
beneficial partnership with the county.
The Ione Band of Miwok Indians has notified the Secretary
of the Interior of its intent to have non-tribal lands placed
in Federal trust for the purpose of constructing a casino,
hotel, and other facilities on the trust acquisition property.
This land is within and partially adjacent to the City of
Plymouth.
The county opposes the Band's proposal to acquire the
Plymouth site for the stated purpose of constructing and
operating a casino. Of the 227 acres proposed to be acquired
for the casino project, 11 acres are within the city and 216
acres are adjacent to the city and in the unincorporated areas
of Amador County. It is anticipated that the amount of traffic
will vastly increase on narrow State routes, city roads, and
county roads and escalate the danger to public safety. In
addition, the project fails to identify a long-term drinking
water supply and an adequate wastewater treatment and disposal
facility for the casino.
The City of Plymouth entered into a Municipal Services
Agreement with the Ione Band for delivery of municipal
services. The county challenged that Municipal Services
Agreement and won that lawsuit, which the city is now
appealing.
Chairman Pombo, your draft legislation would provide
precisely the kind of protection and participation which a
rural county such as ours desperately needs. The Ione Band's
project is wrong for the area, as witnessed by the abject
opposition to the proposal from virtually every local entity in
the county, including the local school district, and the others
are identified in my testimony. The scope of local opposition
to this project is virtually unparalleled in our county.
We view the Plymouth casino proposal to place another
casino in our small, rural county--in the absence of local
support--as the wrong project at the wrong place.
Regarding the third tribal project of the most immediate
concern, the Buena Vista Rancheria of Me-Wuk Indians, they are
proposing a massive casino development project within the
boundaries of the former Rancheria. As the map I have with me
today shows, the land is a narrow strip which is only 578 feet
wide and one mile long--and they should be able to project
that. Moreover, the Rancheria is in an isolated rural location
served exclusively by narrow county roads. At this time, the
site does not have the required water or wastewater disposal
services, and the county has not been advised as to how these
problems would be resolved.
The county opposes the placement of a casino on this site
because the rules and regulations in place at the Federal level
do not support the approval of this action.
The land is not in trust. In fact, the Department of the
Interior rejected a trust application for the Rancheria in 1996
and confirmed only a year ago that the land is still in fee and
not in trust ownership.
Chairman Pombo, we again would like to thank you for
offering us the opportunity to testify today, and we appreciate
your concern over our local issues and allowing us to have our
impact heard.
[The prepared statement of Mr. Forster follows:]
Statement of Richard Forster, Chairman,
Amador County Board of Supervisors, California
Chairman Pombo, Ranking Member Rahall and Members of the House
Resources Committee, my name is Richard Forster, and I am the Chairman
of the Amador County Board of Supervisors. Chairman Pombo, first I
would like to thank you for providing the opportunity to address the
very important issue of off-reservation Native American gaming, and the
direct ramifications this activity is having on our small, rural
county.
In addition to representing Amador County, I have been asked by the
California State Association of Counties (CSAC) to submit the following
statement as part of my testimony:
``Our statewide Association in California the California State
Association of Counties has been at the forefront of the Indian
Gaming issue attempting to ensure that county boards of
supervisors have the tools to protect their affected
communities from the impacts of Indian Gaming--rural and urban
alike.
``Policy was recently adopted by the CSAC board representing
all 58 counties that is consistent with the intent of your
draft bill. CSAC's policy specifically addresses the issue of
`reservation shopping' and states that:
``CSAC opposes the practice commonly referred to as
`reservation shopping' where a tribe seeks to place land into
trust outside its aboriginal territory over the objection of
the affected county.''
``Upon initial review, CSAC is very pleased to note that your
draft bill supports this position and recognizes the important
role of local government. CSAC plans to present detailed
written testimony to the Committee within the week.''
Through my testimony today, I will attempt to provide you with an
understanding of the impact of Indian casinos on Amador County.
Chairman Pombo, we believe our circumstances support your initiative to
provide local government with the ability to have significant input in
the approval process of federal Indian gaming on land that otherwise
would be within its jurisdiction. Amador County and CSAC view your
draft legislation as a serious effort to balance local and state
concerns regarding ``reservation shopping'' with the economic
development needs of tribes.
Amador County
Amador County is a rural county of approximately 35,000 people
located on the western slope of the Sierra Nevada, roughly midway
between Sacramento and Lake Tahoe. There are three separate, federally
recognized Bands of Miwok Indians that are either operating or seeking
to operate casinos within the County.
Currently, two separate tribes are proposing to open large Indian
gaming facilities within 12 miles of each other and the existing
Jackson Rancheria casino. The County is very concerned about the
harmful impacts of multiple casinos on the quality of life for our
small, rural community. The following is a brief summary of the status
of the proposed casinos and information on the position of the County.
Jackson Rancheria Band of Mi-Wuk Indians
The Jackson Rancheria Band of Mi-Wuk Indians opened the Jackson
Rancheria casino in 1997 and has worked positively with the County to
mitigate off-reservation impacts attributed to casino activities.
This tribe has entered into a local partnership through which it
pays the local governments for services delivered to the casino
property and to address various local concerns, including environmental
impacts. The County has worked to build a positive working relationship
with the Jackson Rancheria Band in the past on various issues of mutual
interest and anticipates a continuation of this good working
relationship. We appreciate the efforts of Tribal Chairperson Margaret
Dalton and the Tribal Council in fostering a mutually beneficial
partnership with the County.
Ione Band of Miwok Indians
The Ione Band of Miwok Indians (Ione Band) has notified the
Secretary of the Interior of its intent to have non-tribal lands placed
in federal trust for the purpose of constructing a casino, hotel and
other facilities on the trust acquisition property. This land is within
and partially adjacent to the City of Plymouth.
The County opposes the Band's proposal to acquire the Plymouth site
for the stated purpose of constructing and operating a casino. Of the
227 acres proposed to be acquired for the casino project, eleven acres
are within the City and 216 acres are adjacent to the City and in the
unincorporated area of Amador County. It is unquestioned that the
proposed casino project will have significant adverse impacts on the
County and City. It is anticipated that the amount of traffic will
vastly increase on narrow state routes, city streets and county roads
and escalate the danger to public safety. In addition, the project
fails to identify a long-term drinking water supply and an adequate
wastewater treatment and disposal facility for the casino.
The City of Plymouth entered into a Municipal Services Agreement
(MSA) with the Ione Band for delivery of municipal services to the
casino. The County filed and won a lawsuit to invalidate the MSA and
require the City to perform the environmental analysis and review as
required by the California Environmental Quality Act. The City is
appealing this decision.
Chairman Pombo, your draft legislation would provide precisely the
kind of protection and participation which a rural county such as ours
desperately needs. The Ione Band's project is wrong for the area, as
witnessed by the abject opposition to the proposal from the following
local government entities and organizations: City of Jackson, City of
Ione, City of Sutter Creek, City of Amador City, Amador Air District,
Foothill Conservancy, Amador Chamber of Commerce, Amador Winemakers
Association, the Amador County Farm Bureau and the Amador School
District. The scope of local opposition to this project is virtually
unparalleled in our county.
We view the Plymouth casino proposal to place another casino in our
small, rural county--in the absence of local support--as the wrong
project at the wrong place. There are serious issues of public safety
associated with it, including the site's proximity to residential areas
and at least one school. In addition, an archaeological study of the
site conducted in 2000 produced no evidence of any Indian occupancy of
the land at any time, clearly suggesting ``reservation shopping'' in
the purest sense of the term.
Buena Vista Rancheria of Me-Wuk Indians
The tribe occupying this restored Rancheria is proposing a massive
casino development project within the boundaries of the former
Rancheria. As the map I have with me today shows, the land is a narrow
strip which is only 578 feet wide and one mile long and is unsuited for
a major building project, yet the tribe proposes a casino and related
buildings of approximately 500,000 square feet. Moreover, the Rancheria
is in an isolated rural location served exclusively by narrow country
roads. At this time, the site does not have access to the required
water and wastewater disposal services and the County has not been
advised as to how these kinds of problems would be addressed.
The County opposes the placement of a casino on this site because
the rules and regulations in place at the federal level do not support
the approval of this action.
The land is not in trust. In fact, the Department of the Interior
rejected a trust application for the Rancheria in 1996 and confirmed
only a year ago that the land still is in fee--and not trust--
ownership. I have copies of correspondence from the Department of the
Interior documenting these facts and would respectfully ask that they
be submitted for the record.
The history of this tribe is reason enough for serious scrutiny on
the development of the Rancheria site. For years, the tribe claimed
only three adult members, until the Department of Interior determined
that none of the three qualified for membership at the Buena Vista
Rancheria. Instead, the Department found that a fourth person living in
Sacramento was the only known person eligible for membership in the
Rancheria tribe. Today, she is the Tribal Chair of the Band and is
advocating for a project that she had opposed prior to Interior's
membership determination.
The tribe has a Gaming Compact which was executed by the previous
three-person governing body. The Secretary recently approved a Compact
Amendment which would allow a Super Casino with more than 2,000 gaming
machines and 80 gaming tables. In addition, the tribe is seeking from
the National Indian Gaming Commission (NIGC) a determination that the
Rancheria land qualifies as an Indian ``reservation'' under IGRA.
We believe that the land does not so qualify and have presented
comprehensive statements to both Interior and the NIGC without
receiving any response in return. Relevant to this discussion is the
fact that the NIGC receives and processes tribal requests for land
determinations without advising the local governments that the requests
even exist. We learned of the Buena Vista request by accident and were
able to submit our position, although there is no reason to believe
that our statements were even read let alone considered because of no
acknowledgment from the NIGC. I suspect that many local governments
missed the NIGC review altogether because there is no requirement for
local notice.
This is a bad project for the immediate area, it is a bad project
for the County and it is bad precedent for Indian gaming in general. It
is the kind of project that your legislation was drafted to address.
The case for greater local input and participation in the decision-
making process, as called for in your draft legislation, is clearly
evident in this instance.
Conclusion
The development of an Indian casino raises legitimate concerns
about the impact upon existing land use patterns, the environment,
clean water and air, species and habitat protection, traffic
congestion, public safety and the overall quality of life. Locating
three large Indian casinos within a 12 mile radius of each other in a
small rural county is not good public policy and most certainly would
be detrimental to the surrounding communities.
Amador County hopes that by discussing this difficult situation we
face along with numerous other counties and municipalities nationwide,
that this will move Congress and the Department of Interior to consider
new policies. These changes must reflect the need for tribes to have a
verified historical connection to the site of a proposed casino and
recognize that local government should have a significant voice in the
process.
The problems created by the shortcomings of the Indian Gaming
Regulatory Act are real, and they increase month by month as a result
of creative proposals from lawyers representing tribes seeking off-
reservation casinos in places never contemplated by Congress in 1988
when the IGRA was written.
Chairman Pombo, Amador County and the California State Association
of Counties believe your draft legislation is a thoughtful and creative
approach to resolving some of the continuing problems faced by local
governments, while also providing a vehicle for tribes to legitimately
pursue their gaming opportunities. Thank you for the opportunity to
present a local government perspective on this difficult issue. I would
be happy to answer any questions that you may have regarding this
testimony.
______
[Responses to questions submitted for the record by Mr.
Forster follow:]
Response to questions submitted for the record by Richard Forster,
Chairman, Amador County Board of Supervisors, California
From Chairman Pombo:
1. Under the Section 20 two-part determination in IGRA, the governor
of a state is cast in the role of representing and protecting
the interests of both the state government, and the local
governments that exercise jurisdiction in the area proposed for
casino gaming. However, as state governors increasingly look to
tribal casinos to provide large amounts of revenue sharing to
supplement the state budget, it has been argued that governors
are now in a position where their fiduciary interest in
securing a tribal revenue stream for state government conflicts
with their duty to represent the interests of local communities
in the two part determination process.
With the potential of this large financial incentive to
a state for a governor to overlook the concerns of local communities,
can it be said that local communities can still be adequately
represented solely by the governor's participation in the two part
determination process?
AMADOR COUNTY ANSWER: The Governor represents the interests of the
State generally, whether those interests are fiscal or otherwise. For
example, Governor Schwarzenegger believes that Indian gaming is
appropriate for rural areas but not urban areas. Amador County believes
that adverse impacts from Indian gaming, both environmental and
financial, are the worst in rural areas. The Governor cannot and indeed
does not purport to represent Amador County's interests which are
rural, not urban, interests and are specific to the County.
Or does this potential conflict of interest presented to
governors suggest that IGRA should be modified to give affected local
communities a formal role in concurring with the Secretary's two-part
determination findings?
AMADOR COUNTY ANSWER: The California Constitution and generations
of American law makers have decided that local governments can more
efficiently and equitably make local land use choices for their
entities than a state office or officer. The siting of Indian casinos
serves no national agenda, as, for example, military bases or federal
office complexes do. Indian casinos are more like subdivisions which
local entities have better skills to plan for and to accommodate.
Amador County does not see a conflict of interest issue but rather that
Amador County is most affected by the siting of Indian casinos in the
County and its elected officials needs to have some power to protect
its citizens.
2. Under established principles of tribal sovereignty, local
communities do not have a say in decisions involving tribal
land that is already held in trust by the federal government.
However, off-reservation gaming proposals involve taking land
into trust that is currently held in fee and is often not even
closely located to trust lands.
Is it a fundamental right of tribes to have land taken
into trust on their behalf at any location within the United States
they so desire, irrespective of the distance to their current
reservation or any connection to ancestral or native lands?
AMADOR COUNTY ANSWER: Clearly not. The purpose of IGRA is to
provide income to tribes where they have ancestral land and where those
tribes' members live. Fundamental rights are Constitutionally based;
this topic is statutorily based.
If not, what limitations should apply on where a tribe
can or cannot have lands taken into trust on their behalf?
AMADOR COUNTY ANSWER: Under no circumstances should land be taken
into trust for gaming. Land may be taken into trust for non-commercial
uses, or commercial uses serving tribal residences.
Should a higher standard of review apply when the off-
reservation lands in question will be used for purposes of gaming?
AMADOR COUNTY ANSWER: It simply should not be allowed because it
converts tribes into casino operators apart from their ancestral land
and heritage.
Should this standard include active participation and a
requirement for concurrence from local governments, even though they
are generally otherwise prohibited from having a say on matters
concerning Indian lands?
AMADOR COUNTY ANSWER: Yes.
3. Tribes have long fought to protect their ancestral lands from the
unwanted incursions of outsiders, both Indian and non-Indian
alike.
If a tribe is seeking to have land taken into trust in
an area that is not within the ancestral lands of that tribe, should
other tribes whose ancestral lands encompass the site have the ability
to object to the land going into trust?
AMADOR COUNTY ANSWER: Existing tribes should be able to object
because cross-siting of tribes' land for gaming is destructive of the
sovereignty of the original tribe.
The ability to veto the land going into trust?
AMADOR COUNTY ANSWER: Yes, to protect the existing tribes' own
sovereignty.
How can the term ``ancestral lands'' be defined as
precisely as possible so it is clear to all observers, Indian and non-
Indian alike, which lands are ancestral to any given tribe?
AMADOR COUNTY ANSWER: The tribes' members and their ancestors must
have lived there. That standard is different from evidence of their
traveling in the general area in a nomadic culture or the location of
artifacts or casual burial grounds there.
4. Should a cap be placed on any revenue sharing with state
governments from an off-reservation gaming facility?
AMADOR COUNTY ANSWER: The cap should equal state income and sales
taxes lost to the state. A more important issue is that revenue sharing
equal to property and sales taxes that would accrue if the facility was
non-Indian should be paid to the affected local entity together with
funds to mitigate public costs stemming from the facility's impacts on
local entities.
If so, what should the cap percentage be?
AMADOR COUNTY'S ANSWER: Just enough to equal lost sales and
property tax and financial costs from the facilities.
5. Should a tribe be able to ask for or accept a casino operation as a
substitute, either in whole or in part, of a cash payment to
settle a land claim?
AMADOR COUNTY ANSWER: No. Casino operations have impacts beyond
money.
If a casino is acceptable as a settlement, should tribes
whose ancestral lands encompass the location where the casino would be
located be consulted before the settlement is finalized?
AMADOR COUNTY ANSWER: Yes, because of their sovereign status.
Should they be allowed veto power over such a casino-
based settlement as a tool to protect their ancestral lands?
AMADOR COUNTY ANSWER: Yes, because of their sovereign status.
6. While there have been only three incidences since IGRA was enacted
of off-reservation land being placed into trust for gaming
purposes, there are currently dozens such projects either in
the proposed stage or being reviewed by the BIA.
What impact do you think all of these proposals have on
public support for Indian gaming?
AMADOR COUNTY ANSWER: Such off-reservation siting has substituted
``live and let live'' for hostility toward all Indian gaming.
Do you believe that the vagaries of current law
regarding off reservation gaming encourage the proliferation of
proposals for off-reservation gaming?
AMADOR COUNTY ANSWER: Without doubt.
Do you believe that clarifying the law on off-
reservation gaming, and placing greater restrictions on when off-
reservation gaming is allowed, will reduce the number of proposals for
off-reservation gaming?
AMADOR COUNTY ANSWER: That depends on the restrictions.
Will such changes serve to weed out proposals for off-
reservation gaming of dubious merits?
AMADOR COUNTY ANSWER: Amador County believes that ALL off-
reservation gaming is ``of dubious merit''. All off-reservation gaming
is contrary to the goals of IGRA and should not be allowed.
7. Do you believe that the original intent of IGRA was to allow Indian
gaming to be conducted at any location within the United States
that a tribe is able to purchase and have placed into trust?
AMADOR COUNTY ANSWER: No.
Or was the original intent of IGRA to foster economic
development on Indian lands held at the date of enactment?
AMADOR COUNTY ANSWER: Yes.
8. In Minnesota, the governor is entering into an agreement with three
tribes to operate an urban casino under the auspices of the
Minnesota State Lottery. As currently constructed, IGRA would
not apply to this proposal. Is there any other statute
authorizing or requiring the Secretary of Interior to ensure
tribal interests are protected in such gaming proposal as this
where at least one of the parties is a tribal government or
tribal government business enterprise? Should there be?
Does this agreement violate the terms of any tribal-
state compact in Minnesota?
What would be the impacts to tribes around the country
if other governors entered into similar agreements with tribes in their
states?
In such a deal as proposed in Minnesota, what is the
level of federal scrutiny of outside investors, management agreements,
and vendor contracts?
Are the tribes entering into this deal capable of
determining whether or not they will benefit from it? Are they capable
of knowing whether or not developers, casino management companies, and
the state government might be taking advantage of them?
AMADOR COUNTY ANSWER: The County has no knowledge of the facts of
the Minnesota situation.
From Congressman Gibbons:
1. This Committee has held hearings on legislation that would allow a
tribe to go hundreds of miles off their reservation and open a
casino in the ancestral lands of another Tribe.
Do you have any specific suggestions on how Congress
should proceed in this regards?
AMADOR COUNTY ANSWER: Congress should require the home Tribe's and
the local entity's approval.
Also, with over 300 tribes seeking recognition and
presumably gaming, please comment on the impact that a policy
permitting ``reservation shopping'' and ``off-reservation gaming'' will
have on communities across the country.
AMADOR COUNTY ANSWER: California rural areas will be adversely
impacted extremely severely, given the California policy of allowing
Indian gaming in rural, but not urban, areas. Rural entities cannot
cope with the traffic, safety, law enforcement, and environmental
issues brought about by non-reservation casinos.
2. A few years ago, during the Proposition 5 campaign that allowed
full-scale Indian gaming in California, the tribes ran
television ads stating they wanted to do gaming just on their
reservation lands. Now in California, there are several tribes
that are trying to conduct off-reservation gaming.
If a tribe has a reservation and/or a traditional
service area, why should any tribe be permitted to establish gaming
off-reservation, distant from its reservation?
AMADOR COUNTY ANSWER: It should not be so permitted; to do so
removes the policy underpinnings of tribal gaming as originally allowed
by Congress.
Also, please comment on the fact that other tribes are
opposed to tribes seeking ``off-reservation'' gaming.
AMADOR COUNTY ANSWER: The County has no comment.
3. 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 other gaming establishments; do pay not
state taxes; etc.?
AMADOR COUNTY ANSWER: As to competition between Indian Class III
gaming facilities and non-casino gaming, the answer is clearly yes,
leading to an anticompetitive tilt in favor of Indian gaming
facilities.
4. What criteria should be used by the Department of the Interior in
it's determination of land-into-trust?
AMADOR COUNTY ANSWER: The land must first qualify as a true Indian
homeland for that tribe.
Should there be a requirement of substantial historical
connection between the tribe and the parcel to be taken into trust?
Why/why not?
AMADOR COUNTY ANSWER: The historical connection should be current.
If it isn't, the standard is open to abuse, inconsistent decisions, and
removes Indian gaming from its policy roots, of helping tribes living
on reservations to help themselves.
How recent should the historical connection be? 100
years? 200 years?
What about distance from the tribe's current service
area? 10 miles? 20 miles? 70 miles?
AMADOR COUNTY ANSWER: The siting of a gaming facility should be
only at the locus of the tribe's physical existence, its reservation.
Do you believe that the farther away the casino site is,
the less likely tribal members will be able to take advantage of
employment opportunities with a casino? [Alternatively, if the tribal
members move near the casino to get jobs, then will the traditional
community/service area be disrupted?]
AMADOR COUNTY ANSWER: Yes and yes.
5. If landless, shouldn't land-into-trust be restricted to the area
where the tribe is located? Where they live, need jobs, need
health care and services?
AMADOR COUNTY ANSWER: Yes, for all the policy reasons set forth
above.
6. If some tribes are permitted to select the ``best gaming''
locations, wouldn't all tribes want to do that?
AMADOR COUNTY ANSWER: Yes, and it removes the crucial philosophical
nexus between Indian gaming and self improvement as a tribe (if the
facility is unrelated spatially to the tribe).
What about tribes that played by the rules and have
their casino on their reservation land, even though it may not be the
best gaming location?
AMADOR COUNTY ANSWER: Tribes who game on their ancestral
reservations would not be able to compete evenly with those non-
reservation gaming tribes who can shop for locations, hurting the
efficacy of ancestral reservations.
7. Please comment on how the federal campaign contribution laws apply
to tribes and the fact that tribes are exempt from overall
donor limits and can give directly from their treasuries. No
other organization is similarly situated.
AMADOR COUNTY ANSWER: The disparate treatment of any group is not
in the interest of the body politic.
8. Please comment on the increasing trend of tribes now crossing state
lines away from their reservation to establish gaming.
AMADOR COUNTY ANSWER: It is a policy that will undermine
reservation gaming and reservations themselves.
Please comment on the situation in CO where the
Cheyenne-Arapaho of Oklahoma are seeking land in CO to establish
gaming. In that situation, the tribe is claiming 27 million acres even
though their land claims were definitively and legally settled in the
1960s. Their action is designed to force the Governor to agree to a
smaller parcel near the Denver Airport for gaming.
AMADOR COUNTY ANSWER: The United States Supreme Court has addressed
the issue of extinguished reservations in City of Sherrill v. Oneida
Indian Nation 2005 U.S. Lexis 2927 (2005): Reservations, once
extinguished, remain extinguished even when subsequently purchased by
the tribe on the open market.
______
The Chairman. Thank you.
Ms. Jaimes?
STATEMENT OF LORI JAIMES, CHAIRWOMAN, GREENVILLE RANCHERIA OF
MAIDU INDIANS, ACCOMPANIED BY DERRIL B. JORDAN, ESQ.
Ms. Jaimes. Thank you, Mr. Chairperson and members of the
Committee. We thank you for this opportunity to offer testimony
regarding the issue of off-reservation gaming. My name is Lori
Jaimes, and I am the Chairperson of Greenville Rancheria, and I
am accompanied by my attorney, Derril Jordan.
The Greenville Rancheria began as an Indian school and BIA
agency in the 1890s. The school and the agency served Maidu
Wintoons and other Indians and their children from an area that
included Plumas, Tehama, Lassen, Butte, Yuba, Sutter, and
Shasta counties. The Rancheria was terminated in 1966 under the
Rancheria Act, and it was restored in 1983 under the Tillie
Hardwick case. Since that time, we have been building and
working to rebuild our tribal government and restore a tribal
land base. Of the original 275 acres, only about 1.8 acres are
owned in trust by tribal members, and the tribe owns 8 acres
within the Rancheria in fee. Most of the remaining acreage is
owned by non-Indians, and the land within the Rancheria is
generally unfit for economic development.
Our tribe is currently attempting to acquire land in trust
in Red Bluff to establish a tribal gaming facility. As a
restored tribe, we have become very knowledgeable about the
restored land exception. There has been shamefully little
discussion of this issue that is based on a thorough
understanding of the law. I hope my testimony will bring some
light to the debate.
There are four exceptions to Section 20's general
prohibition against gaming on off-reservation lands. As we
demonstrate in our written statement, each of these means for
acquiring off-reservation land are governed by procedural and
substantive safeguards that protect the legitimate interests of
both other tribes and non-Indian communities.
Because restored tribes are generally landless, the first
step necessary to engage in gaming is to have lands acquired in
trust by the Secretary under the regulations at 25 C.F.R. Part
151. Under these regulations, the Secretary must consider, one,
the tribe's need for the land; two, the impact on the State and
local government of removing the land from the tax rolls; and,
three, the judicial problems and potential conflicts of land
use that may arise if the land is taken into trust.
For off-reservation acquisition, the Secretary must also
consider the distance of the land from the tribe's reservation,
and the applicant tribe must also submit a business plan
showing the anticipated economic benefits to the tribe. The
State and local government with jurisdiction over the land
receive notice of the proposed acquisition from the BIA, and
they are afforded an opportunity to provide comments.
Judicial review of the Secretary's decision is available
and can be overturned if it is found to be arbitrary and
capricious. In addition, the Federal courts, Interior, and the
NIGC all require a tribe to show historic and contemporary ties
to the land in order for it to qualify as restored land. I note
that our tribe has historic and contemporary ties to the Red
Bluff area. We offer the following comments with regard to the
discussion draft:
First, it would require the Secretary to determine that the
lands to be acquired in trust for a restored tribe are lands
within the State where the Indian tribe has its primary
geographic, social, and historical nexus to the land. As we
have demonstrated, Interior and the NIGC already require that a
tribe have historic and contemporary ties to land in order for
that land to be considered restored.
Proposed new Section 20(b)(1)(B)(ii) requires the Secretary
to determine that the proposed gaming activity is in the best
interest of the tribe and its members, and that it would not be
detrimental to the surrounding community. We object to this
provision because we do not think that the Secretary knows what
is in our best interest.
Second, the Secretary must already consider the impacts on
the State and local government and the expected benefits to the
tribe under the Part 151 process.
Finally, we believe that proposed new Section
20(b)(1)(B)(iii) is completely inappropriate because it
requires the approval of the State as well as every unit of
local government that has jurisdiction over the land or that is
contiguous to it. Restored tribes are generally landless and
seeking their first and likely only chance to avail themselves
of the benefits of governmental gaming under IGRA. States and
local governments simply should not have veto power over Indian
self-determination and economic development.
It is not lost on the Greenville Rancheria that a number of
the most vocal critics of off-reservation gaming are Indian
tribes with some of the most lucrative casinos in the United
States. We applaud their success, but we cannot help but wonder
why they do not support the right of their sister tribes to
achieve the same goals they have reached.
In conclusion, it is our belief that IGRA does not need to
be amended with regard to off-reservation gaming because there
is no genuine crisis in this area. Those who most loudly call
for amendment do so either because they do not understand the
process or because they want a guaranteed result in their favor
and are not content to let the process established by Congress
and implemented by the courts, Interior, and the NIGC work.
Thank you for the opportunity to testify.
[The prepared statement of Ms. Jaimes follows:]
Statement of Lori Jaimes, Chairwoman,
Greenville Rancheria of Maidu Indians
Mr. Chairman and Members of the House Resources Committee, thank
you for the opportunity to offer testimony on behalf of the Greenville
Rancheria of Maidu Indians regarding the issue of off-reservation
gaming, and to comment on the draft bill that you have circulated for
comment.
There has been much said about this issue, by both tribes seeking
to protect their economic turf and non-Indian communities seeking to
block tribal economic development, but there has been shamefully little
dialogue on this issue that is based on a thorough understanding of the
law. Most of what has been said on the subject has come in the form of
deliberate misinformation designed to give the appearance of a crisis
where none actually exists. As a restored tribe that is virtually
landless and seeking to acquire land through the restored land
exception to section 20 of the Indian Gaming Regulatory Act (IGRA), we
have a keen interest in this subject. I hope my testimony will cast
some rational light on a debate that has been for too long conducted on
the basis of misinformation, fear and greed.
As you know, there are four exceptions to section 20's general
prohibition against gaming on off-reservation lands acquired after
October 17, 1988, the date IGRA was signed into law. They are: (1) the
two-part determination under section 20(b)(1)(A); (2) the settlement of
a land claim under section 20(b)(1)(B)(i); (3) the initial reservation
of a tribe recognized by the Secretary pursuant to 25 C.F.R. Part 83,
under section 20(b)(1)(B)(ii); and (4) the restoration of lands to a
tribe that was restored to federal recognition, pursuant to section
20(b)(1)(B)(iii). As we demonstrate below, each of these means for
acquiring off-reservation land for gaming purposes has both procedural
and substantive safeguards built into them to protect the legitimate
interests of both other tribes and non-Indian communities.
THE TWO-PART DETERMINATION
With regard to the two-part determination under section
20(b)(1)(A), off-reservation land cannot be acquired in trust for
either Class II or Class III gaming purposes unless the governor of the
state in which the land is located concurs in the decision of the
Secretary of the Interior that gaming on the off-reservation land
proposed for acquisition is (1) in the best interest of the tribe, and
(2) not detrimental to the surrounding community. In reaching this two-
part determination, the Secretary must consult with state and local
officials, as well as officials from other nearby Indian tribes.
1 Assuming that the Secretary reaches the conclusion that
gaming on the proposed site will not be detrimental to the surrounding
community, there is simply no chance that off-reservation gaming will
be approved under section 20(b)(1)(A) if the governor does not concur
with the Secretary's finding, and it is extremely unlikely that the
governor will concur if the local community is opposed.
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\1\ Two-part determinations are generally accompanied by
application to acquire the land in trust under 25 C.F.R. Part 151,
which process is explained in greater detail in the next section.
Whether or not accompanied by such an application, a two-part
determination application will require compliance with the National
Environmental Policy Act (NEPA), which provides the state, local
governments, and other persons and groups in the area to comment on the
proposed acquisition.
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Furthermore, section 20 of IGRA does not establish any standard for
the governor's concurrence, and a governor is free to withhold
concurrence for any reason or no reason. See Lac Courte Oreilles Band
of Lake Superior Chippewas v. United States, 367 F.3d 650, 656 and 662
(7th Cir. 2004) (land cannot be acquired for gaming purposes under
section 20(b)(1)(A) unless and until a governor responds to the
Secretary's request for a concurrence, and the governor can willfully
ignore such request); Confederate Bands of Siletz Indians v. United
States, 841 F. Supp. 1479, 1486 (D.C. Oregon), affirmed on other
grounds 110. F.3d 688, 697 (9th Cir. 1997), certiorari denied 522 U.S.
1027 (1997)(``[t]he Governor, by doing nothing, can defeat the DOI's
determination in favor of granting a tribe's application for an
exception to Sec. 2719(a).'') There is virtually no chance that gaming
will occur under this exception if the local community and the governor
of the respective state do not both support the Tribe's application.
Nearby Indian tribes are also consulted as part of the two-part
determination process. Although IGRA was not intended to protect tribes
from competition from other tribes, Sokaogon Chippewa Community v.
Babbitt, 214 F.3d 941, 947 (7th Cir. 2000), it would be appropriate for
Interior to consider credible information that the proposed new gaming
will have a crippling impact on existing tribal gaming operations.
Section 20 (b)(1)(A) adequately provides fo the protection of the
legitimate interests of existing gaming operations.
THE SETTLEMENT OF A LAND CLAIM
The settlement of a land claim under section 20(b)(1)(B)(i)
generally requires the approval of Congress pursuant to 25 U.S.C.
Sec. 177 2, so no gaming can occur under this exception
unless Congress has approved the acquisition of the land in the
legislation that settles the tribe's land claim. The need for the
enactment of legislation by Congress provides a chance for everyone to
be heard, including the state through its delegation, 3 and
the community involved through its Senators and Congressional
representative. Congress has a full opportunity to weigh the pros and
cons of a particular land claim settlement and the propriety of gaming
on land acquired through the settlement. This is an eminently fair and
balanced process, and leaves little room for complaint outside of the
``sour grapes'' whining of those who didn't get their way.
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\2\ Section 177 provides in pertinent part that:
No purchase, grant, lease, or other conveyance of lands, or of any
title or claim thereto, from any Indian nation or tribe of Indians,
shall be of any validity in law or equity, unless the same be made by
treaty or convention entered into pursuant to the Constitution Every
person who, not being employed under the authority of the United
States, attempts to negotiate such treaty or convention, directly or
indirectly, or to treat with any such nation or tribe of Indians for
the title or purchase of any lands by them held or claimed, is liable
to a penalty of $1,000. The agent of any State who may be present at
any treaty held with Indians under the authority of the United States,
in the presence and with the approbation of the commissioner of the
United States appointed to hold the same, may, however, propose to, and
adjust with, the Indians the compensation to be made for their claim to
lands within such State, which shall be extinguished by treaty.
\3\ Because most land claims under 25 U.S.C. Sec. 177 involve
illegal purchases of tribal land by state governments, most land claim
settlements are achieved by Congressional ratification of an agreement
between the state and the tribe whose lands were illegal purchased.
Therefore, it is at least highly unlikely that a land claim settlement
bill can be passed over the objections of state.
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THE INITIAL RESERVATION OF A NEWLY RECOGNIZED TRIBE
Tribes recently recognized by the Secretary pursuant to 25 C.F.R.
Part 83 are generally landless at the time of recognition. In order to
engage in gaming, a newly recognized tribe will have to have lands
acquired in trust for it by the Secretary of the Interior pursuant to
section 5 of the Indian Reorganization Act (IRA)(25 U.S.C. Sec. 465),
and 25 C.F.R. Part 151. Under the Part 151 regulations, the Secretary
must consider the following factors:
(1) the applicant tribe's need for the land (25 C.F.R.
Sec. 151.10(b);
(2) the impact on the state and local governments of removing the
land from the tax rolls (25 C.F.R. Sec. 151.10 (e)); and
(3) jurisdictional problems and potential conflicts of land use
that may arise if the land is taken into trust (25 C.F.R. Sec. 151.10
(f).
For off-reservation acquisitions, 4 the Secretary must also
consider the distance of the land from tribe's reservation under
Sec. 151.11 (b), and the applicant tribe must also submit a business
plan showing the anticipated economic benefits to the tribe as required
by Sec. 151.11 (c).
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\4\ All trust land acquisitions for a landless tribe are, by
definition, off-reservation acquisitions.
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The state and the local government with jurisdiction over the land
proposed for trust acquisition receive notice of the proposed
acquisition from the Bureau of Indian Affairs (BIA), and they are
afforded an opportunity to provide comments to the BI A. 25 C.F.R.
Sec. 151.10. Compliance with NEPA is also required. 25 C.F.R.
Sec. 151.10(h). Finally, judicial review of the Secretary's decision
regarding a specific trust acquisition is available under the
Administrative Procedures Act (APA), and the Secretary's decision can
be overturned by a court if it is found to be arbitrary and capricious,
an abuse of discretion, or not in accordance with law. 5 U.S.C.
Sec. 706.
If land is successfully acquired in trust for a newly recognized
tribe, the next step is for the Secretary to issue a proclamation
proclaiming the land to be a reservation under 25 U.S.C. Sec. 467. The
acquisition in trust and the reservation proclamation together qualify
the land as the tribe's initial reservation. A newly recognized tribe
may avoid the general prohibition of section 20 of IGRA only with
regard to those trust lands that are the subject of the Secretary's
first reservation proclamation--the tribe's ``initial reservation.''
(See memoranda dated December 13, 2000, from the Acting Associate
Solicitor for Indian Affairs to the Regional Director of the BIA's
Midwest Regional Office about the designation of lands as the initial
reservation for the Huron Potawatomi Band in Michigan (``Huron
Potawatomi Memorandum''). Moreover, Interior generally requires a tribe
to show that it has historic and contemporary ties to land before it
will designate land as the initial reservation of a newly recognized
tribe. See the Huron Potawatomi Memorandum.
In short, there is a lengthy process for the acquisition of trust
land and the declaration of that land as initial reservation that
affords the state and impacted local government(s) and land owners an
opportunity for input. Interior has established a substantive standard
that requires that the tribe have both historic and contemporary ties
to the land in order for it to be declared as the tribe's initial
reservation. Finally, the Secretary's decision is reviewable in the
federal courts. Once again, we have a fair and balanced process with
both procedural and substantive safeguards.
THE RESTORATION OF LAND TO A TRIBE THAT IS RESTORED TO FEDERAL
RECOGNITION
Restored tribes are also likely to be landless because their land
was distributed in fee to tribal members at the time of termination, or
sold to non-Indians, or both. Much of the land that was distributed to
members was lost through tax sales and by other means. That is
certainly what happened to the Greenville Rancheria, as well as to many
of the other Rancherias terminated under the California Rancheria Act.
72 Stat. 69 (1958).
Like a newly recognized tribe, in order to engage in gaming, a
restored tribe will have to have lands acquired in trust for it by the
Secretary under section 5 of the IRA and the regulations at 25 C.F.R.
Part 151, including the notice and comment procedures, and the
consideration of the substantive regulatory criteria regarding taxes,
land use, and jurisdictional conflicts.
As to the determination of whether the land proposed for
acquisition can be considered restored, the federal courts require a
tribe to show historic and contemporary ties to the land in order for
it to qualify as land restored to a tribe that has been restored to
federal recognition. See Grand Traverse Band v. United States, 198 F.
Supp. 2d 920, 929-30 (W.D. Mich. 2002); Grand Traverse Band v. United
States, 46 F. Supp. 2d 689, 698 (W.D. Mich. 1999); and Confederated
Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt, 116 F. Supp.
2d 155 (D.D.C. 2000). Interior also requires the showing of such a
nexus. (See Memorandum of December 5, 2001 from the Associate
Solicitor-Indian Affairs to the Assistant Secretary-Indian Affairs
regarding the Confederated Tribes of Coos, Lower Umpqua & Siuslaw
Indians.) The National Indian Gaming Commission (NIGC) is no exception.
(See the August 31, 2001 letter from Kevin K. Washburn, NIGC General
Counsel to Judge Hillman of the Federal District for the Western
District of Michigan regarding the Grand Traverse Band's Turtle Creek
Casino; the August 5, 2002 decision of the NIGC regarding the
Rohnerville Rancheria; the March 14, 2003, decision of the NIGC
regarding the Mechoopda Indian Tribe of the Chico Rancheria; and the
September 10, 2004 decision of the NIGC regarding the Wyandotte Nation.
(The Interior and NIGC opinions are available at www.nigc.gov./
resources/Indian Land Determinations.) Once again, both procedural and
substantive safeguards prevent the abuse of the exception designed to
allow restored tribes to avail themselves of the intended benefits of
tribal governmental gaming under IGRA.
COMMENTS ON DISCUSSION DRAFT
We offer the following comments with regard to the Discussion
Draft, which would amend section 20(b)(1) in several important ways
significant to restored and newly recognized tribes. First, it would
require the Secretary to determine that the lands to be acquired in
trust ``are lands within the state where the Indian tribe has its
primary geographic, social, and historical nexus to the land.'' As
demonstrated above, Interior and the NIGC already require that a tribe
have historic and contemporary ties to land in order for that land to
either be designated as a newly recognized tribe's initial reservation,
or considered restored lands to a restored tribe.
Proposed new section 20(b)(1)(B)(ii) requires the Secretary to
determine that the proposed gaming activity is in the best interest of
the tribe and its members, and that it would not be detrimental to the
surrounding community. We object to this new subsection on several
grounds. First, we do not think that the Secretary of the Interior is
in a better position than our Tribal Council to determine what is in
the best interests of our Tribe or our members. Second, both of these
considerations are already addressed through the Secretary's
consideration of the tribe's application to have the land acquired in
trust under 25 C.F.R. Part 151. The factors the Secretary considers
under 25 C.F.R. Sec. Sec. 151.10(e) & (f) already require the Secretary
to consider impacts on the state and local government, and 25 C.F.R.
Sec. 151.11(c) already requires the Secretary to consider the expected
benefits to the tribe.
Finally, we believe that proposed new section 20(b)(1)(B)(iii) is
completely inappropriate because it requires the approval of the state
as well as every unit of general purpose local government that has
jurisdiction over the land or that is contiguous to it. Remember that
restored and newly recognized tribes are generally landless and seeking
their first and likely only chance to avail themselves of the benefits
of governmental gaming under IGRA. As discussed above, a restored or
newly acknowledged tribe must show that it has historic and
contemporary ties to the land it wishes to acquire for gaming purposes.
States and local governments simply should not have veto power over
Indian self-determination and economic development. The enactment of
such a provision would constitute a major abandonment of the United
States' historic trust responsibility to protect tribal self-government
from encroachments by state and local governments.
With regard to the Indian Economic Opportunity Zones proposed in
the new section 20(e), we do not understand the purpose of proposed
sections (e)(2)(B)(i) and (ii). The former restricts the practical
ability of a tribe to choose another tribe as its manager because it
limits the management fee to ten (10) percent. This seems to us an
unfair limitation on potential tribal managers given that non-tribal
managers can receive up to forty (40) percent of net revenues as a
management fee. Section (e)(2)(B)(i) means that a tribe that needs an
investment partner will have to do business with a non-Indian investor.
We can see no reason to restrict the economic choices of tribes needing
management or investment assistance, or of tribes who may choose to
invest their wealth to help other tribes.
Also, we can see no purpose in limiting eligibility to tribes that
have no ownership interest in another tribal gaming facility. It should
not be assumed that because a tribe already has a casino, it is rolling
in money. Most tribal casinos are modest and do not generate enough
revenues to enable tribal governments to meet more than a century of
unmet needs. The opportunity to participate in gaming in an Indian
Economic Opportunity Zone may afford a tribe an opportunity to
supplement the modest income it receives from its reservation-based
casino to help it to better serve the tribal community.
Finally, proposed new Section (e)(3)(D) is completely
objectionable. There is no reason that tribes within 200 miles of the
Proposed Zone should have to approve. Market sizes differ from one
region of the country to another depending, in part, upon factors such
as population density and per capita income. Moreover, IGRA should not
insulate tribes from ordinary economic competition from other tribes.
CONCLUSION
Each of the four exceptions to section 20's general prohibition
against gaming on off-reservation lands is subject to procedural
safeguards and substantive standards that prevent abuse of the process
of qualifying for the right to conduct off-reservation gaming. There is
no crisis in this area. Granted, a number of tribes are seeking to
qualify for one or more of the exceptions, but all that is required is
that the process for each such application be given a chance to work.
We believe very strongly that tribes should be good, responsible
neighbors and work with state and local governments to improve the
quality of life for everyone, Indian and non-Indian alike. Nonetheless,
non-Indian communities simply cannot be given veto power over the self-
determination and economic development efforts of federally recognized
Indian tribes, especially landless tribes that presently have no
reservation.
It is not lost on the Greenville Rancheria that some of the most
vocal critics of off-reservation gaming are Indian tribes with many of
the most lucrative casinos in the United States. We applaud their
wealth and success, and look to them as examples of how successful
Indian economic development can be. Nonetheless, upon hearing their
complaints, we cannot help but wonder why they do not support the right
of their sister tribes to achieve the same goals that they have worked
so long and hard to reach. We, too, want to rebuild our land base and
provide health care and decent housing to our families and elders. We
have the same desire to restore our language and renew our culture. The
concern they express about backlash from non-Indian communities strikes
us as hypocritical, not to mention shortsighted. Federal Indian policy
should not be dictated by non-Indian communities, and we find it
cruelly ironic that some tribal governments are suggesting that the
fears and prejudices of non-Indian communities should dictate the
economic development opportunities available to landless tribes. We
think they would not be so eager to be dictated to themselves by the
state or local governments, but some how they believe that the
interests of non-Indians should trump the ability of other tribes to
pursue what they have. Have they become so rich and powerful that they
have forgotten what it means to be Indian?
In conclusion, it is our belief that IGRA does not need to be
amended with regard to off-reservation gaming because there is no
genuine problem or crisis in this area. Those who most loudly call for
amendment do so either because they do not understand the process, or
because they want a guaranteed result in their favor and are not
content to let the process established by Congress and implemented by
the courts, Interior, and the NIGC work.
______
[Responses to questions submitted for the record by Lori
Jaimes, Chairperson, Greenville Rancheria follow:]
Greenville Rancheria
P.O. Box 279
410 Main Street
Greenville, CA 95947
Phone: (530) 284-7990
Fax: (530) 284-6612
Re: Response to Follow-up Questions from March 17, 2005 Hearing
Dear Chairman Pombo:
I want first to take the opportunity to thank you for offering me
the opportunity to testify at the March 17 hearing on off-reservation
gaming. This is a very important issue to all tribes, especially
landless tribes like the Greenville Rancheria, and we look forward to
working with the Committee as it deals with this issue.
I wish to reiterate a point I made in my testimony to the
Committee. Our tribe was illegally terminated under the Rancheria Act,
72 Stat. 619, and restored by the decision in Hardwick v. United
States. No. C-79-1710-SW, Stipulation for Entry of Judgment
(Decemberl5, 1983). We are a landless tribe seeking to take land into
trust pursuant to the restored land exception set forth in section 20
(b)(l)(B)(iii) of the Indian Gaming Regulatory Act (IGRA). As I pointed
out in my written testimony, and as discussed below in the answer to
your question 2, the restored land exception is quite different from
the two-part determination process under section 20 (b)(l)(A). These
two exceptions to section 20's general prohibition against gaming on
lands acquired after the date of IGRA's enactment serve different
legislative purposes and should not be confused with each other or
lumped together. In general, the two-part determination process is
intended for tribes that had reservations or trust lands as of the date
of IGRA's enactment, whereas the restored tribe exception is intended
to benefit restored tribes that are landless due to termination. The
acquisition of land for gaming purposes by restored tribes should not
be at the mercy of states and local governments. To give those
governments veto power over the land acquisition efforts of restored
tribes would serve only to continue the injustice they faced when they
were terminated. Also, empowering state and local governments in this
way would only increase their leverage in demanding large payments from
restored tribes and this would be counterproductive to your goal of
protecting tribal gaming revenues so that they primarily benefit the
tribes as intended by IGRA.
Our response to your questions and those of Representative Gibbons
are attached to this letter. Please do not hesitate to contact me if we
can provide further information to the Committee.
Very truly yours,
Lori Jaimes, Chairperson, Greenville Rancheria
Attachment
______
RESPONSE TO QUESTIONS FROM CHAIRMAN POMBO
Question 1
We do not agree that there is a wide-spread problem of state
governors ignoring the concerns of local governments. As question 3
acknowledges, only three two-part determinations have been approved
since the enactment of IGRA almost 16 1/2 years ago. It is difficult to
discern from these statistics any hard evidence that state governors
have abandoned local communities in the context of the two-part
determination process.
Furthermore, a governor's lack of sensitivity to the concerns of
local communities is a political problem best addressed through the
political process. Governors need the votes of state citizens to win
reelection or to help ensure the election of a successor from their
political party. Local communities are represented in the state
legislature by both state senators and house or assembly members, and
the governor needs the support of these state legislators to pass
budgets and enact the governor's programs and initiatives. Conversely,
with Indians being such a distinct minority in every state in the
United States, governors generally have little to fear at the ballot
box by siding with non-Indian communities in disputes or disagreements
between those communities and Indian tribes. In short, governors have
every incentive to be sensitive to the concerns of local communities
and their governments.
Governors are generally called on to determine the best interests
and balance the needs of the state as a whole in almost everything they
do. It is no different when they are called on to decide whether to
concur in a favorable two-part determination rendered by the Secretary
of the Interior (``Secretary''). In short, we think that the present
system balances the rights of tribes, and state and local governments
about as well as can be expected given the age-old conflict between
Indian tribes on one hand and state and local governments on the other.
Question 2
We do not think that it is a fundamental right of tribes to have
land taken into trust on their behalf at any location within the United
States they so desire, irrespective of the distance to their current
reservation or any connection to ancestral or native lands, and no
knowledgeable observer of Indian affairs can truthfully say that the
Department of Interior (``Interior'') is acquiring land in trust on
behalf of tribes ``at any location within the United States.'' Granted
some tribal proposals are without merit, but the law should not be
changed to bar consideration of legitimate proposals in order to deal
with extreme cases. The present rules and standards are well equipped
to deal with these cases if the process is given an opportunity to
work.
The regulations at 25 C.F. R. Part 151 impose meaningful standards
with regard to trust land acquisitions. Under those regulations, the
Secretary must consider the following factors:
(1) the applicant tribe's need for the land (25 C.F.R.
Sec. 151.10(b);
(2) the impact on the state and local governments of removing the
land from the tax rolls (25 C.F.R. Sec. 151.10 (e)); and
(3) jurisdictional problems and potential conflicts of land use
that may arise if the land is taken into trust (25 C.F.R. Sec. 151.10
(f)).
For off-reservation acquisitions, pursuant to Sec. 151.11 (b), as the
distance from the tribe's reservation increases, the Secretary gives
greater scrutiny to the tribe's justification of anticipated benefits
from the acquisition, and greater weight is given to the concerns of
state and local governments with regard to factors covered by
Sec. Sec. 151.10 (e) and (f). 1 These regulatory
requirements virtually ensure that no tribe will ever be able to take
land into trust far from its reservation, especially if state or local
government is opposed.
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\1\ All trust land acquisitions for a landless tribe are, by
definition, off-reservation acquisitions. We assume that, for landless
tribes, the Secretary considers the distance of the land proposed for
acquisition from the tribe's service area.
---------------------------------------------------------------------------
The Greenville Rancheria does support limits on off-reservation
gaming, and under the current system, there are standards that prevent
tribes from taking land into trust anywhere they desire. As I pointed
out in my written testimony to the Committee, the federal courts,
Interior, and the National Indian Gaming Commission (NIGC) all require
a tribe to show historic and contemporary ties to land in order for it
to qualify pursuant to section 20 (b)(1)(B)(iii) as land restored to a
tribe that has been restored to federal recognition. See Grand Traverse
Band v. United States, 198 F. Supp. 2d 920, 929-30 (W.D. Mich. 2002);
Grand Traverse Band v. United States, 46 F. Supp. 2d 689, 698 (W.D.
Mich. 1999); and Confederated Tribes of Coos, Lower Umpqua & Siuslaw
Indians v. Babbitt, 116 F. Supp. 2d 155 (D.D.C. 2000). See also
Memorandum of December 5, 2001 from the Associate Solicitor-Indian
Affairs to the Assistant Secretary-Indian Affairs regarding the
Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians.); August
31, 2001 letter from Kevin K. Washburn, NIGC General Counsel to Judge
Hillman of the Federal District for the Western District of Michigan
regarding the Grand Traverse Band's Turtle Creek Casino; the August 5,
2002 decision of the NIGC regarding the Rohnerville Rancheria; the
March 14, 2003, decision of the NIGC regarding the Mechoopda Indian
Tribe of the Chico Rancheria; and the September 10, 2004 decision of
the NIGC regarding the Wyandotte Nation. (The Interior and NIGC
opinions are available at www.nigc.gov./resources/Indian Land
Determinations.)
As also discussed in my written testimony, Interior requires a
tribe that was acknowledged pursuant to the regulations at 25 C.F.R.
Part 83, to show that it has historic and contemporary ties to land
before Interior will designate land as the initial reservation of such
tribe pursuant to section 20 (b)(1)(B)(ii).'' (See memoranda dated
December 13, 2000, from the Acting Associate Solicitor for Indian
Affairs to the Regional Director of the BIA's Midwest Regional Office
about the designation of lands as the initial reservation for the Huron
Potawatomi Band in Michigan and June 23, 2003 from the Acting Associate
Solicitor for Indian Affairs to the Regional Director of the BIA's
Midwest Regional Office about the designation of lands as the initial
reservation for the Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians of Michigan.)
What is of concern to the Greenville Rancheria, and other landless
tribes that we have communicated with, is that it appears that the
Committee--not to mention other tribes and the media--is lumping all
off-reservation gaming into one category, failing to distinguish
between two-part determinations under section 20 (b)(1)(A) from the
applications of landless tribes under sections 20 (b)(1)(B)(ii) and
(iii). The Greenville Rancheria does not categorically oppose tribes
seeking off-reservation gaming operations through the two-part
determination of section 20 (b)(1)(A); we are confident that most are
meritorious, and realize that some are completely lacking in merit.
Nevertheless, two-part determinations, no matter how meritorious,
should not be confused with applications on the bases of sections 20
(b)(1)(B)(ii) and (iii).
In City of Roseville v. Norton, 348 F.3d 1020, 1030 (D.C. Cir.
2003) the Court of Appeals held that ``the exceptions in IGRA
Sec. 20(b)(1)(B) serve purposes of their own, ensuring that tribes
lacking reservations when IGRA was enacted are not disadvantaged
relative to more established ones.'' The Court also recognized that
Sec. 20(b)(1)(B)(ii) ``provides a parallel exception for the `initial
reservation of an Indian Tribe acknowledged by the Secretary,''' and
noted the parallel placement of the two exceptions in the statute, as
well as the analogous situation in which restored and acknowledged
tribes find themselves'' (which is to say landless). City of Roseville
at 1030-31. The Court also emphasized ``the role that IGRA's exceptions
in Sec. 20(b)(1)(B) play in the statutory scheme, namely to confer a
benefit onto tribes that were landless when IGRA was enacted.'' City of
Roseville at 1032.
The court makes clear that the purpose of the exceptions contained
in section 20 (b)(1)(B)(ii) and (iii) is to provide tribes that were
landless at the time of IGRA's enactment a chance to share in the
economic development opportunities of tribal governmental gaming
without having to comply with the two-part determination provision of
section 20(b)(1)(A). The two-part determination was intended for tribes
that had land at the time of IGRA's enactment, and therefore an
opportunity to game on existing tribal lands without being subject to
the two-part determination and the governor's veto power. 2
The distinction between two-part determinations under section 20
(b)(1)(A) and applications for landless tribes under sections 20
(b)(1)(B)(ii) and (iii) was valid in 1988, it is still valid in 2005,
and it should not be discarded by Congress.
---------------------------------------------------------------------------
\2\ As the court points out, bills considered in earlier Congresses
contained a prohibition against gaming on lands acquired after
enactment, but they did not contain the exceptions set forth in Section
20(b)(1)(B). City of Roseville at 1029 (noting that ``neither H.R. 1920
nor its Senate counterpart contained the ``restoration of land''
exception'').
---------------------------------------------------------------------------
In summary, the Greenville Rancheria believes that the regulations
at 25 C.F.R. Part 151, the two-part determination process 3,
including the governor's veto authority and the requirement that
restored and acknowledged tribes show both historical and contemporary
ties to the land, all work to ensure that tribes are not able to take
land into trust for gaming purposes anywhere they may desire. Local
communities are consulted through the Part 151 process and the two-part
determination process. 4 If a restored or acknowledged tribe
can show sufficient ties to the land, neither states or local
communities should have veto power over trust acquisitions; to permit
such a veto power would be an abdication of the United States' trust
responsibility to these landless tribes.
---------------------------------------------------------------------------
\3\ Two-part determination applications are usually accompanied by
Part 151 applications.
\4\ Compliance with the National Environmental Policy Act is also
required for Part 151 applications and two-part determinations, and
this process also provides an opportunity for community input.
---------------------------------------------------------------------------
Question 3
Like question 2, this question lumps all off-reservation proposals
together, failing to distinguish between two-part determinations and
applications by restored or acknowledged tribes. It also fails to
recognize that the courts, Interior, and the NIGC all require a
restored or acknowledged tribe to show that it has historical and
contemporary ties to the land it wishes to acquire for gaming purposes.
Whether a tribe seeks to enter into the aboriginal territory of
another, existing tribe in the context of a two-part determination is a
relevant factor for consideration by Interior, and Interior should
consult with the indigenous tribe to determine what, if any, economic
impact the proposed casino will have on it.
Keep in mind that tribal aboriginal territories often changed as
tribes moved into other areas. For example, in Strong v. United States,
518 F.2d 556, 565-66 cert. denied 423 U.S. 1015 (1975), the Court of
Claims recognized the establishment of aboriginal title for two tribes
for use starting in the mid-1700s. The Strong court affirmed the Indian
Claims Commission's (``Commission'') finding of aboriginal title for
the Delaware and Shawnee Tribes in two small portions of Royce Area 11
in Ohio. 31 Ind. Cl. Comm. 89, 121-23 (1973). The Delaware owned their
tract from 1742 to 1781, and the Shawnee tract was ``continuously used
and occupied . . . from the late 1730's until they were forced to
abandon these lands in the late 1770's.'' 31 Ind. Cl. Comm. at 122-23.
The fact that the Delaware and Shawnee tribes did not establish their
uses in Ohio's Royce Area 11 until the mid 1700s demonstrates that they
moved there from other areas.
Some areas were also shared by several tribes. As a general rule,
when a tribe attempts to claim aboriginal title to a piece of land, it
must prove that it exclusively used and occupied at least portions of
the land in question ``to the exclusion of other Indian groups.''
United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct. Cl.
1975). However, this general rule on exclusive use is subject to
several exceptions, including the joint and amicable use exception,
under which ``two or more tribes or groups might inhabit an area in
``joint and amicable'' possession without erasing the ``exclusive''
nature of their use and occupancy.'' Pueblo of San Ildefonso, 513 F.2d
at 1394 (affirming the Commission's holding that the Pueblos of San
Felipe and Santo Domingo held ``joint aboriginal title'' from at least
1770 to June 13, 1902 to approximately 8,600 acres of land). The court
has acknowledged on several other occasions that two or more tribes or
groups might inhabit a region in joint and amicable possession without
destroying the ``exclusive'' nature of their use and occupancy, and
without defeating Indian title. Turtle Mountain Band of Chippewa
Indians v. United States, 203 Ct. Cl. 426, 442 (1974); Iowa Tribe of
the Iowa Reservation in Kansas and Nebraska v. United States, 195 Ct.
Cl. 365, 370 (1971), cert. denied, 404 U.S. 1017 (1972); Confederated
Tribes of the Warm Springs Reservation of Oregon v. United States, 177
Ct. Cl. 184, 194 n 6 (1966) Sac and Fox Tribe of Indians v. United
States, 161 Ct. Cl. 189 n 11, cert. denied, 375 U.S. 921 (1963).
In addition to the changing and sharing of territories, some tribes
were preciseness out by wars, disease, enslavement, and other
depredations. In other words, not every inch of the United States is
covered by the aboriginal territory of an existing tribe (whether or
not federally recognized). Also, many tribes were removed from their
aboriginal territory to other parts of the United States. How should
such tribes be treated, whether they seek to establish an off-
reservation gaming site or to protest the establishment of one by
another tribe?
Finally, because of the depredations committed against the Indians
of California, and due to the dislocations that resulted, the use of
the concept of aboriginal territory or even ``ancestral lands'' can be
very misleading. Not much was known about California's native peoples
before the onslaught of Euro-American settlement. Because of the rapid
and extreme devastation experienced by Indian communities due to the
gold rush, early twentieth century ethnographers had to use what is
referred to as ``salvage ethnography'' to try to piece together the
social, cultural, and political fabric of native life before the
invasion of their territory by the gold rushers and those who followed.
As a result, it is simply not possible to establish aboriginal
territory in California with the same level of preciseness that may be
achievable in other areas of the United States.
What's more, because of the dislocation of Indian communities in
California, many current- day tribes are made up of people of more than
one tribal heritage. Our own tribe is made up of people of Mountain and
Conkow Maidu heritage, as well as people of Wintun ancestry. Further,
because they were illegally dispossessed of our homelands, our
ancestors were no longer able to sustain themselves through the
traditional means of hunting, fishing, and gathering, so they were
forced to neighboring areas in order to find work as a means to
survive. Our ties to these areas date back to the early to mid 1850s,
well in excess of the time the Indian Claims Commission determined is
sufficient for a tribe to establish aboriginal territory. See United
States v. Seminole Indians, 180 Ct. Cl. 375, 387 (1967) (refusing to
set fifty years as the minimum number of years for establishing
aboriginal title in all cases); The Alabama-Coushatta Tribe of Texas v.
United States, 1996 U.S. Claims LEXIS 128 (1996) (concluding that the
Tribe had sufficiently domesticated the land supporting its village
sites and the immediate vicinity for a period of 30 years, satisfying
the long time requirement); Confederated Tribes of Warm Springs Res. v.
United States, 177 Ct. Cl. 184, 194 (1966) (quoting Sac and Fox Tribe
of Indians of Oklahoma v. United States, 315 F.2d 896, 905, cert.
denied, 375 U.S. 921 (1963)) (``The time requirement [of the aboriginal
title doctrine], as a general rule, cannot be fixed at a specific
number of years'').
In summary, questions regarding the definition of aboriginal (or
ancestral) territory, and the weight to be given such territory in two-
part determinations, require a collaborative effort between Indian
country and the Committee. The Greenville Rancheria is willing to
cooperate in such an effort.
Question 4
A cap should be placed on all revenue sharing with state
governments--whether from on- or off-reservation gaming. First, revenue
sharing should not be permitted unless annual tribal net revenues reach
a certain level: for example $5 or $10 million. The percentage paid on
revenues exceeding the exempt amount should be capped at about ten
percent, and should be permissible only in exchange for substantial
economic benefit, such as the exclusive right to offer certain gaming
activities.
Question 5
If the United States and the various states are unable to afford
the necessary financial commitment that will enable the settlement of a
land claim, some other form of consideration must be identified in
order to permit a settlement that is fair to the tribal claimant and
that leads to the quieting of titles in the claim area. The right to
operate a casino is a significant right that can constitute valuable
consideration and support the extinguishment of a tribe's land claim.
Because land claims under 25 U.S.C. Sec. 177 generally involve
illegal purchases or takings of tribal land by state governments, the
settlement of a land claim brought under 25 U.S.C. Sec. 177
5 generally requires an agreement between the state and the
tribal claimant, and the tribal/state settlement agreement must be
approved by Congress. 6 The need for the enactment of
legislation by Congress provides a chance for everyone to be heard--
including the state, local communities, the claimant tribe, and other
tribes that might be impacted--directly by Congress and through their
respective delegations. Gaming under section 20(b)(1)(B)(i) can not
take place without a tribal/state settlement and without an act of
Congress. In short, Congress has a full opportunity to weigh the pros
and cons of a particular land claim settlement and the propriety of
gaming on land acquired through the settlement.
---------------------------------------------------------------------------
\5\ Section 177 provides in pertinent part that:
No purchase, grant, lease, or other conveyance of lands, or of any
title or claim thereto, from any Indian nation or tribe of Indians,
shall be of any validity in law or equity, unless the same be made by
treaty or convention entered into pursuant to the Constitution Every
person who, not being employed under the authority of the United
States, attempts to negotiate such treaty or convention, directly or
indirectly, or to treat with any such nation or tribe of Indians for
the title or purchase of any lands by them held or claimed, is liable
to a penalty of $1,000. The agent of any State who may be present at
any treaty held with Indians under the authority of the United States,
in the presence and with the approbation of the commissioner of the
United States appointed to hold the same, may, however, propose to, and
adjust with, the Indians the compensation to be made for their claim to
lands within such State, which shall be extinguished by treaty.
\6\ For example see the following:
Rhode Island Indian Claims Settlement (25 U.S.C. Sec. Sec. 1701 et
seq.) (Acknowledging that the Settlement Agreement executed between
parties to the lawsuits and others interested in the settlement of
Indian land claims within Rhode Island requires implementing
legislation by Congress and the legislature of Rhode Island) See
Sec. 1701(d).
Florida Indian (Miccosukee) Land Claims Settlement (25 U.S.C.
Sec. Sec. 1741 et seq.) (Acknowledging that agreements executed between
Florida and the Miccosukee Indian Tribe for the purposes of resolving
tribal land claims and settling lawsuits involving land claims require
implementing legislation by Congress and the Legislature of Florida)
See Sec. 1741(4).
Connecticut Indian Land Claims Settlement (25 U.S.C. Sec. Sec. 1751
et seq.) (Recognizing that the parties to the lawsuit and others
interested in the settlement of Indian land claims within Connecticut
have reached an agreement which requires implementing legislation by
Congress and the Legislature of Connecticut) See Sec. 1751(d).
Massachusetts Indian Land Claims Settlement (25 U.S.C.
Sec. Sec. 1771 et seq.) (Acknowledging that the parties to the lawsuit
and others interested in settlement of Indian land claims within
Massachusetts executed a Settlement Agreement that, to become
effective, requires implementing legislation by Congress and the
General Court of Massachusetts) See Sec. 1771(4).
Florida Indian (Seminole) Land Claims Settlement (25 U.S.C.
Sec. Sec. 1772) (Acknowledging that the State, the district, and the
tribe have executed agreements for the purposes of resolving tribal
land claims and settling the lawsuit that require implementing
legislation by Congress and the Legislature of Florida) See
Sec. 1772(4)(B).
Mohegan Nation (Connecticut) Land Claims Settlement (25 U.S.C.
Sec. Sec. 1775 et seq.) (Recognizing that, in order to implement the
agreements between Connecticut and the Mohegan Tribe, executed for
settlement of the action referred to in this Subchapter, it is
necessary for the Congress to enact legislation) See Sec. 1775(a)(8).
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Question 6
Indian tribal sovereignty generally, and Indian gaming in
particular, are unpopular in the eyes of much of the public. That this
has long been so demonstrated by cases such as Cherokee Nation v.
Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515
(1832). Since the Supreme Court decided these cases early in our
Nation's history, it and other federal courts have decided literally
hundreds of cases wherein states and local governments have attempted
to: (1) tax tribal lands and the incomes of reservation Indians; (2)
regulate the use of reservation and trust lands; (3) curtail the
exercise of hunting and fishing rights; and (4) regulate and adjudicate
the internal relations of Indian tribes; and (5) challenge almost every
exercise of tribal self-government. If Indian tribal government did
only those things that enjoyed wide spread public support, we would
have to give up our sovereignty and right to self-government. So, the
level of public support enjoyed by Indian tribes cannot be the sole or
primary guide to how we exercise our sovereignty, nor should it be such
to our trustee, the United States, whether acting through Congress, the
executive branch, or the federal courts, when protecting our
sovereignty and powers of self-government.
More than anything, what encourages the proliferation of off-
reservation gaming proposals is the number of landless tribes and the
severe poverty throughout Indian country. We do believe that steps can
be taken that will make the process of acquiring land for off-
reservation gaming purposes more transparent, and additional
transparency may in turn reduce the number of such proposals by
eliminating those that lack serious merit. We do not think that greater
restrictions are necessary because we believe that the standards
addressed in Question 2, and the gubernatorial veto power of the two-
part determination process, provide sufficient protection. We believe
that Interior should adopt regulations that make clear the Secretary's
decision-making process, and the factors considered, under the two-part
determination. Likewise, Interior should adopt a regulation that sets
forth the standards and procedures for determining whether land
qualifies as restored to a restored tribe or the initial reservation of
an acknowledged tribe.
We understand the desire for certainty because we would like to
have certainty with regard to our own proposal. Anyone knowledgeable
about the legal history of Indian affairs in our country realizes that,
while Indian tribes have much in common, they all have their own unique
histories and experiences in dealing with the onslaught of American
expansion. A ``one-size-fits all'' approach to the issue of off-
reservation gaming is bound to be grossly unfair to most tribes still
struggling to climb out of poverty and despair and to become self-
sufficient. What is needed is a fair, flexible, and transparent
process, and we believe that this can be done through regulations.
Congress should encourage Interior to engage in negotiated rule makings
on this subject. The Greenville Rancheria will be a willing participant
in such an endeavor.
Question 7
Like questions 2 and 3, this question appears to lump all off-
reservation proposals together and fails to appreciate the distinction
between two-part determination applications under section 20(b)(i)(A)
and applications for restored and acknowledged tribes under section
20(b)(1)(B)(ii) and (iii). For tribes with existing reservations or
trust lands as of the date IGRA was signed into law, the primary intent
was to foster economic development on those existing lands.
Nonetheless, as the two-part determination process demonstrates,
Congress did anticipate some level of off-reservation gaming by tribes
with existing reservations.
With regard to landless tribes, the answer to this question is
emphatically and categorically no: Congress did not intend IGRA to
promote economic development on existing lands because restored and
acknowledged tribes generally had no land base at the time of IGRA's
enactment. We remind the Committee once again of the decision in City
of Roseville wherein the Court of Appeals held that ``the exceptions in
IGRA Sec. 20(b)(1)(B) serve purposes of their own, ensuring that tribes
lacking reservations when IGRA was enacted are not disadvantaged
relative to more established ones.'' City of Roseville at 1030. As the
Court further emphasized, ``the role that IGRA's exceptions in
Sec. 20(b)(1)(B) ``play in the statutory scheme, namely to confer a
benefit onto tribes that were landless when IGRA was enacted.'' City of
Roseville at 1032. We implore the Committee not to lose sight of the
distinctions between various off-reservation gaming proposals and the
purpose of the exceptions under section 20(b)(1)(B).
Question 8
Because the Greenville Rancheria is not fully informed about the
facts and law regarding the efforts of the governor of Minnesota to
enter into an agreement with tribes to conduct gaming in an urban area
under the auspices of the Minnesota State Lottery, we cannot comment on
the particulars of that venture. We are not aware of any federal
statute that requires the Secretary to ensure that tribal interests are
protected in a venture such as the one you describe, and to our
knowledge, there would be no federal scrutiny of the outside investors,
management contracts, or vendors. We cannot think of any reason that
Congress should enact a statute requiring such oversight or scrutiny
because, when a tribe ventures off of its reservation or trust land, it
subjects itself to the non-discriminatory laws of the state. See
Mescalero v. Jones, 411 U.S. 145 (1973). In this context, a tribe's
right to self-government free from the interference of state and local
governments is not implicated, and that is when tribes most need the
protection of the United States as trustee. Furthermore, we do not
think that federal bureaucrats, no matter how competent and well-
meaning, can determine what is in the best interest of a tribe. Tribes
need to be able to develop business experience and acumen, and that
comes through making your own decisions.
Tribes do have the right to conduct businesses of any kind off
their reservations and trust lands and subject themselves to state law
in the process. While this is not the preferred model for the
Greenville Rancheria, we understand that other tribes have this right.
The proliferation of tribally owned gaming establishments operating
under state law is not, to the best of our knowledge, prevalent or
widespread. We would hope that tribes would rely on their sovereignty
to conduct governmental gaming on tribal lands pursuant to IGRA rather
than under state law. On the other hand, it is difficult to conceive of
how tribes can be legally prevented from engaging in the kinds of
businesses that others can engage in under state law without denying
tribes due process and the equal protection of the law.
RESPONSE TO QUESTIONS FROM CONGRESSMAN GIBBONS
Question 1
The fact that Congress is considering legislation indicates that
the cases referred to in the question are land claims. Land claim
settlements should be evaluated on a case-by-case basis, with
particular attention paid to the merits of the case, the compensation
being offered by the state and the United States, the ties of the
claimant tribe to the state and the specific area, and whether other
existing tribes have ties to the area. As discussed in the answer to
question 5 from Chairman Pombo, land claim settlements generally
require agreements with the state, which generally must be approved by
the state and legislature. Hearings before both the state legislature
and Congress help to ensure that all affected parties, including other
tribes, are heard from. Most significantly, Congress, after hearing
from all these parties, has the final say on whether and where gaming
will be permitted under such a settlement.
The term ``reservation shopping'' is a pejorative and inaccurate
term. As addressed in my written testimony for the March 17 hearing,
and as discussed above, IGRA, through section 20 (b)(1)(A), does
anticipate that there will be some off-reservation gaming, and through
section 20 (b)(1)(B), Congress intended to ``confer a benefit onto
tribes that were landless when IGRA was enacted'' by allowing them to
game on lands acquired after the date of IGRA's enactment without
complying with the two-part determination process. This was due to
Congress' concern ``that tribes lacking reservations when IGRA was
enacted are not disadvantaged relative to more established ones.''
Restored and acknowledged tribes are simply availing themselves of a
right that Congress conferred on them.
As discussed in answer to question 2 from Chairman Pombo, the
courts, Interior, and the NIGC require that a restored or acknowledged
tribe demonstrate that it has historic and contemporary ties to an area
before the land can be considered restored to a restored tribe or the
initial reservation of an acknowledged tribe. It is not the fault of
restored tribes that they were terminated by Congress, nor is it the
fault of tribes acknowledged under 25 C.F.R. Part 83 that they were
unrecognized by the United States for so long. The trust land
acquisition process under 25 C.F.R. Part 151 and the compacting process
each encourage, if not practically mandate, that tribes seeking to
acquire off-reservation land for gaming purposes negotiate with state
and local governments to address their reasonable and legitimate
concerns.
Question 2
Landless tribes in California, the Greenville Rancheria, were not
engaging in gaming before or during the Proposition 5 campaign, and we
played no role in the campaign and made no promises to anyone. The
tribes that were gaming in 1998 and conducted the Proposition 5
campaign had no right to speak for landless California tribes, and they
certainly were not in a position to bargain away our rights under IGRA.
As we've have already shown, section 20 (b)(1)(B)(iii) of IGRA provides
for the right of restored tribes to game on lands acquired after the
date of IGRA's enactment if the land qualifies as restored land.
With regard to opposition to off-reservation gaming by some tribes,
we note that, in some cases, the opposition may be legitimate. In many
cases, however, the concern is based on economic considerations only,
though usually clothed in other terms. We believe that the current
process for trust land acquisitions provides an adequate means for
tribes to register their opposition, and the basis of it, to
acquisitions by other tribes. Interior, and if necessary, the federal
courts, are fully capable of sorting out the legitimate objections from
those based merely on a desire for economic protection from
competition, which seems to us grossly unfair and decidedly un-
American.
Question 3
The question reflects a common misunderstanding regarding the
regulation of Indian gaming. The answer lies within the legislative
history to IGRA at S. Rpt. 100-446 on S. 555, ``Indian Gaming
Regulatory Act,'' Aug. 3, 1988 (``Senate Report'') and IGRA itself.
IGRA resulted from years of complicated discussions and negotiations
between tribes, states, the gaming industry, the administration, and
the Congress to establish a system for the regulation of gaming on
Indian land. Senate Report, at 1-2. Recognizing the need to balance the
competing policy interests and adjust the jurisdictional framework for
the regulation of gaming, IGRA requires for any class III gaming that
tribes and states enter into compacts to address the jurisdictional and
regulatory issues.
As an initial matter, a review of IGRA's provisions is necessary.
Class III gaming activities are lawful on Indian lands only if such
activities are (1) authorized by an ordinance or resolution; (2)
located in a state that permits such gaming for any purpose by any
person, organization, or entity ; 7 and (3) conducted in
conformance with a tribal-state compact. 25 U.S.C. Sec. 2710(d)(1).
Therefore, on the very face of the law, tribal gaming can be conducted
only in a state that otherwise permits gaming. Furthermore, the
``unlevel playing field'' argument fails because tribal gaming is
subject to state regulation through the compacting process.
---------------------------------------------------------------------------
\7\ This is one of the key components of the law. In other words,
if a state does not criminally prohibit the conduct of all gaming in
the state, tribes are authorized by IGRA to conduct such gaming. Senate
Report, at 6 and 9.
---------------------------------------------------------------------------
In addition, IGRA is the state and tribal compromise for the
concerns identified in this question. The Senate Report recognized the
well-established principle of federal Indian law as set forth in the
United States Constitution and federal statutes, and in decisions of
the United States Supreme Court that, absent Congressional
authorization, states do not have jurisdiction and cannot apply their
laws on Indian lands. Senate Report, at 5. Tribes were sovereign
entities when they entered into treaties with the federal government,
and today they retain any rights under that sovereignty that have not
been expressly relinquished. The Senate Report notes that IGRA was
drafted to preserve the tribes' sovereignty, not to create new
sovereign rights. Senate Report, at 5.
The compacting process was a means by which tribal and state
governments could obtain their individual governmental objectives while
working together to develop a regulatory and jurisdictional framework
that would further the uniform application of the laws regulating
gaming. Senate Report, at 6. The compacting process seemed to Congress
to be the best way to balance the strong concerns of the states that
their gaming laws be followed on Indian land and the tribes' opposition
to state jurisdiction over their lands. The Senate Report noted that,
since there was no federal nor tribal regulatory system for the
regulation of gaming on Indian land, the logical choice was to use the
existing state laws, although pointing out that use of the state laws
did not involve submission to jurisdiction. While the compacting
process was intended to allow states a regulatory role with regard to
class III gaming, it was never intended to exclude a tribe from gaming
in order to protect state licensed gaming enterprises from engaging in
competition with tribes. Senate Report, at 13, or vice versa.
It has always been the law that tribes and their lands are exempt
from state taxation. In Mescalero Apache Tribe v. Jones, 411 U.S. at
148, the Court explained the import of its decision in a companion
case, McClanahan v. Arizona Tax Comm'n, 411 U.S. 164 (1973) (holding
that states are without jurisdiction to tax income earned on an Indian
reservation by a Indian resident of the reservation), declaring that
states are without authority, absent consent by Congress, to tax Indian
reservation lands or Indian income from activities occurring within the
boundaries of a reservation. Moreover, tribes are restricted in their
use of gaming revenues, unlike their commercial counterparts. Net
revenues from any tribal gaming must be used (1) to fund tribal
government operations or programs; (2) to provide for the general
welfare of the Indian tribe and its members; (3) to promote tribal
economic development; (4) to donate to charitable organizations; or (5)
to help fund operations of local government agencies. 25 U.S.C.
Sec. 2710(b)(2)(B).
Question 4
We have discussed the criteria used by the Secretary in review
trust land applications under 25 C.F.R. Part 151 in our answer to
Chairman Pombo's question 2. As explained there, as the distance
between the land proposed for acquisition and the tribe's reservation
(or service area) increases, the Secretary gives greater scrutiny to
the tribe's justification of anticipated benefits from the acquisition,
and greater weight is given to the concerns of state and local
governments with regard to factors covered by Sec. Sec. 151.10 (e) and
(f). Also as discussed in answer to Chairman Pombo question 2, it is
generally required that a tribe demonstrate both contemporary and
historic ties to land before the land can be considered restored to a
restored tribe or the initial reservation of an acknowledged tribe.
The last part of this question assumes that a significant number of
tribal members live on or near a reservation. While this is true for
some tribes, it is generally not the case for landless tribes, and it
certainly is not true for the Greenville Rancheria. The majority of our
members do not live in Plumas County, the county in which the Rancheria
is located. Instead, and as a direct result of the Tribe's illegal
termination, more members live in the Red Bluff area of Tehama County
and in the Shasta County towns of Redding, Shasta Lake City, and
Anderson, than live in Plumas County. The simple fact is that a tribe
may enable more members to take advantage of casino jobs by locating a
casino at some distance from its current reservation or trust lands.
Moreover, the revenues from off-reservation casinos can be invested
in other forms of economic development to create jobs on the
reservation or in the service area. Also, those revenues can be
invested in the form of services to tribal members who live on or near
the tribe's reservation or within its service area, which in turn can
improve the quality of life of those members. The investment of tribal
revenues in services to members also creates more jobs. In short, the
investment of revenues from off-reservation casinos can greatly improve
the quality of life of members living on or near reservations or trust
lands, or in tribal service areas. As to the possible disruptive
affects that off-reservation casinos may have on tribal communities,
the affects of federal policies embodied in the General Allotment Act
and the various termination statutes that Congress has enacted over the
years have had a far more disruptive impact on tribal communities that
an off-reservation casino will ever have. And in many cases, the
revenues from an off-reservation casino may be one of the few means by
which a tribe can effectively address those ill affects by allowing the
tribe to rebuild its land base to provide its tribal members a
contiguous homeland and place to renew their culture and traditions of
self-government.
Question 5
As I have already discussed above, restored and acknowledged tribes
must show that they have both contemporary and historical ties to the
land they wish to acquire for gaming purposes. The requirement of
contemporary ties generally ensures that at least some tribal members
live in the area of the land proposed for trust acquisition. However,
this question is based on a faulty premise: that the members of
landless tribes live in a fairly confined area. Particularly for
landless tribes, and due directly and inescapably to their landless
status, the members of such tribes generally live in dispersed
communities. With regard to the Greenville Rancheria, more of our adult
members live in the Red Bluff area of Tehama County and the Shasta
County communities of Anderson, Shasta Lake, and Redding, than live in
Plumas County. Twenty-nine adult members live in Red Bluff and the
Shasta County communities, and only twenty-one live in Plumas. The
remainder of the Tribe's 96 adult members live in other California
counties and other states.
Question 6
I refer again to my written testimony and to answers provided
above. The two-part determination process provides the governor of the
state with veto power over off-reservation acquisitions under section
20 (b)(1)(A). The regulations at 25 C.F.R. Part 151 require additional
scrutiny for off-reservation applications, and, as the distance between
the reservation or service area increases, greater weight is given to
the objections of local communities. With regard to the exceptions
under section 20 (b)(1)(B)(ii) and (iii) for acknowledged and restored
tribes, respectively, both contemporary and historical ties to the land
are required. With regard to land claim settlements, they require an
agreement with the state and an act of Congress. All of these factors
work together to ensure that tribes are not able to acquire land any
where they want at any time they want.
As to tribes ``playing by the rules,'' keep in mind that most of
the tribes currently gaming in California--including those who
purportedly made promises they had no authority to make in the
Proposition 5 campaign--were gaming for years before they had class III
compacts.
Question 7
It is only recently that tribes have been able financially to make
campaign contributions, and very few tribes can afford to do that. Even
fewer tribes can afford to take advantage of the exception you refer
to, and therefore have no occasion to know of its existence. The
Greenville Rancheria certainly cannot afford to make campaign
contributions, and given the long unmet needs of our tribal membership
and the modest revenues we hoped to earn through our proposed gaming
operation, I doubt that we will be considering campaign contributions
anytime in the near future. Given the level of poverty in most tribal
communities, and the lack of adequate health care, dilapidated schools,
impassable roads, and substandard housing, there is scant hard evidence
that tribal governments have achieved an unfair advantage in gaining
access to those who hold the reins of power (and appropriations) in
Washington, D.C. To the contrary, as the ongoing scandal involving Jack
Abramoff demonstrates, tribes have been taken advantage of in this
arena.
Question 8
I refer to the first paragraph of the answer to question 6. All of
these factors combine to make it extremely difficult for tribes to
cross state lines for gaming purposes. Such proposals are subject to
intensive review and the strictest level of scrutiny.
We are not familiar with the details of the proposal of the
Cheyenne Arapaho Tribes, but I refer to the answer to Chairman Pombo's
question 5. If, as the question suggests, the Tribes' land claim was
already settled, the claim is not valid, and there will be no basis for
an agreement between the Tribes and the state, and there will be no
occasion for Congress to enact legislation approving such a settlement
agreement. Similarly, regardless of whether the claim was settled in
the 1960s, if it is otherwise without merit, it cannot provide the
basis for a settlement that results in the Tribes acquiring land for
gaming purposes in Colorado.
______
The Chairman. Thank you. And it is Ms. Jaimes? OK. I
apologize for mispronouncing it originally.
Ms. Jaimes. OK.
The Chairman. Mr. Leecy?
STATEMENT OF KEVIN LEECY, CHAIRMAN,
BOIS FORTE RESERVATION
Mr. Leecy. Good afternoon, Mr. Chairman and honorable
committee members. I wish to extend my appreciation to the
Chairman for providing me with the opportunity to testify
before you today. I respectfully ask that the Chairman accept
my written testimony and make it a part of the record of this
hearing.
Mr. Chairman, it is my understanding that the Indian Gaming
Regulatory Act of 1988 had as its fundamental purpose the
protection of tribal government gaming to create, develop, and
promote on-reservation economies. Congress intended it to
strengthen tribal self-government. Congress wanted to ensure,
and properly so, that the tribal governments were the primary
beneficiaries of the gaming revenues, that the tribal
governments would retain the sole proprietary interest in the
gaming enterprises, and that the tribal governments would be
the primary regulatory authority over the gaming activities.
The ever-increasing proposals to create off-reservation
gaming threaten to undermine the fundamental purposes of the
Indian Gaming Regulatory Act. In my home State of Minnesota,
for example, such proposals are being used to divide tribes and
to extort money from tribes with successful and modest gaming
operations.
The Bois Forte Band of Chippewa is located in northeastern
Minnesota. It is approximately 250 miles from the Twin Cities
of Minneapolis and St. Paul. We have an on-reservation
population of 1,000 and have engaged in gaming since 1986. We
offer both Class II and Class III activities in a facility that
was built in 1988 and has approximately 25,000 feet of gaming
space.
We are geographically isolated and depend on our gaming to
fund a large portion of the operations of our government and
its programs. We do not provide per capita distributions to our
enrolled members. Due to our geographic isolation, we have come
to understand the limitations of our market. Most of our casino
customers come from within 90 miles of the reservation.
However, we also depend heavily on transient guest traffic,
which accounts for approximately 80 percent of our resort
occupancy.
We believe that we are maximizing our opportunities within
the nature of our market and have added some amenities,
including a marina and golf course, which we opened last year.
We have been engaged in providing gaming for over 16 years, and
we feel that the statewide gaming market has matured. Apart
from all of our location disadvantages, we have, nonetheless,
created a successful business that provides an important source
of jobs and revenue for the operation of our tribal government.
The non-Indian community surrounding us also benefits from our
gaming. Over the years, we have been welcomed into our rightful
place as partners among the other governments in the State.
Over the years, we have observed from a distance the
various proposals promoting off-reservation gaming by Indian
tribes. These have included the earliest proposals involving
tribes seeking off-reservation locations to enhance their
opportunities, private developers seeking both historic tribes
or federally recognized tribes willing to relocate to off-
reservation locations, and now States who are pitching off-
reservation locations. The latter two are linked by a common
objective--how do we raid the tribal treasury.
Most recently, the Governor of Minnesota, having failed to
bully the tribes into submitting to his demands for revenue
sharing, has now set on a new course. He is seeking to divide
the tribes on the issue of gaming by embracing an off-
reservation gaming proposal that had been languishing in the
State legislature for the last 2 years. This proposal was
picked up by the White Earth and Red Lake Bands of Chippewa.
This year the Leech Lake Chippewa also joined the proposal. The
proposed Minnesota legislation establishes a metro area casino
operated jointly by the tribes with a new twist. The new
wrinkle is that the activities will be authorized solely under
State law, in disregard of the Indian Gaming Regulatory Act.
This is not the first time that such a venture has been
proposed. The Minnesota proposal not only seeks to avoid any
connection to the Indian Gaming Regulatory Act, but it also
operates to actually exclude tribes from participating in an
off-reservation gaming facility. The written legislation
creates a State-administered means test to determine
eligibility for tribal participation as follows:
To be eligible to participate in the tribal entity, the
tribal government must demonstrate to the director of the State
lottery that the revenues available to the tribal government
from currently available revenue sources are insufficient to
adequately meet the basic needs of tribal members.
In conclusion, Mr. Chairman, I share this information with
you so that you will understand the never-ending permutations
our tribes have encountered since gaming began. We oppose off-
reservation gaming that results in the division of tribes, does
not include a review of impacts of existing tribes and their
on-reservation economies. We oppose the continued approval of
revenue-sharing arrangements with tribes for any reason as
illegal and inconsistent with the purpose of Indian gaming.
Thank you.
[The prepared statement of Mr. Leecy follows:]
Statement of Kevin Leecy, Chairman,
Bois Forte Band of Chippewa Indians of Minnesota
Good afternoon Mr. Chairman and The Honorable Committee members. I
wish to extend my appreciation to the Chairman for providing me with
the opportunity to testify before you today. I respectfully ask that
the Chairman accept my written testimony and make it a part of the
record of this Hearing.
Mr. Chairman, it is my understanding that the Indian Gaming
Regulatory Act of 1988 (IGRA) 25 USC Sec. Sec. 2701 et seq. had as its
fundamental purpose the protection of Tribal government gaming to
create, develop and promote on-reservation economies. Congress intended
would strengthen tribal self-government. Congress wanted to ensure, and
properly so, that the Tribal governments were the primary beneficiaries
of the gaming revenues, that the Tribal governments would retain the
sole proprietary interest in the gaming enterprises, and that the
Tribal governments would be the primary regulatory authority over the
gaming activities.
The ever-increasing proposals to create off-reservation gaming
threaten to undermine the fundamental purposes of the IGRA. In my home
State of Minnesota, for example, such proposals are being used to
divide tribes and to extort money from tribes with successful gaming
operations. I would like to explain to the committee what is happening
in my state.
Mr. Chairman, the eleven federally recognized tribes located in
Minnesota were the first to complete negotiations under the IGRA when
in 1989 the Tribes and the State of Minnesota entered into a Class III
Compact authorizing and regulating the use of video games of chance.
Subsequent to the conclusion of the 89 Compacts the Lower Sioux Indian
Community requested that the State of Minnesota negotiate a second
Class III Compact that would authorize and regulate the play of
blackjack. The State of Minnesota refused arguing that the play of
blackjack was not within the scope of gaming authorized under state
law. The Lower Sioux Indian Community, with the support of the other
ten Tribal governments, sued the State in federal court pursuant to the
IGRA asserting that the states refusal to negotiate blackjack was per
se bad faith and that Minnesota law clearly supported the Tribes
request. The matter was ultimately resolved by a consent judgment in
federal court in the favor of the Tribe. As a result of that judgment,
the State agreed to negotiate and the eleven tribal governments entered
into Compacts authorizing and regulating the play of blackjack in 1991.
I wish to point out several important facts involving the
negotiation of these Class III Compacts. First, while negotiating the
89 Compact it was imperative for the tribes to achieve several
objectives. That there were to be no artificial restrictions placed on
the video gaming activities under the Compact. The State sought
restrictions in the form of limits on the number of machines, limits on
the hours of operation and limits on the age of players to name a few.
Second, the Tribal governments understood that they would need to make
substantial investments in their infrastructures to take complete
advantage of the Class III Compact. Neither the federal government nor
the state government would finance this development and the Tribes knew
that they would need to turn to the marketplace for the financing. What
the Tribal governments wanted to avoid was the high priced financing
offered by individuals and groups who preyed upon the Tribes in the ten
years prior to the adoption of the IGRA. Third, the Tribal governments
wanted to enforce the principle that the Tribes were to be the primary
regulators of these activities. Fourth, the Tribal governments wanted
to ensure that the Tribes were to be the primary beneficiaries of the
revenues from these activities. The Tribes fought hard to avoid state
imposition of taxes on the activities and the IGRA clearly states such
a prohibition. Lastly, the Tribal governments had been operating gaming
on its reservations since the late 70's and knew very well the positive
impacts that gaming revenue had on their governments, and on their
communities both on and near the reservation.
In order to maximize the opportunities presented by the IGRA, the
Tribes sought and received Class III Video Compacts that had no term
and came without the artificial restrictions proposed by the State. The
State received in return the ability to participate in oversight of the
regulatory aspects of the Compact and the ability to track the
movements of machines within the State. The State also received
assurances that facilities in which the activities would take place
will be safe and that procedures would be implemented to protect the
public from unscrupulous operators. Also important to the State was the
fact that all of these activities would take place on-reservation which
would impact the decision on the part of the State's citizens whether
or not to engage in the gaming. Bluntly, that tribal gaming would not
be that accessible. The State also understood the positive impacts of
the gaming activity including the reduction of unemployment in those
reservation areas for Indians and non-Indians, the development of the
infrastructures necessary to serve the gaming facilities, the use of
gaming revenues to support and establish programs and services to
tribal members such as housing, medical clinics, dental services,
public safety, courts and education to name a few. The State also knew
that these monies would be spent in areas that are often the hardest
hit in the downturns of the State's economy. Given the status of the
State's economy in the early 90's it was also seen as an economic
stimulus for these rural communities.
The negotiation of the blackjack Compact of 91 introduced the idea
of reimbursing the State for its expenses incurred in the carrying out
of certain oversight duties under both Compacts. It also reflected the
Tribe's acceptance of a limitation of its right to request the
negotiation of Compacts for other activities in light of the federal
courts' broad recognition of the extent of activities that were
authorized under state law. In return for this foregoing of the right
to request Compacts on additional activities the Tribes reserved such
right if the State were to explicitly authorize any expansion of gaming
in the future. To this day, the Tribes continue to limit their
activities to the two authorized activities, video games, and
blackjack. The State however did authorize an expansion when five years
ago the State allowed private for-profit horse track operators to open
a card club. Last year that card club earned in excess of 29 million
dollars. The private for-profit operators of the track do not pay any
state taxes on the card room income.
Since 1991 the Tribes have invested well over 200 million dollars
into building their gaming facilities and supporting facilities and
other amenities. They have also spent millions on each of their
reservations building structures that support Tribal communities. The
tribes in the face of diminishing federal and state grant support did
all this. They have established on-reservation economies where none
existed before and they are reaching out to their neighbors. They have
become the new economic engines within their communities.
We have also seen over the last ten years proposal after proposal
to expand gaming in the State. In the last three years we have seen
two, and this year three tribes are promoting off-reservation gaming
proposals under state law. These proposals did not go anywhere until
this past year when the current Governor decided that he wanted revenue
sharing from the Tribes and the Tribes did not capitulate.
The Governor's approach was to meet with the tribal leaders in
early January of 04 and inform them of his new policy to expand gaming
in the state unless the Tribes would revenue share. He gave the Tribal
leaders a couple of days to mull over his request and when the Tribal
leaders politely responded to his demand he responded by informing the
public and the Tribal leaders in his State of the State address that he
wanted the Tribes gaming money and if he did not get it he would expand
gaming in Minnesota.
OFF-RESERVATION GAMING IS BAD PUBLIC POLICY
The Bois Forte Band of Chippewa is located in Northeastern
Minnesota. (Attachment 1) It is approximately 230 miles from the Twin
Cities of Minneapolis and Saint Paul. We have an on-reservation
population of 1000. We are part of the Minnesota Chippewa Tribe, which
was established in 1934 as an umbrella organization representing five
other Chippewa Bands in northern Minnesota. We have engaged in gaming
since 1986. We offer both Class II and Class III activities in a
facility that was built in 1988 and has approximately 25,000 feet of
gaming space. We are geographically isolated and depend on our gaming
to fund a large part of the operations of our government and its
programs. We do not provide per capita distributions to our enrolled
members. Due to our geographic isolation, we have come to understand
the limitations of our market. Most of our customers come from within
90 miles of the reservation. It has become very important to be
conservative in our decision-making when it comes to our gaming
enterprise. We however believe that we are maximizing our opportunities
within the nature of our market and have added some amenities,
including a marina and golf course, which we opened last year. A
segment of our market includes people from the Twin Cities of
Minneapolis and Saint Paul. We have been engaged in providing gaming
for over 16 years and we feel that the statewide market for gaming has
matured. Apart from all of our location disadvantages, we have
nonetheless created a successful business that provides an important
source of jobs and revenue for the operation of our tribal government.
The non-Indian community surrounding us also benefits from our gaming.
Over the years, we have been welcomed into our rightful place as a
government among the other governments in our state.
Over the years, we have observed from a distance the various
proposals promoting off-reservation gaming by Indian tribes. These have
included the earliest proposals involving tribes seeking off
reservation locations to enhance their opportunities, private
developers seeking both historic tribes or federally recognized tribes
willing to re-locate to off-reservation locations and now, States who
are pitching off-reservation locations. The latter two are linked by a
common objective--how do we raid the tribal treasury.
Most recently, the Governor of Minnesota, having failed to bully
the tribes into submitting to his demands for revenue sharing, has now
set on a new course. He is seeking to divide the tribes on the issue of
gaming by embracing an off-reservation gaming proposal that had been
languishing in the state legislature for the last two years. This
proposal originated within the urban Indian community and was picked up
by the White Earth and Red Lake Bands of Chippewa. This year the Leech
Lake Chippewa have also joined the proposal. The proposed Minnesota
legislation HF 1817 establishes a metro area casino operated jointly by
the tribes with a new twist. The new wrinkle is that the activities
will be authorized solely under State law.
This is not the first time that such a venture has been proposed.
The Minnesota Governor's Chie aide, Dan McElroy had actually pitched
this as the Kansas Model in early discussions with the tribes in
Minnesota. The point is that the States are now shopping tribes much as
the private gaming developers have shopped tribes to entice them into
these off-reservation projects. As we know from experience the end
result will be simply another example of tribes being separated from
their resources.
It is our concern that this is not an isolated incident. The
original demands for Minnesota tribal revenue began with the Governor
suggesting that he wanted a ``better deal for Minnesotans'' claiming
that the tribes had not contributed anything to the state irrespective
of the 15,000 direct jobs created by Minnesota tribal gaming and the
over 80 million dollars a year that flows into state coffers from non-
Indian employees. In reference to the terms of the existing Compacts,
he said that they were old and not consistent with current realities.
He claimed that the tribes held a monopoly over gaming within the state
and there must be competition. His idea of competition was to enrich
the private for-profit owners of the local horse track by giving them
gaming machines and creating a racino. The state legislature gave the
local track a card club five years ago and to this day exempts the
revenues from corporate taxes. The private operation thus made a cool
29 million dollars last year without providing any direct benefit to
the State.
The Governor demanded that the tribes fork over 25% of their
revenues. ``Why?'' he was asked. His answer was, ``That is what
Connecticut and California get and I want the same''. He justified his
demand by suggesting that Minnesota produces the third largest gaming
revenues behind Connecticut and California when in fact it is the
region, which includes Michigan, Wisconsin, Iowa, Nebraska, North and
South Dakota, and Wyoming that is the third largest among the National
Indian Gaming Commission regions.
Finally, he pushed the Kansas Model as the one that he prefers and
asked the tribes to consider the Kansas model. We looked at the Kansas
Model and we were not impressed with what we found. The Kansas Model is
an off-reservation proposal in which two of the resident tribes have
agreed to participate in a facility that will be located in Kansas
City. The facility will be operated by an entity the majority of which
may be non-tribal. This proposal will require revenue sharing with the
state and local governments. If the tribes close their existing
facilities the state will make payments to the counties where these
facilities were located in order to ease the burden created by the loss
of jobs and other impacts related to the closure. Interestingly the
Model does not include funding to make up for the loss of revenues that
the two remaining resident non-participating tribes may incur. However,
under the Model the State of Kansas takes care of the horse tracks by
authorizing the distribution of 600 machines to each of three tracks in
the state. The State takes care to make the tracks whole and than some.
The one redeeming feature of this Model is that it at least anticipates
federal review under the IGRA Sec. 2719. The Minnesota proposal does
not anticipate any federal review.
If the Kansas model and others similar to it are subjected to IGRA
standards, they will not pass federal muster for several reasons: the
tribes do not retain the sole propriety interest in the gaming, the
tribes are not the primary regulators of the activities, and the tribes
are not the primary beneficiaries of the revenues raised by the gaming
activities.
The Minnesota proposal not only seeks to avoid any connection to
the IGRA, but it also operates to actually exclude tribes from
participating in an off-reservation gaming facility. The legislation
creates a State-administered means test to determine eligibility for
tribal participation as follows:
``(2) to be eligible to participate in the tribal entity
(operating entity), the tribal government must demonstrate to
the director (of the State Lottery) that the revenues available
to the tribal government from currently available revenue
sources are insufficient to adequately meet the basic needs of
tribal members including, but not limited to, housing, medical
care, education, or other governmental services to members;''
The Minnesota proposal creates an alleged ``partnership'' between
the participating tribes and the state that can only be described as a
one sided deal where the tribes assume all the liability and risk in
financing and operating the enterprise while the State takes its 200
million dollar license fee and one third of the revenues off of the
top. The State Lottery Director and the Director of Public Safety can
make decisions that will become operating expense costs to the
participating Tribes with respect to regulatory functions, some of the
more expensive operating activities in a casino, without tribal review.
The Tribe is required to waive its immunity with respect to disputes
between the parties and these disputes will be heard within the State's
administrative law process. If a State official decides the Tribes have
violated any of their responsibilities, he sends the matter to the
State Lottery Director who can penalize the tribes or end the
partnership. The State will also control the licensing process and
State decisions made with respect to licensing are not reviewable.
I am not a lawyer but this ``partnership'' as currently proposed is
so one sided that it cannot be viewed as a legitimate contract. The
problem is that this over-reaching is not something new to tribal
governments. In the early days of tribal gaming, it was common to find
contracts that tribes executed with management groups that were as
unfair as the Minnesota proposal. It was common for the tribe to pay
the manager anywhere from 60-90% of the revenue of the gaming
activities. There were instances where this manager would also be
leasing gaming devices to the tribe with the lease fee also being as
much as 30% of the machine take, on top of the management fee. The IGRA
stopped this by putting in place the NIGC management contract review
process and established ceilings on the fees and the term of management
agreements. The Minnesota ``partnership'' will be exempt from any such
oversight or regulation.
Mr. Chairman and Committee members, I share this information with
you so that you will understand the never-ending permutations that
tribes have encountered since gaming began that are designed to
separate tribes from their revenue. This understanding will be valuable
as you consider policy issues relating to off-reservation gaming. The
Minnesota proposal is not home grown or isolated to Minnesota. It is
the product of deliberate actions that have evolved from the early
deals in Connecticut to Wisconsin to California to Kansas and now to
Minnesota. It has been advocated by State officials in spite of the
clear prohibition against state taxation of tribal gaming activities
found in the IGRA, a prohibition that the BIA and the NIGC seem to
ignore. It is apparent that states have now declared an open season on
tribal gaming revenues. The Minnesota proposal represents yet another
evolution of the strategy to circumvent the protections established in
the IGRA. The worst part is that it attacks tribes' on-reservation
developments and economies. The Bois Forte Band is not the only tribe
concerned by this development in Minnesota. The Chairman of the Fond du
Lac Band of Chippewa issued a news release (attachment 2) after the
Governor held a press conference announcing the ``partnership'' a
couple of weeks ago and in the release the Chairman declares to the
Governor that ``Fond du Lac (is) not for sale at any price''. The Bois
Forte Band and seven other tribes in Minnesota share the sentiment of
the Fond du Lac Chair that indeed our Sovereignty is not for sale.
We understand that this hearing is the first of several the
Committee intends to hold. Although we do not have specific
recommendations for amending the Bill to address the concerns that we
raise today we hope to provide those recommendations after further
consultations with the other tribes in Minnesota. I thank the Chair and
the Committee members for this opportunity to appear and testify on
this very important subject.
[Attachments to Mr. Leecy's statement follow:]
[GRAPHIC] [TIFF OMITTED] T0127.001
______
Attachment 2
Fond du Lac Band Reservation
Business Committee
1720 Big Lake Road
Cloquet, MN 55720
Phone: (218) 879-4593
Fax: (218) 879-4146
News Release: March 4, 2005
Fond du Lac Band not for sale at any price
FOND DU LAC RESERVATION (CLOQUET, MN)--The Fond du Lac Band of Lake
Superior Chippewa has become aware through news reports that Governor
Pawlenty has succeeded in dividing the Tribes in Minnesota with his
false promises and insincere concerns over the well-being of the
Tribes.
The Governor will announce his ``partnership'' with the Red Lake,
White Earth, and Leech Lake Bands of Chippewa. It is also reported that
he will leave the door open for other tribes to join the
``partnership.'' Following is the response of Fond du Lac Chairman
Peter Defoe:
``Mr. Governor, the Fond du Lac Band is NOT FOR SALE AT ANY PRICE.
The Fond du Lac Band fought hard for federal legislation to protect
gaming for the purpose of developing our on-reservation economy. Your
proposal to expand gaming by offering an off-reservation casino will
adversely impact our reservation economy, and the reservation economies
of other northern and rural Tribes. You claim that the basis for
presenting the proposal is to help the state budget and those ``poor''
tribes who have not seen the same benefits that the Indian Gaming
Regulatory Act (IGRA) has bestowed upon tribes located closer to large
populations. Governor, the IGRA was never intended to guarantee equity
to all tribes.
There are over 520 federally recognized tribes in this country and
only 270 of those tribes engage in gaming at some level. Your rhetoric
characterizing the partner tribes as representing 85% of the Indian
population in Minnesota is justification for your proposal, yet you
fail to share with the public that only 1/4 to 1/2 of their tribal
members actually live on their reservations. Further, you have argued
that these tribes are without economic opportunities. The Tribes indeed
have needs that should be met with some assistance from the State, but
your cynical plan would provide this assistance by harming the on-
reservation economies of the remaining Tribes in the State.
The unmet needs that exist on those three reservations did not
develop in the past year. Their needs existed while you served in the
Minnesota House of Representatives for a decade (1993-2003); their
needs existed while you campaigned for Office of Governor; and their
needs have existed while you have occupied the Office of Governor. Yet,
it is only in the past year that you have seen the opportunity to use
their unfortunate status as the smoke screen to help your wealthy
friends who own the Canterbury racetrack. This is a poor excuse to hurt
the rural economies that have benefited both Tribes and the non-Indian
communities surrounding the reservations.
The government treaty negotiators used alcohol, the U.S. Army used
blankets infected with small pox, and now you attack our economies, all
in an effort to coerce tribal government to bend to your demands.
We reject your immoral plans.
______
[Responses to questions submitted for the record by Mr.
Leecy follow:]
Response to questions submitted for the record by
Chairman Kevin W. Leecy, Bois Forte Reservation
From Chairman Pombo:
1. Under the Section 20 two-part determination in IGRA, the governor
of a state is cast in the role of representing and protecting the
interests of both the state government, and the local governments that
exercise jurisdiction in the area proposed for casino gaming. However,
as state governors increasingly look to tribal casinos to provide large
amounts of revenue sharing to supplement the state budget, it has been
argued that governors are now in a position where their fiduciary
interest in securing a tribal revenue stream for state government
conflicts with their duty to represent the interests of local
communities in the two part determination process.
With the potential of this large financial incentive to
a state for a governor to overlook the concerns of local communities,
can it be said that local communities can still be adequately
represented solely by the governor's participation in the two part
determination process?
Or does this potential conflict of interest presented to
governors suggest that IGRA should be modified to give affected local
communities a formal role in concurring with the Secretary's two-part
determination findings?
ANSWER
Because the Governor has made expansion of gaming part of his
political agenda he has lost his ability to remain open to the concerns
of both local communities and non-participating tribes. The danger is
especially acute when the expansion of gaming is ostensibly to operate
under the auspices of state law and that same law limits tribal
participation by imposing a means test.
2. Under established principles of tribal sovereignty, local
communities do not have a say in decisions involving tribal land that
is already held in trust by the federal government. However, off-
reservation gaming proposals involve taking land into trust that is
currently held in fee and is often not even closely located to trust
lands.
Is it a fundamental right of tribes to have land taken
into trust on their behalf at any location within the United States
they so desire, irrespective of the distance to their current
reservation or any connection to ancestral or native lands?
ANSWER
It is our view that it is a fundamental right of tribes to have
land taken into trust on their behalf, but not at any location in the
United States. However, there may be some exceptions. For example, in
Minnesota the reservation of the Prairie Island Indian Community is
located within 600 yards of a nuclear power plant. It would be our view
that in the event of a nuclear accident that renders their reservation
uninhabitable they should be provided new land and they should be
allowed to operate gaming on those lands.
If not, what limitations should apply on where a tribe
can or cannot have lands taken into trust on their behalf?
ANSWER
The land in question should have a historical, cultural, or
geographical connection to the petitioning tribe. The process should
include a requirement that the Secretary consider the impact of
granting such a petition on existing tribal governments, and require
consultation with affected tribes.
Should a higher standard of review apply when the off-
reservation lands in question will be used for purposes of gaming?
ANSWER
The current standard is acceptable.
Should this standard include active participation and a
requirement for concurrence from local governments, even though they
are generally otherwise prohibited from having a say on matters
concerning Indian lands?
ANSWER
We disagree with a requirement of local concurrence.
3. Tribes have long fought to protect their ancestral lands from the
unwanted incursions of outsiders, both Indian and non-Indian alike.
If a tribe is seeking to have land taken into trust in
an area that is not within the ancestral lands of that tribe, should
other tribes whose ancestral lands encompass the site have the ability
to object to the land going into trust?
ANSWER
Yes, those tribes must be consulted and allowed to participate in
the review of the petitioning tribe's request and supporting documents.
The petitioning tribe must have the burden of demonstrating need for
the request. Although ``need'' can be a relative term, perhaps it could
be found to exist if the petitioning tribe clearly demonstrates that
the benefits to all affected tribes outweigh the detriments to those
tribes.
The ability to veto the land going into trust?
ANSWER
No
How can the term ``ancestral lands'' be defined as
precisely as possible so it is clear to all observers, Indian and non-
Indian alike, which lands are ancestral to any given tribe?
ANSWER
Those lands to which a tribe had attained recognized title. For
example, if a tribe sought and received relief in the Indian Claims
Commission (or its successor) with respect to land, it had to establish
standing to bring the claim. That could be prima facie evidence of
recognized title.
4. Should a cap be placed on any revenue sharing with state
governments from an off-reservation gaming facility?
ANSWER
It is our legal position that ``revenue sharing'' is a state tax on
the revenues generated by the gaming facility and as such prohibited by
the IGRA. The only expenditure authorized by the IGRA is to pay for
services rendered or expenses actually incurred by a state or local
government and related to the gaming activities. Revenue hungry states
also use the word ``fee'' to disguise what is clearly a tax, and that
is all the more reason to limit the availability of tribal revenues to
payment for services rendered. It is a violation of the IGRA for the
BIA to approve revenue-sharing arrangements and subjects the federal
government to claims of breach of the trust responsibility owed the
tribes by the federal government.
If so, what should the cap percentage be?
5. Should a tribe be able to ask for or accept a casino operation as a
substitute, either in whole or in part, of a cash payment to settle a
land claim?
ANSWER
Yes, we would support the sovereign right of a tribe to make that
determination.
If a casino is acceptable as a settlement, should tribes
whose ancestral lands encompass the location where the casino would be
located be consulted before the settlement is finalized?
ANSWER
Yes, we support a requirement of consultation with impacted tribes.
Should they be allowed veto power over such a casino-
based settlement as a tool to protect their ancestral lands?
ANSWER
No, but the decision to authorize this acquisition must include a
socio-economic impact analysis of the sort conducted under NEPA.
6. While there have been only three incidences since IGRA was enacted
of off-reservation land being placed into trust for gaming purposes,
there are currently dozens such projects either in the proposed stage
or being reviewed by the BIA.
What impact do you think all of these proposals have on
public support for Indian gaming?
ANSWER
It is our position that off-reservation proposals are inconsistent
with what we consider the centerpiece of IGRA: the development,
promotion, and protection of on-reservation economies. These proposals
open tribal gaming to criticism from a public that has supported on-
reservation gaming as beneficial to both tribes and the local
communities.
Do you believe that the vagaries of current law
regarding off reservation gaming encourage the proliferation of
proposals for off-reservation gaming?
ANSWER
First, for the most part non-Indian interests (both private and
governmental) drive these off-reservation proposals and subordinate
tribal interests to the interests of others. Second, the vagaries have
created a cottage industry of con artists who whisper promises of
extraordinary gain to tribal governments and naive but greedy investors
if the off-reservation project should become reality. The pattern that
follows is an effort of several years which results in promises
unfulfilled, a drain on financial resources and then the whisperers
move on to their next victim. Left in their wake is the unraveling of
long term tribe to tribe relationships and harm to relationships
between tribes and state and local governments. Tribal political good
will is exhausted and tribal and investor financial resources are lost.
Do you believe that clarifying the law on off-
reservation gaming, and placing greater restrictions on when off-
reservation gaming is allowed, will reduce the number of proposals for
off-reservation gaming?
ANSWER
Yes, and going even further, we believe that only the outright
elimination of off-reservation gaming acquisitions will eliminate the
wanton waste of tribal resources.
Will such changes serve to weed out proposals for off-
reservation gaming of dubious merits?
ANSWER
Each proposal for off-reservation gaming is touted as having
impeccable merits. The catch is that if it is not politically
acceptable, it is a waste of time and tribal financial resources to
chase the dream. Eliminating the option will save resources.
7. Do you believe that the original intent of IGRA was to allow Indian
gaming to be conducted at any location within the United States that a
tribe is able to purchase and have placed into trust?
ANSWER
No. It is our belief that the original intent of the legislation
was to develop on-reservation economies. The existence of the off-
reservation acquisition language was to provide relief in extreme cases
of need. However that need must always be documented, and in all cases
the socio-economic impact on other tribes must be considered prior to
authorizing the acquisition.
Or was the original intent of IGRA to foster economic
development on Indian lands held at the date of enactment?
ANSWER
See, preceding answer.
8. In Minnesota, the governor is entering into an agreement with three
tribes to operate an urban casino under the auspices of the Minnesota
State Lottery. As currently constructed, IGRA would not apply to this
proposal. Is there any other statute authorizing or requiring the
Secretary of Interior to ensure tribal interests are protected in such
gaming proposal as this where at least one of the parties is a tribal
government or tribal government business enterprise? Should there be?
ANSWER
There is no other statute that would require or authorize the
Secretary to become involved in a scheme that does not involve Indian
trust lands or Indian gaming as contemplated by the IGRA. There should
be a mechanism by which the Secretary would protect tribes from
predatory influences-much like the management contract review
requirements of IGRA. However, it must be carefully crafted to ensure
that bureaucratic delays and intransigence do not threaten all Indian
business ventures.
Does this agreement violate the terms of any tribal-
state compact in Minnesota?
ANSWER
No, but the Governor's current proposal to expand gaming by
authorizing a new full-fledged casino in the Twin Cities market and by
creating a racino (slot machines) at the Canterbury track will mean
that the waiver agreed to by the tribes in the Blackjack compacts (not
to request negotiations on other Class III gaming) is dissolved. The
result of that is to open the door for tribal expansion to offer full-
fledged casinos.
Furthermore, it is our view that the action by the Minnesota
Governor violates the spirit of the promise of no-expansion of gaming,
which was a foundation principle in the Blackjack compact.
What would be the impacts to tribes around the country
if other governors entered into similar agreements with tribes in their
states?
ANSWER
The Governor in Minnesota is using his threat to expand gaming in
response to the Tribes' refusal to cave in to his demand that the
tribes pay the state of Minnesota 350 million dollars. This so-called
``revenue sharing'' proposal is nothing more than an illegal tax.
Another part of his plan is to divide the tribes by offering the metro
casino to any tribes that meet his definition of ``needy''. Finally, he
has proposed that the casino be located a few miles down the road from
an existing tribal casino. That tactic caused two of the three tribes
to abandon the proposal, yet the Governor persists.
The catch is that the participating tribes must pay a 200 million
dollar fee to the state up front, build the facility without state
financial participation and split the future revenues of the facility
with the state with the state receiving 66 per cent of the adjusted
gross revenues and the tribes splitting 33 percent. In addition, the
tribes from its share would also be required to pay 2% all adjusted
gross revenues to the local government hosting the facility and .5% to
the Commissioner of human services for problem gambling. The state
``generously'' capped this revenue commitment at 2.5 million dollars.
The participating tribes will be required by lenders to engage a
management group, which will further cut into the tribal revenues. The
state agreement will not have any of the protections offered by the
IGRA that will restrict the management group to a fee ceiling, a
guaranteed monthly payment, or a limited term. This agreement would
never pass muster in a review by the NIGC. The agreement is as bad as,
if not worse than, those seen in the industry in the early 80's.
The impact of this type of agreement, (if successful) will be that
other states will have another strategy to access tribal gaming revenue
and undermine tribal gaming under IGRA.
In such a deal as proposed in Minnesota, what is the
level of federal scrutiny of outside investors, management agreements,
and vendor contracts?
ANSWER
NONE
Are the tribes entering into this deal capable of
determining whether they will benefit from it? Are they capable of
knowing whether developers, casino management companies, and the state
government might be taking advantage of them?
ANSWER
Based on the testimony of tribal members opposed to the Governor's
proposal, it is our understanding that the tribes have been kept in the
dark about the details of the financial arrangements. They have no
information on the impact of the state's operational and regulatory
decision-making authority that the state reserved to itself in the
agreement. The state can make decisions that increase operational costs
that the participating tribes will have the obligation to pay but not
have the authority to control.
In the Governor's proposal the tribes must assume financial
responsibility for all of the development which will cost the
participating tribes over 500 million dollars plus operational costs.
The state assumes no financial responsibility, yet receives 200 million
dollars for a license fee up front and then takes 66% of the revenue.
This is unconscionable. The irony is that the only tribes eligible to
participate are those that the State deems to be ``needy'' and it is
those tribes which will be saddled with massive debt and risk.
From Congressman Gibbons:
1. This Committee has held hearings on legislation that would allow a
tribe to go hundreds of miles off their reservation and open a casino
in the ancestral lands of another Tribe.
Do you have any specific suggestions on how Congress
should proceed in this regards?
ANSWER
Congress should create standards that place the burden on the
requesting tribe to demonstrate why granting such a request is
necessary. If there are existing tribal governments that may be
affected, those governments should be given a veto over the request and
that veto should apply whether the authority is sought under either
federal law or state law.
Also, with over 300 tribes seeking recognition and
presumably gaming, please comment on the impact that a policy
permitting ``reservation shopping'' and ``off-reservation gaming'' will
have on communities across the country.
ANSWER
The impact can be managed only if there is participation provided
to the existing tribes which may be impacted by such action.
2. A few years ago, during the Proposition 5 campaign that allowed
full-scale Indian gaming in California, the tribes ran television ads
stating they wanted to do gaming just on their reservation lands. Now
in California, there are several tribes that are trying to conduct off-
reservation gaming.
If a tribe has a reservation and/or a traditional
service area, why should any tribe is permitted to establish gaming
off-reservation, distant from its reservation?
ANSWER
They should not be able to do so if the sole purpose is to gain an
economic advantage created by the move and that advantage creates a
disadvantage to existing tribal governments.
Also, please comment on the fact that other tribes are
opposed to tribes seeking ``off-reservation'' gaming.
ANSWER
It is our understanding that the centerpiece of the IGRA was to
establish, promote, and support on-reservation economies. The tribes
seeking off-reservation gaming for the sole purpose of creating some
economic advantage that results in harm to on-reservation economies are
acting inconsistently with that purpose.
In Minnesota the Governor seeks to impose his definition of
fairness on the tribes by luring tribes from remote locations to
participate in the establishment of a metro area casino. His fair deal
will take advantage of the participating tribes by taking the bulk of
the revenues and leaving the tribes with all of the debt. It is his
position that IGRA created an unfair playing field that he must now
correct. This is insincere and cynical because his purpose for creating
such a plan is to exact revenge on the tribes for refusing to cave into
his demands for an annual tax of 350 million dollars.
3. 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 other
gaming establishments; do pay not state taxes; etc.?
ANSWER
When tribal governments are able to recover from 200 years of
community deficits then we can have a discussion about a ``level''
playing field. When Indian people attain the same levels of quality of
life as enjoyed by the majority culture then we can talk about ``even''
playing fields. When Indian people no longer occupy the bottom of every
list whether it is health, mental health, access to medical care,
education, housing or economics then we can start to talk about a
``level'' playing field.
4. What criteria should be used by the Department of the Interior in
it's determination of land-into-trust?
ANSWER
The existing standards are sufficient. The problem is in the
application. The problem is the bureaucracy.
Should there be a requirement of substantial historical
connection between the tribe and the parcel to be taken into trust?
Why/why not?
How recent should the historical connection be? 100
years? 200 years?
What about distance from the tribe's current service
area? 10 miles? 20 miles? 70 miles?
Do you believe that the farther away the casino site is,
the less likely tribal members will be able to take advantage of
employment opportunities with a casino? [Alternatively, if the tribal
members move near the casino to get jobs, then will the traditional
community/service area be disrupted?]
ANSWER
There should be a historical nexus between a tribe seeking trust
status and the location of the land, but the requirement of a
substantial connection to a particular parcel may be impossible to
prove. A historical nexus is necessary because otherwise it would
create a chaotic scramble of all tribes seeking the prime locations.
Using a current service area is too artificial. Tribes often
circumscribe their service areas because of insufficient funds to serve
an expanded are.
Yes, the creation of an urban casino will disrupt the traditional
area. The success of Bois Forte's on-reservation casino and related
resort development has created housing demand as members move back to
the reservation. Those same opportunities will not be available at a
distant, urban casino.
5. If landless, shouldn't land-into-trust be restricted to the area
where the tribe is located? Where they live, need jobs, need health
care and services?
ANSWER
Yes.
6. If some tribes are permitted to select the ``best gaming''
locations, wouldn't all tribes want to do that?
What about tribes that played by the rules and have
their casino on their reservation land, even though it may not be the
best gaming location?
ANSWER
The Bois Forte Reservation is one of the most remote in Minnesota.
In light of this fact, we have carefully managed our gaming enterprises
to maximize our opportunity by fully understanding our market. We are
successful given our location. Our expectation was never to accept the
concept that ``if we build it they will come''. We kept our
expectations realistic, we did not overbuild, and we have expanded
based on sound analysis. We have resisted the notion that instead of
bringing the customers to our casino we should take our casino to a
more populous area.
This is where we live. This is the land that was reserved by the
wisdom of our ancestors and we are committed to providing our members
the best opportunities we can right here on our reservation.
We have always understood that gaming was never intended to
guarantee that all tribes would achieve the same level of financial
success. It was intended only as a tool to be used by each tribe as
they determined.
It is unfair to claim that those tribes who have had the benefit of
location to large populated areas must share their wealth with other
tribes, and it is important to note that Minnesota's most successful
tribes have in fact shared their wealth with others.
7. Please comment on how the federal campaign contribution laws apply
to tribes and the fact that tribes are exempt from overall donor limits
and can give directly from their treasuries. No other organization is
similarly situated.
ANSWER
It is inappropriate to refer to tribal governments as
``organizations''. Our governments existed at a time when the United
States was nothing more than an ``organization''. The existing federal
campaign laws appropriately recognize tribes as sovereign governments.
8. Please comment on the increasing trend of tribes now crossing state
lines away from their reservation to establish gaming.
Please comment on the situation in CO where the
Cheyenne-Arapaho of Oklahoma are seeking land in CO to establish
gaming. In that situation, the tribe is claiming 27 million acres even
though their land claims were definitively and legally settled in the
1960s. Their action is designed to force the Governor to agree to a
smaller parcel near the Denver Airport for gaming.
ANSWER
See Response to 2 & 3.
______
The Chairman. Thank you.
Ms. Quan?
STATEMENT OF JEAN QUAN, COUNCIL MEMBER,
CITY OF OAKLAND, CALIFORNIA
Ms. Quan. Thank you. It is nice to see the Congress people
here, Ranking Member Miller also, so thank you, Mr. Pombo and
members of the Committee for allowing us to speak today. And I
really appreciate you taking up what's become a very difficult
and very divisive issue in California.
California in our area, in the East Bay, is now facing--and
I'm not going to read my statement. It's in your record. I'm
going to emphasize a few points. We're facing within a 30-mile
area of the East Bay five Indian casinos right now. And they're
introducing more in jurisdictions on city councils and many of
the political, I think, situations in the East Bay may change
because of this.
I represent an area in Oakland that ranges from CEO
mansions in Oakland Hills to the Mormon Temple to neighborhoods
where 60 percent of the kids who enter kindergarten don't speak
English. I probably represent one of the most economically
diverse districts in my city and maybe in California.
I authored the resolution against Indian casinos, the one
that's proposed at the Oakland Airport, with a lot of support
from people from every neighborhood. I'm speaking today on
behalf of that situation. Chairman Pombo, we did not have an
opportunity to study your whole bill, but we strongly support
the provision in it that requires the approval of the local
jurisdiction.
What we found under the Koi Nation situation is, we think,
the ultimate case of reservation or casino shopping. Their
argument is that even though they were not the native tribe
that they had trade and hunting in that region. Under that
argument, anyone in northern California could suddenly have a
casino moved into its neighborhood, and under the situation
here, whether or not the local government approves of it.
I'm speaking today on behalf of the East Bay Regional Park
District, the mayors of Berkeley, Alameda, and our neighboring
city to the south, San Leandro.
What we have in Oakland is a situation where we feel that
the Bureau of Indian Affairs or potentially the Federal
Government is substituting basically their power over our power
of our mayor, our planning commission, our council, and our
port authority.
The site that we're talking about is the Martin Luther King
Shoreline Park area. This is the last marsh in the East Bay. It
is on the Pacific Migratory Flyway. It is over 1,000 acres of
restored fragile land, which houses several threatened and
endangered species. It's on title land. It has deed and land
use restrictions, including a Federal decree, consent decree,
about environmental issues. It is next to the airport. It's not
a great site. Apparently you can't fish off the shore now
thanks to the security measures that the Federal Government's
required, but you could gamble and you could put up a seven-
story hotel which would be in the path of some of our flight
ways at the Oakland Airport. And, again, I understand that if
this becomes tribal land that we won't have anything to say
about that.
So I want to address three issues. From the very beginning,
we have problems with the way and--the controversial and
questionable way in which the tribe was recognized. I have this
document, and we've made copies for you, an internal memo from
the department that's been in our papers recently, which
basically has the staff of the BIA saying that the approval of
this did not meet your regulations and was perhaps illegal.
So the tribal rights and how the city got into this
situation was done in a way--and, Chairman Pombo, we would ask
you to investigate that, because, frankly, as the Chair of the
Finance Committee in a city that's going to cut $30 million,
I'd prefer not to spend money on lawyers to fight this over the
next 10 years. The reason we would be willing to fight for this
is that we've looked at the impact of urban casinos and we see
that suicides, bankruptcies, abuse of minors, domestic
violence, bankruptcies, and the recent Thompson study of the
Lytton Tribe shows that maybe as much as $100 million from our
local economy would be taken out of our area, and that most of
the studies show, particularly in an urban area, that the
people who will come to gamble in urban casinos live within 30
to 50 miles. East Oakland is a very poor community. The poorer
you are and the less educated you are, the more likely you are
to gamble. I grew up in Oakland. I talk about being a Chinese
American, and grew up with legends, because of the Chinese
Exclusion Act, of Chinese grandfathers who never made it back
to China and never sent money back home because of gambling. So
I do have a prejudice here. But it really victimizes mostly--
particularly slot machines, which only return 25 percent of the
money back to the people who gamble, really victimizes the poor
the most. So we feel very strongly about it.
Second, we believe that the process by which it was
prepared, the environmental impact statement and the NEPA
process is flawed. If this land is land that is environmentally
not safe, we've regraded it for commercial but not for
habitation. Why is the BIA spending the money on this process
and forcing me as an elected official to spend the money on
this process?
The bottom line here is that there may be communities--and
I respect them--that may want casinos, but the basic question
here is the issue of local control. This is a community where
not only our city is united and opposed to it, but our
neighboring cities and the county supervisors and our regional
park district, and a site that is terribly, terribly flawed.
But I suspect that we will all spend hundreds of thousands of
dollars fighting this because of a decision that was made which
did not meet your regulations, did not meet your rules, and may
be illegal.
So I would ask the Committee to please help us in this
situation. Thank you.
[The prepared statement of Ms. Quan follows:]
Statement of Jean Quan, Council Member,
City of Oakland, California
Good afternoon Chairman Pombo, Ranking Member Rahall and Members of
the Committee. My name is Jean Quan and I am a Council Member in the
City of Oakland, California representing the citizens of the 4th
Council District. Thank you for inviting me to appear and testify at
this oversight hearing. On behalf of my colleagues and our citizens, I
extend my deep appreciation for your willingness to address these
difficult issues.
Currently, California is experiencing a proliferation of Indian
gambling proposals with at least five being proposed for urban areas in
the eastern San Francisco/Oakland Bay Area, including one in the City
of Oakland. Investigations by the media, criminal and civil
authorities, and the committees of Congress are exposing questionable
practices related to federal recognition of Indian tribes and the
preemption of state and local jurisdiction over our communities by
federal officials taking land into trust for casino development. My
testimony focuses on what is happening to us and to our community, but
I believe our concerns are shared by many other communities throughout
the United States.
The City of Oakland opposes any legalized gambling establishment
within its municipal borders. The City made that decision after
concluding that casino development creates unacceptable risks with
severe, detrimental impacts on our densely populated urban community.
Those impacts include increased crime, personal bankruptcy, blight,
homelessness, domestic violence, child abuse, prostitution, suicide,
fraud and traffic congestion. I have submitted with my testimony a copy
of the Oakland City Council's resolution expressing those views.
Moreover, almost every surrounding jurisdiction--the Cities of Alameda,
San Leandro, and Berkeley, the Alameda County Board of Supervisors and
the East Bay Regional Park District--opposes the proposed casino-hotel
project. Under ordinary circumstances, that would be the end of the
matter. However, aggressive tribal gaming developers and their
lobbyists are trying to circumvent the right of Oakland and other Bay
Area citizens to govern ourselves by appealing to federal officials in
Washington. Those officials claim the authority to recognize Indian
tribes and substitute federal and tribal jurisdiction for state and
local jurisdiction over land within our city. The casino advocates
would have the Secretary become the de facto Mayor and City Council of
Oakland, and the arbiter of our community standards.
The following is some background on the situation in Oakland. In
2004, the Lower Lake Rancheria (also known as the Koi Nation) and the
Department of the Interior began the process to locate a large-scale
casino-hotel development in the City of Oakland on a 35-acre parking
lot adjacent to the Oakland International Airport and Martin Luther
King Shoreline Park. The Martin Luther King Shoreline Park encompasses
1,220 acres of land, associated tidal marshes, seasonal wetlands and a
shoreline trail. It is part of the Pacific Migratory Flyway, is home to
several threatened and endangered wildlife species and has 250,000 -
300,000 visitors annually.
The proposed casino site is within our Port of Oakland's
jurisdiction and is subject to several deed and land use restrictions,
as well as a Federal Court consent decree addressing environmental
issues on the site. City of Oakland has concluded that the site may not
be developed for human habitation under any land use criteria,
including single or multiple housing. There is a covenant on the title
to the proposed site that requires that notice of hazardous substances
be placed in any lease or purchase agreement for the property. The City
has investigated and classified this property at considerable expense
and with the health and welfare of its citizens as the primacy
consideration. Now the Interior Department and the Tribe are forcing us
to reinvent the wheel in a costly and time consuming process.
The Tribe is ``landless'', according to the federal government, and
has been since the federal government sold off its land in Lake County
in 1956. We cannot understand what would lead the federal Indian
trustee to consider taking land into trust for Indians that is unfit
for habitation. Consider also the health risk to the tens of thousands
of hotel and casino patrons who would visit the site. Moreover,
consider the safety and national security risks of locating a large,
seven story intensive development immediately adjacent to the Oakland
International Airport. Because of the environmentally sensitive nature
of the adjacent Martin Luther King Jr. Shoreline Park, intense
development on the site was intended to be limited. Few uses could be
more intensive than a major casino/hotel operating twenty-four hours a
day, seven days a week.
From the beginning, the Koi Nation's proposal was controversial and
contained questionable aspects. First, consider the status of the Tribe
itself. We urge the Committee to inquire into whether the 2000
recognition of the Tribe by the prior administration was procedurally
or legally correct. The following facts suggest that the Committee
should do so. By the Act of March 29, 1956 (Public Law 84-443), the
United States converted the sold 140 acres of tribal trust land in Lake
County, California (150 miles from Oakland) and, and deeded the
remainder in fee simple to an Indian and his spouse who were reportedly
the only inhabitants of the land at that time. Nearly a half century
later, the Assistant Secretary for Indian Affairs purported to reaffirm
the federal status of the Tribe. According to published reports, the
Assistant Secretary took that action without processing the matter
pursuant to the federal acknowledgment regulations (25 CFR Part 83),
and over the strenuous objections of Bureau of Indian Affairs staff
experts in charge of implementing the regulations. News reports
indicate that the objections were based on legal concerns that the
facts related to the Tribe did not justify reinstatement of federal
status. (His participation in the legally questionable circumstances
under which the Tribe was recognized, further cloud this because the
former Assistant Secretary is now a lobbyist for the Tribe's casino
project).
Second, we also request the Committee to look into the propriety of
what appears to be an ambiguous and misleading use of the National
Environmental Policy Act and trust land acquisition procedures by the
Department of the Interior to further Indian gaming development in
Oakland. The published Notice (69 Fed. Reg. 68970, November 26, 2004)
of the Secretary's intention to prepare an Environmental Impact
Statement states only that it is for the purpose of determining the
impacts of building a hotel and Indian casino project on the Oakland
site. It does not advise the public that the land first has to be taken
into trust and that there are significant issues and procedures
associated with trust land acquisition that are separate and apart from
casino and hotel development. See 25 CFR Part 151. In the parlance of
Secretary Norton's cooperative conservation policy, the notice did not
properly ``communicate'' to the public, and so the public cannot have
an informed ``consultation'' with the Secretary about the proposed
action.
Third, the Koi Nation's proposal is the ultimate case of ``location
shopping.'' The Koi Nation is from Lake County, more than 150 miles
from Alameda County where the proposed site is located. And yet, the
Tribe is asking for land in Oakland to be placed into trust on the
Tribe's behalf.
No one can look at this situation and not see that something is
wrong. We request that the Committee ask the Secretary to:
1) withdraw the original notice of intent to prepare an
environmental impact statement;
2) terminate the existing NEPA process; and
3) investigate the propriety of prior administration's action to
recognize the Tribe the Tribe's federal status has been completed.
Finally, we ask you to support the fundamental concept of local
control. Please enact legislation that would prohibit any gaming
development on land acquired in trust for an Indian tribe if the state,
or any local governments in which the land is located or to which it is
adjacent do not consent.
Thank you for your attention to our concerns.
______
[Responses to questions submitted for the record by Ms.
Quan follow:]
Response to questions submitted for the record by Jean Quan,
Councilmember, City of Oakland, California
I want to thank you and the committee for the opportunity to
testify before you on March 17th. I want to thank you Chairman Pombo
for taking the leadership in examining this complex issue of increasing
public concern. Many important issues were discussed and I and my East
Bay colleagues from the cities of Oakland, Alameda, Berkeley, and San
Leandro, the County of Alameda, and the East Bay Regional Park District
look forward to working with the Chairman and the Committee on
addressing local concerns with tribal gaming in urban areas.
I specifically appreciate the opportunity to discuss the situation
in Oakland with the Koi Nation and other potential tribes. I hope that
the Committee and the Chairman will pursue some of the legal concerns
raised regarding the Koi Nation's recognition and lack of historical
connection to Oakland.
Please find my personal responses to the questions submitted to the
speakers of March 17th. While the Oakland City Council has formally
opposed the Koi Nation proposal, our scheduling and sunshine
requirements did not allow time for formal review of these questions or
responses.
Question 1: Conflicts of Interest Between State and Local Government
(Pombo)
The political struggle around the massive state deficit
in California has been marked by many fights over revenues, pitting
local interests against the state government. Indian casino revenues
were a substantial part of the Governor's plan to balance the budget;
it appears those revenues will fall far short of his projections. While
we would hope that the Governor would be able to look beyond the
financial resources offered by tribes and consider local communities
input and concern on any gaming proposal, we cannot guarantee that this
will occur. This is particularly true in a state as large and diverse
as California. It cannot be said that local communities can be
adequately represented solely by the Governor's participation in the
two part determination test.
Local communities should be part of the formal process.
This should include communities that are directly impacted by a gaming
proposal and communities within a certain radius of a gaming proposal.
I cannot stress too much, how important it is, that local
governments have input early on in the process. IGRA should be amended
to allow local affected communities a role in the process. It is clear
that even if the Koi Nation had been a local tribe and we were not
opposed to a casino, we as local elected officials would never have
planned a casino on a site that: 1) that will increase traffic
congestion on the major bay freeway and airport access road; 2) that
violates airport height restrictions and imposes increased security
issues; 3) next to the last East Bay marshlands and home to endangered
bird species; 4) on land that is restricted in development because of
former industrial use and clean-up issues.
Question 2: Off Reservation Gaming and Tribal Sovereignty (Pombo)
The United States has an historical obligation to promote
tribal economic development. However, I would hope that the federal
government would promote comprehensive economic opportunities beyond
tribal gaming and that these efforts not come at the expense of other
citizens. I do not believe tribes should not have a right to have land
taken into trust at any location within the United States irrespective
of the distance to their current reservation or any connection to
ancestral or native lands, especially where those lands are to be used
exclusively for gaming purposes.
In California rural tribes which invested substantial
resources to establish casinos on their reservations, now find their
economic development threatened by urban casinos.
Tribes should have a connection to the land before it can
be taken into trust on their behalf and/or strong local support for
taking the land into trust. The intended use of the land should also be
considered and off reservation land should not be taken into trust
solely for gaming purposes. For example, off reservation land that
could only be used for gaming and not for housing, social programs or
other economic development opportunities should not be taken into trust
unless there is local support.
I believe a higher standard of review should apply when
the off-reservation lands will be used for gaming because of the social
and economic impact on local communities, especially in urban areas.
Land taken into trust solely for gaming purposes should be evaluated at
a higher standard since it is not intended to be used for tribal
housing, tribal social service programs or other economic development
opportunities.
Off reservation gaming should not be permitted without
concurrence from local governments. Local governments should be
actively involved in any proposal for off reservation gaming and should
be contacted early on in the process. Tribes seeking off reservation
gaming in a community should be required to contact and work with that
community before proceeding through the NEPA or fee-to-trust process.
There should be a threshold of support established before the formal
BIA process for taking land into trust begins. If not, then local
communities are forced to expend enormous amounts of monetary resources
on projects that never had a chance of moving forward. This is an
unfunded mandate on local governments and an unfair burden on
communities with already limited resources. Requiring that proposals
meet a certain threshold before beginning the formal process ensures
that only strong gaming proposals move forward and protects local
communities from unfunded mandates.
Question 3: Protection of Ancestral Lands (Pombo)
Again, I would urge the committee to examine how the Koi Nation
received recognition and consider that if it did not meet the
Department of Interior standards as recently published memos indicate,
that the Oakland application be halted.
It is not for local communities to dictate how inter-tribal
disputes or concerns are resolved; however, local communities in urban
areas are concerned that multiple tribes will attempt to locate in
their jurisdictions. There are five active attempts to place casinos
within 30 miles of Oakland.
Urban areas are more appealing for gaming proposals given the large
concentration of potential customers. Local communities have very real
concerns that there will be an unfair concentration of gaming
facilities in urban areas, which would have a significant impact on
crime, prostitution, addictive gambling, bankruptcies, suicides,
domestic violence and child abuse. Many studies show that lower income,
less educated residents are more like to gamble. In urban communities
this may compound existing social problems. Any change to inter-tribal
ability to dictate the location of lands taken into trust should
carefully evaluate the possibility for over concentration of gaming
facility in urban areas and the impact to urban communities.
Question 4: State Revenue Caps (Pombo)
I do not believe I would support revenue caps on revenue sharing
agreement with either state governments or local communities from off-
reservation gaming facilities. Different facilities might have
different impacts on the local communities. In fact, off reservation
gaming facilities should be required to enter into revenue sharing
agreements with the affected local communities. Local communities
receive most of the impact from gaming facilities and those impacts
must be mitigated as part of any gaming facility approval.
At least one study by a noted authority concludes that the
detrimental effects of locating a casino in a densely populated urban
area can never be fully mitigated. This study estimates that over $100
million will be drained from the local economy as the result of state
taxes, royalties, and payments to outside investors. (See William S.
Thompson, A Casino for San Pablo: A Losing Proposition attached).
Mitigation could be either in the form of a revenue sharing agreement,
off-site improvements and/or a municipal services agreement. Whatever
the form of mitigation, it must be required so that local communities
are not unfairly impacted when gaming facilities locate in their
jurisdiction.
Question 5: Casinos for Land & Sovereignty (Pombo)
This question involves very specific tribal issues and it is not
for local government to dictate how land claims should be settled and
what say other tribes should have over that settlement. However, in
line with the second question, only providing a tribe with a casino
operation may conflict with the United States obligation to assist
tribes in becoming economically self sufficient. Gaming is just one of
many economic development opportunities available to tribes. If a tribe
is only granted a casino operation it may harm the tribe in the long
run should that operation fail. It is clear to me after visiting
casinos around the state, some operations are more prosperous than
others and it is unclear how equally revenues are shared amongst tribe
members. It seems preferable that any land taken into trust should be
useable for a multitude of economic development, housing or social
service opportunities.
Question 6: Increasing Off Reservations Proposals (Pombo)
In Northern Bay Area of California there are at least 5
current off-reservation gaming proposals. Previously, Oakland received
a number of other proposals for off reservation casinos to be located
in this city. The sheer number of off-reservation gaming proposals is
creating a backlash against Indian gaming. When California approved
Indian gaming it did not envision off-reservation gaming or multiple
gaming facilities in urban areas. Indian gaming is growing
exponentially in California which only very recently since the passage
of Proposition 5 in 1998 allowed Class III gaming in California.
There are now two state propositions gathering signatures to put
a moratorium on casinos. The spring assembly of the Association of Bay
Area Governments will focus on casinos; while not taking a position,
this focus reflects the growing concern of all local governments.
IGRA in its current form does encourage the proliferation
of proposals for off-reservation gaming.
If more stringent standards are placed on off-reservation
gaming, it should reduce the number of such proposals.
If off-reservation gaming is more difficult to obtain,
dubious proposals, like the Koi Nation's proposal in Oakland, should
disappear. As discussed above this is an important point because of the
economic strain these dubious proposals place on local communities.
Local communities are forced to analyze every gaming proposal even
those that are questionable. This places an unfunded mandate on local
communities. If the standard for seeking off reservation gaming is made
more stringent, some of these proposals should disappear thereby
reducing some of the burden on local communities.
Even with stricter standards for off reservation gaming,
however, a threshold test should exist for any gaming proposal before
the formal fee to trust or NEPA process is started. Because of the Koi
Nation controversy, we believe the committee should also review the
processes by which the Bureau of Indian Affairs recognizes landless
tribes.
Proposition 5 allowed for revenue sharing between tribes
with casinos and those without. I think this might be the right
direction. However, I have been told that the Koi, reported a tribe
with 56 members most who are minors, receives approximately $1 million
per year but they still want to place a casino outside of their
historical area and in our city even though all local governments are
opposed.
Question 7--IGRA Intent
As a local official, I do not pretend to have an historical
understanding of the act. My reading indicates IGRA was intended to
foster tribal economic development. I do not believe that Congress
foresaw the current rapid proliferation of proposals hundreds of miles
away from historical tribal lands and in at least two cases across
state lines and across the country. Any broad interpretation of IGRA
that allows gaming on any land taken into trust, either before or after
its enactment is wrong and the law should be clarified. Indian gaming
should only be allowed on lands in trust at the date IGRA was enacted
and on lands taken into trust where local communities support such a
use of the property.
Question 8--Minnesota (Pombo)
This question involves issues in Minnesota and is not within my
purview. I did find with interest that there seems to be the same
conflict between tribes who have invested in resorts/ casinos on
traditional lands and new proposed urban casinos.
Congressman Gibbons' Questions
Question 1--Reservation Shopping (Gibbons)
My comments under #6 above apply. With 300 tribes seeking
recognition, who could use the current provision to put a casino
anywhere, then no urban area in the nation would be unaffected. Same
comments as above regarding threshold and unfair impacts on local
communities both socially and economically.
Question 2--California, Proposition 5, and the Backlash (Gibbons)
Same as above with discussion of backlash against Indian
gaming and unfair impacts on local communities. See comments on #2 &
#6.
Off reservation gaming not only has the potential to
impact urban communities more significantly, but also impacts rural
tribes that complied with IGRA and the intent of Proposition 5 and
constructed gaming facilities on their reservation lands. Those rural
tribes should not be unfairly punished by tribes seeking off-
reservation gaming. Proposition 5 also established a pool of resources
for other California tribes that were not involved in Indian gaming.
This pool was intended to ensure that tribes with ancestral lands in
areas not conducive to Indian gaming were not penalized by not being
able to conduct Indian gaming. Those tribes should not now be able to
seek Indian gaming outside their ancestral lands in urban areas that
have the potential for higher revenues.
Also, a distinction should be made between economic
development and gaming. There should be a different standard with
respect to economic development from gaming and economic development
from other sources. Gaming has very particular and very serious social
and economic impacts. As a result, gaming should be treated differently
than other economic development opportunities.
Question 3--Unlevel Playing Field (Gibbons)
Yes, we agree that tribes entering into already established gaming
areas create an unlevel playing field because they are not subject to
state regulations and local regulations
Question 4--Criteria for the Department of the Interior Determination
of Land-into-trust (Gibbons)
Tribes should be required to have a substantial
historical connection to the land taken into trust. This would
eliminate dubious proposals and help ensures that urban areas are not
unfairly impacted from Indian gaming. Without some requirement for a
connection, every tribe will try to locate in an urban area with a high
concentration of customers and those local communities will suffer
tremendously from the high social and economic impacts of Indian
gaming.
The historical connection should be significant and
within a tribe's service area
Question 5--Land Characteristics (Gibbons)
Same as #2 above. Landless tribes should have land taken into trust
that can be used for more than just Indian gaming. For example the
proposed site for the Koi Nation casino might violate federal
guidelines for housing, parks, schools or other social programs or
needs because of contamination or conflicts with federal environmental
and safety laws, it should not be taken into trust.
Question 6--Impact of Reservation Shopping on other Tribes (Gibbons)
Same as answer #2 above with regard to the shared revenue pool. In
California many rural tribes located in areas with limited economic
opportunities have invested heavily in facilities. They played by the
Prop 5 rules and many are opposed to urban casinos.
Question 7--Unlimited Political Donations & Influence (Gibbons)
The ability of tribes to contribute to political campaigns and
influence federal, state and local politics is a great concern. Many of
the television ads and mailers in recent state elections of all kinds
were financed by Indian gaming interests. The League of Women Voters is
now looking into the issue in our state. In Oakland, polls are being
conducted by the Koi nation and its investors on the popularity of
various elected city officials. In another California community, the
elected officials have changed over at least three times since Indian
gaming was proposed. The ability of tribes to ``buy'' their way by
backing elected officials that support their proposals is a very real
concern and may add to a backlash.
Question 8 Crossing State Lines (Gibbons)
California has numerous tribes seeking recognition and the ability
to conduct gaming. Because of the large number of potential California
tribes, the issues of tribes crossing state lines to come to California
is not one that I am familiar with and cannot comment on.
Additional Response For Representative Kildee:
I want to repeat that I have followed your work in defense of
public education with great respect for many years as a former school
board member and chair of the California Urban Schools Association and
National School Board Association Council of Urban Boards of Education
Chair. I have thought long about your questions about local control
versus the federal role to protect the rights of Native Americans.
I believe that the federal government has the right to defend basic
rights under the constitution and to prevail if local laws violate
those rights. I think this issue is not equivalent to the civil rights
battles of the recent past:
In the case of reservation shopping, there is no historic
tie to the land. I do not believe there is a fundamental right to have
a casino anywhere off reservations in face of legitimate local
opposition. I believe with our rich national resources we must be able
to help Native American tribes find economic development without
negatively affecting urban areas.
I represent a city which has no ethnic majority; some say
we are a majority minority with significant numbers of Black, Asian,
Latino and white groups. Many of our residents are poor and working
class people. According to studies on gambling and casinos they will be
disproportionately negatively impacted by an urban casino.
Giving the right to an equal education and the right to vote, did
not harm other groups and indeed contributed to the long term good of
all Americans. Urban casinos have to possibility of having a
disproportionate impact on the poor and in California specific minority
groups are targeted by the gambling interests.
I know the committee has a difficult job before you. Thank you for
this opportunity, please do not hesitate to contact me if I can be of
further assistance.
NOTE: The attachment submitted for the record by Ms. Quan has been
retained in the Committee's official files.
______
The Chairman. Thank you. I thank all of the panel for their
testimony. As you have heard, we have just been called to a
series of votes, so instead of beginning the questioning right
now, I'm going to recess the Committee temporarily and let the
members go vote. It will probably be about a 30-minute recess,
and I apologize to you, but we have no control over when they
call votes. But I would encourage the members to return as soon
as they can after the final vote so that we can continue with
the hearing.
We will stand in recess.
[Recess.]
The Chairman. The hearing will come back to order. To begin
with, I want to apologize to our panel for the delay. It took a
lot longer to get through the votes than I originally
anticipated, and I apologize to you for that.
Ms. Jaimes, I think I wanted to begin with you, if I could.
And if you could clarify for me, in the draft legislation there
are a number of different provisions. How do you anticipate
that that would affect--if it were adopted the way it is
written, how do you anticipate that would affect you? Because I
am not exactly sure how it would, and that is one of the
reasons why we put this out in a draft form, was to get that
kind of feedback. How do you anticipate that would affect you
in your tribe?
Ms. Jaimes. May I ask that I can have our attorney respond?
I'd like our attorney to respond.
The Chairman. That is fine, but I have to swear you in.
[Witness sworn.]
The Chairman. Let the record show he answered in the
affirmative. Please identify yourself for the record.
Mr. Jordan. Thank you, Mr. Chairman. My name is Derril
Jordan. I'm an attorney for the Greenville Rancheria.
As Chairperson Jaimes testified earlier, the tribe is
proceeding as a restored tribe, and under the draft
legislation, as I understand it, restored tribes would be
subjected to now a new requirement that the Secretary would
have to determine that the gaming for the tribe would be in the
best interest of the tribe and not detrimental to the local
community. That would be a new standard that restored tribes
would have to go through. And most pertinently, it would
subject the tribe's application to essentially veto by either
the State or local government, and that is not currently the
case for restored tribes.
The Chairman. Under current law, the State--you don't have
to enter into a compact with the State currently?
Mr. Jordan. We have to enter into a compact to conduct
Class III gaming.
The Chairman. Does the State not have a veto power right
now if the Governor chooses not to enter into a compact?
Mr. Jordan. There really are two different processes there.
One is approval of a compact. The other one is the taking land
into trust. If a tribe acquires land in trust in the State,
under the law the Governor doesn't technically have a choice
not to enter into a compact with them. And as you know, in
California, Proposition 1A was passed where the Governor--you
know, where the State does enter into compacts, and I believe
that that proposition waives the State's immunity so the tribe
would be able to utilize the good-faith lawsuit provision in
IGRA to bring suit against the Governor if the Governor chose
not to enter into a compact.
But the compacting process and the land into trust process
are really two distinct purposes or two distinct processes,
but, on the other hand, though, your point is a good one in the
sense that we're talking about, you know, unwanted gaming being
foisted on the tribe. There is a compacting process that is
required. And if a tribe does not have ties to an area, does
not have ties to the State, then the Governor is in a better
position to resist entering into a compact. But they are two
distinct processes, though.
The Chairman. As far as taking land into trust, the way the
draft is written, it doesn't change taking land into trust. It
does impact the gaming.
Mr. Jordan. Well, actually that would be a point that would
need to be clarified. I think that's--
The Chairman. At least that is the way I intended it when I
wrote it.
Mr. Jordan. I'm not sure how the Department of Interior
would understand it. But probably what they--and I'm guessing
here, to some degree. Probably what they would--what they do
now for a two-part determination that is subject to that two-
part test, the Interior usually bifurcates the process. They do
the two-part determination, and if the Governor concurs in it,
then they do the land into trust process. My guess is they
would probably do the same here; if the Governor did not
concur, then that land would not be taken into trust, at least
not for gaming purposes.
The Chairman. The other issue is the tribe currently has
land in trust.
Mr. Jordan. No, it does not. It owns some small amount of
fee lands, but Greenville Rancheria does not own any lands in
trust, or the United States does not own any lands in trust for
the Greenville Rancheria.
The Chairman. I misunderstood the testimony then, because I
believed that she said they had. We will have to go back.
Mr. Jordan. 1.8 acres of land within the Rancheria
boundaries is owned in trust on behalf of individual members of
the tribe.
The Chairman. Does the tribe exercise jurisdiction over
that 1.8 acres?
Mr. Jordan. Yes, it has jurisdiction. Yes, the boundaries
of the Rancheria were restored. The lands within it are Indian
country. The tribe can exercise jurisdiction over the
Rancheria, over that 1.8 acres, and the tribe does own 8 acres
in fee within the boundary. But they're not owned in trust.
The Chairman. OK. On the 1.8 acres, what prevents them from
establishing a gaming facility on that 1.8 acres?
Mr. Jordan. It's owned by individual members of the tribe.
It's not--it's owned in trust by the United States for
individual members of the tribe, not the tribe itself.
The Chairman. OK. Mr. Jordan, I am going to have additional
questions for you that I am going to give you in writing
because I want to make sure I understand exactly what situation
you are in, that the tribe is in, and how the draft legislation
would affect them. So I am going to have further questions for
you because I want to make sure I understand it, because the
purpose of this was not to take away an economic opportunity
away from anybody. But we do need to have some kind of control
over how this is all happening right now, and I am sure you can
understand that. But I do need to understand exactly what
situation this particular tribe is in and how this would affect
them.
Mr. Jordan. We would be happy to answer your questions, Mr.
Chairman.
The Chairman. Mr. Forster, again, to you I would ask: How
do you anticipate the draft legislation affecting Amador County
in the operations that are currently there?
Mr. Forster. I believe, Mr. Chairman, that clearly if we
can have something that will control the ability of tribes to
do the reservation shopping, you'll have less of an impact on
the counties. We can talk about the residual effects of a
casino all day long. Our problem lies with does the tribe--does
any tribe when it comes in have the ability to game lawfully?
And if we can have language in a piece of legislation that will
prohibit this reservation shopping and look at a tribe's
ability to game by either previous occupancy or some tie-in to
the land, but in many cases there are no ancestral ties. So if
your legislation would put an end to that reservation shopping,
it would help the case in small counties like ours so that we
don't end up in an adversarial position.
The Chairman. Now, on sovereign lands, the tribe has the
ability to conduct gaming, and that is not--currently in law,
that is not up to local government to have the ability to
affect that. I know that in most cases the tribe will enter
into agreements with the local city or county and work out
whatever their impacts are, and for the most part that has been
a fairly successful process. Where this has begun to change is
when we have had others that have stepped in to different
areas, and that is where it has raised concerns with people.
Currently--or let me back up. On the draft, what it would
do in the case of someone coming in is it would give the local
community the opportunity to work with them in order to have
some kind of an agreement if it was not land that had
historically been put in trust. And that is really what you are
looking for.
Mr. Forster. We are looking, one, to stop the reservation
shopping, but, two, yes, that's why I represent also CSAC and
the 58 California counties today, by looking for local
concurrence and local governments to have some representation,
the ability to go in and have some process where they can have
input into it regarding the effects that a casino will have on
their county. Now, primarily you know now that our only avenue
is with the Governor to have that local input. That's happened
with us on the Plymouth casino that's being proposed by the
Ione Band. Unfortunately, the situation with the Buena Vista
Rancheria happened so fast that the community wasn't allowed
the time to gear up. And once the San Pablo casino was pulled
out of the five cases that were presented, the other four
passed unanimously when the urban legislators came back and
voted for that.
Our issue with the Buena Vista site and the local community
has geared up now is the placement of a casino there is--to
allow Class III gaming is not legal, and the local community
should have some input into that, and I am talking about our
local governments, but also the local people that live in the
community. You should have some say-so, and also look at the
laws on that site. Are they allowed to game? On the Buena Vista
Rancheria site, they are not a reservation. They are not in
trust status. We feel strongly those two things absent take
away their right to have a Class III gaming establishment
there. But also the ability in your legislation as proposed to
have the local input means a great deal to our small
communities as well, and I am not going to leave out the urban
counties because each of us have problems that are different
depending on what the county is, where the county is located.
The Chairman. All right. Thank you. My time has expired.
Mr. Kildee?
Mr. Kildee. Thank you very much, Mr. Chairman.
I would like to submit a statement for the record also and
then ask a couple questions.
The Chairman. Without objection.
[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 year this committee held two hearings in which I
raised concerns about attempts by two tribes in my own State of
Michigan to gain Congressional approval to operate off reservation
gaming facilities on land several hundred miles away from their
existing reservation where they have no historical ties.
I believe that these attempts undermine the Indian Gaming
Regulatory Act and avoid the current administrative process for
approving the use of land for off-reservations gaming purposes for land
acquired after October 17, 1988.
The draft proposal would amend that administrative process set
forth in the IGRA and would authorize off-reservation gaming in limited
circumstances through the establishment of zones. While I appreciate
the unique circumstances of certain landless tribes seeking
opportunities to operate gaming facilities, I remain reluctant to open
up IGRA to attack by our colleagues who want to harm Indian gaming.
With that said, however, Mr. Chairman, I commend you for taking on
this issue and I look forward to working with you.
Thank you.
______
Mr. Kildee. Thank you very much.
You know, I do worry about opening up IGRA because there
are many people out in the Congress and around the country who
are not that fond of Indian gaming, even though the Cabazon
decision guaranteed that under the treaties and under the
Constitution of the United States. So I am always a little
worried about putting a bill out amending IGRA because once it
goes out on the Floor, unless you get a really tight, closed
rule, it becomes the property of the House and they can amend
it in many, many different ways.
I would like to submit this statement for the record and
ask a couple questions. First of all, I would like to ask a
question of Mr. Forster. The Federal trust responsibility to
the tribes does protect the tribes, and that is why the trust
responsibility came in. As a matter of fact, the trust
responsibility came into being to a great extent to protect
tribes from State government, the Carolinas and Georgia, John
Marshall's decision. And the trust responsibility and the U.S.
Constitution recognizes really the only other units of
government, Article I, Section 8, Congress shall have the power
to regulate commerce with foreign nations, the several States,
and the Indian tribes. It does not in the Constitution as such
recognize the creatures of the State, and villages and
townships and cities and counties are really creatures of the
State, and they are arranged in various ways in different
States, called various things, parishes in Louisiana.
Presently, IGRA requires only the approval of the State
Governor under Section 20. Why should local units of government
that are really these creatures of the State have authority
over tribes' acquiring land after October 17, 1988? Why should
we give that to a local unit of government when the trust
responsibility is to protect the tribes and one local unit of
government could, in effect, veto any action on behalf of that
tribe?
Mr. Forster. I believe in our system of government you're
looking for checks and balances. I think we're missing some of
those checks and balances in the process right now, and I think
you've seen that with some of the abuses of some tribes that
were granted recognition and the ability to game. If you don't
have those checks and balances in place and part of that we're
looking for, extend that to the counties and to the States so
that they have that ability to at least have their input in
place and so you have a full set of information before the
recognition is granted. At this time we do see abuses in the
process, and we're not arguing against tribes that had the
ability to legally game. What we are arguing against is if the
process is there, if the laws are in place, there should be a
series of checks and balances to protect not only the rights of
the Indian community but the rights of the local governments.
Mr. Kildee. But even under Section 20, we still deal
directly with the States under present law. You know, during
the civil rights movement, some States for a while--they didn't
get away with it long--kept saying, well, it is not us, it is
not the State of--this State or that State that are
discriminating against African Americans, it is the school
board, it is the county government, it is the city government.
But the Supreme Court said you cannot hide behind that. It is
the State. The Constitution recognizes only the State, and
those other units of government are only creatures of the
State. And I think that is a basic principle of law, and I
think when we deal differently with local units of government,
I think we have to deal with it very, very carefully because of
the U.S. Constitution's relationship to the 50 States.
Mr. Forster. I believe just to answer that, it depends who
you deal with, one, who is the Governor of your State. We do
have a Governor of California now that is very responsive to
the local communities' interests. As I stated in my written
testimony today, on the Federal level and their recognition of
us and the ability for them to discuss issues, Amador County
has not been contacted by IGRA, even dealing with the NIGC,
they receive requests for land determination, and the county is
never talked to in respect to how we feel about those requests.
The Secretary of Interior never talked to the county when
the compact for the Buena Vista Rancheria went to her. She
approved that via inaction.
Mr. Kildee. Let me ask, if I may have time, just one
question to Ms. Jaimes. You have clearly laid out your
opposition to sections within the discussion draft regarding
the proposed Section 20(b)(1)(B)(iii). What is the greatest
danger in providing veto power to local government from your
point of view? What is the greatest danger, do you feel, in
providing veto power to local governments?
Ms. Jaimes. The greatest danger that our tribe would feel
that it may have the greatest impact would be the decisions on
our economic development.
Mr. Kildee. Is there a possibility where you might have--
and I will finish with this, Mr. Chairman. I am sorry. Maybe
Mr. Forster, too, could join in this. If you have two units of
government that would encompass the area that would be set
aside, couldn't one unit of government then, in effect,
override the other and veto the plan?
Mr. Forster. Once again, you're talking about the checks
and balances. If the system is followed correctly, if the laws
are followed correctly, then even the local entity I don't
believe is going to override the ability of the gaming to
occur, because you have the law set in place. At this time over
and over again we can give cases where basically the back-door
process is being followed. And let's face it, the monies
flowing so well in the process now, you have $18 billion
nationwide, $4 billion in California. It's a big player's game.
And entities such as Amador County where I'm from, we don't
have that kind of checkbook to fight these issues. It's getting
more and more difficult.
Mr. Kildee. Thank you, Mr. Chairman.
Ms. Quan. Congressman, if the Chairman would allow me to
respond?
The Chairman. Yes.
Ms. Quan. Congressman Kildee, I've had a lot of respect for
your work in education and your support of civil rights in
education as a former school board member. What I think at
least we're seeing in the Oakland case, and I think many cities
are saying, is that, exactly right, everyone must be within the
law. In the case of the decision--because it is a huge
loophole, it does allow the possibility of reservation
shopping, we need to make sure that the Federal Government
follows its own rules and regulations. And if I were to answer
Congressman Pombo's issue about how I'd like to see if local
control is involved or has at least some say, that the decision
be made up front. I mean, we may win the denial of the NEPA
process because of the environmental concerns, because of the
impact on traffic, because of the impact on security, et
cetera, et cetera. But there needs to be a way that there is a
threshold before we are forced in that process, because our
city and the cities around us will spend probably several
million dollars fighting you in this process or just doing our
part to reply in that process in terms of the impact on the
environment, the impact on transportation, the impact on our
community in terms of social services.
And, quite frankly, a half a million dollars would fund an
after-school program in every one of my middle-school programs.
So I'd like it to be defined. If you are going to put local
input, to define when the threshold is, and not make it after a
2-year EIR or a long, long, long scoping process involving lots
of lawyers on all sides.
Mr. Kildee. Thank you very much.
Thank you, Mr. Chairman, for your indulgence.
The Chairman. Mr. Pearce?
Mr. Pearce. Thank you, Mr. Chairman. Most of my questions
would go to Ms. Jaimes.
Page 3 of your testimony--and this is just an observation.
Page 3 of your testimony says that Section 20 of IGRA does not
establish any standard for Governor's concurrence and a
Governor is free to withhold concurrence for any reason or no
reason. And I would just point out that the opposite is also
true, that there is no standard and a Governor then can give
concurrence for any reason or no reason. And as the stakes grow
higher and higher in this game, it opens the door larger for
bad reasons to be used for either concurrence or non-
concurrence.
On page 6, you make a fairly direct statement that State
and local governments simply should not have veto power over
Indian self-determination and economic development. Can I ask,
other than Indian gaming, what is your tribe doing to establish
self-determination and economic development? In other words, I
think the basis of the statement is that somehow the State can
keep you from doing anything that would improve yourself
economically. But I am thinking that the State really has only
input as it affects Indian gaming. It does not really stop you
from going into any number of businesses.
So my question is: What other businesses are you
approaching other than gaming?
Ms. Jaimes. Well, currently the tribe has not looked at any
other type of economic development this huge. The dollars that
the tribe has currently to work with to establish any type of
development is small and that it's created to meet our needs as
well. The only development we have is a small trailer park that
we've invested in, and it will help us create housing to meet
our needs and also bring in some amount of revenue. And that's
only because of the revenue sharing that's been created in
California.
Mr. Pearce. OK. How many tribal members do you have?
Ms. Jaimes. We have 96 voting members.
Mr. Pearce. Ninety-six. Ms. Jaimes, there are several--the
spectrum of discussion here is quite large on those tribes that
might not have access to gaming right now, and so my question
is: You all are a landless tribe that are trying to get land to
open a casino. Would you oppose any restrictions for non-
landless tribes to expand into off-reservation gaming? In other
words, you are a landless tribe trying to get land for gaming,
but there are tribes with land that are trying to get off-
reservation properties to open casinos somewhere else. Would
you oppose that, oppose those tribes doing that, or would you
think that to want to regulate that is satisfactory?
Ms. Jaimes. That's a difficult question. I couldn't answer
it.
Mr. Pearce. If Mr. Jordan wants to address that question, I
would consider his answer.
Mr. Jordan. It is a difficult question. We think that
through the two-part determination process, the 20(b)(1)(A)
process as it exists now that requires the Governor's
concurrence, we believe that there are sufficient limitations
on the ability of tribes to take land into trust who already
have gaming in other places. We realize that other tribes, you
know, who feel like, you know, tribes are moving into their
area disagree with that.
You know, there could be some improvement to that process,
but we also respect the right of other tribes to expand their
economic development. Not every tribe that has a casino
somewhere is necessarily making a lot of money, and they may
need to be able to move to a better market to have economic
development. They shouldn't be foreclosed from that, but there
should be a process for that, and perhaps the Section 20
process could be improved.
Mr. Pearce. Thank you. Let me just get one more question
in, and that is my last one.
Ms. Jaimes, on page 8 of your testimony, you said that,
``Federal Indian policy should not be dictated by non-Indian
communities, and we find it cruelly ironic that some tribal
governments are suggesting that fears and prejudices of non-
Indian communities should dictate the economic development
opportunities available to landless tribes.''
Now, the last question that I will ask, and then this
question merged together, that we have got a situation in my
district where a tribe outside my district 300 miles away wants
to come down and acquire land near one of my communities and
open a casino, and the local community has reservations about
that.
Would you really declare that to be a prejudicial position
of a non-Indian community and find that cruelly ironic that
they would say that a tribe 300 miles away should not be
allowed to come and open a casino near their community? And
that really is the question, so I will leave the answer to you.
Ms. Jaimes. Could you repeat that question?
Mr. Pearce. Yes. I am sorry. Is it really prejudicial for a
non-Indian community in the southern end of our State to really
take exception to a northern tribe that wants to come 300 miles
away and open a casino on grounds that they want to pick up
these non-tribal grounds just for the purposes of opening a
casino? Your testimony says that that should not be allowed,
that non-Indians really shouldn't have a say, and even then
gets quite critical of the non-Indian communities that would
want to voice a position on that. Are you really that stringent
in your opposition to input from non-Indian communities?
Ms. Jaimes. No and yes, and we can only rely on that
everything is dealt with on a case-by-case issue.
Mr. Pearce. OK, but it is the non-Indian who is objecting
to it, and your testimony seems to indicate that you think that
to be prejudicial and ill-placed.
Thank you, Mr. Chairman. I appreciate the indulgence.
The Chairman. Mr. Pallone?
Mr. Pallone. Thank you, Mr. Chairman. I just wanted to
associate myself with Mr. Kildee's remarks, and also point out
that, you know, one of the concerns I have here today and why I
think it is so important for us to proceed with such caution is
because I am very concerned about infringement on tribal
sovereignty. In other words, if you look at IGRA, which I guess
was a reaction to the Cabazon decision, as Mr. Kildee
mentioned, even the requirement that the Governor give consent
could be perceived as an infringement on tribal sovereignty.
And so if we go further and now require, you know, consent of
local communities, you know, the question is how far are we
going to go in terms of our infringement on tribal sovereignty?
I mean, historically--and I think for good reason--the notion
is that a tribe is a nation and they have a nation-to-nation
relationship with the Federal Government. So the Federal
Government deals with them, but, you know, the States and the
localities really shouldn't have that much of a say.
So I am just very concerned that if we change IGRA
significantly and allow significant local input, you know, it
does go against the very grain of what the notion is of tribal
sovereignty.
The other thing is that you cannot really take away the
context of historic discrimination against Native Americans,
as, you know, we have discriminated against many minorities in
this country. And I think that to the extent that the Federal
Government becomes the arbitrator, there is less likely to be
discrimination historically than there is if, you know, there
is input from local communities or even the State, because if
you look at the history of discrimination, it tends to be
greater at the local level.
And then the last thing that bothers me is this whole
notion, which I think to some extent is out there, that, you
know, the tribes are all rich and they have got all this money
and, you know, the communities don't. I mean, oftentimes it is
the opposite. We had hearings before this committee on the
whole issue of tribal recognition, and many of the tribes have
a very difficult time gaining recognition because they don't
have the money to even go through the process. And I don't
think we should assume that tribes are rich and communities are
poor. Oftentimes it is the opposite. It may not be the case
here with, you know, those who are sitting before the panel,
but it is often the case. So we can't--we have to be very
careful.
The other thing I have to say is a lot of my concern comes
from the fact that I think the issue of off-reservation gaming
is being overblown in the media, and Congress is sort of
reacting to that. You know, I guess the last time we had a
hearing on this, we had Ernie Stevens testify, who is the--I
guess he is the President or Chairman of NIGA, and he said--you
know, he pointed out there were only three tribes that have
successfully navigated the Section 20 two-part process. And so
I don't really think that, you know, this is a problem, that we
are facing a huge problem here.
I just have two questions. One is of Mr. Forster. You know,
in the current law, you know, under this two-part determination
of Section 20 of IGRA, it does say that there is local input.
It actually says in the language, in the statute, that the
Secretary, after consultation with the Indian tribe and
appropriate State and local officials, determines that a gaming
establishment on newly acquired lands would be in the best
interest of the tribe.
So I don't really understand given that only three tribes
of many applicants have ever successfully navigated this two-
part process, why are you so concerned that there isn't local
input now? It seems to me there is, and it hasn't been that
easy to go through the current law. I mean, you guys keep
talking about the law, the law. Well, that is the law, and only
three tribes have ever been able to go through the process.
What are you so worried about? Why isn't there local input now?
Mr. Forster. One, our big issue is that when we are done
with this process, if we have two more tribes allowed to game
and if it is not done lawfully, we are going to have three
tribes within 12 miles of each other in a county that has
34,000 people.
Speaking on the side of the law, the compact that was
issued by the State went to the Federal level, went to the
Secretary of the Interior without any comments from the county
that was approved by her via no action. So we don't feel we had
any say-so in that process. We were not consulted, and we are
not consulted by NIGC on the issues of land determination. We
accidentally found out on an issue that it was being run
through them and so issued comments. We do not feel that we are
being afforded the opportunity to get our input in at the
Federal level.
Mr. Pallone. But what I am asking you is it is not as if
you did not have the opportunity to express your opinion. It is
just you feel that it did not go your way. I mean, you know, I
guess what I am trying to say, you know, we are talking about
major changes here that impact the entire nation. And, I mean,
I understand that maybe it did not go the way you wanted, but,
I mean, it does not mean that the current process does not
provide for the local input. It is just that maybe it was not--
you know, it was not--the decision was not what you wanted.
Mr. Forster. Sir, in the process, there is virtually no
acknowledgment of a county's input when it does come in. So how
do we know that the input of the county was even taken into
account in the process? At this time we do not because there is
no acknowledgment that comes back to us.
Mr. Pallone. Well, I mean, maybe--I am just trying to say
that it seems to me there is a difference between saying there
is no input and saying that you do not like the way the
decision went. The law provides for the input. The law provides
the opportunity for you to express your opinion. Oftentimes, we
do not like the way the decision goes. It does not mean that
the input was not there. It is required under the law.
Mr. Forster. But on our other two tribes that are trying to
put casinos in right now, the law is pretty clear, and to us it
doesn't seem like it's being followed, because one tribe is a
landless tribe and trying to put a casino on a piece of
property with no ancestral ties; the other tribe, the Buena
Vista Tribe, is trying to put a casino on a site that is Indian
land, but it does not have trust designation and it doesn't
have any other designation to make it legally possible for them
to have Class III gaming.
So we are looking at the Federal laws, and then we are
looking at those being overridden. It would be nice once in a
while to be acknowledged and hear what are the reasonings for
your decisions. And we don't get that at the Federal level.
Mr. Pallone. Thank you.
Ms. Quan. And I have to say the Oakland situation is
exactly the same. You have environmental and other Federal laws
that if you put a casino there that you're going to be
ignoring. And, again, the tribe is in the same situation as the
other Congressman raised. They had a Rancheria. It was 150
miles away. The Aloney, who actually may have some Bay Area
roots and ties to do that, aren't even--I think they're only
being involved in one of the five casinos that's going to be
within 30 miles of my city.
Mr. Pallone. But you seem to suggest--and I know the time
is up, but you seem to suggest that the environmental laws are
simply ignored. I mean, isn't there a process for the
environmental laws? I do not understand.
Ms. Quan. We are not sure. I mean, I think that looking at
the conditions of the deed and the title and trust laws in
California that this site should not even be considered, that I
shouldn't have to--
Mr. Pallone. You see, again, I don't want to keep arguing,
but it just seems to me that you guys are addressing the fact
that you do not like the decision, not that there was not a
process that you had input in. You just do not feel that the
decision went your way.
Ms. Quan. No, we--there is no decision in Oakland's case,
and the BIA did not follow its own rules in restoring the
rights of this tribe.
Mr. Forster. And we are talking Federal and State--
Ms. Quan. So if you are going to be consistent with Federal
laws, then you have to be consistent.
The Chairman. The gentleman's time has expired.
Mr. Gibbons?
Mr. Gibbons. Thank you very much, Mr. Chairman, and I want
to thank you for bringing this very important hearing before
this committee, and the witnesses, I want to thank them for
their time, their patience, and their testimony that is helping
us make a better and more informed decision on this process.
I come from the State of Nevada, which, let me say at the
beginning, I am not anti-gaming. I am for gaming. I just wanted
you to know that. But I guess what I would like to do is to
follow on Mr. Pearce's line of questioning because I thought he
was headed in the right direction, but one which let me say it
perhaps a bit differently. If a tribe 300 miles away has no
historical ancestral connection with another part of the land
and yet travels that distance to construct or in hopes of
getting land for a casino, should that distance, should that
ancestral connection be considered in the granting of land for
trust status? Ms. Jaimes, what would you say?
Ms. Jaimes. Well, for Greenville, all we're doing is
following the process, and there's a process.
Mr. Gibbons. Well, I understand. You are following the
written process that was established under IGRA. What I am
talking about is the philosophical sense, the historical
connection between the tribe and the land, which is basically
the foundation, the fundamental process, if you will, by which
land is granted in trust for a tribe because there is some
historic connection. But where there is no historic connection,
do you feel it is proper to grant trust status to land for a
non-historically connected tribe to that area, to that land?
For any purpose, whether it is economic purpose, whether it is
social, for any purpose.
Ms. Jaimes. I can't answer. Could I have our attorney
respond to that?
Mr. Gibbons. Well, I think it is just--you know, I was
hoping that you as the chairperson for the tribe would be able
to give us some sort of a conceptual answer for that. But
perhaps the gentleman, Kevin, maybe perhaps you could answer
the question. What is your thought?
Mr. Jordan. Well, I think, if I may, the chairwoman is
having a little trouble answering the question because in
Greenville's situation, we do have ties to the land, and so we
have not really considered situations outside of that. But,
clearly, whether or not a tribe has ties to the land and
whether or not there are other tribes that are in the area that
do have ties to the land, those are clearly relevant
considerations that ought to come into play.
Now, there may be situations where a tribe may be going 200
or 300 miles away from its reservation, but there are no other
tribes there that have aboriginal territory. And if the State
and local governments are in support of the tribe, I am not
sure why that would be a problem.
Mr. Gibbons. OK. So it would not bother you to have a
casino established by one tribe who has a historical connection
to the land to be--well, let's just say to have another tribe
who does not have historical connection, who came from outside
of the area, to bring and want to have its own casino right
next door to yours on land that would be in competition. That
would be fine with you.
Mr. Jordan. No, I am not saying that. I am saying that is a
relevant consideration. And when Interior is considering such
an application, it should take into account the fact that Tribe
A is moving into the area of Tribe B.
Mr. Gibbons. I am just trying to figure out how we would
address that situation, how we can formulate language which
identifies the concerns and brings that into focus.
Let me just ask a question also. Proposition 5 in
California that happened not too long ago was a proposition
premised on the idea that tribes would not go into off-
reservation gaming. Now we are seeing tribes in California that
were supporting Proposition 5 asking for off-reservation
gaming. Do any of you feel that that was a misrepresentation to
the voters of the State of California?
Ms. Quan. I absolutely do. The Association of Bay Area
Governments is having our spring conference, and it is exactly
going to be on the gaming and casinos, because many of us felt
that this would be a way to help particularly our rural tribes.
In fact, many of our rural tribes are now very upset, and maybe
that is why they are considering zones now to come to the
cities. But I have to say that if the Bay Area is going to have
five on the east side and God knows how many on the other side
of the Aloney recognized, it is a huge economic impact on our
community. And the issue of prostitution I have been working on
and the crime related to that. Those are huge social costs. It
seems very unfair for those to be concentrated in urban areas
because obviously the urban areas are the most lucrative areas.
They are marketed to minorities, many of these casinos.
I will tell you the busloads that drive up in front of the
Chinatown--
Mr. Gibbons. Well, those are--excuse me. You know,
Councilwoman, I know that those are important issues to be
considered. My question was going directly to the
representation in--
Ms. Quan. I am just saying, everywhere that I go in
informing this conference, that is what people--I hear from
people, that they feel that they were sort of sold a bill of
goods, that we were told that there would not be urban casinos,
we told it would help our rural tribes, and now we suddenly
have five alone within 30 miles of my county.
Mr. Gibbons. I guess our concern here is an attempt to
figure out how we best deal with any changes to the law if we
are going to make them, how suggestions should come to us, and
it is the purpose of eliciting the information out there.
Mr. Chairman, I have many, many more questions, but I would
like to submit them for the record for our witnesses to have
them answer in writing so that we may get back some
information, if I may.
The Chairman. Without objection.
The Chairman. At this point I will tell our panel that I
know that there are members that have been in and out today,
and there are a lot of questions that they would like to ask.
Those will be submitted to you in writing, if you could answer
those in writing so they can be part of the hearing record.
Mr. Gibbons. Is there a timeframe within which we will get
these answers?
The Chairman. We will hold the hearing record open for 2
weeks to allow them the opportunity to respond. And that
applies to the next panel as well, yes, Mr. Kildee.
Mr. Walden?
Mr. Walden. You know, Mr. Chairman, given the lateness of
the hour and the fact you have another panel, I believe, to go,
I will yield at this point and submit any questions in writing.
The Chairman. Thank you.
I am going to dismiss this panel. I want to thank you and
again apologize to you for the delay in us getting back. It was
not intentional and I apologize to you.
The Chairman. I would like to call up our next panel. We
will hear from several tribal organizations with an interest in
the issue. The witnesses are Kurt Luger, Executive Director of
the Great Plains Indian Gaming Association; James T. Martin,
Executive Director of the United South and Eastern Tribes,
Incorporated; and Mark Van Norman, Executive Director of the
National Indian Gaming Association. If you would join us at the
witness table, please remain standing and I will administer the
oath.
[Witnesses sworn.]
The Chairman. Thank you, gentlemen. Let the record show
they all answered in the affirmative. And I know that all of
you have been waiting a long time to have your opportunity to
testify, and I appreciate your patience in sticking with us.
Mr. Luger, we are going to begin with you as soon as you
are ready. I will remind the witnesses that we limit oral
testimony to 5 minutes. Your entire written statements will be
included in the record.
Mr. Luger?
STATEMENT OF J. KURT LUGER, EXECUTIVE DIRECTOR,
GREAT PLAINS INDIAN GAMING ASSOCIATION
Mr. Luger. Thank you, sir. Good afternoon, Chairman Pombo
and distinguished members of the Committee. My name is Kurt
Luger. I'm the Executive Director of the Great Plains Indian
Gaming Association, and I represent 28 tribal nations in the
States of North Dakota, South Dakota, Kansas, Nebraska, and
Iowa. We have approximately a quarter of a million tribal
enrolled members and 15 million acres of trust that we occupy.
And at the outset I want to get to the important points of the
written testimony that I have already submitted, and at the
outset let me say that Indian gaming is working in the rural
areas of America. Where I live, we face 50, 60, to 70 percent
unemployment, and we 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.
Since the beginning of tribal gaming in North Dakota, the
primary function has been to provide employment and economic
development opportunities. To this end, this is an extremely
important statement for us. Out in the Great Plains, Indian
gaming represents jobs, not revenue, and often, especially in
the media, that's the only thing that we hear about, is our
struggles over the revenue. For us it's jobs. Jobs, jobs, and
more jobs. And it's worked.
There are five Indian gaming facilities in the State.
Together, the gaming facilities employ almost 2,000 North
Dakota residents. We were the second fastest growing industry
in the State of North Dakota outside of technology in the
decade of the 1990s. About 70 percent of our employees are
tribal members and the balance are non-Indian neighbors. And
taking into account the multiplier effect of $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, even in the small
State of North Dakota, which is a population of only 650,000.
The tribes of North Dakota work very hard to preserve a
strong relationship with the State, and the State for its part
has worked in good faith with the tribes. 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 government
revenue.
The Indian tribes in North Dakota are engaged in gaming on
Indian lands acquired prior to the Indian Gaming Regulatory
Act. To date, there have been no off-reservation land
acquisitions under the two-part secretarial process. But 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. The other four
federally recognized tribes oppose this proposal, and one of
the reasons and the main reason is our existing arrangements
were based upon jobs. And this is another--and several of the
Committee members have touched on it. We clearly see that there
are outside non-Indian developers that are a part of this story
and pushing this agenda in many cases.
At the Great Plains Indian Gaming Association, we believe
that under existing law it is very important for the Secretary
of 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, we live in areas that are large
geographically; our populations are small; and we often draw
our customer base from a substantial distance away. The same is
true in the other Great Plains States.
On behalf of the Great Plains Indian Gaming Association, I
want to thank you, Chairman Pombo, and the Committee for
issuing this bill in a discussion draft. To us, this is
critical that working with tribal government prior to the
introduction of the bill honors our tribal government-to-
government relationship, and we thank you very much. We want to
work with you and your process as it moves forward.
Let me start by saying that we have made important
employment, economic, social, and governmental progress under
IGRA, and we do not want to take a step backward. Therefore, we
respectfully ask the Committee to work with us to protect IGRA
and make sure that the only bill that moves forward is one
developed by the Committee through the regular hearing process
with the consensus of the tribal governments. We do not want to
be surprised by amendments on the House or the Senate Floor or
in the conference committee that are not relevant to this issue
or that undercut tribal rights to conduct Indian gaming as an
exercise of Indian sovereignty.
Second, let me say, as I did in July, the Secretary needs
to respect the interests of neighboring Indian tribes as well
as tribes seeking to engage in new gaming projects. We see this
as critical. We know that your legislative process is going to
take some time. Perhaps the Chairman would consider writing a
letter to the Secretary asking her to fully consider the
interests of neighboring tribes. The regulation process should
square with the statute.
I have taken in some of the comments earlier in July, and I
will repeat this. IGRA is not a panacea for Indian country.
There are some tribes that are going to do better than others.
There are some tribes that this opportunity may never be
available to them. But on-reservation activity is what this is
about. It must be a priority.
In our view, your draft bill would provide some clear rules
of off-reservation gaming by eliminating the existing Section
20 process and substituting the Indian Economic Opportunity
Zones. Before we take that final position on a draft bill--and
timing is of the question. I haven't had a chance to consult
with all 28 tribes yet. We will work with NIGA and NCAI in
their task force meetings, and we will jointly host a task
force meeting at our annual Great Plains Midwest meeting on May
25th. Members of the Committee and their staff will be invited
to attend this event. There will be approximately 75 tribes
from the Rocky Mountain region, Great Plains, and the Midwest
that will be attending.
On the other hand, as some have stated, we are also
concerned about the heightened role for local governments.
Local governments are sub-units of States, so it should be
enough for the Governor or the State legislature to act on
behalf of the State. We have a strong working relationship with
our State governments. We think this provision could needlessly
complicate that relationship. Pardon me, but let me be blunt.
It is the State's job to make sure that the interests of local
governments are protected. In addition, we do not want to see
any precedent for the idea that tribal governments are
subordinate to local governments. We have a direct government-
to-government relationship with the Federal Government, and our
tribal governments carry out our own governmental functions on
our land.
Finally, as someone who grew up on Standing Rock in North
Dakota, let me say that our reservation was established before
the State boundaries were. We need to be clear that Indian
tribes who have Indian lands that overlap State boundaries,
like the Standing Rock Sioux Tribe and the Sisseton Wahpeton
Oyate, must be respected by both State governments where their
lands are located. This bill should not impact our tribes with
lands on both sides of the border.
In conclusion, Chairman Pombo, I want to thank you. We know
you are trying to take tough issues heads on. We respect that.
Thusly, we respect you. We have found and have worked with you
to be a man of honor, and it's a pleasure to work with you on
this very difficult situation. But we also have some concern
and want to move forward cautiously, with an opportunity for
plenty of opportunity for all concerned parties to be heard.
And we want to be sure to protect Indian sovereignty and our
right to self-government on our treaty lands throughout the
process. We have fought for these rights for generations, and
we continue to protect our reservation homelands to this day.
In addition, in closing, as always I would like to thank
the veterans of the military service of this country. Without
their past contributions and their present contributions, we
wouldn't enjoy the freedom that we do today here in this
country. So, Pilama, thank you, Mr. Chairman. I would also
additionally like to thank your staff and their expertise and
sensitivity toward my contact and my tribes: Tom Brierton,
Chris Fluhr, and Jim Hall. I appreciate their sincerity and
their expertise, and I stand to answer any questions that would
come forward.
And, additionally, back to the two questions before. I can
already tell you my answer to the 300-mile question is no.
[Laughter.]
[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 believe that
under existing law 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.
Committee Proposal
On behalf of the Great Plains Indian Gaming Association, I want to
thank Chairman Pombo and the Committee for issuing this bill in a
discussion draft. Working with tribal government prior to the
introduction of the bill honors our tribal government-to-government
relationship with the Federal Government. We want to work with you as
your process moves forward.
In summary, the Committee proposal would:
Strike IGRA's existing Section 20(b) and substitute new
provisions;
A newly recognized tribe could conduct gaming on after
acquired trust lands within the State where the Tribe has its primary
geographic, social, and historical nexus to the land;
A restored tribe could conduct gaming on after acquired
trust land in the State where the Tribe has its primary geographic,
social, and historical nexus to the land, so long as the Secretary
determines that it is in the best interest of the Tribe, not
detrimental to the surrounding community and the State, city, county,
town, parish, village and any other local government concurs;
The Secretary may designate two Indian Economic
Opportunity Zones;
* One on Existing Trust Land; and
* One on Land to be Taken into Trust;
On the Existing Trust Land, an Indian Tribe could
participate in the Indian Economic Opportunity Zone provided the
Secretary determines that it is in the best interest of each
participating Tribe; that the State and local governments approve the
project, the Tribe does not have ownership in another facility, and the
``host'' tribe may not receive more than 10% of the gross revenues as a
management fee; and
On the Land to Be Taken Into Trust, an Indian Tribe could
participate in the Indian Economic Opportunity Zone provided the
Secretary determines that it is in the best interest of each
participating Tribe and lands are taken into trust for the benefit of
each participating Tribe, the State and local governments approve the
project; each Indian Tribe within 200 miles approves the project, and
participating Tribes do not have an interest in any other facility.
In addition, Indian tribes would be limited to conducting
gaming in the State where they are primarily located, unless their
reservation is along a border between states or overlaps the border.
Let me start by saying that we have made important employment,
economic, social and governmental progress under IGRA, and we do not
want to take a step backward. Therefore, we respectfully ask the
Committee to work with us to protect IGRA and make sure that the only
bill that moves forward is one developed by the Committee through the
regular hearing process with the consensus of tribal governments. We do
not want to be surprised by amendments on the House or Senate Floor or
in the Conference Committee that are not relevant to this issue or that
undercut tribal rights to conduct Indian gaming as an exercise of
Indian sovereignty.
Second, let me say, as I did in July--the Secretary needs to
respect the interests of neighboring Indian tribes as well as tribes
seeking to engage in new gaming projects. We know that your legislative
process is going to take some time. Perhaps the Chairman would consider
writing a letter to the Secretary asking her to fully consider the
interests of neighboring Tribes.
In our view, your draft bill would provide some clear rules for
off-reservation gaming by eliminating the existing Section 20 process
and substituting the Indian Economic Opportunity Zones. Before we take
a final position on the draft bill, we will work with NIGA and NCAI in
their Task Force meetings and we will jointly host the Task Force
meeting in Minnesota on May 25th. Yet, as a preliminary matter, let me
say please respect the interests of neighboring Indian tribes in both
the Existing Trust and New Lands Zones. Please require agreement for
tribal governments in both provisions.
On the other hand, we are also concerned about the heightened role
for local governments. Local governments are just sub-units of States,
so it should be enough for the Governor or the State Legislature to act
on behalf of the state. We have a strong working relationship with our
state governments, we think this provision could needlessly complicate
that relationship. Let me be blunt, it is the State's job to make sure
that the interests of local governments are protected. In addition, we
do not want to see any precedent for the idea that tribal governments
are subordinate to local governments. We have a direct government-to-
government relationship with the Federal Government, and our tribal
governments carry out our own governmental functions on our lands.
Finally, as someone who grew up on the Standing Rock Sioux
Reservation in North Dakota, let me say that our Reservation was
established before there were any state boundaries. We need to be very
clear that Indian tribes who have Indian lands that overlap state
boundaries, like the Standing Rock and Sisseton Wahpeton Sioux Tribes,
must be respected by both state governments where their lands are
located. This bill should not impact our Tribes with lands on both
sides of the border.
Conclusion
In conclusion, I want to thank Chairman Pombo. We know you are
trying to take on tough issues heads on. We respect that. But we also
have some concern and want to move forward cautiously, with an
opportunity for plenty of opportunity for all concerned parties to be
heard. And, we want to be sure to protect Indian sovereignty and our
right to self-government on our treaty lands throughout the process. We
have fought for those rights for generations and we continue to fight
to protect our reservation homelands to this day.
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
______
[Responses to questions submitted for the record by Mr.
Luger follow:]
Response to questions submitted for the record by J. Kurt Luger,
Executive Director, Great Plains Indian Gaming Association
Answers to Congressman Pombo's Questions.
Answer to Question 1.
At the Great Plains Indian Gaming Association, our Member Tribes
work closely with their Governors. We count on the State Governors to
speak on behalf of their state because that is what they were elected
to do. Existing law reflects that reality of our Federal system.
Answer to Question 2.
The United States took millions of acres of Indian lands, much of
it in violation of treaties. In the 1930s, President Roosevelt and
Congress acknowledged that the theft of Indian lands had left our
Indian tribes and people in poverty. The Indian Reorganization Act
provided for the acquisition of lands for Indian tribes and landless
Indians. In our view, the existing regulations that provide a sliding
scale are appropriate: on-reservation trust land acquisitions are
easier and tribal interests weigh more and off-reservation trust land
acquisitions are harder and state and local interests weigh more
heavily the further from the reservation the acquisition is located.
For gaming, the process is tougher and the Secretary must consult
neighboring tribes as well as state and local governments and request
the Governor's concurrence. When existing law is properly applied,
consultative roles for local governments and neighboring Indian tribes
protects their interests.
Answer to Question 3.
Tribes should seek to take land into trust in their aboriginal,
ancestral or treaty areas. If a tribe goes outside its aboriginal,
ancestral or treaty area, and another tribe objects to the land
acquisition because it is in its own aboriginal, ancestral or treaty
area, the Secretary should listen to the objections of the neighboring
tribe and deny the trust application.
This is the way that existing law should work. If not, the House
Resources Committee should call on the Secretary to respect the
aboriginal, ancestral and treaty areas of Indian tribes--which was the
intent of the Indian Reorganization Act. No amendment to the Indian
Gaming Regulatory Act is needed to achieve this result.
An aboriginal land means lands a tribe has occupied from time
immemorial. An ancestral land means lands a tribe has occupied after
the first contact with Europeans because it had to move out of its
aboriginal areas due to pressure from colonists. Treaty lands means
Indian lands recognized under a treaty between the United States and an
Indian tribe.
Answer to Question 4.
Revenue sharing should be prohibited. 0%. Existing revenue sharing
agreements could be grandfathered in, but it is now clear that revenue
sharing is basically a state tax upon tribal government and should be
prohibited to restore the original intent of IGRA.
Answer to Question 5.
The Department of the Interior requires further congressional
legislation to implement a land claim settlement before the settlement
lands can be used for gaming. This issue can be addressed in the
context of the congressional legislation implementing the settlement.
Answer to Question 6.
We recognize that anyone can propose anything. The existing system
ensures that only projects with the support of the state, local
governments and neighboring Indian tribes are appropriate.
We believe that the American public should take the time to educate
themselves about Indian tribes because, after all, they are living on
lands that our tribes donated for their residential use.
Answer to Question 7.
The original intent of IGRA was to regulate and protect Indian
gaming on existing Indian lands, with new lands to be used only in
limited circumstances outlined in the Act. If the Committee reminds the
Secretary of that fact, there should be no problem under the law.
Answer to Question 8.
The proposed Minnesota agreement is illegal because it end runs the
Indian Gaming Regulatory Act.
Answers to Congressman Gibbons' Questions.
Answer to Question 1.
The Committee should recognize that the existing regulation on
Indian trust land acquisitions deals with these issues in a fair and
balanced way. 25 CFR 151.
Answer to Question 2.
Landless tribes are generally directed to go to their former
reservations and tribes that are restored to recognition by Congress
generally have an area described where they are to reacquire lands.
It is not surprising that an Indian tribe would object to another
tribe's acquisition of trust land in its aboriginal area. The Secretary
should deny a trust land acquisition that infringes on another tribe's
aboriginal lands.
Answer to Question 3.
History speaks for itself. The United States Army killed many of
our people in order to force us on to small reservations. Then our
reservation lands were stolen. If tribes get back a small portion of
their former lands, it is a small measure of justice.
Answer to Question 4.
The Department of the Interior has appropriate criteria for land
into trust applications under 25 CFR 151. As stated above, that
regulation establishes a sliding scale where land acquisitions on-
reservation are easier and off-reservation acquisitions are harder.
Answer to Question 5.
See Answer to Question 2.
Answer to Question 6.
Anyone can make any proposal, but the existing law provides only
limited exceptions to the general rule that Indian tribes use existing
reservation lands for gaming.
Answer to Question 7.
American Indians were denied the right to vote for so long that all
Americans should be applauding the fact that we finally have a right to
participate. The Federal Government did not recognize the right of
American Indians to vote until 1924. Basically, our people were treated
as resident aliens. For decades after the Federal law changed, state
laws and constitutions prohibited reservation Indians from voting. And,
county governments also prohibited our people from voting into the
1970s. Any participation by American Indians and Indian tribes is
proportional to our numbers and should be encouraged.
Answer to Question 8.
As we discussed with Governor Owens, the Cheyenne-Arapaho proposal
was not likely to succeed without the support of the state and local
government. Thus, his opposition has more or less stopped the proposal.
The land claim settlement would have to be implemented by further
congressional legislation before any lands could be used for gaming, so
that prospect appears to be unlikely without the support of the people
of Colorado.
______
The Chairman. Thank you.
Mr. Martin?
STATEMENT OF JAMES T. MARTIN, EXECUTIVE DIRECTOR,
UNITED SOUTH AND EASTERN TRIBES, INC.
Mr. Martin. Good afternoon, Chairman Pombo, Congressman
Kildee and other distinguished members of the Committee. It is
a pleasure to be here this afternoon. USET has submitted
written testimony, and I would like to have that entered as our
official testimony for this hearing. I would also like to make
some oral remarks.
My name is Tim Martin. I am the Executive Director of
United South and Eastern Tribes, an intertribal organization
representing 24 federally recognized Indian tribes in the East
and Southeastern part of the United States.
I appear before the Committee today to discuss Chairman
Pombo's proposed legislation to restrict off-reservation
gaming. USET believes it is time for Congress to pass
legislation to address what has become known as reservation
shopping. Consequently, we thank Chairman Pombo for his
leadership in bringing to the Committee's attention this issue,
and we look forward to working with the Committee as we
consider this corrective legislation.
Congress enacted the Indian Gaming Regulatory Act, IGRA, to
promote trial economic development, tribal self-sufficiency and
strong tribal governments. The Act is doing just that. Indian
gaming has been described as the only Federal Indian economic
initiative that has ever worked, and that is absolutely true.
Indian gaming has served as a critical economic tool to enable
Indian nations to once again provide essential public services
to their tribal members, reassert their trial sovereignty,
promote the ultimate goal of self-determination and self-
sufficiency.
Unfortunately, however, USET has been increasingly
concerned with the handful of Indian tribes and wealthy non-
Indian developers who are seeking to establish Indian casinos
far away from their existing reservation in distant States
where the tribe is not even currently located. In at least 12
States Indian tribes are seeking to move across State lines and
even across multiple States to take advantage of more lucrative
gaming markets. In most cases these efforts are being funded by
shady developers who are underwriting the litigation expense,
lobbyist fees, and in some cases buying the land that could be
put in for a cut of the profits.
This kind of reservation shopping runs contrary to the
intent behind IGRA and well-established Federal Indian policy.
The basic idea of IGRA was to protect the governmental rights
of tribes to exercise jurisdiction over their land while
assuring regulatory oversight over Indian gaming. But these
proposed Indian casino deals are not based upon governmental
rights. In most instances the developers and tribes are using
land claims or the threat of land claims to promote casinos in
far off places. In these instances Indian gaming is not being
used as a tool by the tribe to promote economic activities on
their lands. It is being used as a tool by developers who
simply need Indian tribes to make their casino deals work.
Let me give a typical scenario for how the developers
normally seek to gain approval for an Indian casino on behalf
of a out-of-State tribe. First the developer will extend a
carrot to the State and local governments. The developer hires
lobbyists who try to convince State and local officials that an
Indian casino will benefit that State by creating jobs and
economic development. The developer will offer the State and
local communities a cut of the proceeds of the casino in
exchange for State support. In most cases these offers violate
IGRA's prohibition against taxing Indian casinos. But the out-
of-State tribes are willing to pay these taxes because the
venture does not impair the enterprises where their tribes are
located. The developers also are willing to agree that the out-
of-State tribes will waive most of their aspects of its tribal
sovereignty. In other words, the out-of-State tribe will agree
to submit to State and local jurisdiction and return to the
ability to establish an Indian casino in the new State.
Whatever concessions the out-of-State tribes are willing to
make are fine because they don't impact that tribe because it
is another State.
Unfortunately, though, where there are other tribes located
in the State that the tribe is proposing to go to, where the
out-of-State is seeking a casino, the offer to be submitted to
the State jurisdiction pay hefty taxes on the gaming facility
seeking undermines the in-State tribe's effort to defend their
sovereignty. Why? Because the out-of-State tribe's offer
becomes the new baseline which the State will seek concessions
from the in-State tribes. The State will be asked to the tribe,
Why aren't you as reasonable as an out-of-State tribe are
willing to relinquish their sovereignty in exchange for the
right to operate a casino.
If the carrot approach does not work, the developer
typically raises the suspect of land claims litigation as a
stick to compel the State to negotiate with the tribe for a
casino. In fact, there seems to be a handful of developers who
have created a new business model that relies on tribes and
existing or potential land claims as a means to establish
lucrative casino proposals in geographically attractive
locations.
So far none of the out-of-State Indian tribes have obtained
the necessary approval to establish the casinos they are
seeking. If even one of these deals is approved, however, the
floodgate for reservation shopping will be open all across the
United States. There are many tribes that assert land claims to
lands formerly occupied by ancestrals or tribal members. Given
that many tribes in the west previously migrated from lands in
the east, it will not be difficult for them to convey some
nexus to the land stipulated in the eastern part of the United
States, especially in areas that are potentially lucrative
casino sites.
In the meantime, the activities of these developers and
out-of-State tribes create uncertainty for States and local
communities and undermine the ability of in-State tribal
nations to defend their homeland and sovereign rights.
Chairman Pombo's recent distributed discussion draft
legislation would prohibit Indian tribes from conducting gaming
on lands outside of a State in which the Indian tribe has an
existing reservation unless such lands are contiguous to an
existing reservation of that tribe in that State.
Although we have some technical suggestions in the approved
discussion draft, we support the intent of Chairman Pombo's
proposed amendment to IGRA. We applaud this committee for
conducting a hearing of this important issue, and we look
forward to working with Chairman Pombo and this committee to
develop a common sense solution to put a end to reservation
shopping.
Thank you.
[The prepared statement of Mr. Martin follows:]
Statement of James T. Martin, Executive Director,
United South and Eastern Tribes, Inc.
Good afternoon Chairman Pombo, Ranking Member Rahall, and
distinguished members of the Committee on Resources. My name is Tim
Martin, and I am Executive Director of United South and Eastern Tribes,
Inc. I am pleased to appear before the committee to discuss Chairman
Pombo's proposed legislation to restrict off-reservation gaming. As you
know, United South and Eastern Tribes, Inc. passed a resolution over
two years ago raising concerns with the increasing activities of shady,
non-Indian developers and a handful of tribes seeking to establish
casinos in states where they have no reservation. Consequently, we
thank Chairman Pombo for his leadership in bringing the Committee's
attention to these activities, and we look forward to working with the
Committee as it considers corrective legislation.
United South and Eastern Tribes, Inc. (``USET'') is a non-profit,
inter-tribal organization that collectively represents its member
Tribes at the regional and national levels. USET represents twenty-four
federally recognized Tribes. 1 Included among the members of
USET are some of the largest gaming tribes in the United States, such
as the Mashantucket Pequots, the Mohegan Tribe, the Oneida Indian
Nation, the Mississippi Band of Choctaw, the Seminole Tribe, and the
Miccosoukee Tribe. We also represent tribes with more modest gaming
facilities, as well as tribes that currently do not engage in gaming.
To be specific, of the 24 Indian nations that comprise USET, 15 engage
in Indian gaming pursuant to the Indian Gaming Regulatory Act of 1988
(``IGRA'' or ``the Act''). Nine tribes conduct Class III gaming
pursuant to a tribal-state compact, and six tribes engage in Class II
gaming.
---------------------------------------------------------------------------
\1\ The members of USET are: The Chitimacha Tribe of Louisiana, the
Seneca Nation of Indians, the Coushatta Tribe of Louisiana, the Eastern
Band of Cherokee, the Mississippi Band of Choctaw, the Seminole Tribe
of Florida, St. Regis Band of Mohawk Indians, the Miccosukee Tribe, the
Penobscot Indian Nation, the Passamaquoddy Pleasant Point Tribe, and
the Passamaquoddy Indian Township Tribe, the Houlton Band of Maliseet
Indians, the Tunica-Biloxi Indians of Louisiana, the Poarch Band of
Creek Indians, the Narragansett Indian Tribe, the Mashantucket Pequot
Tribe, the Wampanoag Tribe of Gay Head (Aquinnah), the Alabama-
Coushatta Tribe of Texas, the Oneida Indian Nation, the Aroostook Band
of Micmac Indians, the Catawba Indian Nation, the Jena Band of Choctaw
Indians, the Mohegan Tribe of Connecticut, and the Cayuga Nation.
---------------------------------------------------------------------------
Congress enacted the IGRA ``to promote tribal economic development,
tribal self-sufficiency, and strong tribal government.'' 2
The Act is doing just that. Indian gaming has been described as ``the
only federal Indian economic initiative that ever worked.'' That is
absolutely correct. Indian gaming has served as a critical economic
tool to enable Indian nations to once again be able to provide
essential governmental services to their members, re-assert their
sovereignty, and promote the goals of self-determination and self-
sufficiency.
---------------------------------------------------------------------------
\2\ 25 U.S.C. Sec. 2701(4)
---------------------------------------------------------------------------
Prior to the advent of Indian gaming, many Indian nations, while
legally recognized as sovereign governments, were not able to provide
basic, governmental services to their people. They had all of the legal
attributes of sovereign nations, but many did not have the practical
ability to be an effective government for their members. Consequently,
despite a strong and proud tradition, Indian nations were stuck in a
two hundred year cycle of poverty.
Today, the proceeds of Indian gaming operations go directly into
providing essential governmental services to tribal members. Our
Members have used these revenues to invest in dozens of Member
programs, including home ownership initiatives, tuition assistance for
everything from private schools to post-doctorate work, national health
insurance for tribal members, and access to top-notch health clinics.
Gaming has also allowed Indian nations to take tremendous steps to
reclaim their heritage.
Reclaiming a past heritage has been a priority for all USET
members, and gaming proceeds have enabled Indian nations to make
tremendous gains in this area. In many respects, these efforts
culminated in the dedication of the National Museum of the American
Indian in September 2004. I am proud to note that the three largest
contributions to the building of this tremendous institution came from
Indian nations that are Members of USET. 3
---------------------------------------------------------------------------
\3\ Jim Adams, Leaders guide museum with humble yet historic
partnership, Indian Country Today (Lakota Times), Sept. 22, 2004, at 1.
---------------------------------------------------------------------------
Unfortunately, however, USET has been increasingly concerned with a
handful of Indian tribes and wealthy non-Indian developers who are
seeking to establish Indian casinos far away from their existing
reservations in different states from where the tribes are currently
located.
In at least twelve states, Indian tribes are seeking to move across
state lines to take advantage of more lucrative gaming markets. In most
cases, these efforts are being funded by shadowy developers who
underwrite the litigation expenses, lobbyists fees, and even the cost
of land in exchange for a cut of the profits.
This kind of ``reservation shopping'' runs contrary to the intent
behind IGRA and well-established federal Indian policies. The basic
idea of IGRA was to protect the governmental rights of tribes over
their lands while assuring regulation of casino gaming. But these
proposed Indian casino deals are not based on governmental rights. In
most instances, the developers and tribes are using land claims or the
threat of land claims to promote casinos in far-off places. In these
instances, Indian gaming is not being used as a tool by tribes to
promote economic activities on their lands, it is being used as a tool
by developers who simply need Indian tribes to make their deals for
casinos work.
Let me give you a typical scenario for how the developers normally
seek to gain approval for an Indian casino on behalf of an out-of-state
tribe. First, the developer will extend a ``carrot'' to the state and
local governments. The developer hires lobbyists who try and convince
state and local officials that an Indian casino will benefit the state
by creating jobs and economic activity. The developer will offer the
state and local communities a cut of the proceeds of the Indian casino
in exchange for state support. In most cases, these offers violate
IGRA's prohibition against taxing Indian casinos. But the out-of-state
tribes are willing to pay a tax because these ventures do not impact
the enterprises where the tribes are currently located. The developers
also are willing to agree that the out-of-state tribe will waive most
aspects of its sovereignty. In other words, the out-of-state tribe will
agree to submit to state and local jurisdiction in return for the
ability to establish an Indian casino in a new state. Whatever
concessions the out-of-state tribes are willing to make are fine
because they do not impact the tribes' primary reservation.
Unfortunately, when there are other tribes located in those states
where out-of-state tribes are seeking a casino, the offers to submit to
state jurisdiction and pay hefty taxes on their gaming facilities
severely undermine the in-state tribes' continuing efforts to defend
their sovereignty. Why? Because the out-of-state tribes' offers become
the new baseline upon which the State will seek concessions from the
in-state tribes when negotiating gaming compact renewals, tax compacts,
and local community jurisdictional agreements. The State will ask the
in-state tribe why it won't be as reasonable as the out-of-state tribes
who are willing to relinquish their sovereignty in exchange for the
right to operate a casino.
If the ``carrot'' approach does not work for the developer, the
developer typically raises the specter of land claims litigation as a
``stick'' to compel the state to negotiate with the tribe for a casino.
In fact, there seem to be a handful of developers who have created a
new business model that relies on tribes with existing or potential
land claims as a means to establish lucrative casinos in geographically
attractive locations.
So far, none of the out-of-state Indian tribes has obtained the
necessary approvals to establish the casinos they are seeking. If even
one of these deals is approved, however, the floodgates for this kind
of reservation shopping will open throughout the United States. There
will be no legal rationale to prohibit other tribes from establishing
casinos in far away states, and developers will seek casinos for
potentially dozens of other tribes throughout the United States and
even Canada. There are many tribes that assert land claims to land
formerly occupied by ancestors of tribal members. Other tribes would
undoubtedly be encouraged to assert such claims as a route to casino
riches. Given that most tribes in the west previously migrated from
lands in the east, it will not be difficult for them to contrive some
nexus to lands situated in the eastern part of the United States--
especially in areas that are potentially lucrative casino sites.
In the meantime, the activities of these developers and out-of-
state tribes create uncertainty for states and local communities, and
undermine the ability of in-state Indian nations to defend their
homelands and sovereign rights.
Consequently, in early 2003, USET was the first Native American
organization to adopt a resolution raising concerns with the
encroachment of out-of-state tribes on lands on which they have no
recognized jurisdiction. The resolution called on Congress to oppose
the efforts of these so-called ``out-of-state tribes'' to establish
casinos in different states. 4 A copy of this Resolution is
attached.
---------------------------------------------------------------------------
\4\ Illegal Gaming by the Seneca-Cayuga Tribe of Oklahoma in the
State of New York, USET, Inc. Res. No. 2003:057, Feb. 6, 2003
---------------------------------------------------------------------------
This year, USET again adopted a resolution opposing reservation
shopping. 5 A copy of this Resolution is attached. The
Resolution includes the following admonition to Congress:
---------------------------------------------------------------------------
\5\ Reservation Shopping, USET, Inc. Res. No. 2005:022, Feb. 10,
2005
---------------------------------------------------------------------------
Resolved that the USET Board of Directors calls upon the United
States Congress to enact legislation that would prohibit, and
oppose any legislation that would allow, individual Indian
Nations or Tribes from establishing a reservation, acquiring
trust land or exercising governmental jurisdiction in a state
other than the state where they are currently located or at a
remote location to which they have no aboriginal connection''.
6
---------------------------------------------------------------------------
\6\ Id.
---------------------------------------------------------------------------
In order that the Committee understands the extent of this kind of
reservation shopping across the country, the following is a summary of
what we know is happening in at least twelve different states.
Colorado
Cheyenne-Arapahoe Tribes of Oklahoma: In 2004, the consolidated
Cheyenne-Arapahoe Tribes filed a 27 million acre land claim with the
Department of Interior, claiming all of Denver and Colorado Springs. In
exchange for dropping the claims, the Cheyenne-Arapahoe Tribes have
proposed to develop a Las Vegas-style gaming facility near the Denver
Airport. This proposal has met opposition from the state and federal
representatives of Colorado. In late 2003, a developer sought to
purchase 500 acres east of Denver, near the Denver International
Airport, to create a reservation for the tribes. 7
---------------------------------------------------------------------------
\7\ ``Owens to denounce casino,'' The Denver Post, August 29, 2004;
`Indians' leveraged efforts for casinos reach beyond Colo.,'' The
Denver Post, August 16, 2004
---------------------------------------------------------------------------
Georgia
Kialegee Tribal Town of Oklahoma: The tribe sought to move to
Hancock County, Georgia to establish a casino and entertainment
project. County officials were interested in the plan, because of
extreme poverty in the county, but the previous Governor was opposed to
casino gaming. The tribe also sought land in Texas and other parts of
Georgia in the past. 8
---------------------------------------------------------------------------
\8\ ``Kialegee gamble on casino bid,'' The Tulsa World, November
14, 1999
---------------------------------------------------------------------------
Illinois
Miami Tribe of Oklahoma: The tribe is seeking 2.6 million acres in
east-central Illinois based upon a treaty from the 1800s. The tribe
sued landowners in 2000, and dropped the lawsuit in 2002. The tribe has
indicated it would agree to a casino in exchange for dropping the
claim. 9
---------------------------------------------------------------------------
\9\ ``Johnson testifies on Hill; Bill centers on tribal land
disputes,'' The Pantagraph, May 9, 2002
---------------------------------------------------------------------------
Ho-Chunk Nation of Wisconsin: The tribe is seeking to build the
largest casino in Illinois, which would be located in the Chicago
suburb of Lynwood. There is strong opposition from the community, but
the plan has been supported by Congressman Jesse Jackson, Jr. (D-IL).
The proposed casino would be located approximately 296 miles from the
tribe's current reservation. 10
---------------------------------------------------------------------------
\10\ ``Village opposes Lynwood casino,'' Chicago Tribune, November
19, 2004; ``Weller will battle Ho-Chunk proposal,'' Chicago Tribune,
August 28, 2004.
---------------------------------------------------------------------------
Prairie Band Potawatomi Nation of Kansas: The tribe has sought a
gaming compact with the Governor, which prompted the State's
legislature to pass legislation that would require the Governor to get
approval from the General Assembly before signing a deal with any
Native American tribe. The Governor vetoed the bill, but the veto was
overridden and has gone into law. The tribe was seeking land outside of
Chicago for a casino. 11
---------------------------------------------------------------------------
\11\ ``Indian gaming law takes effect,'' The Daily Chronicle,
November 20, 2004.
---------------------------------------------------------------------------
Indiana
Miami Tribe of Oklahoma: The tribe is negotiating with the state to
put a casino in Gary, Indiana. The tribe has negotiated with the mayor
of Gary since 2002. The tribe unsuccessfully attempted to place a
casino in Terre Haute, Ind. as well. The proposed casino would be
located approximately 610 miles from the tribe's current reservations.
12
---------------------------------------------------------------------------
\12\ ``Tribe wins step in fight for N.Y. casino,'' The Daily
Oklahoman, November 16, 2004; ``Midwest Tribes See Big Payoffs in the
East,'' The New York Times, March 24, 2003; ``...the Oklahoma-based
tribe, which has been negotiating to open a casino in northern Indiana,
recently declared that the tribe has a legal claim to 100 percent of
the land in [5] counties.'' ``An obvious ploy,'' South Bend Tribune,
July 2, 2002.
---------------------------------------------------------------------------
Kansas
Delaware Tribe of Oklahoma: The tribe signed with a California-
based developer to help secure gaming rights near Kansas City, Kansas.
A land claim is pending. 13
---------------------------------------------------------------------------
\13\ ``Delaware Indian tribes face long odds to win gambling
effort,'' Newsday.com article, May 15, 2003.
---------------------------------------------------------------------------
Miami Tribe of Oklahoma: The tribe attempted to open a casino in
Kansas in 1999, but the plan was rejected by the federal government.
14
---------------------------------------------------------------------------
\14\ ``Tribe aims for casino deal,'' The Pantagraph, Jan. 12, 2003.
---------------------------------------------------------------------------
Wyandotte Tribe of Oklahoma: The tribe expressed interest in
opening a casino in Edwardsville, KS, and U.S. Congressman Dennis Moore
(D-KS) introduced legislation in 2002 to allow the casino. The Governor
has expressed reservations with this plan. 15
---------------------------------------------------------------------------
\15\ ``Sebelius not sure she'll support tribal gambling plan,''
Associated Press, Jan. 25, 2003.
---------------------------------------------------------------------------
Maryland
Delaware Nation of Oklahoma: The tribe agreed to take over land in
Anne Arundel County to create a landfill, run by a local development
company. The tribe expressed interest in the land for establishing a
high stakes bingo parlor, and if slots are approved by the state,
offering those as well. 16
---------------------------------------------------------------------------
\16\ ``[Halle Cos.] has agreed to pay an Oklahoma-based Indian
tribe as much as $1.4 million a year to take over the land and to apply
to make it tribal property...To make its case to the [BIA], the tribe
presented its history, including evidence of its ancestral ties to
Maryland.'' ``Surprising Ally Joins Landfill Quest; Thwarted Developer
Would Make Indian Tribe Owner of Arundel Site,'' The Washington Post,
November 1, 2004.
---------------------------------------------------------------------------
New Jersey
Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: The two
tribes (which are separate entities recognized by the federal
government) attempted to open a casino in 1999 in Wildwood, New Jersey,
but state and local officials opposed the plan. 17
---------------------------------------------------------------------------
\17\ Newsday.com article, ``Delaware Indian tribes face long odds
to win gambling effort,'' AP, May 15, 2003; Philly.com article, ``2
Okla. tribes seek fortune in Penna.'' Philadelphia Inquirer, July 7,
2003
---------------------------------------------------------------------------
New Mexico
Fort Sill Apache Tribe of Oklahoma: The tribe is considering
building a casino in southern New Mexico, and might oppose plans by an
in-state tribe, the Jemez Pueblo to build in the area as well.
18
---------------------------------------------------------------------------
\18\ ``Local tribes unable to play,'' Las Cruces Sun-News, November
14, 2004 ``[Tribal chairman] Houser said it is his hope the Fort Sill
Apaches can return to New Mexico under an act of Congress that would
grant land to the tribe as compensation for the U.S. government's past
acts.'' (Source: ``Okla. Apaches Seek to Build N.M. Casino,''
Albuquerque Journal, November 7, 2004.)
---------------------------------------------------------------------------
New York
Stockbridge-Munsee Tribe of Wisconsin: This tribe has offered to
settle a land claim with the state in exchange for a casino in New
York. The tribe has signed with a developer to build one of the planned
Indian casinos in the Catskills. A Federal court is poised to drop the
tribe's land claim against the state because it is not supported by the
Federal Government. After years of opposing any governmental presence
in New York by an out-of-state tribe, Governor Pataki agreed to give
the tribe the right to establish a Las Vegas-style facility in the
Catskills. The U.S. Congress and the New York Legislature must still
approve this agreement. 19
---------------------------------------------------------------------------
\19\ ``Midwest Tribes See Big Payoffs in the East,'' The New York
Times, March 24, 2003
---------------------------------------------------------------------------
Seneca-Cayuga Tribe of Oklahoma: The Seneca-Cayuga Tribe of
Oklahoma purchased land in New York and declared its intention to build
and operate an Indian gaming facility more than 1,100 miles from its
reservation in Oklahoma. The Indian tribe claims that it has sovereign
authority over these newly acquired lands, which if it were true, would
provide the tribe with the right to engage in high-stakes bingo without
obtaining approval from the federal government or the State of New
York.
The Seneca-Cayuga Tribe asserts that its participation in the land
claim litigation involving the Cayuga Nation and the State of New York
provides it with political jurisdiction over land in New York. Governor
Pataki announced a settlement agreement with the Seneca-Cayuga on
November 12, 2004, allowing the tribe to establish a Las Vegas-style
gaming facility in the Catskills. The U.S. Congress and the New York
Legislature must still approve this agreement. 20
---------------------------------------------------------------------------
\20\ Press Release from Office of Governor George Pataki on
November 12, 2004; ``Midwest Tribes See Big Payoffs in the East,'' The
New York Times, March 24, 2003
---------------------------------------------------------------------------
Oneida Tribe of Wisconsin: This tribe is a party to a land claim
suit with the Oneida Nation of New York and the Oneida of the Thames
Band. On December 7, 2004, the Governor announced an agreement with the
tribe that will allow them to establish a Las Vegas-style gaming
facility in the Catskills in exchange for the tribe dropping their land
claim. The U.S. Congress and the New York Legislature must still
approve this agreement. The agreement is opposed by the Oneida Indian
Nation of New York. 21
---------------------------------------------------------------------------
\21\ ``Land deals draw various reactions,'' The Syracuse Post-
Standard, March 12, 2005.
---------------------------------------------------------------------------
Ohio
Eastern Shawnee Tribe of Oklahoma: The tribe is preparing a 4
million acre land claim suit and is seeking to build anywhere from five
to seven casino resorts in Ohio. Additionally, Allen County (OH)
commissioners turned down a proposal by the tribe to take out an option
on county-owned land for a casino. The tribe has a contract to buy 150
acres in Monroe (OH) and plans to approach state officials in December
or January. The tribe would need to enter into a compact with the state
for the casinos. 22
---------------------------------------------------------------------------
\22\ ``Indians' leveraged efforts for casinos reach beyond Colo.,''
The Denver Post, August 16, 2004; ``Allen County, Ohio, leaders turn
down offer from tribe on casino,'' The Lima News, November 12, 2004;
``Monroe gets look at casino proposal,'' The Cincinnati Enquirer,
November 11, 2004
---------------------------------------------------------------------------
Pennsylvania
Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: These two
tribes declared a claim on 315 acres of land in Pennsylvania near
Allentown after their plans for a casino on the New Jersey shore
failed. The tribes are seeking to build a casino in exchange for
dropping their claims. Governor Rendell has so far refused to negotiate
with the tribes for a casino. 23
---------------------------------------------------------------------------
\23\ ``2 Okla. tribes seek fortune in Penna.,'' Philadelphia
Inquirer, July 7, 2003; ``...two Delaware Indian tribes from Oklahoma
want to reclaim 315 acres in the Lehigh Valley that they say were
stolen from their Pennsylvania ancestors 200 years ago...Stephen A.
Cozen, the Philadelphia lawyer representing the tribes, said the group
is prepared to file a federal lawsuit to reclaim the land and pursue
gaming unless they can reach an agreement with [Governor] Rendell to
open a casino.'' (Source: ``Indians seek N.E. Pennsylvania land for
casino,'' Philly.com article, May 15, 2003.
---------------------------------------------------------------------------
Texas
Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: In
addition to casino plans in New Jersey and Pennsylvania, these two
tribes have attempted to build a travel plaza in Texas. 24
---------------------------------------------------------------------------
\24\ Newsday.com article, ``Delaware Indian tribes face long odds
to win gambling effort,'' Associated Press, May 15, 2003
---------------------------------------------------------------------------
Kialegee Tribal Town: Attempted to establish lands and gaming in
Texas, but were rejected. 25
---------------------------------------------------------------------------
\25\ ``Kialegee gamble on casino bid,'' The Tulsa World, November
14, 1999)
---------------------------------------------------------------------------
The above-referenced activities are opposed by the majority of
Indian nations, including the 24 member-nations of USET. Consequently,
we strongly support Chairman Pombo's desire to address these
reservation shopping activities by clarifying that Indian tribes cannot
cross state lines to establish casinos in states where they are not
currently located.
Chairman Pombo's recently distributed discussion draft would
prohibit Indian tribes from conducting gaming on lands outside of a
State in which the Indian tribe has an existing reservation, unless
such lands are contiguous to an existing reservation of that Indian
tribe in that State. Although we have some technical suggestions to
improve the discussion draft, we support the intent behind Chairman
Pombo's proposed amendment to IGRA.
Department of Interior Secretary Gale Norton recently noted that,
``[t]ribes are increasingly seeking to develop gaming facilities in
areas far from their reservations, focusing on selecting a location
based on market potential rather than exercising governmental
jurisdiction on existing Indian lands.'' 26 If tribes are
permitted to conduct gaming in different states far away from their
recognized reservations, Secretary Norton's concerns will have been
fully realized. There is no precedent for these kinds of activities,
and if allowed to continue, it will usher in a new era of ``portable
sovereignty'' across the country.
---------------------------------------------------------------------------
\26\ Letter from Department of Interior Secretary Gale Norton to
New York Governor George Pataki, Nov. 12, 2002, at 2.
---------------------------------------------------------------------------
We applaud the Resources Committee for conducting a hearing on this
matter, and we support Chairman Pombo's efforts to develop a common-
sense solution to put an end to reservation shopping for gaming
purposes.
[GRAPHIC] [TIFF OMITTED] T0127.002
[GRAPHIC] [TIFF OMITTED] T0127.003
[GRAPHIC] [TIFF OMITTED] T0127.004
______
[Responses to questions submitted for the record by Mr.
Martin follow:]
Response to questions submitted for the record by James T. Martin,
Executive Director, United South and Eastern Tribes, Inc.
From Chairman Pombo:
1. Under the Section 20 two-part determination in IGRA, the governor
of a state is cast in the role of representing and protecting
the interests of both the state government, and the local
governments that exercise jurisdiction in the area proposed for
casino gaming. However, as state governors increasingly look to
tribal casinos to provide large amounts of revenue sharing to
supplement the state budget, it has been argued that governors
are now in a position where their fiduciary interest in
securing a tribal revenue stream for state government conflicts
with their duty to represent the interests of local communities
in the two part determination process.
With the potential of this large financial incentive to
a state for a governor to overlook the concerns of local communities,
can it be said that local communities can still be adequately
represented solely by the governor's participation in the two part
determination process?
Or does this potential conflict of interest presented to
governors suggest that IGRA should be modified to give affected local
communities a formal role in concurring with the Secretary's two-part
determination findings?
ANSWER:
Unfortunately, State governments are increasingly turning to Indian
governments' casino operations as a potential source of revenue.
Congress enacted the IGRA ``to promote tribal economic development,
tribal self-sufficiency, and strong tribal government.'' 1
Today, the proceeds of Indian gaming operations go directly into
providing essential governmental services to tribal members. Our
Members have used these revenues to invest in dozens of Member
programs, including home ownership initiatives, tuition assistance for
everything from private schools to post-doctorate work, national health
insurance for tribal members, and access to top-notch health clinics.
Gaming has also allowed Indian nations to take tremendous steps to
reclaim their heritage. The basic idea of IGRA was to protect the
governmental rights of tribes over their lands while assuring
regulation of casino gaming. IGRA was meant to be an economic tool of
Indian governments to strengthen their ability to provide for their
people.
---------------------------------------------------------------------------
\1\ 25 U.S.C. Sec. 2701(4)
---------------------------------------------------------------------------
Unfortunately, State governments are increasingly turning to Indian
governments' casino operations as a potential source of revenue. This
runs contrary to IGRA, where in Section 11(d)(4), the Act prohibits a
State or any of its political subdivisions from imposing any ``tax, fee
charge, or other assessment'' upon an Indian nation lawfully engaged in
gaming under the Act.
In tough budgetary times, however, some State Governors are looking
for potential sources of new taxation instead of trying to tighten
their belts and employ fiscal restraint. Consequently, some Governors
require an Indian government to engage in significant revenue sharing
with the State as a cost of doing business with the State. In some
situations, when an Indian government refuses to concede its rights,
the State will seek to work with tribes located in far away states or
in remote locations. These tribes are typically more willing to share
revenue and concede sovereign rights for a chance to engage in casino
gaming.
Chairman Pombo's discussion draft would prohibit a tribe from
migrating to a different state for purposes of engaging in casino
gaming. This bright line prohibition would go a long way to eliminate
some of the revenue sharing abuses that are occurring, as the handful
of tribes that are seeking gaming in such locations are typically
willing to share as much revenue as needed in exchange for a casino.
The draft also would impose additional steps for Indian nations
seeking to engage in off-reservation gaming within the same state but
on land that is not aboriginal. This also would help curb some of the
current revenue sharing abuses.
Non-Indian communities are represented by the Governor of the State
and by their federal representatives. Unlike States, Indian nations
have no direct representation in Congress. Consequently, it may not be
necessary to provide local, non-Indian communities with a more formal
role in considering off-reservation land-into-trust proposals.
2. Under established principles of tribal sovereignty, local
communities do not have a say in decisions involving tribal
land that is already held in trust by the federal government.
However, off-reservation gaming proposals involve taking land
into trust that is currently held in fee and is often not even
closely located to trust lands.
Is it a fundamental right of tribes to have land taken
into trust on their behalf at any location within the United States
they so desire, irrespective of the distance to their current
reservation or any connection to ancestral or native lands?
If not, what limitations should apply on where a tribe
can or cannot have lands taken into trust on their behalf?
Should a higher standard of review apply when the off-
reservation lands in question will be used for purposes of gaming?
Should this standard include active participation and a
requirement for concurrence from local governments, even though they
are generally otherwise prohibited from having a say on matters
concerning Indian lands?
ANSWER:
An Indian government does not have a fundamental right to have land
taken into trust regardless of the distance to its current reservation
or any connection to ancestral or native lands. Federal Indian law and
policy typically has required that an Indian government have an
aboriginal tie to land that is being sought to be taken into trust. The
farther away proposed land is from a tribe's current reservation,
typically the Department of Interior gives greater deference to the
concerns of surrounding communities that could be impacted by taking
the land into trust. Moreover, when a proposed land for trust
application involves the aboriginal land of a different Indian
government, the impacted tribe should have a significant role in the
decision-making.
The IGRA contains a higher standard of review when off-reservation
lands in question will be used for purposes of gaming. USET believes,
however, that Congress should enact legislation that would prohibit an
Indian nation from establishing a reservation, acquiring trust land, or
exercising governmental jurisdiction in a state other than the state
where they are currently located or at a remote location to which they
have no aboriginal connection.
3. Tribes have long fought to protect their ancestral lands from the
unwanted incursions of outsiders, both Indian and non-Indian
alike.
If a tribe is seeking to have land taken into trust in
an area that is not within the ancestral lands of that tribe, should
other tribes whose ancestral lands encompass the site have the ability
to object to the land going into trust?
The ability to veto the land going into trust?
How can the term ``ancestral lands'' be defined as
precisely as possible so it is clear to all observers, Indian and non-
Indian alike, which lands are ancestral to any given tribe?
ANSWER:
As mentioned above, we do believe that the federal government
should protect tribes from unwanted incursions of outsiders, both
Indian and non-Indian alike. Tribes whose aboriginal land is the
subject of a land-into-trust application of a different tribe should be
able to veto the land from going into trust.
Chairman Pombo's Discussion Draft (dated March 9, 2005) includes
language that adequately describes ``ancestral lands'' as lands where
the tribe has its primary geographic, social, and historical nexus to
the land. We can support this definition.
4. Should a cap be placed on any revenue sharing with state
governments from an off-reservation gaming facility?
If so, what should the cap percentage be?
ANSWER:
On October 26, 2004, George Skibine, [title], testified before the
Senate Committee on Indian Affairs, suggested that perhaps IGRA should
be amended to include a hard cap on revenue sharing. He suggested that
such a cap should be in the single digits. As discussed above, however,
the IGRA prohibits a State government from demanding revenue sharing.
In certain situations, however, the Secretary of Interior will approve
revenue sharing arrangements when the Indian government receives
substantial economic benefit in exchange for the revenue sharing.
Typically, this economic benefit comes in the form of exclusivity tied
to the operation of slot machines. Unfortunately, the Department has
approved compacts, or they have been deemed approved, which contain
substantial revenue sharing arrangements without substantial
exclusivity for the tribe. Consequently, much of this problem could be
addressed if the Department better enforced the provisions of IGRA.
5. Should a tribe be able to ask for or accept a casino operation as a
substitute, either in whole or in part, of a cash payment to
settle a land claim?
If a casino is acceptable as a settlement, should tribes
whose ancestral lands encompass the location where the casino would be
located be consulted before the settlement is finalized?
Should they be allowed veto power over such a casino-
based settlement as a tool to protect their ancestral lands?
ANSWER:
The most important issue for an Indian nation seeking to settle its
land claim is what value it will accept in exchange for foregoing
litigation. Once an Indian nation determines what a settlement should
be worth, there are many different means of funding the settlement. A
casino is one such means but it is not the only way to fund a
settlement, and it may not be in the best interest of the tribe to
accept a casino in lieu of cash. In other words, if a settlement is
worth $100 million, the tribe could agree to accept a cash settlement.
However, a cash-strapped State may determine that it would rather
provide the tribe with a business (i.e., a casino) as a substitute. In
that instance, the tribe should and will engage in a lengthy economic
analysis to determine whether the terms of the casino are an adequate
substitute for $100 million in cash.
If a tribe whose ancestral lands encompass the location where the
casino would be located, the tribe should be consulted before the
settlement is finalized and be able to veto the establishment of a
casino on its ancestral lands.
6. While there have been only three incidences since IGRA was enacted
of off-reservation land being placed into trust for gaming
purposes, there are currently dozens such projects either in
the proposed stage or being reviewed by the BIA.
What impact do you think all of these proposals have on
public support for Indian gaming?
Do you believe that the vagaries of current law
regarding off reservation gaming encourage the proliferation of
proposals for off-reservation gaming?
Do you believe that clarifying the law on off-
reservation gaming, and placing greater restrictions on when off-
reservation gaming is allowed, will reduce the number of proposals for
off-reservation gaming?
Will such changes serve to weed out proposals for off-
reservation gaming of dubious merits?
ANSWER:
There are only three incidences since IGRA was enacted of off-
reservation land being placed into trust for gaming purposes, but there
are currently dozens such projects either in the proposed stage or
being reviewed by the BIA. These proposals have a negative impact on
public support for Indian gaming. Wealthy, non-Indian developers take
advantage of vague language in IGRA to promote off-reservation casino
deals. Consequently, USET supports Congress clarifying current law to
place greater restrictions on when off-reservation gaming is allowed.
Specifically, Congress should enact legislation that would prohibit an
Indian nation from establishing a reservation, acquiring trust land, or
exercising governmental jurisdiction in a state other than the state
where they are currently located or at a remote location to which they
have no aboriginal connection.
7. Do you believe that the original intent of IGRA was to allow Indian
gaming to be conducted at any location within the United States
that a tribe is able to purchase and have placed into trust?
Or was the original intent of IGRA to foster economic
development on Indian lands held at the date of enactment?
ANSWER:
Congress did not intend for IGRA to allow Indian gaming to be
conducted at any location within the United States where a tribe is
able to purchase and have land taken into trust. IGRA was meant to be
an economic tool to foster economic develop on an Indian nation's lands
where the tribe is located. IGRA was not meant to allow a tribe to
conduct gaming on lands far away from the tribe's current location and
in a different state than where the tribe is located.
8. In Minnesota, the governor is entering into an agreement with three
tribes to operate an urban casino under the auspices of the
Minnesota State Lottery. As currently constructed, IGRA would
not apply to this proposal. Is there any other statute
authorizing or requiring the Secretary of Interior to ensure
tribal interests are protected in such gaming proposal as this
where at least one of the parties is a tribal government or
tribal government business enterprise? Should there be?
Does this agreement violate the terms of any tribal-
state compact in Minnesota?
What would be the impacts to tribes around the country
if other governors entered into similar agreements with tribes in their
states?
In such a deal as proposed in Minnesota, what is the
level of federal scrutiny of outside investors, management agreements,
and vendor contracts?
Are the tribes entering into this deal capable of
determining whether or not they will benefit from it? Are they capable
of knowing whether or not developers, casino management companies, and
the state government might be taking advantage of them?
ANSWER:
USET is not familiar with the particular circumstances in
Minnesota, so it would not be appropriate to respond. However, the
Secretary of Interior has broad discretion under her trust
responsibilities to Indian nations to ensure that tribal interests are
protected.
From Congressman Gibbons:
1. This Committee has held hearings on legislation that would allow a
tribe to go hundreds of miles off their reservation and open a
casino in the ancestral lands of another Tribe.
Do you have any specific suggestions on how Congress
should proceed in this regards?
Also, with over 300 tribes seeking recognition and
presumably gaming, please comment on the impact that a policy
permitting ``reservation shopping'' and ``off-reservation gaming'' will
have on communities across the country.
ANSWER:
The United South and Eastern Tribes, Inc. supports Congress
clarifying current law to place greater restrictions on when off-
reservation gaming is allowed. Specifically, Congress should enact
legislation that would prohibit an Indian nation from establishing a
reservation, acquiring trust land, or exercising governmental
jurisdiction in a state other than the state where they are currently
located or at a remote location to which they have no aboriginal
connection. Current ``reservation shopping'' activities has a
detrimental impact on communities across the country.
As stated in USET's written testimony, the basic idea of IGRA was
to protect the governmental rights of tribes over their lands while
assuring regulation of casino gaming. But these proposed Indian casino
deals are not based on governmental rights. In most instances, the
developers and tribes are using land claims or the threat of land
claims to promote casinos in far-off places. In these instances, Indian
gaming is not being used as a tool by tribes to promote economic
activities on their lands, it is being used as a tool by developers who
simply need Indian tribes to make their deals for casinos work.
The activities of these non-Indian developers and out-of-state
tribes seeking to establish off-reservation casinos in different states
create uncertainty for states and local communities, and undermine the
ability of in-state Indian nations to defend their homelands and
sovereign rights.
2. A few years ago, during the Proposition 5 campaign that allowed
full-scale Indian gaming in California, the tribes ran
television ads stating they wanted to do gaming just on their
reservation lands. Now in California, there are several tribes
that are trying to conduct off-reservation gaming.
If a tribe has a reservation and/or a traditional
service area, why should any tribe be permitted to establish gaming
off-reservation, distant from its reservation?
Also, please comment on the fact that other tribes are
opposed to tribes seeking ``off-reservation'' gaming.
ANSWER:
Congress did not intend for IGRA to allow Indian gaming to be
conducted at any location within the United States where a tribe is
able to purchase and have land taken into trust. IGRA was meant to be
an economic tool to foster economic develop on an Indian nation's lands
where the tribe is located. IGRA was not meant to allow a tribe to
conduct gaming on lands far away from the tribe's current location and
in a different state than where the tribe is located.
Many tribes are opposed to ``off-reservation'' gaming proposals
because the developers promoting these deals typically agree to give up
the sovereign rights of the tribes on whose behalf they are seeking
casinos in order to make the deal work. This undermines the ability of
other Indian nations that are not willing to eliminate their sovereign
rights. In addition, in some cases, the off-reservation gaming
proposals impact the aboriginal lands of other Indian nations. IN those
cases, the Indian nations whose land is the subject of an off
reservation gaming proposal should be consulted.
3. 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 other gaming establishments; do pay not
state taxes; etc.?
ANSWER:
Indian gaming is unlike commercial gaming because the former is
used by Indian nations as an economic tool to provide governmental
services for their members. In this respect, it is much like state-
sponsored gaming (e.g., lotteries), where the proceeds are used to fund
certain state programs. Proceeds of Indian gaming operations go
directly into providing essential governmental services to tribal
members. Our Members have used these revenues to invest in dozens of
Member programs, including home ownership initiatives, tuition
assistance for everything from private schools to post-doctorate work,
national health insurance for tribal members, and access to top-notch
health clinics. Gaming has also allowed Indian nations to take
tremendous steps to reclaim their heritage. Consequently, it is not
quite correct to compare Indian gaming to non-Indian, commercial gaming
enterprises.
In addition, Indian gaming is a highly regulated industry. The
regulation of Indian gaming is expressly provided for in IGRA, which
starts from the premise that ``Indian tribes have the exclusive right
to regulate gaming activity on Indian lands, if ... [it] is conducted
in a state which does not, as a matter of criminal law and public
policy, prohibit such gaming activity.'' In recognition of this
exclusive right, Congress sought to create a regulatory framework that
Indian nations could use for their gaming enterprises. This was
accomplished by establishing a compacting mechanism that gives state
governments significant input regarding the scope and nature of tribal
casino operations, and by creating a new regulatory agency, the
National Indian Gaming Commission (``NIGC'').
It is through the compact negotiation process that state
governments are given a meaningful voice in the manner in which gaming
will be conducted in Indian country. Virtually all gaming compacts are
detailed and specific, setting forth rules governing games to be
played, the application of various laws, operational standards to be
followed, fees and reimbursements to be paid, and the respective roles
of state and tribal authorities. For example, the Oneida Indian
Nation's compact with the State of New York is nearly 300 pages long
and covers almost every aspect of its gaming operations. The compacting
process has been immensely successful in ensuring the integrity of
Indian gaming while preserving the inherent sovereign rights of Indian
nations to regulate their own legal and commercial affairs.
4. What criteria should be used by the Department of the Interior in
it's determination of land-into-trust?
Should there be a requirement of substantial historical
connection between the tribe and the parcel to be taken into trust?
Why/why not?
How recent should the historical connection be? 100
years? 200 years?
What about distance from the tribe's current service
area? 10 miles? 20 miles? 70 miles?
Do you believe that the farther away the casino site is,
the less likely tribal members will be able to take advantage of
employment opportunities with a casino? [Alternatively, if the tribal
members move near the casino to get jobs, then will the traditional
community/service area be disrupted?]
ANSWER:
Congress should amend IGRA to create bright lines that prohibit an
Indian nation from migrating into a different state for the purpose of
establishing a casino. In addition, Congress should clarify that a
proposal for an off-reservation casino within a state include
requirements that the tribe have an aboriginal connection to the land
on which the tribe seeks to game.
Chairman Pombo's Discussion Draft (dated March 9, 2005) includes
language that adequately describes ``ancestral lands'' as lands where
the tribe has its primary geographic, social, and historical nexus to
the land. We can support this definition.
In addition to an absolute prohibition against an Indian tribe
seeking to migrate to a different state to establish a casino, Congress
should make it more difficult for a tribe to take land into trust when
the proposed lands are far away from the tribe's current location and
on land on which it has not aboriginal connection.
5. If landless, shouldn't land-into-trust be restricted to the area
where the tribe is located? Where they live, need jobs, need
health care and services?
ANSWER:
Yes.
6. If some tribes are permitted to select the ``best gaming''
locations, wouldn't all tribes want to do that?
What about tribes that played by the rules and have
their casino on their reservation land, even though it may not be the
best gaming location?
ANSWER:
The IGRA was not meant to allow tribes to select the ``best gaming
locations.'' IGRA was meant to be a tool for tribes where they are
located. In some cases, tribes are located in geographically conducive
areas for gaming. Unfortunately, some tribes are in locations that are
not as conducive to gaming.
7. Please comment on how the federal campaign contribution laws apply
to tribes and the fact that tribes are exempt from overall
donor limits and can give directly from their treasuries. No
other organization is similarly situated.
ANSWER:
Like every other entity other than the Federal Government, Indian
tribes are subject to the Federal Election Campaign Act of 1971
(``FECA''). Tribes are subject to the contribution limits per candidate
per election cycle. See 2 U.S.C. Sec. 441a(a)(1). However, there is an
erroneous misperception that a ``loophole'' exists for tribes under
FECA because tribes are not subject to the current individual aggregate
limits that apply to a single human being. Nowhere in FECA is there an
aggregate limit for unincorporated entities, such as cooperatives,
community associations, partnerships, LLPs, PACs, LLCs, and even State
Governments. Thus, Tribes are treated just like other unincorporated
groups.
8. Please comment on the increasing trend of tribes now crossing state
lines away from their reservation to establish gaming.
Please comment on the situation in CO where the
Cheyenne-Arapaho of Oklahoma are seeking land in CO to establish
gaming. In that situation, the tribe is claiming 27 million acres even
though their land claims were definitively and legally settled in the
1960s. Their action is designed to force the Governor to agree to a
smaller parcel near the Denver Airport for gaming.
ANSWER:
USET was the first Native American organization in the country to
ask Congress to put a stop to the increasing trend of Indian tribes
seeking to cross state lines in order to establish gaming. Attached is
a matrix demonstrating that Indian nations are seeking to cross state
lines in at least 12 different states. The Pombo discussion draft would
create a bright line to prohibit such activity, and USET fully supports
that prohibition.
______
Attachment to Questions from Committee
States in which Indian nations are seeking to migrate from other states
in order to establish casino gaming operations.
Colorado
Cheyenne-Arapahoe Tribes of Oklahoma: In 2004, the consolidated
Cheyenne-Arapahoe Tribes filed a 27 million acre land claim with the
Department of Interior, claiming all of Denver and Colorado Springs. In
exchange for dropping the claims, the Cheyenne-Arapahoe Tribes have
proposed to develop a Las Vegas-style gaming facility near the Denver
Airport. This proposal has met opposition from the state and federal
representatives of Colorado. In late 2003, a developer sought to
purchase 500 acres east of Denver, near the Denver International
Airport, to create a reservation for the tribes. 1
---------------------------------------------------------------------------
\1\ ``Owens to denounce casino,''' The Denver Post, August 29,
2004; ``Indians' leveraged efforts for casinos reach beyond Colo.,''
The Denver Post, August 16, 2004
---------------------------------------------------------------------------
Georgia
Kialegee Tribal Town of Oklahoma: The tribe sought to move to
Hancock County, Georgia to establish a casino and entertainment
project. County officials were interested in the plan, because of
extreme poverty in the county, but the previous Governor was opposed to
casino gaming. The tribe also sought land in Texas and other parts of
Georgia in the past. 2
---------------------------------------------------------------------------
\2\ ``Kialegee gamble on casino bid,'' The Tulsa World, November
14, 1999
---------------------------------------------------------------------------
Illinois
Miami Tribe of Oklahoma: The tribe is seeking 2.6 million acres in
east-central Illinois based upon a treaty from the 1800s. The tribe
sued landowners in 2000, and dropped the lawsuit in 2002. The tribe has
indicated it would agree to a casino in exchange for dropping the
claim. 3
---------------------------------------------------------------------------
\3\ ``Johnson testifies on Hill; Bill centers on tribal land
disputes,'' The Pantagraph, May 9, 2002
---------------------------------------------------------------------------
Ho-Chunk Nation of Wisconsin: The tribe is seeking to build the
largest casino in Illinois, which would be located in the Chicago
suburb of Lynwood. There is strong opposition from the community, but
the plan has been supported by Congressman Jesse Jackson, Jr. (D-IL).
The proposed casino would be located approximately 296 miles from the
tribe's current reservation. 4
---------------------------------------------------------------------------
\4\ ``Village opposes Lynwood casino,'' Chicago Tribune, November
19, 2004; ``Weller will battle Ho-Chunk proposal,'' Chicago Tribune,
August 28, 2004.
---------------------------------------------------------------------------
Prairie Band Potawatomi Nation of Kansas: The tribe has sought a
gaming compact with the Governor, which prompted the State's
legislature to pass legislation that would require the Governor to get
approval from the General Assembly before signing a deal with any
Native American tribe. The Governor vetoed the bill, but the veto was
overridden and has gone into law. The tribe was seeking land outside of
Chicago for a casino. 5
---------------------------------------------------------------------------
\5\ ``Indian gaming law takes effect,'' The Daily Chronicle,
November 20, 2004.
---------------------------------------------------------------------------
Indiana
Miami Tribe of Oklahoma: The tribe is negotiating with the state to
put a casino in Gary, Indiana. The tribe has negotiated with the mayor
of Gary since 2002. The tribe unsuccessfully attempted to place a
casino in Terre Haute, Ind. as well. The proposed casino would be
located approximately 610 miles from the tribe's current reservations.
6
---------------------------------------------------------------------------
\6\ ``Tribe wins step in fight for N.Y. casino,'' The Daily
Oklahoman, November 16, 2004; ``Midwest Tribes See Big Payoffs in the
East,'' The New York Times, March 24, 2003; ``...the Oklahoma-based
tribe, which has been negotiating to open a casino in northern Indiana,
recently declared that the tribe has a legal claim to 100 percent of
the land in [5] counties.'' ``An obvious ploy,'' South Bend Tribune,
July 2, 2002.
---------------------------------------------------------------------------
Kansas
Delaware Tribe of Oklahoma: The tribe signed with a California-
based developer to help secure gaming rights near Kansas City, Kansas.
A land claim is pending. 7
---------------------------------------------------------------------------
\7\ ``Delaware Indian tribes face long odds to win gambling
effort,'' Newsday.com article, May 15, 2003.
---------------------------------------------------------------------------
Miami Tribe of Oklahoma: The tribe attempted to open a casino in
Kansas in 1999, but the plan was rejected by the federal government.
8
---------------------------------------------------------------------------
\8\ ``Tribe aims for casino deal,'' The Pantagraph, Jan. 12, 2003.
---------------------------------------------------------------------------
Wyandotte Tribe of Oklahoma: The tribe expressed interest in
opening a casino in Edwardsville, KS, and U.S. Congressman Dennis Moore
(D-KS) introduced legislation in 2002 to allow the casino. The Governor
has expressed reservations with this plan. 9
---------------------------------------------------------------------------
\9\ ``Sebelius not sure she'll support tribal gambling plan,''
Associated Press, Jan. 25, 2003.
---------------------------------------------------------------------------
Maryland
Delaware Nation of Oklahoma: The tribe agreed to take over land in
Anne Arundel County to create a landfill, run by a local development
company. The tribe expressed interest in the land for establishing a
high stakes bingo parlor, and if slots are approved by the state,
offering those as well. 10
---------------------------------------------------------------------------
\10\ ``[Halle Cos.] has agreed to pay an Oklahoma-based Indian
tribe as much as $1.4 million a year to take over the land and to apply
to make it tribal property...To make its case to the [BIA], the tribe
presented its history, including evidence of its ancestral ties to
Maryland.'' ``Surprising Ally Joins Landfill Quest; Thwarted Developer
Would Make Indian Tribe Owner of Arundel Site,'' The Washington Post,
November 1, 2004.
---------------------------------------------------------------------------
New Jersey
Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: The two
tribes (which are separate entities recognized by the federal
government) attempted to open a casino in 1999 in Wildwood, New Jersey,
but state and local officials opposed the plan. 11
---------------------------------------------------------------------------
\11\ Newsday.com article, ``Delaware Indian tribes face long odds
to win gambling effort,'' AP, May 15, 2003; Philly.com article, ``2
Okla. tribes seek fortune in Penna.,'' Philadelphia Inquirer, July 7,
2003
---------------------------------------------------------------------------
New Mexico
Fort Sill Apache Tribe of Oklahoma: The tribe is considering
building a casino in southern New Mexico, and might oppose plans by an
in-state tribe, the Jemez Pueblo to build in the area as well.
12
---------------------------------------------------------------------------
\12\ ``Local tribes unable to play,'' Las Cruces Sun-News, November
14, 2004 ``[Tribal chairman] Houser said it is his hope the Fort Sill
Apaches can return to New Mexico under an act of Congress that would
grant land to the tribe as compensation for the U.S. government's past
acts.'' (Source: ``Okla. Apaches Seek to Build N.M. Casino,''
Albuquerque Journal, November 7, 2004.)
---------------------------------------------------------------------------
New York
Seneca-Cayuga Tribe of Oklahoma: The Seneca-Cayuga Tribe of
Oklahoma purchased land in New York and declared its intention to build
and operate an Indian gaming facility more than 1,100 miles from its
reservation in Oklahoma. The Indian tribe claims that it has sovereign
authority over these newly acquired lands, which if it were true, would
provide the tribe with the right to engage in high-stakes bingo without
obtaining approval from the federal government or the State of New
York.
The Seneca-Cayuga Tribe asserts that its participation in the land
claim litigation involving the Cayuga Nation and the State of New York
provides it with political jurisdiction over land in New York. Governor
Pataki announced a settlement agreement with the Seneca-Cayuga on
November 12, 2004, allowing the tribe to establish a Las Vegas-style
gaming facility in the Catskills. The Federal Government and the New
York Legislature must still approve this agreement. 13
---------------------------------------------------------------------------
\13\ Press Release from Office of Governor George Pataki on
November 12, 2004; ``Midwest Tribes See Big Payoffs in the East,'' The
New York Times, March 24, 2003
---------------------------------------------------------------------------
Oneida Tribe of Wisconsin: This tribe is a party to a land claim
suit with the Oneida Nation of New York and the Oneida of the Thames
Band. On December 7, 2004, the Governor announced an agreement with the
tribe that will allow them to establish a Las Vegas-style gaming
facility in the Catskills in exchange for the tribe dropping their land
claim. The Federal Government and the New York Legislature must still
approve this agreement. The agreement is opposed by the Oneida Indian
Nation of New York. 14
---------------------------------------------------------------------------
\14\ ``Land deals draw various reactions,'' The Syracuse Post-
Standard, March 12, 2005.
---------------------------------------------------------------------------
Stockbridge-Munsee Tribe of Wisconsin: This tribe has offered to
settle a land claim with the state in exchange for a casino in New
York. The tribe has signed with a developer to build one of the three
planned Indian casinos in the Catskills. Despite the fact that a
Federal court is poised to drop the tribe's land claim against the
state because it is not supported by the Federal Government, the
Governor agreed to give the tribe the right to establish a Las Vegas-
style facility in the Catskills. The Federal Government and the New
York Legislature must still approve this agreement. 15
---------------------------------------------------------------------------
\15\ ``Midwest Tribes See Big Payoffs in the East,'' The New York
Times, March 24, 2003
---------------------------------------------------------------------------
Ohio
Eastern Shawnee Tribe of Oklahoma: The tribe is preparing a 4
million acre land claim suit and is seeking to build anywhere from five
to seven casino resorts in Ohio. Additionally, Allen County (OH)
commissioners turned down a proposal by the tribe to take out an option
on county-owned land for a casino. The tribe has a contract to buy 150
acres in Monroe (OH) and plans to approach state officials in December
or January. The tribe would need to enter into a compact with the state
for the casinos. 16
---------------------------------------------------------------------------
\16\ ``Indians' leveraged efforts for casinos reach beyond Colo.,''
The Denver Post, August 16, 2004; ``Allen County, Ohio, leaders turn
down offer from tribe on casino,'' The Lima News, November 12, 2004;
``Monroe gets look at casino proposal,'' The Cincinnati Enquirer,
November 11, 2004
---------------------------------------------------------------------------
Pennsylvania
Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: These two
tribes declared a claim on 315 acres of land in Pennsylvania near
Allentown after their plans for a casino on the New Jersey shore
failed. The tribes are seeking to build a casino in exchange for
dropping their claims. Governor Rendell has so far refused to negotiate
with the tribes for a casino. 17
---------------------------------------------------------------------------
\17\ ``2 Okla. tribes seek fortune in Penna.,'' Philadelphia
Inquirer, July 7, 2003; ``...two Delaware Indian tribes from Oklahoma
want to reclaim 315 acres in the Lehigh Valley that they say were
stolen from their Pennsylvania ancestors 200 years ago...Stephen A.
Cozen, the Philadelphia lawyer representing the tribes, said the group
is prepared to file a federal lawsuit to reclaim the land and pursue
gaming unless they can reach an agreement with [Governor] Rendell to
open a casino.'' (Source: ``Indians seek N.E. Pennsylvania land for
casino,'' Philly.com article, May 15, 2003.
---------------------------------------------------------------------------
Texas
Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: In
addition to casino plans in New Jersey and Pennsylvania, these two
tribes have attempted to build a travel plaza in Texas. 18
---------------------------------------------------------------------------
\18\ Newsday.com article, ``Delaware Indian tribes face long odds
to win gambling effort,'' Associated Press, May 15, 2003
---------------------------------------------------------------------------
Kialegee Tribal Town: Attempted to establish lands and gaming in
Texas, but were rejected. 19
---------------------------------------------------------------------------
\19\ ``Kialegee gamble on casino bid,'' The Tulsa World, November
14, 1999)
---------------------------------------------------------------------------
______
The Chairman. Thank you.
Mr. Van Norman?
STATEMENT OF MARK VAN NORMAN, EXECUTIVE DIRECTOR,
NATIONAL INDIAN GAMING ASSOCIATION
Mr. Van Norman. Mr. Chairman and Mr. Kildee and members of
the Committee, thank you for inviting the National Indian
Gaming Association to testify today.
I am Mark Van Norman, Executive Director of NIGA. I am a
member of the Cheyenne River Sioux Tribe from South Dakota, and
I served as Director of the Office of Tribal Justice in the
Department of Justice prior to coming to work for NIGA.
Chairman Stevens regrets he is not able to be here
personally today due to prior commitments, but he would like to
come in at a later hearing after we have had some discussions
with our NIGA/NCAI Task Force on Indian Gaming. We want to
thank you for bringing this issue forward in a discussion
draft. We think it's important to have government to government
discussions on this.
Let me start with a little background. We all know the
general rule. IGRA says tribes should conduct gaming on lands
held prior to 1988. But there are a number of exceptions and
these exceptions account for historical mistreatment of tribes
such as terminated reservations and terminated tribes. In
almost 17 years under IGRA the Interior Department has acquired
land in a trust for only about a dozen tribes pursuant to these
exceptions. There is also an exception for land claim
settlements. Only one tribe, the Seneca Nation of New York, has
been able to use that provision because it requires
congressional approval of the land settlement.
Section 20 of the Indian Gaming Regulatory Act also has a
more general exception sometimes referred to as the two part
determination process, under which a tribe may apply to the
Secretary to place land in trust for gaming purposes. The two-
part determination process is significant. Upon application by
a tribe the Secretary must determine whether the acquisition
would be in the best interest of the tribe and must consult
with local governments and neighboring Indian tribes to ensure
that acquisition would not be detrimental to the surrounding
community. If the Secretary makes those findings, the Governor
must concur in her determination in order to move forward. In
also 17 years under IGRA, only three tribes have successfully
navigated the Section 20 two-part process, Forest County
Potawatomi, the Kalispel Tribe and Keweenaw Bay Indian
Community. Four other applications under this exception have
been rejected. 12 applications are pending.
The draft proposal would substantially amend Section 20.
The bill would delete the two-part secretarial consultation
process and nullify pending applications under Section
20(b)(1). The bill also deletes the exception for lands
required by Indian tribes as part of a land claims settlement
process and seems to preclude the use of those lands for gaming
purposes. The bill would replace current Section 20(b)(1) by
altering treatment of initial reservations of newly
acknowledged, restored and currently federally recognized but
landless tribes. The limitation on location of their initial
reservation would be that it must be located somewhere within
the State where the tribe has its primary connection. In some
cases the draft would add a new requirement for State and local
approval for these tribes to use their new or restored lands,
but would not require new tribal approval.
The bill would also authorize the Secretary to establish
two Economic Opportunity Zones in each State with Indian
gaming, one on a current reservation and one off reservation.
For on-reservation zones, tribes can participate if the
Secretary finds such participation is in the best interest of
all tribes. The host tribe receives no funds other than 10
percent of gross revenues as a management fee. The host tribe
provides no financial support to any participating tribe and
the State and local governments approve of the zone.
For the off-reservation zone there would be no host tribe.
Land would be placed in trust for all participating tribes. The
State and local governments would have to approve, and the off-
reservation zone would also require approval of tribes located
within 200 miles. No tribe participating in such a zone could
own another gaming facility on Indian lands.
Finally, the bill would add a new section which would limit
tribes to gaming on lands in the State in which the tribe is
currently located. And we think it is important to be careful
with that provision, to watch out for tribes that overlap the
borders already, and I know that you are attuned to that.
From our point of view, any amendment to the Act is
approached with caution because our tribal governments need to
protect our hard-won gains in jobs, economic activity,
community infrastructure and government services. So as your
committee progresses with this issue, we ask that the Committee
and Congress as a whole work to ensure that the integrity of
IGRA is maintained. We don't want to get into other amendments
or into other issues through this process.
The Indian Gaming Regulatory Act reflects a balance of
Federal, State and tribal interests. As President Bush has
recently affirmed, tribes have historically dealt with the
Federal Government on a government-to-government basis. Under
IGRA the States had a role in the compact negotiation process
and the use of lands acquired after the Act for gaming purpose
only because Congress developed these unique processes to
accommodate tribal and State sovereign interests.
At the time of the Act's passage, many tribes objected to
the State role because that role is generally denied to them by
the Constitution which establishes the Federal-tribal
relationship. The Supreme Court's decision in the Seminole case
in 1996 further altered the balance of IGRA by permitting
States to interpose an 11th Amendment defense to good faith
litigation to enforce their compact requirements.
NIGA and our member tribes have traditionally requested
that Congress enact a ``Seminole fix'' in any substantial
amendment to IGRA to restore the original balance of the Act.
The National Congress of American Indians has had the same
position. As part of our dialog we'll ask our tribal leaders to
consider that issue.
Similarly, tribal governments will need to consider any
amendment to the Act that would expand the existing role of
local governments. At NIGA we provide a forum for our tribal
governments to come together and take a look at these important
issues regarding Indian gaming, and we would like to work with
the Chairman and the Committee to ensure that the draft bill is
thoroughly reviewed and considered by tribal governments before
it moves forward. We will work with our member tribes to try
and build on common ground, and we'll ask that all interested
tribes have a full and fair opportunity to come before the
Committee.
NIGA and NCAI have scheduled three task force meetings on
this important subject. The first will be on March 24th here in
Washington, D.C., the second April 13th at our trade show in
San Diego, and a third May 25th at the Great Plains Midwest
Indian Gaming Conference in Minnesota. Chairman Stevens will
co-chair these meetings along with President Tex Hall of NCAI,
and NIGA will develop our official position based on the bill--
based on what we hear from the tribal governments through this
process. Upon completion of the process we hope to come back
and testify further.
We thank you for including us and for having this
government-to-government dialog with tribal governments.
[The prepared statement of Mr. Stevens follows:]
Statement of Ernest L. Stevens, Jr., Chairman,
National Indian Gaming Association
Good Afternoon, Chairman Pombo, Congressman Rahall, and Members of
the Committee. My name is Ernest L. Stevens, Jr., and I am the Chairman
of the National Indian Gaming Association (NIGA). Thank you for
inviting me to testify today concerning the draft discussion bill to
amend the Indian Gaming Regulatory Act (``IGRA'') to restrict off-
reservation gaming. I regret that due to other commitments, I cannot be
there with you today to testify in person, so I am submitting written
testimony. NIGA is an association of 184 Indian tribes dedicated to
preserving Indian sovereignty and protecting Indian gaming as a means
of generating tribal government revenue, building strong tribal
governments, and rebuilding our Indian communities.
In my absence, I have asked Mark Van Norman, NIGA Executive
Director, to testify on behalf of our intertribal association. Mr. Van
Norman is a member of the Cheyenne River Sioux Tribe and prior to
serving as NIGA's Executive Director, he served as Director of the
Office of Tribal Justice in the U.S. Justice Department and as Tribal
Attorney for his Tribe. He will be able to provide you with an overview
of how IGRA has worked historically regarding gaming on lands acquired
after 1988.
Indian Tribes Are Sovereign Governments
At the outset, it is always important to recall our origins. Before
Columbus, Indian tribes were independent sovereign nations. Through
treaty-making, Indian tribes were brought within the framework of the
United States. In the earliest Indian treaties entered into during the
Revolutionary War, the United States acknowledged the status of Indian
tribes as sovereigns, guaranteed our original, inherent rights to self-
government, and took Indian tribes under its protection. My own tribe,
the Oneida Nation, assisted General Washington and his troops with food
during the cold winters at Valley Forge.
The Constitution of the United States recognizes Indian tribes as
governments, together with foreign nations and the several states, in
the Commerce Clause. Through the Treaty Clause, the Constitution
respects Indian sovereignty by ratifying the earliest Indian treaties
entered into under the Articles of Confederation and charting the
course for the hundreds of treaties and agreements entered into by the
United States and Indian tribes on a government-to-government basis.
On September 23, 2004, President Bush issued an Executive
Memorandum to the Heads of Executive Departments and Agencies,
explaining:
The United States has a unique legal and political relationship
with Indian tribes and a special relationship with American
Indian tribes and Alaska Native entities as provided in the
Constitution of the United States, treaties, and Federal
statutes. Presidents for decades have recognized this
relationship''. My Administration is committed to continuing to
work with federally recognized tribal governments on a
government-to-government basis and strongly supports and
respects tribal sovereignty and self-determination for tribal
governments in the United States.
We thank you, Chairman Pombo and Members of the Committee, for
working with tribal governments on a government-to-government basis and
issuing a discussion draft of the bill on the important subject of
amending the Indian Gaming Regulatory Act concerning off-reservation
gaming. Tribal governments are looking forward to the opportunity to
have a government-to-government dialogue on the bill before it is
introduced in Congress.
Indian Gaming: The Native American Success Story
In the 18th and 19th Century, the United States destroyed
traditional American Indian economies through warfare, genocide,
dispossession and theft of lands. In an article entitled, ``Exiles in
Their Own Land (2004),'' U.S. News and World Report explained that:
The vast primeval forests that once blanketed the eastern
United States were once home to millions of Indians. But
starting in the 17th century, shiploads of European settlers
arrived in superior numbers, bearing superior weapons. By 1830,
war, genocide, and pestilence (diseases such as smallpox and
measles to which the Indians had no immunity) had conspired to
kill most Eastern Indians.
Throughout most of the 19th and 20th Century, our people endured
poverty and social dislocation because of the destruction of
traditional tribal economies. In California v. Cabazon Band of Mission
Indians and Morongo Band of Mission Indians (1987), the Supreme Court
acknowledged that Indian tribes in California were removed from their
lush agricultural lands and seaside dwellings to rocky outcroppings at
the edge of the desert. As the Court explained it, California Indians
were left with reservations that ``contain no natural resources which
can be exploited.''
Yet through these hardships, many generations of our grandmothers
and grandfathers maintained our original, inherent right to tribal
self-government. The Federal Government had a number of programs to
promote economic development on Indian lands but few worked because of
a lack of infrastructure, natural resources, and capital and remoteness
from markets.
With little or no economy or tax base, tribal governments turned to
Indian gaming in the late 1960s and 1970s. After several court battles,
the Supreme Court agreed with the lower Federal courts: Indian gaming
is crucial to tribal self-determination and self-government because it
generates the general tribal government revenue needed to fund
essential services. Over the ensuing decades, Indian tribes worked hard
to develop Indian gaming as a means of generating tribal government
revenue. Chairman Mark Macarro of the Pechanga Band of Lusieno Indians
explains, ``Indian gaming has enabled Tribes to begin the long march
back from poverty and hopelessness towards prosperity and a better
future for our people.''
Today, Indian gaming is the Native American success story. Through
Indian gaming in 2004, we estimate that tribal governments generated
$18.5 billion in gross tribal government revenue. Naturally, tribal
governments must pay substantial sums in wages and benefits--
approximately $6 billion annually--as well as the cost of capital,
facilities expenses, operation and maintenance, goods and services, and
local service agreements before realizing net revenues.
Tribal governments use their net gaming revenues, first and
foremost, to fund essential government services--education, health
care, police and fire protection, water and sewer service,
transportation, child and elder care--and to build basic community
infrastructure, schools, hospitals, water systems, and roads.
Through the economic multiplier effect, Indian gaming generates
more than 550,000 jobs. In addition, Indian gaming generates $5.5
billion in Federal revenue and $1.4 billion in Federal revenue savings
through reduced welfare and unemployment payments. Tribal government
gaming generates $1.8 billion in State revenue and an additional $100
million in local government revenue. And, tribal governments give
generously to charitable causes--over $100 million annually.
The Indian Gaming Regulatory Act
The purposes of the Indian Gaming Regulatory Act are to promote
strong tribal governments, economic development and self-sufficiency,
and to establish a statutory basis to protect Indian gaming as a means
of generating tribal government revenue. Through the use of the tribal-
state compacting process and the exceptions to gaming on after acquired
lands, IGRA was able to strike a delicate balance between the interests
of the Tribes and States. Part of the original balance of state and
tribal sovereign interests is reflected in Section 20 of the Act,
concerning the use of lands acquired after 1988 to conduct Indian
gaming.
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, with some
exceptions. Congress accounted for historical circumstances such as
diminished reservations, terminated Tribes, and Indian land claims, and
established exceptions to provide for the use of ``after acquired''
lands in certain circumstances.
In addition, Congress established a process whereby Indian tribes
may apply to acquire land in trust for gaming purposes to the Secretary
of the Interior, and the Secretary then undertakes a consultation
process with the State, local governments, and neighboring tribal
governments. If the Secretary agrees that it is in the best interests
of the Tribe and not adverse to the local community, the Secretary may
approve the acquisition only with the concurrence of the State
Governor.
Section 20 Two-Part Secretarial Consultation Process
As noted above, Section 20 of the Indian Gaming Regulatory Act
provides that an Indian Tribe may apply to the Secretary to place land
into trust for gaming purposes. 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. Where the process has
been successful, tribal governments have negotiated agreements with
local governments to defray the cost of local government services and
mitigate the impacts of gaming on the local community.
Neighboring Indian Tribes may also be impacted by new gaming
venues, either through a market impact or concerns about overlapping
aboriginal areas. In addition, we believe that it is important for the
Secretary to consider whether the applicant Tribe has aboriginal or
historical ties to the land sought. (If the Tribe does not have an
aboriginal or historical connection to the area where the land is
located, such applications can interfere with the aboriginal rights of
other Tribes). Consultation can help to identify and address such
concerns. The Secretary of the Interior has a trust responsibility to
the neighboring Tribes as well as to the applicant Tribe and the
interests of neighboring Tribes should be given appropriate
consideration.
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.
To date, 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.
A number of other Indian tribes have applied to the Secretary to
have land taken into trust under Section 20's two part consultation
process, but several of these applications have been rejected,
including applications by:
Lac Courte Oreille
Red Cliff
Mole Lake
Jena Band of Choctaw
A number of applications to take land into trust under the two part
consultation process are pending, according to the Department of
Interior, including applications by:
Keweenaw Bay Indian Community
Bad River Band of Chippewa
Fort Mohave Tribe
Cayuga Indian Tribe
St. Regis Band of Mohawk
Stockbridge Munsee Community
Elk Valley Rancheria
Timbasha Shoshone
Menominee Indian Tribe
Delaware Tribe of Oklahoma
Tule River
Pueblo of Jemez
Land Within Reservation Areas and Contiguous Land--2719(a)(1)
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 not controversial. 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. Other Indian
tribes that have utilized this section include:
Tunica-Biloxi Tribe
Coushatta Tribe
Saginaw Chippewa
Skokomish Tribe
Suquamish Tribe
Wyandotte Tribe
Cherokee Nation
Sisseton Wahpeton Sioux Tribe
Fort Sill Apache Tribe
Land Claim Settlements
IGRA permits gaming on Indian lands reaffirmed through a land
settlement. 25 U.S.C. sec. 2719(b)(1)(B)(i). Under current law, where
Indian lands were wrongfully taken by the United States or a State and
are restored through land settlement they, in essence, relate back in
time to the original holding of the lands by the Tribe.
The Department of the Interior has required congressional approval
of land claims under this section to comport with the Indian Non-
Intercourse Act, 25 U.S.C. sec. 77, so the Department reports that to
date no Indian tribe has utilized this section to conduct gaming on
lands reacquired through a land claim settlement. The Department did
recognize the right of the Seneca Nation of New York to utilize its
separate congressional land settlement statute, codified at 25 U.S.C.
section 1774, to place land into trust and the Secretary then
acknowledged the Nation's right to conduct gaming on their lands.
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. Under current law, newly acknowledged and
restored Tribes can conduct gaming on their initial reservations and
restored lands.
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, Connecticut 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).
Other Indian tribes that have utilized these provisions include:
Siletz Tribe
Coquille Tribe
Klamath Tribes
Little River Band of Ottawa
Little Traverse Bay Bands
Paskenta Band of Nomlaki Indians
Pokagon Band of Potawatomie
United Auburn Indian Community
Nottawaseppi Huron Band of Potawatomi
Ponca Tribe
Little Traverse Bay Bands
Picayune Rancheria of Chukchansi Indians
Draft Bill to Amend IGRA to Restrict Off-Reservation Gaming: Summary
To amend IGRA to restrict off-reservation gaming, and for other
purposes
Section 1. Restriction of off-reservation gaming.
(1) Section 20(b)(1) (25 U.S.C. Sec. 2719(b)(1)) of the Indian
Gaming Regulatory Act is amended as follows:
``(b)(1) Subsection (a) (which generally prohibits gaming on lands
acquired after October 17, 1988) will not apply to Indian Tribes ``
(A) that are newly acknowledged (through the BAR process), if
the Secretary determines that the Tribe's initial reservation
is in the State of the Tribe's ``primary geographic, social,
and historical nexus''; or
(B) that are restored by legislation or other process, or are
landless Tribes (as of the date of enactment of the bill) if ``
(i) the Secretary determines that the Tribe's initial
reservation is in the State of the Tribe's ``primary
geographic, social, and historical nexus'';
(ii) the Secretary finds that gaming would be in the
best interest of the Tribe and not detrimental to the
surrounding community; and
(iii) the State, city, county, town, parish, village and
other political subdivisions of the State with authority
over lands contiguous to the proposed reservation approve.
(2) Add at the end of Section 20 (25 U.S.C. Sec. 2719) the
following new subsections:
``(e)(1) the Secretary may designate `2 Indian Economic Opportunity
Zones' (IEOZ) to consolidate class II and class III gaming operations
in each State, where at least one Tribe has its ``primary geographic,
social, and historical nexus to land within that State''--as follows:
(A) The Secretary will establish one IEOZ in each State on
current Indian lands as of the date of enactment;
(B) The Secretary will establish one IEOZ in each State on
off-reservation lands--taken ``into trust for all of the Indian
tribes participating in that Indian Economic Zone.
``(e)(2) A tribe may participate in a (1)(A) on reservation IEOZ if--
(A) the Secretary determines that participation is in the
best interest of each participating tribe;
(B) the tribe for which the IEOZ lands are held in trust ``
(i) receives no benefit from gaming revenue of other
tribes in the IEOZ, other than no more than 10% of gross
revenues as a management fee to operate the facility; and
(ii) provides no other financial support to any other
participating Tribe
(C) the State, city, county, town, parish, village and other
political subdivisions of the State with authority over lands
contiguous to the proposed reservation approves;
(D) the tribe has no other ownership interest in another
gaming facility on Indian lands.
``(e)(3) A tribe may participate in a (1)(B) off-reservation IEOZ if--
(A) the Secretary determines that participation is in the
best interest of each tribe;
(B) the Secretary takes the lands within the IEOZ into trust
for the benefit of each participating tribe;
(C) the State, city, county, town, parish, village and other
political subdivisions of the State with authority over lands
contiguous to the proposed reservation approves;
(D) each tribe that has its ``primary geographic, social, and
historical nexus'' to land within 200 miles of the IEOZ
approves; and
(E) the tribe has no other ownership interest in another
gaming facility on Indian lands.
``(e)(4) The Secretary may approve gaming compacts with 2 or more
tribes and the Governor of each State to carry out this subsection.
``(f) No tribe shall conduct gaming pursuant to IGRA on lands
``outside of a State in which the Indian tribe has an existing
reservation as of the date of enactment of this subsection, unless such
lands are contiguous to an existing reservation of that Indian tribe in
that State.''
Section 2. Statutory construction.
These amendments shall be applied prospectively, and gaming
compacts that were in effect on the date of enactment of this amendment
will not be affected.
Analysis: The Draft Bill Would Amend IGRA Section 20
The bill would replace current IGRA section 20(b)(1) (25 U.S.C.
Sec. 2719(b)(1)) by altering treatment of the initial reservations of
newly acknowledged, restored, and currently federally recognized but
landless Tribes.
Section 20 Two-Part Secretarial Consultation Process
The bill would delete the two-part secretarial consultation process
and nullify pending applications under Section 20(b)(1).
Newly Acknowledged and Restored Tribes
The bill would treat the initial reservations of newly acknowledged
Tribes differently from those of legislatively restored and landless
Tribes. A newly acknowledged Tribe would simply need the Secretary to
determine that its initial reservation is ``within the State where the
Indian tribe has its primary geographic, social, and historical nexus
to the land.'' (Emphasis added).
Legislatively restored and landless Tribes would need this same
determination that the reservation is within the State where the tribe
is primarily located. These Tribes would also have to undergo an
expanded two-part determination process. Under the new process, the
Secretary would determine whether the gaming activity is in the best
interest of the Tribe and not detrimental to the surrounding community.
Then, the Tribe would have to gain the approval of ``the State, city,
county, town, parish, village, and other...political subdivision of the
State with authority over land that is...contiguous to...the newly
acquired lands (the Tribe's initial reservation). Thus, the new
provisions require affirmative local government approval. Local
governments are subdivisions of, and derive their authority from, the
state, so in a sense this new provision has the effect of limiting
authority at the state level. In addition, it is noteworthy that while
current law provides for agreement by the Governor, similar to other
Federal land acquisition statutes, see e.g., 16 U.S.C. sec. 715(f), the
new provision references the ``State,'' suggesting that state
legislative action may be required to approve new Federal land
acquisitions.
Reservation Area Lands and Contiguous Land: Landless Tribes--2719(a)(1)
This provision appears to move the treatment of landless Tribes
from Section 20(a) to amended Section 20 (b), and we are not certain
whether this result is intended. Under current section 20(a), landless
Tribes can conduct gaming on their initial reservation established
after October 17, 1988, if the initial reservation is ``within the
tribe's last recognized reservation within the State or States within
which the tribe is presently located.'' However, landless Tribes would
have to meet the test set forth in amended Section 20(b), which
requires that the Secretary find both that the initial reservation is
within the State where the Tribe is primarily located and that gaming
would benefit the Tribe. In addition, the State and local community
would have to approve of gaming on the Tribe's initial reservation.
This new test is both positive and negative for landless Tribes.
The location of their initial reservation would no longer be limited to
land ``within the tribe's last recognized reservation''. As noted
above, the initial reservation could be located anywhere in the State.
However, in order to conduct gaming on that initial reservation, the
Tribe would have to gain the approval of the State and the nearby local
units of government.
Land Claim Settlements
The bill deletes the exception for gaming on lands taken into trust
as part of a land claim settlement and seems to preclude the use of
such lands for gaming purposes.
New Provisions for ``Indian Economic Opportunity Zones''
The bill would also add new subsections (e) and (f) to Section 20
of IGRA. New subsection (e) would authorize the Secretary to establish
two (2) ``Indian Economic Opportunity Zones'' (IEOZ) in each State with
Indian gaming. Subsection (e)(1)(A) authorizes the Secretary to
establish an IEOZ on a current reservation, and subsection (e)(1)(B)
authorizes the Secretary to establish one IEOZ off-reservation, but
within the same State.
For on-reservation IEOZs, Tribes may participate if: (1) the
Secretary finds that such participation is in the best interests of all
of the participating Tribes; (2) the host-Tribe receives no ``funds
related to the gaming activities'' of other participating Tribes, other
than no more than 10% of gross revenues as a management fee to operate
the IEOZ facility;(3) the host-Tribe provides no financial support to
any other participating Tribe; (4) the State and contiguous units of
local government approve of the IEOZ; and (5) the host-Tribe does not
have an ownership interest in any other gaming facility on any other
Indian lands. This provision will permit a Tribe to partner/host
another Tribe or Tribes within the State on a separate gaming facility
on the host-Tribe's reservation. However, the bill would place limits
on what the host-Tribe can do on its reservation with that facility. It
would also require the State and nearby units of local government to
approve of the on-reservation partnership.
For off-reservation IEOZs, there would obviously be no host Tribe.
The newly acquired land would be placed into trust for the benefit of
all participating Tribes. The State and contiguous units of local
government would have to approve of the off-reservation IEOZ. The off-
reservation zone would also require the approval of Tribes located
within 200 miles of the proposed site. No Tribe participating in the
off-reservation IEOZ could have an ownership interest in another gaming
facility on Indian lands--including its own current reservation.
Limitation on Gaming to State of Current Reservation
Finally, the bill would add a new subsection (f) would limit Tribes
to gaming on lands in the State in which it is currently located,
unless the Tribe currently has contiguous land located in more than one
State, such as the Navajo Nation, Standing Rock Sioux Tribe, Sisseton
Wahpeton Sioux Tribe, Colorado Indian Tribes, Washoe Indian Tribe, and
the Duck Valley Shoshone Paiute Tribe.
Continued Viability of IGRA Section 20(a)
The bill seems to leave intact the exceptions contained in 25 USC
Sec. 2719(a), which permit gaming on lands acquired after Oct. 17, 1988
where: (1) such lands are ``within or contiguous to'' reservations that
existed on October 17, 1988; (2) for landless Tribes in Oklahoma (as of
Oct. 17, 1988), if the lands are within the boundaries of the Tribe's
former reservation, as defined by the Secretary or are contiguous to
other land held in trust by the U.S. for the Tribe in Oklahoma.
However, it is unclear if landless Tribes not located in Oklahoma,
would be subject to the new requirements of amended Section 20(b) as
discussed above.
CONCLUSION
The Indian Gaming Regulatory Act has worked well to promote
``tribal economic development, self-sufficiency, and strong tribal
governments,'' as Congress intended, and as discussed above, Indian
gaming is the Native American success story--and indeed, a true
American success story for the Nation as a whole, as many Native
Americans begin to see the promise of the American dream of a job, home
ownership, and an economic future on the horizon. Naturally, any
amendment to the Act is approached with caution because tribal
governments need to protect our hard won gains in jobs, economic
activity, community infrastructure, and government services. Thus, as
the Committee's process progresses, we ask that the Committee and
Congress as a whole work to ensure that the integrity of the Act as a
whole is protected.
The Indian Gaming Regulatory Act reflects a balance of Federal,
state and tribal government interests. As President Bush recently
affirmed, Indian tribes historically have dealt directly with the
Federal Government on a government-to-government basis. Under IGRA, the
States have a role in the compact negotiation process and the use of
lands acquired after the Act for gaming purposes only because Congress
developed unique processes for the accommodation of tribal and state
sovereign interests. At the time of the Act's passage, many tribes--
including the Red Lake Band of Chippewa and the Mescalero Apache Tribe
who filed suit--objected to state involvement in Indian affairs because
that is a role denied to them by the Constitution. The Supreme Court's
1996 decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44
(1996) (``Seminole'') altered the original balance of IGRA by
permitting the states to interpose an Eleventh Amendment defense to
litigation to enforce its ``good faith'' requirements, so NIGA and our
Member Tribes have traditionally requested that Congress enact a
``Seminole Fix'' in any amendment to IGRA to restore the original
balance of the Act. The National Congress of Americans Indians has had
the same position. NCAI Res. ABQ-03-029. We will ask our tribal
government leaders to consider that issue as we go forward. Similarly,
Tribal governments will need time to consider any amendment to the Act
that would expand the existing role of state governments, so provisions
requiring approval by state subdivisions for the use of Indian trust
lands will be closely examined by tribal governments.
The National Indian Gaming Association provides a forum for tribal
governments to come together to consider important issues concerning
Indian gaming. We will work with the Chairman and the Committee to
ensure that the draft bill is thoroughly reviewed and considered by
tribal governments before it moves out of Committee. We will work with
our Member Tribes to try to build common ground and we will work
closely with the Committee and the Administration as the dialogue on
the proposal progresses. We request that all concerned parties have a
full and fair opportunity to be heard.
For our part, NIGA and the National Congress of American Indians
will convene our NIGA/NCAI Task Force on Indian Gaming with meetings on
March 24th, 2005 in Washington D.C., April 13 in San Diego, California
and later, on May 25th at the Great Plain/Midwest Indian Gaming
Conference in Minnesota to consider the draft bill. President Tex Hall
of the National Congress of American Indians will co-chair the meetings
with me, as we consider the important national issues that the bill
represents. As an inter-tribal government organization, NIGA will
develop an official position on the draft bill based upon the views of
our elected tribal leaders through this series of Task Force meetings.
Upon completion of our Joint Task Force meetings, I look forward to the
opportunity to testify again before the Committee so that I may provide
you with an overview of our Task Force meetings on the important topic
of off-reservation gaming.
Mr. Chairman and Members of the Committee, this concludes my
remarks. Once again, thank you for providing me with this opportunity
to submit testimony.
______
[Responses to questions submitted for the record by Mr.
Stevens follow:]
Response to questions submitted for the record by Ernest Stevens, Jr.,
Chairman, National Indian Gaming Association
On behalf of the National Indian Gaming Association and our Member
Tribes, I am compelled to respond to two statements by Ms. Jean Quan,
City Council, Oakland. Although Ms. Quan admitted that she is biased
against gaming, the following statements demand a response:
Ms. Quan alleged that prostitution is associated with Indian gaming
in California. That statement was false and defamatory. The truth is
that Indian lands in California are subject to Public Law 280, which
delegates to the state criminal jurisdiction over Indian lands.
California criminal law prohibits prostitution and the State Attorney
General has not identified prostitution as an issue on Indian lands.
Further, Ms. Quan also cited a litany of other detrimental impacts
allegedly related to Indian gaming to include homelessness, domestic
violence, child abuse, and suicide for which there is absolutely no
empirical evidence. In fact, the Harvard Project on American Indian
Economic Development found a significant decrease in all these factors
on lands where Indian Gaming is located.
Tribal government law enforcement, security, and surveillance
ensure the integrity of Indian gaming operations and prevent crime on
Indian lands often in conjunction with state and federal authorities.
Ms. Quan also alleged that tribal governments pay out only 25% of
slot machine revenue as prizes. Again, the statement was false. In
California, tribal governments worked with the State regulators to
develop technical regulations for the operation of gaming machines and
the minimum payout is 75% in some tribal jurisdictions and 80% in other
tribal jurisdictions while the maximum payout is 100%. In Nevada, by
comparison, state law provides that the minimum prize payout for slot
machines is 70% and the maximum payout is 100%.
Finally, I note that Ms. Quan appears to have been representing
only herself, and not the City Council. We believe that the Mayor and
other City Council members hold more favorable views of Indian gaming.
FROM CHAIRMAN POMBO:
1. Under the Section 20 two-part determination in IGRA, the governor
of a state is cast in the role of representing and protecting
the interests of both the state government, and the local
governments that exercise jurisdiction in the area proposed for
casino gaming. However, as state governors increasingly look to
tribal casinos to provide large amounts of revenue sharing to
supplement the state budget, it has been argued that governors
are now in a position where their fiduciary interest in
securing a tribal revenue stream for state government conflicts
with their duty to represent the interests of local communities
in the two part determination process.
With the potential of this large financial incentive to
a state for a governor to overlook the concerns of local communities,
can it be said that local communities can still be adequately
represented solely by the governor's participation in the two part
determination process?
Or does this potential conflict of interest presented to
governors suggest that IGRA should be modified to give affected local
communities a formal role in concurring with the Secretary's two-part
determination findings?
The actual implementation of the Indian Gaming Regulatory Act
(IGRA) demonstrates that local interests are adequately safeguarded.
Under the IGRA Section 20 two-part determination process, the Secretary
must consult with state and local officials and neighboring Indian
tribes to determine whether a Tribe's application to acquire off-
reservation lands for gaming is in the best interests of the Tribe and
not adverse to the surrounding community. Only then does the Secretary
forward her decision to the Governor for concurrence.
In almost 17 years under IGRA, only three Indian tribes have
acquired trust land for gaming under the Section 20 two-part
determination process: Forest County Potawatomi Tribe in Milwaukee,
Wisconsin; Kalispel Tribe near Spokane, Washington; and Keweenaw Bay
Indian Community in Marquette, Michigan. The Office of Indian Gaming
Management, Department of Interior has stated publicly that, in all
likelihood, the Secretary would disapprove an application to take land
into trust for off-reservation gaming under the Section 20 two-part
determination if local governments within 10 miles of the land opposed
the acquisition.
State Governors are elected state-wide to represent all of the
people of the state and in practice, Governors are typically very
respectful of legitimate local government concerns. Governments and
other elected officials often must balance competing interests and
generally do so in a manner consistent with their view of sound public
policy--and that is why they are elected. Not surprisingly, experience
suggests state governors respond to the interests of local governments
and have been more conservative on Indian gaming issues than local
governments.
2. Under established principles of tribal sovereignty, local
communities do not have a say in decisions involving tribal
land that is already held in trust by the federal government.
However, off-reservation gaming proposals involve taking land
into trust that is currently held in fee and is often not even
closely located to trust lands.
Is it a fundamental right of tribes to have land taken
into trust on their behalf at any location within the United States
they so desire, irrespective of the distance to their current
reservation or any connection to ancestral or native lands?
If not, what limitations should apply on where a tribe
can or cannot have lands taken into trust on their behalf?
We believe that questions about Indian trust lands must be viewed
in historical context. Through the Removal Policy, Indian tribes were
called upon to cede hundreds of millions of acres of land in violation
of existing Indian treaties. During the Era of Allotment and
Assimilation (1881 to 1934), Indian land holdings plunged from 158
million acres to 48 million acres. Many tribes lost entire reservations
during the Termination Policy of the 1950s. The United States called on
Indian tribes to cede hundreds of thousands of acres of land for flood
control and other public projects well into the 1960s. Even today, the
federal government continues to seek both rights of way and title to
valuable Indian lands for public projects like interstate highways. So,
as the United States considers applications for trust land
acquisitions, it is essential to bear in mind that:
Historically, Indian tribes held vast territories--
sufficient to sustain tribal economies and independent Indian nations;
In violation of treaties and statutory agreements,
Indian tribes were forced to cede their most valuable tribal lands to
benefit the United States, states, local governments and non-Indian
citizens at the expense of Indian communities;
Indian tribes were left with marginal, unproductive
lands; and
Today, more lands go out of trust and distinctly Indian
ownership than are taken into trust for American Indians and Indian
tribes.
Against this background, we believe that fundamental fairness
dictates that reasonable tribal government requests to reacquire
homelands to rebuild and meet the needs of their communities should be
accommodated.
Such tribal requests are addressed through the Department of the
Interior's ``land into trust'' regulations. 25 C.F.R. Part 151
(authorized in part by the Indian Reorganization Act, 25 U.S.C.
Sec. Sec. 461-479). For purposes of off-reservation land acquisition,
these regulations provide in relevant part:
Off-reservation acquisitions.
The Secretary shall consider the following requirements in
evaluating tribal requests for the acquisition of lands in
trust status, where the land is located outside of and
noncontiguous to the tribe's reservation, and the acquisition
is not mandated [by Congress]:--as the distance between the
tribe's reservation and the land to be acquired increases, the
Secretary shall give greater weight to the concerns raised [by]
state and local governments [including] the acquisition's
potential impacts on regulatory jurisdiction, real property
taxes and special assessments.
25 C.F.R. Sec. 151.11. In essence, the Secretary's regulations
establish a ``sliding scale'' where tribal interests in on-reservation
acquisitions and acquisitions of nearby lands are given more weight and
as the distance increases between a proposed acquisition of land from
existing reservation lands, more weight is given to state and local
interests. These regulations provide appropriate and adequate
protection for state and local government interests in Indian trust
land acquisitions.
Existing law as set forth in 25 U.S.C. Sec. 465 and 25 C.F.R.
Sec. 151 appropriately balances tribal, state and local government
interests. State and local concerns are given more weight in off-
reservation acquisitions and the Secretary provides more deference to
State and local concerns as the distance from existing Indian lands
increases.
Should a higher standard of review apply when the off-
reservation lands in question will be used for purposes of gaming?
A higher standard of review is in place for off-reservation
acquisitions of trust land that will be used for gaming purposes. In
addition to meeting the requirements of 25 C.F.R. part 151.11, tribes
must navigate the process set forth in the Indian Gaming Regulatory Act
at 25 U.S.C. Sec. 2719(b)(1)(A). Pursuant to IGRA, when a Tribe seeks
to acquire off-reservation land for gaming purposes, the Secretary is
required to consult the local community, the Governor, and neighboring
Indian tribes, and make a determination that gaming on such lands would
be in the best interests of the Tribe, and would not be detrimental to
the surrounding local and tribal community. The State Governor then has
veto authority over the Secretary's determination.
Attached to our response is the Department of the Interior's
``Checklist for Gaming and Gaming-Related Acquisitions'' (hereinafter
``Checklist''). This Checklist is used as an aid in the Section 20 two-
part determination process. The Checklist defines local officials to be
consulted as those within 10 miles of the land where gaming proposed.
``Nearby tribal officials include the tribal governing bodies of all
tribes located within 50 miles of the site of the proposed trust
acquisition.'' In determining whether the acquisition would be
detrimental to the surrounding local and tribal community, the
Secretary will consider:
1. Evidence of environmental impacts and plans for mitigating
adverse impacts;
2. Reasonably anticipated impact on the social structure,
infrastructure, services, housing, community character, and land use
patterns of the surrounding community;
3. Impact on the economic development, income, and employment of
the surrounding community;
4. Costs of impacts to the surrounding community and sources of
revenue to accommodate them;
5. Proposed programs, if any, for compulsive gamblers and the
source of funding; and
6. Any other information which may provide a basis for a
Secretarial determination that the gaming establishment is not
detrimental to the surrounding community.
Interior officials have also recently added the requirement that
tribes prepare an Environmental Impact Statement.
As we noted in our testimony, we believe that under Section 20 of
the Act the Secretary has a trust responsibility to the neighboring
Indian tribes to appropriately consider their interests. As part of
that consideration, we believe that it is appropriate for the Secretary
to consider whether the applicant Tribe has an aboriginal or historical
connection to the land. In our view, consideration of the Tribe's
aboriginal or historical connection to the land is consistent with the
history of the Indian Reorganization Act, which intended to assist
tribes in reacquiring lands taken through the past federal policies
discussed above.
Should this standard include active participation and a
requirement for concurrence from local governments, even though they
are generally otherwise prohibited from having a say on matters
concerning Indian lands?
The United States Constitution's Commerce Clause empowers Congress
to regulate commerce with Foreign Nations, among the Several States,
and with the Indian tribes. This Clause reflects the separate sovereign
authority of each entity. Thus, we believe it is appropriate that
IGRA's Section 20 two-part determination process respects State
sovereignty by calling upon the Governor for concurrence in the
Secretary's determination. In our view, the State speaks for itself,
including its political subdivisions. Accordingly, we believe that it
would be unnecessary and inappropriate to require the concurrence of
local governments under Section 20.
3. Tribes have long fought to protect their ancestral lands from the
unwanted incursions of outsiders, both Indian and non-Indian
alike.
If a tribe is seeking to have land taken into trust in
an area that is not within the ancestral lands of that tribe, should
other tribes whose ancestral lands encompass the site have the ability
to object to the land going into trust?
In our view, the Secretary has a trust responsibility to protect
all Indian tribes. Accordingly, under the Section 20 two-part
determination, the Secretary should give substantial weight to the
views of neighboring Indian tribes. If an application to take land into
trust is not within the aboriginal or historical area of the applicant
Tribe and a neighboring Tribe objects because it is within its
aboriginal or historical area, the Secretary may deny the application.
The ability to veto the land going into trust?
If the Secretary gives appropriate weight to the interests of
neighboring Indian tribes, it is unnecessary to amend the Act in this
regard.
How can the term ``ancestral lands'' be defined as
precisely as possible so it is clear to all observers, Indian and non-
Indian alike, which lands are ancestral to any given tribe?
``Aboriginal lands'' means the original territory of an Indian
tribe, which the tribe occupied from time immemorial. ``Historical
lands'' means lands which an Indian tribe occupied later due to
warfare, removal, or forced migration, etc.
4. Should a cap be placed on any revenue sharing with state
governments from an off-reservation gaming facility?
Congress passed the Indian Gaming Regulatory Act to support
economic self-sufficiency for Indian tribes, not to raise revenue for
states.
IGRA established a balance between tribal and state interests by
requiring tribes to enter into compacts to conduct class III gaming,
and requiring states to negotiate such compacts in good faith--or be
subject to suit in federal court. IGRA also made clear that because
Indian tribes are governments, ``nothing in [the Act confers] upon a
State or any of its political subdivisions authority to impose any tax,
fee, charge, or other assessment upon an Indian Tribe''. No State may
refuse to enter into [compact] negotiations--based on the lack of
authority--to impose such tax.'' 25 U.S.C. Sec. 2710(d)(4).
However, the U.S. Supreme Court's 1996 decision in Seminole Tribe
v. Florida destroyed the balance in the compacting process by voiding
the right of tribes to sue States for failure to negotiate in good
faith. As a result, tribes have no recourse when a state negotiates in
bad faith. In recent years, a number of states have attempted to impose
unreasonable revenue sharing demands and concessions of tribal
sovereignty on tribal governments through the compacting process. Such
demands violate both the intent and express purpose of IGRA.
If so, what should the cap percentage be?
A good model for limiting revenue sharing was proposed by former
Senate Indian Affairs Committee Chairman Ben Nighthorse Campbell with
the introduction of S. 1529 in the 108th Congress. Section 2(f)(2) of
the bill would have amended IGRA Section 2710(d)(4). Concerning revenue
sharing with a State government, the Secretary could only approve such
agreements if the total amount of net revenues exceeded the amounts
needed to fund both tribal governmental operations/programs and the
promotion of tribal economic development. Moreover, any revenue sharing
agreement should be based upon net revenues, not gross revenue, to
insure that the Tribe is the primary beneficiary of the agreement. In
addition, in return for revenue sharing, ``a substantial economic
benefit [must be] rendered by the State to the Indian tribe.''
These requirements would restore some balance between tribes and
states, and restore the original intent of IGRA to rebuild and provide
economic self-sufficiency to tribal communities. Naturally, in order to
avoid upsetting settled expectations it would be important to
``grandfather'' existing agreements between tribes and states.
5. Should a tribe be able to ask for or accept a casino operation as a
substitute, either in whole or in part, of a cash payment to
settle a land claim?
IGRA permits off-reservation gaming on lands placed in trust as
part of a land claim settlement. This more narrow exception requires
that: (1) a Tribe has a valid land claim; (2) that the State agrees to
settle the claim; and (3) that Congress enact legislation approving the
land claim settlement, authorizing the lands as eligible for gaming
pursuant to IGRA. The significant hurdle requiring the passage of
federal legislation ensures that only legitimate land claim settlements
will be recognized under IGRA. To date, only one Tribe (Seneca of New
York) has successfully navigated the land claim settlement exception.
If a casino is acceptable as a settlement, should tribes
whose ancestral lands encompass the location where the casino would be
located be consulted before the settlement is finalized?
Should they be allowed veto power over such a casino-
based settlement as a tool to protect their ancestral lands?
We believe that tribes with aboriginal claims to settlement lands
should be given adequate notice and an appropriate opportunity to be
heard in the settlement and congressional legislative processes.
6. While there have been only three incidences since IGRA was enacted
of off-reservation land being placed into trust for gaming
purposes, there are currently dozens such projects either in
the proposed stage or being reviewed by the BIA.
What impact do you think all of these proposals have on
public support for Indian gaming?
There are currently 11 applications for gaming or gaming-related
trust land acquisitions pending at the Office of Indian Gaming
Management. Of those 11, three (3) are less than 6 miles from the
tribe's reservation. (See attached Table of Pending Acquisitions).
A few high profile proposals generate tremendous media attention no
matter how unrealistic they may be. In some cases, the local
communities themselves are entering into development agreements with
out of state tribes as a means of economic revitalization.
However, we do believe that there is a need for education of the
public about the strength of the current legal processes. As a result,
the NIGA-NCAI Tribal Leaders Gaming Task Force is considering an
Intertribal Protocol for Off-Reservation Gaming, which would call upon
tribal governments proposing off-reservation gaming locations to
minimize negative impacts on other tribes and engage in a mutually
respectful dialogue with state and local governments.
Do you believe that the vagaries of current law
regarding off reservation gaming encourage the proliferation of
proposals for off-reservation gaming?
Do you believe that clarifying the law on off-
reservation gaming, and placing greater restrictions on when off-
reservation gaming is allowed, will reduce the number of proposals for
off-reservation gaming?
Will such changes serve to weed out proposals for off-
reservation gaming of dubious merits?
We believe public education about the significant processes that
are in place would significantly clarify the facts about off-
reservation gaming. We recommend that the Committee direct the Interior
Department prepare a press release that describes all legal
requirements and processes for off-reservation gaming proposals--from
the 151 land into trust process, to additional requirements for the
exceptions to IGRA's Section 20. That document should reference the
Interior's Checklist, all relevant Interior Solicitor's opinions, NIGC
land opinions, and other relevant materials. The document should also
describe the actual experience under IGRA.
When the media and developers who make substantial investments in
these often failed proposals are made fully aware of the entire
process, we believe that public support for Indian gaming will be
protected and only proposals with significant public support will go
forward.
7. Do you believe that the original intent of IGRA was to allow Indian
gaming to be conducted at any location within the United States
that a tribe is able to purchase and have placed into trust?
Or was the original intent of IGRA to foster economic
development on Indian lands held at the date of enactment?
IGRA's primary purpose was to provide a statutory basis for the
operation of gaming by Indian tribes as a means of promoting tribal
economic development, self-sufficiency, and strong tribal governments.
The inclusion of Section 20 was an acknowledgment by Congress to allow
for tribal economic development on re-acquired homelands that were
taken due to the destructive policies of the past. Section 20 must be
read in conjunction with 25 C.F.R. Sec. 151 which, as discussed above,
creates a sliding scale to evaluate off-reservation gaming proposals by
giving more weight to state and local concerns as the distance
increases. Actual practice under IGRA demonstrates the reasonableness
of this approach.
8. In Minnesota, the governor is entering into an agreement with three
tribes to operate an urban casino under the auspices of the
Minnesota State Lottery. As currently constructed, IGRA would
not apply to this proposal. Is there any other statute
authorizing or requiring the Secretary of Interior to ensure
tribal interests are protected in such gaming proposal as this
where at least one of the parties is a tribal government or
tribal government business enterprise? Should there be?
Does this agreement violate the terms of any tribal-
state compact in Minnesota?
The Minnesota proposal is subject to approval by the state
legislature and the terms of the proposal are constantly changing. On
April 5, 2005, the proposed partnership was rejected by the Minnesota
Senate Agriculture, Veterans, and Gaming Committee by a vote of 10-4.
Therefore, until a viable proposal is presented to the legislature it
is not clear if the proposal violates any tribal-state compact in
Minnesota, but it may violate IGRA if the tribes are not the primary
beneficiaries of the agreement.
What would be the impacts to tribes around the country
if other governors entered into similar agreements with tribes in their
states?
It is hard to say because the agreement is not final, but as noted
above, it may violate IGRA. Accordingly, it is not a valid model.
In such a deal as proposed in Minnesota, what is the
level of federal scrutiny of outside investors, management agreements,
and vendor contracts?
The agreement may be subject to challenge in Federal Court, if it
violates IGRA.
Are the tribes entering into this deal capable of
determining whether or not they will benefit from it? Are they capable
of knowing whether or not developers, casino management companies, and
the state government might be taking advantage of them?
NIGA defers to the sovereign right of all its member tribes to
determine their own affairs. Tribal leaders are no less capable than
any other elected officials.
FROM CONGRESSMAN GIBBONS:
1. This Committee has held hearings on legislation that would allow a
tribe to go hundreds of miles off their reservation and open a
casino in the ancestral lands of another Tribe.
Do you have any specific suggestions on how Congress
should proceed in this regards?
Congress should first review the facts about off-reservation
gaming. Off-reservation gaming involves two categories of land
acquisitions: (1) off-reservation sites sought through the ``two-part
determination process'' (Indian Gaming Regulatory Act (IGRA)
Sec. 20(b)(1)(A)); and (2) lands taken into trust as part of a land
claim settlement (IGRA Sec. 20(b)(1)(B)(i)).
Only three off-reservation sites have been approved through the
two-part determination process: (1) for the Forest County Potawatomi in
Milwaukee, Wisconsin (Governor's concurrence 07/24/1990); (2) for the
Kalispel Tribe in Airway Heights (Spokane County), Washington
(Governor's concurrence 06/26/1998); and (3) for the Keweenaw Bay
Indian Community in Chocolay (Marquette County), Michigan (Governor's
concurrence 11/07/2000). Given that only three applications have been
approved in over 17 years under IGRA is testament of the arduous
process that is in place.
For years, the Department of the Interior has used a ``Checklist
for Gaming and Gaming-Related Acquisitions'' to guide it in making the
initial determination of whether an acquisition pursuant to Section
20(b)(1)(A) ``would be in the best interests of the Indian Tribe and
its members, and would not be detrimental to the surrounding
community''. The Guidelines require significant consultation with
``State and local government officials whose jurisdiction includes or
borders the land,'' and with ``[n]earby tribal officials,'' which
includes ``all tribes located within 50 miles of the site of the
proposed trust acquisition.'' In addition, the Guidelines have been
recently amended to require an Environmental Impact Statement be
conducted prior to the Secretary's determination.
If the Secretary makes a positive determination in favor of the
applicant-Tribe, then the Governor of the State must concur with her
determination.
Again, as a result of this significant process, only three
applications have been approved for gaming on off-reservation lands
placed into trust pursuant to Section 20(b)(1)(A).
IGRA also permits off-reservation gaming on lands placed in trust
as part of a land claim settlement. This more narrow exception requires
that: (1) a Tribe has a valid land claim filed in court; (2) that the
State agrees to settle the claim; and (3) that Congress enact
legislation approving the land claim settlement, authorizing the lands
as eligible for gaming pursuant to IGRA. The significant hurdle
requiring the passage of federal legislation renders the land claim
settlement exception almost impossible to meet. Only one Tribe (Seneca
of New York) has successfully navigated the land claim settlement
exception.
Thus, only four off-reservation land acquisitions have been
approved for gaming pursuant to the Indian Gaming Regulatory Act in
over 17 years. While the number of applications for off-reservation
gaming have increased, the significant process and requirements in
place have and will continue to prevent significant growth of off-
reservation.
Lands placed into trust for gaming purposes pursuant to the other
exceptions contained in IGRA's Section 20 should not be considered off-
reservation, because they encompass lands contiguous to existing
reservations or lands that constitute a Tribe's initial reservation
(landless, restored, and acknowledged tribes).
Also, with over 300 tribes seeking recognition and
presumably gaming, please comment on the impact that a policy
permitting ``reservation shopping'' and ``off-reservation gaming'' will
have on communities across the country.
The National Indian Gaming Association consists only of federally
recognized Indian tribes and takes no position on particular
applications for federal recognition. Congress should again review the
facts about this issue.
In the 17 years since the enactment of IGRA, only 8 tribes have
been recognized through the Federal Acknowledgment Process (FAP).
1 (Five tribes have been recognized by congressional Act).
2 The majority of these tribes sought acknowledgment long
before the enactment of IGRA.
---------------------------------------------------------------------------
\1\ San Juan Southern Paiute Tribe, AZ (3/28/1990); Mohegan Indian
Tribe, CT (5/14/1994); Jena Band of Choctaws, LA (8/29/1995); Huron
Potawatomi, MI (3/17/1996); Samish Indian Tribe, WA (4/26/1996); Match-
E-Be-Nash-She-Wish Band of Potawatomi Indian (formerly Gun Lake Band),
MI (8/23/1999); Snoqualmie Indian Tribe, WA (10/6/1999); Cowlitz Tribe
of Indians, WA (1/4/2002).
\2\ Aroostook Band of Micmacs, ME (11/26/1991); Pokagon Potawatomi
Indians of Indiana & Michigan, IN (9/21/1994); Little Traverse Bay
Bands of Odawa Indians, MI (9/21/1994); Little River Band of Ottawa
Indians, MI (9/21/1994); Loyal Shawnee Tribe, OK (12/27/2000).
---------------------------------------------------------------------------
IGRA provides that a Tribe may conduct gaming on after-acquired
lands if such lands are placed in trust as ``part the initial
reservation of an Indian tribe acknowledged by the Secretary under the
Federal acknowledgment process.'' 25 U.S.C. Sec. 2719(b)(1)(b)(ii).
This does not end the process. The Department of the Interior then uses
requirements from its unpublished Checklist to make a final
determination of whether the Tribe can conduct gaming on the initial
reservation. The Checklist states that, ``When an application [for
gaming on `after-acquired' lands] indicates that the proposed
acquisition falls within [this] exception, the Area Director must
provide documentation that the particular exception is applicable to
the case. Copies of the enabling acts or legislation such as the
settlement act the restoration act, the reservation plan, the final
determination of federal recognition and other documentary evidence
relating to the tribe's history and existence must be included as part
of the acquisition package. A legal opinion from the appropriate
Regional of Field Solicitor's office concluding that the proposed
acquisition comes within one of the above exceptions must be
included.''
A number of House Resources and Senate Indian Affairs Committee
hearings over the past several years have revealed that the FAP is
flawed, under-funded, and under-manned.
All federally recognized Indian tribes have a vested interest in
ensuring that only legitimate, historical Indian communities are
acknowledge as Indian tribes--either through the FAP process, through
congressional Act or other means. As a result, we encourage Congress to
properly staff and fund the process to provide sufficient, timely,
accurate, and unbiased decisions on petitions for tribal recognition.
Because so few tribes have been acknowledged since the enactment of
IGRA, and because of the significant process in place for acknowledged
tribes to conduct gaming on their initial reservations, we believe that
IGRA's exception for newly acknowledged tribes has not and will not
result in significant negative impacts on nearby communities.
2. A few years ago, during the Proposition 5 campaign that allowed
full-scale Indian gaming in California, the tribes ran
television ads stating they wanted to do gaming just on their
reservation lands. Now in California, there are several tribes
that are trying to conduct off-reservation gaming.
If a tribe has a reservation and/or a traditional
service area, why should any tribe be permitted to establish gaming
off-reservation, distant from its reservation?
As noted above, the exceptions contained in IGRA's Section 20
address historical mistreatment, malfeasance, and mismanagement of
Indian land holdings. The Department of the Interior has approved only
four off-reservation land acquisitions for gaming purposes in more than
17 years under IGRA.
Also, please comment on the fact that other tribes are
opposed to tribes seeking ``off-reservation'' gaming.
NIGA understands the concerns that tribes have with regard to off-
reservation gaming. While the Section 20 two-part determination
procedure is not without its difficulties, we feel that if the process
is followed, and that all affected Indian tribes are fully consulted,
that these difficulties will be addressed. Here again, we would
emphasize that the Secretary of the Interior should give as much weight
to the views of neighboring tribes as she gives to local governments in
the Section 20 process.
The Secretary has a trust responsibility to protect all Indian
tribes. Accordingly, under the Section 20 two-part determination, the
Secretary should give substantial weight to the views of neighboring
Indian tribes. If an application to take land into trust is not within
the aboriginal or historical area of the applicant tribe, and the
neighboring tribes object because it is within their aboriginal or
historical area, the Secretary may deny the application.
3. When tribes seek to enter already established gaming areas, doesn't
that create an un-level playing field since tribes are not
subject to state regulations; are not subject to the
restrictions placed on other gaming establishments; do pay not
state taxes; etc.?
The United States Constitution's Commerce Clause acknowledges
Indian tribes as separate sovereigns, with Foreign Nations and the
Several States. In addition, treaties, and hundreds of federal laws,
regulations, and U.S. Supreme Court decisions acknowledge Indian tribes
as sovereign governments. The Indian Gaming Regulatory Act also
acknowledges the right of Indian tribes, as separate governments, to
conduct gaming to generate governmental revenue, just as state
governments conduct lotteries and use other forms of gaming to fund
their governmental programs. Tribes and states negotiate gaming
regulatory regimes pursuant to tribal-state class III gaming compacts.
IGRA specifically acknowledges that no state or unit of local
government may impose a tax on a tribal government, even pursuant to a
tribal-state class III gaming compact. As a result, we would disagree
that Indian gaming creates an un-level playing field. Instead, the
ability of Indian tribes to conduct gaming reflects the status of
tribes as governments, which is acknowledged in the U.S. Constitution,
laws and court decisions.
4. What criteria should be used by the Department of the Interior in
it's determination of land-into-trust?
The Department of the Interior has promulgated appropriate
regulations on the acquisition of trust land. See 25 C.F.R. Sec. 151.
Applied together with Section 20 of IGRA, those regulations provide a
strong framework for reviewing trust land acquisitions for gaming
purposes.
Should there be a requirement of substantial historical
connection between the tribe and the parcel to be taken into trust?
Why/why not?
We believe that the Secretary may appropriately require an
aboriginal or historical connection to the land.
How recent should the historical connection be? 100
years? 200 years?
What about distance from the tribe's current service
area? 10 miles? 20 miles? 70 miles?
Given the unique circumstances of Indian tribes and the United
States' history of treaty violations, it is difficult to establish a
time or distance limit. We believe that each case should be reviewed on
its own merits, against the background of the United States' treatment
or mistreatment of the Tribe.
Do you believe that the farther away the casino site is,
the less likely tribal members will be able to take advantage of
employment opportunities with a casino? [Alternatively, if the tribal
members move near the casino to get jobs, then will the traditional
community/service area be disrupted?]
Again, the answer will depend on the circumstances. Many tribes
have little or no land base to sustain their community. Under these
circumstances, a number of tribal citizens might be willing to relocate
to a different part of the reservation in order to take advantage of
employment, housing and other opportunities that additional reservation
lands will provide. The Committee may recall that only 50 years ago the
United States pursued a policy of Relocation.
5. If landless, shouldn't land-into-trust be restricted to the area
where the tribe is located? Where they live, need jobs, need
health care and services?
This restriction is currently in place. IGRA Section 20(a)(2)(B)
states that the initial reservation of a landless Tribe must be located
``within the Indian tribe's last recognized reservation within the
State or States within which such Indian tribe is presently located.''
The Interior Department's unpublished Checklist requires the Regional
Director to ``provide documentation that the proposed acquisition is in
the tribe's last recognized reservation. The Regional Director's
analysis of this issue must include documented information relating to
the history of the tribe to show that the tribe is presently located in
the state in which the land proposed for trust acquisition is located.
[In addition,] a legal opinion from the Office of the Solicitor
addressing this issue must be included.''
6. If some tribes are permitted to select the ``best gaming''
locations, wouldn't all tribes want to do that? What about
tribes that played by the rules and have their casino on their
reservation land, even though it may not be the best gaming
location?
As noted above, this hypothetical has not played out given the
significant processes already in place. Off-reservation gaming has been
approved in only very limited circumstances.
7. Please comment on how the federal campaign contribution laws apply
to tribes and the fact that tribes are exempt from overall
donor limits and can give directly from their treasuries. No
other organization is similarly situated.
Indian tribes, like states, local governments, and unincorporated
entities (such as homeowner associations, cooperatives, partnerships,
LLPs, LLCs, PACs, and many others), are not treated as ``individuals''
for purposes of federal campaign laws. These entities are subject to
the per candidate/per election limits of $2100. Because they are not
single human beings they are not subject to the aggregate donor limits
of $101,400 per two-year election cycle imposed on individuals.
(Amounts permitted for the 2006 cycle). This limit on individuals was
established to prevent a lone affluent citizen from unduly influencing
elections. However, unincorporated entities, such as tribes, states,
and others include numerous individuals--and are thus, treated
accordingly under federal law.
In addition, tribal governments, like state governments, may use
general treasury funds to make contributions to federal campaigns, as
long as such funds come from permissible sources. See Federal Election
Advisory Opinion 1991-14 (permitting state governments to use state tax
revenues and licensing fees to finance federal candidates and political
party committees). Thus, Indian tribes are not uniquely treated under
federal campaign laws, but instead are properly treated as governments.
It is important to note that tribal governments and individual
tribal citizens were prohibited from participating in the federal
political process for nearly one hundred fifty years from 1776 to 1924.
During this time, the United States adopted policies and laws that
sanctioned the murder of Native Americans, taking of hundreds of
millions of acres of tribal homelands, destruction of tribal economies,
and the forced abduction of Native children from their homes to federal
boarding schools where they were forbidden from speaking their language
or practicing their religion. These shameful policies all occurred
while tribal governments had no voice in Congress, could not
participate in the political process, and while Native Americans had no
right to vote in federal elections. Accordingly, Native Americans have
a experienced a denial of voting and electoral rights and today,
clearly understand the importance of democracy.
Because Indian lands are held in trust by the federal government
(and are often subject to federal jurisdiction), most federal laws
passed by Congress uniquely affect tribal communities unlike non-Indian
lands. An entire title of the United States Code (Title 25) is
dedicated to the unique treatment of tribal governments and individual
Indians. Thus, Native Americans must work closely with the Federal
Government.
Fortunately today, tribes now have a voice. Native Americans were
granted U.S. citizenship in 1924, and now vote in growing numbers in
federal elections. Like other similarly situated entities, Indian
tribes comply with the Federal Election Campaign Act of 1971, as well
as the Bi-Partisan Campaign Reform Act of 2002. According to the Center
for Responsive Politics (www.opensecrets.org), Indian tribes
contributed $7 million to federal campaigns in the 2004 election cycle.
This figure represents less than 0.35% of national federal campaign
contributions (House, Senate, and Presidential elections) which totaled
more than $2 billion. Native American participation in the political
process was not disproportionate, but our participation was as
meaningful and important as the participation of others across America.
8. Please comment on the increasing trend of tribes now crossing state
lines away from their reservation to establish gaming.
Please comment on the situation in CO where the
Cheyenne-Arapaho of Oklahoma are seeking land in CO to establish
gaming. In that situation, the tribe is claiming 27 million acres even
though their land claims were definitively and legally settled in the
1960s. Their action is designed to force the Governor to agree to a
smaller parcel near the Denver Airport for gaming.
As stated above, only four off-reservation land acquisitions have
been approved for gaming pursuant to the Indian Gaming Regulatory Act
in nearly 17 years. None of these applications have crossed state
lines. While the number of applications for off-reservation gaming have
increased, the significant process and requirements in place have and
will continue to prevent any significant growth of off-reservation
gaming.
The Denver Airport proposal provides a perfect example of the Act
at work, and of media hype that does not acknowledge political and
legal reality. Without the support of the state and local governments,
this proposal will not move forward under the Section 20 two-part
determination process. In addition, without a congressional Act to
implement any possible land claim settlement, it will not move forward
under IGRA's land claim settlement exception.
NOTE: Attachments submitted for the record have been retained in
the Committee's official files.
______
The Chairman. Well, thank you, and I appreciate the
testimony of all the witnesses. I think first of all I would
say I want to thank all of you for not taking a position on the
bill, because at this point it is a discussion draft. What we
are trying to do is move forward with those discussions and
trying to figure out what works and what doesn't. Just as we
have been sitting here over the last several hours, there are a
lot of different ideas that I have heard and things that have
come up that I think bear some changes to the draft.
A couple of you talked about opening up the law and being
able to control this process, and I can assure you--and I am
sure that the Ranking Member, Mr. Rahall, would join with me,
that if we are able to reach a consensus on this bill that we
will ask that it be a very limited rule in terms of what can or
cannot be part of this one before it ever comes to the Floor
because I am not really interested in bringing something like
this up under an open rule.
Mr. Luger, you talk about going through the regular hearing
process and opening this up so that we have the opportunity to
hear this out. Before this draft was ever even made public I
talked to a number of different people about this, and what
direction I wanted to go, and what was happening with this
because I wanted to make sure that everybody knew that this was
a discussion draft, that we were putting it out there just so
people could have an opportunity to see this and respond to it,
because obviously, as Chief Martin said and we have heard from
other people, is that this is a problem in different parts of
the country for different reasons, and it is something that I
feel ultimately threatens tribal sovereignty if we don't get
control over it. That is a big concern that I have.
One thing about the local government issue--and I think
there is some misunderstanding about what my intentions were in
terms of the local government. It is my understanding, the way
this draft is written, that on these Economic Opportunity
Zones, that if it is located on existing tribal trust land, and
if in North Dakota they wanted to take--if one of the tribes
happened to be more remote and they wanted to co-locate with an
existing casino on existing tribal land, that they would have
the ability to do that. My intention on this was that that
would go forward being the tribe at that point is, for all
intents and purposes, is the local government. They are the
ones who have control over that land.
On the other Economic Opportunity Zone, that would be on
lands that are not currently in trust, and in that case I would
rather that be located in a community that says, yeah, we want
it. We want the jobs created here. We want the economic
opportunities created here. And in that case we would have a
local government sign off.
And I think those are two very different issues, two very
different ways of looking at it. What I am trying to do is give
as much opportunity as I can to the tribes that may not be
right next to a major urban center.
Does that kind of fit along with--I mean you obviously have
a lot of different tribes, a lot of different things moving on
this. Does that kind of fit with what you see as an economic
opportunity for those that may be remotely located?
Mr. Luger. Yes. The answer is yes. And the fact that--where
we have a problem is back to one of the questions of the
earlier committee members. You have hit it right on the head.
We will use Turtle Mountain for an example. They're 250 miles
away looking at Grand Forks, North Dakota when the Spirit Lake
Nation is 50 miles away from Grand Forks. Now, as you stated,
in that zone if Spirit Lake and Turtle Mountain agreed that
this was in their best interest to do this, we don't have a
problem with that. That it would seem to me that they would be
the local community input. So I agree that you have hit some
chords of truth and that we're going to continue to assist the
Committee in developing some consensus to see if we can get
some of this straightened out.
The Chairman. Now, on the one hand we have the opportunity
zones that would be located on current trust land. On the other
hand we have an Economic Opportunity Zone that would be located
on land that is not currently in. Now, I want to ask you about
that. If instead--I mean what I see happening in different
parts of the country is that you have a tribe with an existing
casino that may be an hour or two hours away from a major
population center, and then you have somebody else that comes
in and wants to be an hour and a half away or 45 minutes away,
and they keep trying to do one better. What we are doing is we
are ending up with creating a situation where these guys are
going head to head and it is going to end up hurting everybody.
Wouldn't it make more sense in that situation that we take
one place that--with a community that says, ``Come on in. We
want you here. We want to establish this kind of an economic
opportunity here,'' and have those tribes have the ability to
co-locate in that situation, and then take the land into trust
under that situation? Does that sound like it is something that
is workable rather than--you heard the lady from Oakland who
testified about the five different proposals right around the
City of Oakland. If she went out another 25 miles, there are 12
different proposals that are there, and instead of having 12 of
them located all over the place and all the different problems
with local communities and all of that, wouldn't it make more
sent to locate them together in a community that says, yeah, we
want them?
Mr. Luger. I think your concept deserves serious
consideration, and it's something that we're going to sit back
and take a look at and see if there are some--there's a couple
of technical points that I would want to raise to it, but as
far as the concept goes, I know the tribes in the Great Plains
Region are going to give it serious consideration to see how
they would fit under that scheme.
The Chairman. Mr. Martin, could I have you comment on that
as well?
Mr. Martin. Our tribes, as the Great Plains Tribes, will
take that under serious consideration. In general the concept
is something that is worth looking at because you hit on the
aspects of tribal involvement, tribal discussion, self-
determination and tribes working out problems amongst
themselves.
I would take it back to also though we have to look at what
the original intent of IGRA was and what it looked at at that
time. IGRA made provision for tribes that were not recognized
or restored after. So the original intent of IGRA was that
where you are now is where you are now, and that you should
stay within those boundaries of whatever circumstances got you
to that place and be able to exercise that tribal authority of
that tribal government at that place in time.
The Chairman. Mr. Van Norman, did you want to?
Mr. Van Norman. Well, I guess I would say, going back to
the history, the way the Act has operated, that it is important
to note on the local government consultation that actually the
three projects that successfully went forward under Section 20,
Forest County Potawatomi, Kalispel and Keweenaw Bay Indian
Community, only went forward with the support of the local
governments. So what we saw under the current process was that
actually consultation with the local governments was enough,
and that the Secretary took that into consideration.
You also have to look at the Code of Federal Regulations,
and as an acquisition gets further away from a reservation,
they're directed to give more weight to the local government
concerns.
So I think it's worth taking a look at the existing
practice and what has taken place under that. Certainly we
would feel, as you mentioned, that there's no need for local
government approval when you're talking about existing
reservation lands. I think it is a very interesting concept. I
think clearly, as the Chairman of the Committee, you've been
thinking hard about this and hearing from different folks. It
is a creative approach to a situation, and we certainly want to
have those dialogs, and in fact if you can come and address our
tribal leaders as we move forward, we appreciate that.
The Chairman. I look forward to continuing those
discussions. You and I have had the opportunity many times to
talk about this, but I look forward to having the opportunity
to continue those discussions.
I am going to recognize Mr. Kildee.
Mr. Kildee. Thank you very much, Mr. Chairman.
It is good to have all three of you here. Chief Martin, I
have known you forever, as young as you are, and it is good to
work with you, all of you.
One nice thing about working with Chairman Pombo is that no
one can question his great concern both for Indians and Indian
sovereignty, so you have a committee here that is really
convinced of the genuine nature of Indian sovereignty. As I had
to remind a candidate for Governor a few years ago, that Indian
tribes are not social clubs, they are sovereign nations and the
sovereignty is a retained sovereignty, and it is mentioned in
our U.S. Constitution, not granted. It is just recognized in
that.
I would like to, Chief Martin, I ask you does USET have a
position on out-of-State off-reservation gaming and in-State
off-reservation gaming, and could you maybe go into that some?
Mr. Martin. It is an honor to be before you again,
Congressman. I hope your family is doing well.
Mr. Kildee. Yes, they are. Thank you.
Mr. Martin. USET does have a position on the out-of-State
in a sense that we believe, as I answered earlier to Chairman
Pombo, the circumstances for a tribe to wind up where they're
at presently whether it was voluntarily or forcibly has to be
given consideration. So therefore we are definitely opposed to
the concept of reservation shopping where tribes are jumping
across State lines and multiple States just for lucrative
markets where that occurs.
On the in-State, we have not taken as close a look on that.
We are studying the proposal as it exists now. Chairman Pombo
brings up an interesting way of having to look at that. I think
we have to look at that. And as long as the tribes who are
affected--will be affected in that State has an opportunity to
dialog and make a process where it's transparent for those
tribes to have input into the decisionmaking, not necessarily
maybe a veto, because you may be talking about different types
of--the scenario before. We would definitely be against a tribe
even in-State that wants to go totally outside of their
aboriginal land and put up a casino just because it's a
lucrative area in there. So the history and the aboriginal
lands of the tribes has to come into play in these decisions
also.
Mr. Kildee. Thank you.
Mark, you and I have discussed IGRA for a long time. I
helped write IGRA right in this room many years ago. I wasn't
sure we needed it. I wasn't sure it was good because I thought
Cabazon was so good, and we actually put some restrictions on
Cabazon with that, and we brought the State Government into the
picture.
We brought the State Government in, but I am very reluctant
to bring local government in, very, very reluctant to bring
local government. Now, we do have a consultative process if--
like a tribe was trying to move into Auburn Hills, Michigan,
which they finally backed off of, but there is--maybe a
consultation, but a veto power by a local unit of government
really goes way beyond the compacting or the approval that we
gave to the Governor. I think we have to approach that most
cautiously, most carefully, with great input from the three of
you on that.
As a matter of fact, reading the bill here it says that
Indian tribe may participate in Class II gambling, Class III,
if the Secretary determines that participation is in the best
interest of each participating Indian tribe, and the Indian
tribe for which the Indian lands within the economic zone are
held in trust.
Let's talk about trust land. Now, trust land is sovereign
land. Then it says: and the State, city, county, town, parish,
village and other general purpose political subdivisions of the
State with authority over the land that is concurrent or
contiguous to the economic opportunity zone approves. Now,
approval is way beyond consultation. Yet it talks about that
those lands are held in trust. I just am very reluctant to give
any local creature of State Government control to really veto
how you use your own trust land.
Would you concur with that?
Mr. Van Norman. Congressman Kildee, we agree that there is
a concern about involvement of local governments and share your
views. As Chairman Pombo stated, I think that when you're
talking about--and especially the existing trust land
provision, that that provision is unnecessary because normally
the local governments would not have any approval because
that's an area for tribal self-government.
I also do think it's worth looking at the existing practice
under the consultation provision. We've seen the Secretary take
that very seriously and really, under the current Section 20,
they've only moved forward when the local governments have
agreed. And they also don't just look at the statute, they look
at the regulations, and the regulations say that for off-
reservation acquisitions the further that you move away from
the reservation the more deference should be given to the State
and local government. So I think that as we discussed the bill,
that's worth taking a look at.
Mr. Kildee. Well, you know, the encouraging thing of
working with Chairman Pombo is that he would be the first one
to admit that this first draft was not written on Mount Sinai,
it was written on Capitol Hill.
[Laughter.]
Mr. Kildee. So we can go back and look at it again and--
The Chairman. If the gentleman would yield for just a
second. It was not written on Mount Sinai, it was written in
the room next door, but--
[Laughter.]
The Chairman. I just want to follow up on Mr. Kildee's
question. In the case of an on-reservation Economic Opportunity
Zone, in that case in listening to this, it seems like it would
make more sense for there to be--if we are going to create one
of these zones on existing trust lands, it sounds to me like it
would make more sense if there were some consultation with the
local community, but not approval if it is on existing trust
lands.
But the--obviously that tribe would have to sign off on it
because it is their land. So in that case they would in essence
be the local government that would be signing off on it, but I
think that if we do this, then you would have to have some kind
of a consultation process with the local community in that
case, because we are talking about the opportunity to open a
number of casinos in one place or a number of gaming facilities
and hotels and everything that goes along with that.
So I think in that case it would probably make sense to
have some kind of a consultation process because the way the
bill is drafted right now there is a limited number of these
per State. So if the Secretary is trying to determine where the
best place in a State would be to establish one of these, it
would obviously be somewhere where they would have the least
opposition to doing it and where it would make the most sense
for economic opportunity for the tribes. Does that make sense
to you?
Mr. Van Norman. It makes sense that, you know, especially
in the on-reservation zone that the consultation would be
better than involving the local governments in any kind of
approval because that's already Indian land.
The Chairman. Yes. OK.
Mr. Luger. I concur.
Mr. Martin. I would have to caution though that our tribes
would perceive it that any involvement absent the already
stated purpose of IGRA where tribes can enter into Class II
gaming without the concurrence or any consultation with the
local government would be perceived as backing up.
But I understand your portion is going toward what is the
intent, the prospective of trying to work out an enterprise
zone for tribes that find themselves in desolate areas where it
would not be profitable. So it goes toward the intent of that.
But a perception where it's already established reservation
land, and that tribe wants to enter into Class II gaming, they
do not need the local government approval.
The Chairman. But in the case--I want to make sure I
understand you--that is if a tribe wants to put one facility on
their trust land, correct?
Mr. Martin. Yes, sir.
Mr. Luger. Right.
The Chairman. And in the case of an Economic Opportunity
Zone we are talking about a number of tribes that would be
located on one trust land. So I think there is somewhat of a
difference there, and I do understand what your issue with the
Class II gaming, and we are going to have to continue to talk
about that, but I think there is a difference when we are
talking about several facilities versus one.
Mr. Martin. And upon clarification, as this hearing is
doing, I think your proposal and therefore local government
does merit some sort of consideration.
The Chairman. Mr. Kildee, did you--
Mr. Kildee. Just one statement. I have to leave now and
catch a plane. I know Chief Martin will understand. He has met
my family. My wife and I are still celebrating our 40th wedding
anniversary, and I wanted to join her, so I am going to have to
leave now.
The Chairman. You had better leave.
Mr. Van Norman. Congratulations.
Mr. Kildee. Thank you very much. Thanks a lot.
The Chairman. Mr. Walden?
Mr. Walden. Thank you very much. Thank you, Mr. Chairman.
I am sort of learning about these issues, so bear with me,
and I will try not to stray too far. The issue of local
government involvement, I understand the sensitivity that you
feel toward a veto, if you will, by a local government. I have
several tribes and reservations in my district and I deal with
both, local governments, obviously, State governments and all
of that. One of the concerns that the local governments always
have is just the impacts of any kind of development or action
on the rest of the community and how those impacts get paid
for.
In my hometown, there is a tribe that has lands that have
been in trust pre-IGRA that are in the middle of the Columbia
Gorge National Scenic Area. They are up on a hillside. They
acquired some land adjacent to that they want to bring into
trust and originally wanted to put a large casino in the middle
of what the Federal Government has declared a National Scenic
Area, put the parking garage on the acquired lands, and link to
the pre-IGRA lands and put this four-story thing right up on
the side of a hill. And the local community went, well, shall
we say just nuts. 70 percent in a plebiscite voted against it
or more.
And so they looked at some alternatives, and they are
looking off-reservation, and they went 16 miles to the west and
there is a community there that said, ``Come on down. We'd love
to have you,'' 80 percent support. They are now in negotiations
for a compact with the Governor, and I think soon will announce
that.
I have expressed concerns to the Chairman that if they
finally reach this agreement with the community, a supportive
community and all of that, I wouldn't want this legislation to
somehow upend all that work by saying, well, you weren't in
tribal trust by the time this legislation passed.
How do we resolve this issue? Because I am sure if a local
government were to do something that adversely affected tribal
nations, that you would want to say, ``Wait a minute, you
should have consulted us on that.'' The State may have no piece
of whatever the local government--how do we work out this
conflict?
Mr. Luger. Members of the Committee, personally I think
that it's going to be really difficult unless we fix the
Seminole decision, I really do. That's just my own personal
opinion on it, but until the Seminole decision is addressed, a
Seminole fix is in play, we are going to have this constant
bantering.
Mr. Walden. All right. And then--go ahead, yes. Somebody
else has a comment.
Mr. Van Norman. Yeah. Let me just say, you know, I think
that history would be a little bit different if tribal
governments had had some kind of approval process vis-a-vis
local governments or State governments, and we might have
larger reservations, for example. So I think that the question
is when you're dealing with one government and dealing with
another government, I think consultation, you know, is one
thing, but approval, especially at the level where tribal
governments are really providing services just the same as
State or local governments, and feel that, you know, we are
coordinant governments entitled to that kind of respect.
Mr. Walden. I mean in my State I believe one of the casino
convention centers now is the State's top tourist attraction or
number two. It used to be Timberline Lodge and Multnomah Falls.
Obviously, the impact of that volume of travel doesn't just
start at the reservation boundary. How do you deal with, if you
are the local government and you have--and this isn't the
case--but I am just saying as an example, how do you work out
those issues if you have a tribe that says ``Forget it, we're
not going to give you a dime. It's not our problem, it's
yours.'' What is the local government supposed to do?
Mr. Van Norman. There's a provision in current law, and
that's what the tribes are relying on in terms of these
discussions, that provides for that consultation with local
government, and that's a factor for the Secretary to take into
account in determining whether it's detrimental to the
surrounding community. So that's how local law--current law
looks at that.
But also through the compact process, the State can
consider the impacts on local communities and ask for
mitigation.
Mr. Walden. OK. Now--
Mr. Martin. If I may?
Mr. Walden. Yes, sir.
Mr. Martin. And I've, I've negotiated, renewed I think 17
compacts over the last eight or nine years and--
Mr. Walden. 18 more than I have done.
Mr. Martin. And I have come to find out that integrity is
part of the question. Those tribes that you have stated the
case where they're unwilling is extremely rare. We have to be
sensitive to public opinion as well as everybody else, and in
the compact process, for example, in North Dakota we had public
hearings in every one of those counties and municipalities
where the renewed compacts were going to get in. So the
executive branch, the legislative branch got to take those all
into consideration before a final stamp was put on.
Mr. Walden. Lest I be misunderstood, I am not saying any of
them in Oregon have done that, I don't think they have. But
just as we wrestle with these issues, you can see.
And then there is--if I could, Mr. Chairman, just a second
more. Then there is this issue of competition among tribes and
between tribes. One of the tribes in my district was very
supportive helping another get status for gaming, and now this
tribe--and the other tribe was very appreciative of all that,
gave them a big plaque, all this stuff. Now, guess what? They
are trying to do the same thing and the other tribe is trying
to block them. Imagine that. And so they are trying to do it
off-reservation, and this tribe is isolated. They have tried a
casino where they are, and it is just pretty darn difficult.
So representing a district of 78,000 square miles is second
only to Mr. Gibbons or the single member States, very rural. I
worry about the haves getting more and those of us out in the
very rural remote areas, never being near a population center,
what do we do for those folks?
Mr. Luger. If I may--and they're facing that in Minnesota
right now. This was talked about in the intent of IGRA. I
believe Senator Inouye said that it would never be a panacea.
There's some cold realities in this. There are some tribes that
aren't going to do good by gaming. That was a good question
today about the one individual tribe. Do you have anything else
on plan beside gaming? There are some tribes in Indian country
that are not going to benefit hardly at all if any from gaming,
and we need to get used to that.
And we not--just like--you know, like a class difference in
taxes. I don't want to be in the position of distributing
wealth. If they were lucky enough to be where they're at
geographically, fine and great. We use--and others are used
constantly in our area, but the reality of it is, given enough
time, those areas and the works that they do with the other
tribes begin to mitigate that in helping them perform--or help
with economic activities that will work in that rural area.
Those tribes that are in that rural area are just that, rural.
They're farmers, ranchers. There's other things that can be
done, but gaming--and I keep coming to this amongst ourselves,
even the tribes--is not a panacea.
And you've got developers out there that are trying to
pretend with certain elected tribal councils that this is your
right, and it isn't. It's for us to work out if it's available
to us, and maximize it to the best interest that we possibly
can.
Mr. Walden. Then is it your view that there should be no
post IGRA gaming cited; if the lands weren't in trust pre-IGRA
that they shouldn't be allowed to take land into trust and do
gaming?
Mr. Luger. No. But what I do think is that travel input is
the key to this, that and the fix of the Seminole. I do.
Mr. Van Norman. That's one thing, you know, we need to have
our own dialog among the tribal governments, and we're going to
have a series of dialogs--
Mr. Luger. Imagine that.
Mr. Van Norman.--as you move forward with your hearings so
that we--
Mr. Luger. You can tell it's going to get rocky.
Mr. Van Norman. Yeah. Well, we want to make sure we have a
broad spectrum of member tribes from the largest gaming tribes
to the Oglala Sioux Tribe, which is one of the poorest tribes
in the country.
Mr. Walden. Good, because obviously the haves aren't
wanting to give up anything. I mean that happens no matter what
culture you're in.
Mr. Luger. And if I may, you know, the haves and haves not
story, I just debated an individual from Minnesota, and it's
kind of disingenuous for people to determine who has or who
isn't and what's wealthy and what isn't. And the bottom line
is, is that look at these large land-based tribes where I'm at.
Standing Rock's got 3 million acres and 18,000 members. Well,
their unmet need is humongous. And we recognize that. We're not
going to be in a same position as somebody that's got 220
members and is sitting on the end of New York City. It's just
cold reality. So sometimes we're going to have to accept
reality.
Mr. Walden. I really appreciate your input. It is helpful
for me as I learn more about these issues and wrestle with them
in my own district and work with the tribes.
Mr. Martin. As we start to deliberate it on our side, we
would hope to solicit the Committee to referee some of those
discussions.
[Laughter.]
Mr. Walden. Yes. We are trying to solve all those account
issues too, aren't we, Mr. Chairman?
The Chairman. Yes.
Mr. Luger. Again, just one more comment. I can only say
from the Great Plains it's absolutely critical to us that jobs
is number one.
Mr. Walden. Absolutely. No, I understand that.
Mr. Luger. And on-reservation scenarios have priority, and
we feel that way strongly amongst ourselves. And given time
we'll work out the others. This has only been going on for, you
know, what, 10, 12, 15 years, but that is really our basic
sentiment. And to thank the Chairman and the Committee for
helping us get through this.
Mr. Walden. Can I ask like an explosive question perhaps?
The Chairman. Maybe not.
[Laughter.]
Mr. Luger. To Mr. Van Norman, please.
[Laughter.]
Mr. Walden. When you are talking about haves and haves nots
and how we do this and we all know federally there is a pretty
small pie and it is getting tighter and tighter, as--and I may
be way off, I have not been briefed on this so bear with me--
but as there are funds available through BIA for different
places and tribes, do we need to look at somehow those tribes
that are very profitable and have a lot of money in the
reservations--and I don't even know if they continue to get BIA
support and funding--and say, you know, maybe this is some way
we can help with the scarce resource that is available there?
The Chairman. The gentleman's time has expired.
[Laughter.]
Mr. Walden. Thank you, Mr. Chairman.
The Chairman. That is the subject of another hearing.
[Laughter.]
Mr. Walden. All right.
The Chairman. And we have had discussions about that and I
appreciate the question, but I think we will save that one for
another hearing.
Mr. Pallone?
Mr. Pallone. Thank you, Mr. Chairman.
You guys were probably here when we had the first panel,
and I am sure you heard me explain my concern over the whole
issue of creeping over Indian sovereignty, in other words to
the extent that--I mean if you listen to the first panel you
would probably be very concerned about opening up IGRA because
of the suggestion that, you know, local towns or communities
should exercise a veto and all these notions--I think many of
them not exactly true about rich tribes and the ability to have
all kinds of money to impact the law or the statute.
But the same thing applies in terms of--to me, I have the
same concerns in terms of restrictions on sovereignty that
might apply to one tribe against another. In other words, I was
thinking about what Tim Martin, where you said that in dealing
with States the out-of-State tribe will waive most aspects of
its sovereignty. In other words, in order to get a good deal
they will waive all their sovereignty, and that is a disturbing
possibility. But the question in my mind is, well, again, is
that something for Congress to deal with? In other words, if
theoretically tribes are nations, and they can make a deal with
a State, you might say, ``Well, why should the Federal
Government step in and prevent that from happening?'' Maybe
that is an infringement on sovereignty and a way for the
Federal Government to step in and do something that becomes
almost big brother.
What is your response to that?
Mr. Martin. I believe that each tribe should have their
opportunity to be self-determining in there. In a perfect world
that would not have any negative impact on other tribes to be
just as self-determined. But there is this other element. It is
the State or other--the developers that in a sense are bringing
up false expectations to this tribe who has nothing, so they
think if they get anything, it's better than nothing, but not
realizing, being too narrowly looking and not being foresight
to realize that decision may haunt them in the future.
Mr. Pallone. I understand, and I appreciate your response.
But what I am thinking in the back of my mind is that becomes
sort of paternalistic as well on the part of the Federal
Government, if you will. I mean you can think about it that
way.
Mr. Martin. Just as we will interact as a sovereign to the
Federal Government, I would hope that Congress will give us
time to interact amongst ourselves to work out those conflicts
that may arise.
Mr. Pallone. And then the second thing, you know, this
whole idea about one Indian Nation being able to exercise veto
authority over another in the issue of wanting to settle a land
claim. In other words, I am not saying that that is what the
Chairman's bill does because I know you don't really deal with
the land claims at all, but I mean--
The Chairman. It is not in there.
Mr. Pallone. Right, it isn't. But I mean, again, my concern
is to what--in the same way I would be concerned about the
Federal Government stepping in and saying, ``You can't do
this'' to a tribe ``because somehow you don't have the ability,
you don't really know what you are doing.'' I would have the
same concern whether one tribe should have a veto over another.
I mean it is the same problem. You might say, look, you know,
laissez-faire, these are sovereign nations, let them negotiate
with the State or let them deal with each other and negotiate.
Don't let one veto another's ability to game or do anything. I
mean that is not the way to operate among sovereigns, so to
speak. If anybody wants to respond to that?
Mr. Luger. I didn't see the land claim issue in the bill
and I--
Mr. Pallone. It is not.
Mr. Luger. And with respect to the veto and our
relationship with another on a one-to-one basis, I put it to
you this way in kind of an old, a western heritage sense. If
somebody's dropping a fence pole in my back yard, I want to
have some say so over it, and that's what this is about.
Right now the advantages to those that want to do, but for
those that say this is going to have a negative impact on us,
we're kind of moved off to the side. And just common sense
would say if somebody's going to do something in your back yard
that's going to negatively impact you, you should have some say
so.
Mr. Pallone. OK. But again the issue is, how far do you
want to go? Do you negotiate it, which is what sovereigns do? I
mean if you make the analogy, say the U.N. or sovereign nations
like the U.S., that maybe they should simply negotiate and
there shouldn't be some veto or some ability to absolutely say
no.
I don't know if anybody else wants to--I am being very
philosophical here, guys.
Mr. Martin. And that's part of the discussion that needs to
take place. I think there exists now the consultation process,
and the Secretary is bound by her or his fiduciary trust
responsibility to look at negative impacts of a sovereign
tribe. You're saying it's one tribe a veto over other. I'm not
sure our tribes would agree there. We believe every tribe
should have self-determination. But the Secretary of Interior
has the trust responsibility as one tribe is doing to look at
the impact on the other tribes because it is just as equal to
all tribes, so therefore there is already that call for that
government to balance that relationship that exists between
both those tribes or multiple tribes.
Mr. Pallone. If I could ask one more thing, Mr. Chairman,
none of you are--oh, I am sorry, Mark. Go ahead.
Mr. Van Norman. Congressman Pallone, thank you. I just do
want to mention--and maybe this is a technical point--but in
the current Section 20(b)(1) there is a provision for land to
come into trust pursuant to a land claim settlement, and as I
mentioned in my testimony--or in Chairman Stevens' testimony as
well, there's only been on circumstance where that's been
utilized to date, the Seneca Nation in New York.
But the bill does strike out that provision, so it would
amend that provision. And I assume that we have member tribes
that have these land claims that that will be part of our
discussion and part of our dialog among the tribes about how
that all works out.
Mr. Pallone. OK. Thank you, Mr. Chairman.
The Chairman. Mr. Kind?
Mr. Kind. Thank you, Mr. Chairman.
I know the hour is late and they have been very generous
with their time, but I want to welcome everyone and certainly
appreciate your testimony. I apologize getting here a little
bit late. We had business wrapping up in another committee, but
I have been trying to catch up by reading the written
testimony, and rest assured, we will be looking into this.
But, Mr. Chairman, first of all I want to express my
appreciation for some of the remarks that you made earlier,
that this is recognizing a very complicated issue with a lot of
details that we are going to have to look through and sift
through and determine the impact on how this proposed new
process would actually work. I agree with you, Mr. Chairman,
that if we can try to reach some consensus on the Committee and
work in a bipartisan fashion, move forward on that basis, while
also recognizing it might take some time in order to weed
through this because a lot of this is going to be based on some
anecdotal evidence on what has happened in the past, and the
importance of making sure that sovereign rights are recognized
and protected, and that whatever process is drafted is fair to
the parties involved, and whether it makes sense ultimately,
and not too prohibited so that no advancement or no movement
can be achieved at the same time.
I know just based on what I have been able to observe
throughout the years, tribes are very sensitive to the fact
that they do need to be good community neighbors, and when they
are looking to expand, whether new trust lands or off-
reservation opportunities, economic opportunities, there is a
lot of working with local communities at the local level,
between cities and county boards and parishes and you name it,
because I think they understand that if it is going to work at
all, there is going to have to be development of consensus at
all levels, the local, at the State, and then obviously with
the Secretary approval at the Federal level.
So hopefully when we move forward on this that we recognize
that there is going to have to be a built-in consultation
process in order to address various concerns, not only
government to government, but tribal consultation too, whether
it is in a more formal basis or whatever, but something that
can help move the process along so that the communication is
there.
Mr. Luger, I certainly appreciate the comments that you
have been making and that you have been raising here as well.
One of the issues obviously is concern about other tribes and
the impact it is going to have on them. And I am just wondering
if you are envisioning any change in the consultation process
right now that is taking place, or something that might improve
the consultation process from tribe to tribe?
Mr. Luger. Thank you very much. And as I stated in my
testimony, we--and I guess it was a question to the Chairman,
if it would be out of step to write a letter to the Secretary
and see where she's at on some of these things. I mean
obviously I've stated it in my written testimony, but some of
the examples here today, one about the 300 miles and one being
recognized, one being not. Those are the types of things that I
think could be addressed by that from an administrative process
from the influence from this committee.
Mr. Kind. It is an excellent point because I know how
easily these things can get bogged down. I mean they are
inherently very difficult. Usually there is a lot of different
interests at stake. Many times, unfortunately, there is a lot
of local politics that come into play as well, and it is not
hard to establish roadblocks as far as reaching agreement on
many of these issues. And the difficulty of just establishing
compacts with the States, for instance. I know in Wisconsin we
have had a lot of problems on that, and it has been tough to
get everyone on the same page. And because of that, thing tend
to break down.
So as we move forward, hopefully we will be patient enough
in order to listen to the different points of view. This
hearing obviously is very, very helpful, and opens up a lot
more questions or ideas that should be explored, and obviously
we will be looking forward to working with you and staying
engaged with you all as we move forward on a committee basis,
and trying to reach even beyond that some consensus in the
Congress, what can be very tricky and very difficult because it
does entail a lot of details, and I think just a lot of
experience in seeing how these things ultimately work.
So with that, Mr. Chairman, I appreciate the time,
appreciate you having this hearing today. I think it is very,
very helpful, and certainly appreciate the witnesses'
attendance. I yield back.
The Chairman. Thank you, Mr. Kind.
I want to thank our witnesses for their testimony, and
again remind you that I know that there are members that have
questions that they want to ask in writing. If you could answer
those in writing so that they can be included in the hearing
record, we will hold it open long enough to include those
answers. But I know that there are a number of members that for
one reason or another weren't able to be here and ask all their
questions.
So I want to thank you for that. I look forward to working
with all of you as this process moves forward. Again, this is a
draft, and it is something that I think we need to continue to
talk about. I know that you are planning hearings or
discussions amongst the tribes. I think that will be extremely
helpful to begin to get that kind of feedback. There are
technical issues that obviously we need to fix. I mean just
during the course of this hearing I heard a number of things
that we could change or word a little bit differently in the
draft that would accomplish what it is you gentlemen and the
people you represent are concerned about.
I look forward to continuing to working with you, and thank
you again for your testimony.
There is no further business. I again thank the members of
the Committee and our witnesses. The Committee stand adjourned.
[Whereupon, at 6:07 p.m., the Committee was adjourned.]
[NOTE: The following list of information submitted for the
record has been retained in the Committee's official files.]
Brown, Mark, Chairman, Mohegan Tribe of Indians
of Connecticut
Confederated Tribes of the Warm Springs
Reservation of Oregon
Cox, Greg, Supervisor, President, Board of
Directors, California State Association of Counties
Franklin, Matthew, Chairman, Ione Band of Miwok
Indians
Kennedy, Cheryle A., Chairwoman, Confederated
Tribes of the Ronde Community of Oregon
Malick, Elida A., Director, No Casino in Plymouth
Morningstar Pope, Rhonda L., Chairperson, Buena
Vista Rancheria
Royball, Edward R., II, Governor, Piro-Manso-Tiwa
Indian Tribe, Pueblo of San Juan De Guadalupe, New Mexico
Sanchez, Merlene, Chairperson, Guidiville Band of
Pomo Indians
Schmit, Cheryl, Director, Stand Up for California
Smith, Tim, Chair, Sonoma County Board of
Supervisors
Spurr, Laura, Chairwoman, Nottawaseppi Huron Band
of Potawatomi
Toledo, Mike, Governor, Pueblo of Jemez
Uikema, Gayle B., Chair, Contra Costa County
Board of Supervisors