[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
TRIBAL PROPOSALS TO ACQUIRE LAND-IN-TRUST FOR GAMING ACROSS STATE
LINES AND HOW SUCH PROPOSALS ARE AFFECTED BY THE OFF-RESERVATION
DISCUSSION DRAFT BILL.
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Wednesday, April 27, 2005
__________
Serial No. 109-9
__________
Printed for the use of the Committee on Resources
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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 Wednesday, April 27, 2005........................ 1
Statement of Members:
Kind, Hon. Ron, a Representative in Congress from the State
of Wisconsin............................................... 2
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Statement of Witnesses:
Abrams, Rev. Cynthia J., Director, Alcohol, Other Addictions,
and Health Care Work Area, General Board of Church and
Society of the United Methodist Church..................... 42
Prepared statement of.................................... 43
Blackdeer, Hon. Wade, Vice-President, Ho-Chunk Nation........ 16
Prepared statement of.................................... 18
Blind, William, Vice-Chairman, Cheyenne and Arapaho Tribes of
Oklahoma................................................... 20
Prepared statement of.................................... 22
Brady, Steve, Sr., Co-Chair, Northern Cheyenne Sand Creek
Massacre Site Committee, and President, Northern Cheyenne
Sand Creek Massacre Descendants............................ 34
Prepared statement of.................................... 35
Response to questions submitted for the record by Otto
Braided Hair on behalf of the Northern Cheyenne Sand
Creek Massacre Committee............................... 48
Burzynski, Hon. J. Bradley, State Senator, 35th District,
State of Illinois.......................................... 23
Prepared statement of.................................... 25
Enyart, Charles D., Chief, Eastern Shawnee Tribe of Oklahoma. 11
Prepared statement of.................................... 13
Response to questions submitted for the record........... 53
Foltin, Hon. Craig, Mayor, City of Lorain, Ohio.............. 27
Prepared statement of.................................... 29
Response to questions submitted for the record........... 59
Jackson, Hon. Jesse L., Jr., a Representative in Congress
from the State of Illinois................................. 7
Prepared statement of.................................... 9
Kindt, John Warren, Professor, University of Illinois........ 36
Prepared statement of.................................... 38
Response to questions submitted for the record........... 61
Weller, Hon. Jerry, a Representative in Congress from the
State of Illinois.......................................... 3
Prepared statement of.................................... 5
OVERSIGHT HEARING ON TRIBAL PROPOSALS TO ACQUIRE LAND-IN-TRUST FOR
GAMING ACROSS STATE LINES AND HOW SUCH PROPOSALS ARE AFFECTED BY THE
OFF-RESERVATION DISCUSSION DRAFT BILL.
----------
Wednesday, April 27, 2005
U.S. House of Representatives
Committee on Resources
Washington, D.C.
----------
The Committee met, pursuant to notice, at 11:09 a.m., in
Room 1324, Longworth House Office Building, Hon. Richard W.
Pombo [Chairman of the Committee] presiding.
Present: Representatives Pombo, Radanovich, Walden, Nunes,
Drake, Fortuno, Kildee, Kind, Inslee, Tom Udall, Bordallo,
Herseth and Costa.
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
tribal proposals to acquire land-in-trust for gaming and how
such proposals are affected by the off-reservation discussion
draft bill that I proposed.
Under Rule 4(g) of the Committee Rules, any oral opening
statements at hearings are limited to the Chairman and 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.
I ask unanimous consent that my entire opening statement
will be in the record. I am going to just abbreviate my opening
statement because of the late beginning of the hearing.
The purpose of today's hearing is to continue the
Committee's inquiry into off-reservation gaming. Last month the
Committee held a hearing on a discussion draft bill I authored
that would restrict and reform the process by which newly
acquired off-reservation lands are taken into trust for gaming
purposes. Committee members and witnesses both provided
excellent analysis of the draft bill. It has also resulted in a
tremendous amount of unsolicited input from tribes, local
leaders and private citizens across the Nation.
Today's hearing will focus on one aspect of the discussion
draft bill, the provision dealing with tribes seeking trust
lands for gaming in States where they don't reside. There is no
official list of tribes in this situation, but one tribal
witness in the last hearing provided a good list of such
proposals.
[The prepared statement of Mr. Pombo follows:]
Statement of The Honorable Richard Pombo, Chairman,
Committee on Resources
The purpose of today's hearing is to continue the Committee's
inquiry into off-reservation gaming. Last month, the Committee held a
hearing on a discussion draft bill I authored that would restrict and
reform the process by which newly-acquired, off-reservation lands are
taken into trust for gaming purposes. Committee Members and witnesses
both provided excellent analysis of the draft bill. It has also
resulted in a tremendous amount of unsolicited input from tribes, local
leaders, and private citizens across the nation.
Today's hearing will focus on one aspect of the discussion draft
bill, the provision dealing with tribes seeking trust lands for gaming
in states where they don't reside. There is no official list of tribes
in this situation, but one of the tribal witnesses in the last hearing
provided a good list of such proposals. According to this list, tribes
from certain states have attempted to negotiate gaming rights in at
least twelve other states. Although details of the efforts are not
always available, it appears that in most if not all cases, the gaming
would be conducted under the Indian Gaming Regulatory Act.
While the Act generally prohibits this type of off-reservation
gaming, exceptions are available depending on the willingness of the
Interior Secretary and the governor of the affected state to play ball.
It's just not clear what will happen in every case.
Regardless, these proposals have stirred up strong feelings among
Members of Congress, governors, tribal leaders, tribal members, city
and county leaders, and private citizens.
The discussion draft bill contains a section intended to bar such
efforts to build casinos across state lines. It would be useful for the
Committee to become better acquainted with several of the proposals and
whether such proposals should be barred or allowed.
Before I recognize the Ranking Member, I want to note that the New
York Land Claim is not the focus of today's hearing, even though it
involves proposals relating to cross-state gaming. This issue is fairly
unique and it would be better focus on what's happening in the rest of
the United States before turning the committee's attention to that
situation.
______
The Chairman. I would like to introduce our first panel of
witnesses. Two of our distinguished colleagues from the State
of Illinois, Congressman Jerry Weller of Illinois, 11th
District, and Congressman Jesse Jackson, Jr. of Illinois' 2nd
District. Let me take time to remind all of our witnesses today
that under Committee Rules oral statements are limited to 5
minutes. Your entire statement will appear in the record.
Mr. Kind. Mr. Chairman, may I be recognized for a brief
moment?
The Chairman. Mr. Kind?
STATEMENT OF THE HON. RON KIND, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WISCONSIN
Mr. Kind. Thank you, Mr. Chairman. Mr. Chairman, first of
all, I want to thank you for holding yet another hearing on
this very important issue and your proposed draft that we have
been trying to work on together. I think this is a very serious
issue. I am looking forward to hearing our colleagues'
testimony today as well as the testimony of the other witnesses
on the second panel, one of whom I just want to especially
welcome. He has been a good friend of mine for many years, but
even more importantly, he has been a great leader of the Ho-
Chunk Nation in Wisconsin, a great community leader. That is
Wade Blackdeer, who will be on the second panel. We will look
forward to hearing his testimony as well as the testimony of
the other witnesses today.
The Chairman. Thank you.
Mr. Kind. Thank you, Mr. Chairman.
The Chairman. We are going to begin with our first panel.
Mr. Weller, we are going to start with you.
STATEMENT OF THE HON. JERRY WELLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Weller. Thank you, Mr. Chairman and members of the
Resources Committee, for this opportunity to testify on a very
important subject.
Mr. Chairman, I want to make it clear I am a supporter of
your legislation, which I believe is good reform legislation.
It takes into consideration the concerns of tribal governments
as well as the States and I want to commend you for working in
a bipartisan manner. I appreciate the time you and your
Committee are taking to examine off-reservation gaming and its
impact on tribal and non-tribal communities alike.
This reform legislation prevents federally recognized
tribes from crossing State lines to set up gaming facilities in
a different State than where they current reside; it prevents
federally recognized tribes from opening gaming facilities
outside of their existing lands in the State where they
currently reside; and perhaps most importantly, it gives the
Secretary of Interior much clearer guidance about the limited
area where a newly recognized, restored or landless tribe can
conduct gaming operations. I believe this is the right type of
reform for this issue, and I am happy to be here in support of
your legislation.
First, let me make it clear that I am a supporter of tribal
gaming, with the benefits that it brings to tribal governments
and the communities they serve. I strongly support tribal
sovereignty and self-determination of Native Americans, our
first Americans.
As former Chairman of the Congressional Gaming Caucus, I
have supported all forms of gaming, provided they act in
accordance with the clearly defined and commonly accepted laws
and regulations that govern gaming in the United States.
However, I cannot support attempts to circumvent these
established procedures to create opportunities for gaming,
tribal or otherwise. It is this aspect upon which I appear
before you today.
As you know, Mr. Chairman, Congress passed the Indian
Gaming Regulatory Act in 1988, when it was enacted into law.
The law has been successful in many ways. According to the
National Indian Gaming Association there are 354 tribally
operated casinos that employ approximately 400,000 U.S.
citizens.
In 2002, tribal governmental gaming revenue was at $14.5
billion, representing one-fifth of all of the nationwide gaming
revenue, benefiting tribes and tribal governments by providing
an opportunity for better education for children, health care
and housing for elders, and new economic opportunity for all in
the tribal community as well as their neighbors.
The Act laid out the process by which a tribe could
lawfully conduct any gaming, but most specifically, Class III
gaming of the type commonly played at casinos such as slot
machines, black jack, craps and roulette.
However, there has been an increase in proposals to create
off-reservation gaming in extra-legal ways, seriously
threatening the purposes of this Act in several States,
including Ohio, California, Kansas, Minnesota and my home State
of Illinois.
In Illinois, the Ho-Chunk Nation of Wisconsin is seeking to
establish tribal gaming in Lynwood, located only a few miles
away from my congressional district. Originally, the Ho-Chunk
Nation had publicly stated its interest in two other sites in
Illinois. This is a perfect example of an instance where the
process of establishing a casino under IGRA should be adhered
to.
The Ho-Chunks have purchased approximately 130 acres of the
260 acres designed for a casino complex. In order to create
this complex, they pursued a dual-track strategy. The first
part of the strategy was to seek legislation in Congress that
would put their project on a ``fast-track,'' circumventing
existing law. I strongly object to this, and fortunately, no
such legislation has bee introduced yet in this Congress.
The other approach was to go through the regular procedures
as provided under IGRA by seeking to place the land in a trust,
which I have been informed the Ho-Chunks are preparing.
I do not believe the Ho-Chunks meet the requirements for
having land placed into trust; yet should they meet them, I
have no objections to their establishment of commercial
operations.
However, the fact that the Ho-Chunks sought to use a
process outside of IGRA clearly underscores the need to clarify
and strengthen the protections and processes for the
establishment of tribal gaming.
While I am opposed to tribes circumventing the law to
establish gaming, I want to be clear that I am not opposed to
current law which allows for lands taken into trust as part of
a land claim settlement to be used for gaming. However, I do
want to make certain that these claims are legitimate.
Perhaps one way to address this problem is to look at the
work of past congresses. For example, I understand the 1982
Congress directed the Department of Interior to establish a
list of all tribal claims for money damages, which included
land claims because of the associated claim for trespass
damages.
In 1983, the Department of the Interior published such a
list in the Federal Register. Because this list predates the
Indian Gaming Regulatory Act, we can feel confident that the
tribal claims listed were not manufactured for the purpose of
advancing casino projects. This list could be used as a bright
line test, which communities could look to in determining
whether they should be concerned with proposals by tribes or
others who might seek to promote a tribal casino in their area.
This is but one suggestion among the many ways that
Congress can act to clarify the legal process by which a tribe
may establish gaming. I ask that you consider this as a
possibility while you continue to work on the excellent bill
you have produced in this Committee.
By following through on these reforms, Congress can
alleviate the negative image that tribal gaming has taken on as
a result of efforts to establish off-reservation gaming. In
doing so, it will allow Congress to act on issues of importance
to the Native American community such as tax-exempt economic
bonding, Indian health care and appropriate appropriations
without fearing backlash resulting from negative publicity and
press stories about off-reservation gaming.
Further, under a clearly defined process, tribes will be
able to continue gaming in such a way to boost reservation
economies and better the lives of tribal members.
Again, Mr. Chairman, members of the Committee, thank you
for the opportunity, and I look forward to working with you and
moving forward on this important reform legislation.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Weller follows:]
Statement of The Honorable Jerry Weller, a Representative in Congress
from the State of Illinois
Mr. Chairman, Members of the Committee, thank you for inviting me
to testify at this important hearing. I am a supporter of your
legislation, good reform legislation that takes into consideration the
concerns of Tribal Governments and States, in a bi-partisan manner, I
appreciate the time you are taking to examine off-reservation gaming
and it's impact on tribal and non-tribal communities alike.
Mr. Chairman, with your permission, I would like to submit my
written statement for the record.
This reform legislation prevents federally recognized tribes from
crossing state lines to set up gaming facilities in a different state
than where they currently reside; it prevents federally recognized
tribes from opening gaming facilities outside of their existing lands
in the state where they currently reside; and perhaps most importantly,
it gives the Secretary of Interior much clearer guidance about the
limited area where a newly recognized, restored, or landless tribe can
conduct gaming operations. I believe this is the right type of reform
for this issue, and I am happy to speak in support of it.
First, I am a supporter of tribal gaming, with the benefits that it
brings to Tribal Governments and the communities they serve. I strongly
support tribal sovereignty and self-determination of Native Americans,
our first Americans.
As former Chairman of the Congressional Gaming Caucus, I have
supported all forms of gaming, provided that they act in accordance
with the clearly defined and commonly accepted laws and regulations
that govern gaming in the United States.
However, I cannot support attempts to circumvent these established
procedures to create opportunities for gaming, tribal or otherwise.
It is this aspect upon which I appear before you today.
As you know, Congress passed the Indian Gaming Regulatory Act,
(IGRA), 1988, which was enacted into law.
The law has been successful in many ways. According to the National
Indian Gaming Association, there are 354 tribally operated casinos that
employ approximately 400,000 people.
In 2002, Tribal Governmental gaming revenue was $14.5 billion (21%
of total gaming industry), which benefited tribes and Tribal
Governments by providing better education for their children, health
care and housing for their elders, and new economic opportunity for all
in the tribal community.
The Act clearly laid out the process by which a tribe could
lawfully conduct any gaming, but most specifically, Class III gaming of
the type commonly played at casinos, such as slot machines, black jack,
craps, and roulette.
The Act stated that--Before a Tribe might lawfully conduct Class
III gaming; the following conditions must be met:
(1) The Particular form of Class III gaming that the Tribe wants
to conduct must be permitted in the state in which the tribe is
located;
(2) The Tribe and the state must have negotiated a compact that
has been approved by the Secretary of the Interior, or the Secretary
must have approved regulatory procedures; and
(3) The Tribe must have adopted a Tribal gaming ordinance that has
been approved by the Chairman of the Commission.
However, there has been an increase in proposals to create off
reservation gaming in extra-legal ways, seriously threatening the
purposes of the Act in several States, including Ohio, California,
Kansas, Minnesota, and my home State of Illinois.
In Illinois, the Ho-Chunk Nation of Wisconsin is seeking to
establish tribal gaming in Lynwood, located only a few miles away from
my Congressional District. Originally, the Ho-Chunk Nation had publicly
stated its interest in two other sites in Illinois.
This is a perfect example of an instance where the process of
establishing a casino under IGRA should be adhered.
The Ho-Chunks have purchased approximately 130 acres of the 260
acres desired for a casino complex, and in order to create this
complex, they pursued a dual-track strategy.
The first part of this strategy was to seek a bill in Congress that
would put their project on a ``fast-track,'' circumventing existing
law. I strongly objected to this and fortunately, no such legislation
has been introduced in this Congress.
The other approach was to go through the regular procedures as
provided under IGRA by seeking to place the land into trust, which I
have been informed the Ho-Chunks are preparing.
I do not believe that the Ho-Chunks meet the requirements for
having land placed into trust, yet should they meet them; I have no
objections to their establishment of commercial operations.
However, the fact that the Ho-Chunks sought to use a process
outside of IGRA clearly underscores the need to clarify and strengthen
the protections and processes for the establishment of tribal gaming.
While I am opposed to tribes circumventing the law to establish
gaming, I want to be clear that I am not opposed to current law which
allows for lands taken into trust as part of a land claim settlement to
be used for gaming.
However, I do want to make certain that the claims are legitimate.
Perhaps one way to address this problem is to look to the work of
past Congresses. For example, I understand that in 1982 Congress
directed the Department of the Interior to establish a list of all
tribal claims for money damages, which included land claims because of
the associated claim for trespass damages.
In 1983, the Department of the Interior published such a list in
the Federal Register. Because this list predates the Indian Gaming
Regulatory Act, we can feel confident that the tribal claims listed
were not manufactured for the purpose of advancing casino projects.
This list could be used as a bright line test, which communities
could look to in determining whether they should be concerned with
proposals by tribes or others who might seek to promote a tribal casino
in their area.
This is but one suggestion among the many ways that Congress can
act to clarify the legal process by which a tribe may establish gaming.
I ask that you consider this as a possibility while you continue to
work on the excellent bill that you have produced in this committee.
By following through on these reforms, Congress can alleviate the
negative image that Tribal Gaming has taken on as a result of efforts
to establish off-reservation gaming.
In doing so, it will allow Congress to act on issues of importance
to the Native American community such as tax-exempt bonding, Indian
health care, and regular appropriations without the fear of backlash
resulting from bad publicity and negative news stories about American
Indian tribes and tribal gaming today.
Further, under a clearly defined process, Tribes will be able to
continue gaming in such a way as to boost reservation economies and
better the lives of tribal members.
Again, Chairman Pombo, and members of the Committee, thank you for
your attention to this important issue.
Mr. Chairman, with that I conclude my remarks, and welcome whatever
questions the Committee may have of me.
______
The Chairman. Thank you.
Mr. Jackson?
STATEMENT OF THE HON. JESSE L. JACKSON, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. Jackson. Chairman Pombo, Ranking Member Rahall and
members of the Committee, I appreciate the opportunity to
testify this morning on the subject of off-reservation gaming
and on the draft bill intended to restrict it.
Mr. Chairman, I commend you for your efforts to seek input
from all interested parties and to work in a cooperative way to
craft sensible policies that improve the lives of Native
Americans. I share your goals and commitment to protect,
preserve and strengthen the sovereignty, self-determination and
economic opportunities for all in the tribal community.
Clearly, the issue of ``reservation shopping'' in which a
tribe seeks title to prime real estate to which they have
absolutely no connection in order to set up a casino far from
their reservation is both controversial and complicated. It,
however, is different from out of State off-reservation gaming,
in which a tribe located in one State seeks to establish gaming
on land in another State where that tribe has historic,
cultural and ethnographic ties. If allowed to become routine, I
believe that reservation shopping has the potential to pit one
tribe against another, to erode public support for Indian
gaming and to undermine the economic growth and potential of
Indian Country.
In my view, any attempts by an Indian tribe to establish
gaming facilities on land to which they have no historic,
ethnographic or cultural ties is impractical, imprudent and
improper. While not readily apparent to me how prevalent or
pressing the practice, I would support reasonable and precise
efforts to prevent reservation shopping by tribes throughout
the country.
However, I strongly oppose provisions of this bill that
would bar a tribe in one State from locating a casino in
another State on land to which the tribe has historic or
cultural connections. Without a doubt there is a clear and
sharp distinction to be made between reservation shopping on
the one hand and out of State off-reservation gaming on the
other. The former is illegitimate, the latter is not.
Therefore, the prohibition on one should not lead to the
preclusion of the other. For the purposes of our discussion and
crafting sound policy, we must resist any temptations or
tendencies to equate the two.
Thus, I believe that imposing an outright across-the-board
ban on out-of-State off-reservation gaming would be too broad,
too unfair, too severe, and too punitive. It simply would be
wrong. As allowed under current law Indian tribes like the Ho-
Chunk Nation should be allowed to reacquire or recover a
portion of their ancestral lands in another State in order to
establish a gaming facility.
Based today in Wisconsin, the Ho-Chunks claim a 10,000-year
history in present-day Illinois. In the 17th century, the
historic territory of the Ho-Chunks, then known as the
Winnebago, included parts of Illinois, Wisconsin, Minnesota and
Iowa. After rich deposits of lead were discovered by European
miners under tribal land, the Ho-Chunks ceded the northwestern
territory by the Treaty of 1829, marking the beginning of long
and tragic successive relocations, often by force, by the U.S.
Government. But now in the words of one of the Nation's elected
representatives, I quote, ``the Ho-Chunk are knocking at the
door and wish to come home.''
My district, which includes the far south suburbs of
Chicago, is indeed prepared to welcome them back to Illinois
with open arms.
Last year, the Ho-Chunk Nation, which runs several casinos
in Wisconsin, announced plans to build a 432-acre family
entertainment destination in Lynwood, Illinois. The Ho-Chunk
entertainment complex would feature a land-based casino, as
well as restaurants, retail stores, a luxury hotel, a water
park, a spa, a sports complex, a Native American museum and Pow
Wow grounds.
Amid regional economic stagnation and neglect, the family
entertainment facility would serve as a vital economic engine,
bringing millions in revenue and thousands of jobs to an area
in the State that so desperately needs them. Based on
projections, the new complex would create 5,000 new jobs with
an average salary of $45,000. That is $16,000 greater than the
region's per capita average. In addition, the massive economic
development project would generate $64 million in wages during
construction and $78 million in payroll taxes each year.
Since the announcement the Ho-Chunk's proposal has
generated broad civic, business and political support in the
south suburbs. The Village of Lynwood and virtually all of the
local community surrounding it support the Ho-Chunk proposal,
including the Villages of Calumet City, Steger, Glenwood, the
Township of Bloom, as well as mayors in nearby communities of
Lansing, Thornton, East Hazel Crest and Sauk Village. In
addition, it has the backing of the Southland Chamber of
Commerce, the Illinois AFL-CIO and the local elected officials
in the Illinois General Assembly, including State Senate
Majority Leader Debbie Halvorson, as well as Chairman of the
Southland Caucus, State Representative David Miller.
Mr. Chairman, I ask unanimous consent that the official
letters and resolutions supporting the Ho-Chunk proposal from
surrounding communities be placed in the record immediately
following my testimony.
Under current regulations set forth in 25 C.F.R., the Ho-
Chunk must submit their application to take the Lynwood land
into trust in order to establish the casino complex. As members
of the Committee well know, these regulations require the
Department of the Interior to carefully scrutinize the Indian
tribe's, quote, ``need for additional land,'' end quote,
purpose for which the land will be used, the impact on State
and local governments, and, quote, ``jurisdictional problems
and potential conflicts of lands which may arise.''
Revised in 1995, Part 151 regulations explicitly address
decisionmaking on applications to take off-reservation land
into trust, requiring among other things, that as the distance
from the reservation increases, even greater scrutiny, Mr.
Chairman, be given to the tribe's application and greater
weight be given to the acquisition's potential impacts on the
regulatory and taxing jurisdictions of the local and State
Governments.
Mr. Chairman, if I might have just an additional minute, I
will conclude my remarks.
Mr. Chairman, if the Ho-Chunk proposal meets the
requirements of 25 C.F.R. Part 151, then the Secretary must
make a finding under a two-part determination exception in
Section 20 (b)(I)(A) of the Indian Gaming Regulatory Act.
Specifically, these sections provide that gaming can occur on
land if the Secretary, after consultation with Indian tribes
and appropriate State and local officials, including officials
of nearby tribes, determines that a gaming establishment of the
newly acquired lands (1) would be in the interest of Indian
tribe and its members, and (2) would not be detrimental to the
surrounding community. In addition the Governor of the State
must concur with the Secretary's determination. In fact, since
October of 1988, State Governors have concurred on only 3
positive determinations of gaming on such tribal lands.
Therefore, the statutory and regulatory framework currently
in place provides an important, necessary and rigorous process
by which the Ho-Chunk Nation has an opportunity, not a
guarantee, to regain their ancestral land on which to develop
the proposed complex. In my view, 25 C.F.R. Part 151 and IGRA's
20(b)(I)(A), taken separately and together, establish and
permit appropriate safeguards, input, checks and balances, and
scrutiny among Federal, State and local tribal communities. The
existing approval process is deliberative, it is detailed, it
is careful and it is circumspect, and Mr. Chairman, it simply
works.
Finally, Mr. Chairman, however in its current form, the
draft bill would break this process, throwing out the two-part
determination exception under IGRA and eliminating reasonable
options by which tribes such as the Ho-Chunk may take land into
trust for gaming purposes.
Mr. Chairman, I would urge you to keep the existing
provisions of IGRA and allow tribes under certain circumstances
and thorough scrutiny, an opportunity to acquire land in
another State.
I thank the Chairman, Ranking Member Rahall, members of the
Committee for allowing me the opportunity to testify before
you. I appreciate the Committee's time and attention and look
forward to working with you to address important matters
affecting Native Americans.
I thank the Chairman and I thank members of the Committee.
[The prepared statement of Mr. Jackson follows:]
Statement of The Honorable Jesse L. Jackson, Jr., a Representative in
Congress from the State of Illinois
Chairman Pombo, Ranking Member Rahall and Members of the Committee,
I appreciate the opportunity to testify this morning on the subject of
off-reservation gaming and on the draft bill intended to restrict it.
Mr. Chairman, I commend you for your efforts to seek input from all
interested parties and to work in a cooperative way to craft sensible
policies that improve the lives of Native Americans. I share your goals
and commitment to protect, preserve and strengthen the sovereignty,
self-determination and economic opportunities for all in the tribal
community.
Clearly, the issue of ``reservation shopping,'' in which a tribe
seeks title to prime real estate to which they have absolutely no
connection in order to set up a casino far from their reservation is
both controversial and complicated. It, however, is different from
``out-of-state, off-reservation gaming'' in which a tribe located in
one state seeks to establish gaming on land in another state, where
that tribe has an historic, cultural or ethnographic tie. If allowed to
become routine, I believe that ``reservation shopping'' has the
potential to pit tribe against tribe, to erode public support for
Indian gaming and to undermine the economic growth and potential of
Indian Country.
In my view, any attempts by an Indian tribe to establish gaming
facilities on land to which they have no historic, ethnographic, or
cultural ties is impractical, imprudent and improper. While not readily
apparent to me how prevalent or pressing the practice, I would support
reasonable and precise efforts to prevent ``reservation shopping'' by
tribes throughout the country.
However, I strongly oppose provisions in the draft bill that would
bar a tribe in one state from locating a casino in another state on
land to which the tribe has an historic or cultural connection. Without
a doubt, there is a clear and sharp distinction to be made between
``reservation shopping'' on the one hand and ``out-of-state, off-
reservation gaming'' on the other. The former is illegitimate; the
latter is not. Therefore, the prohibition on one, should not lead to
the preclusion of the other. For the purposes of our discussion and
crafting sound policy, we must resist any temptation or tendency to
equate the two.
Thus, I believe that imposing an outright, across-the-board ban on
``out-of-state, off-reservation gaming'' would be too broad, too
unfair, too severe, and too punitive. It simply would be wrong. As
allowed under current law, Indian tribes, like the Ho-Chunk Nation,
should be allowed to ``re-acquire'' or ``recover'' a portion of their
ancestral lands in another state in order to establish a gaming
facility.
Based today in Wisconsin, the Ho-Chunks claim a 10,000-year history
in present day Illinois. In the 17th Century, the historic territory of
the Ho-Chunks, then known as the Winnebago, included parts of Illinois,
Wisconsin, Minnesota and Iowa. After rich deposits of lead were
discovered by European miners under tribal land, the Ho-Chunk ceded the
northwestern Illinois territory by the Treaty of 1829, marking the
beginning of long and tragic successive relocations, often by force, by
the United States Government. But, now, in the words of one of the
Nation's elected representatives, ``the Ho-Chunk are knocking at the
door and wish to come home.''
My district, which includes the far south suburbs of Chicago, is
indeed prepared to welcome them back home to Illinois with open arms.
Last year, the Ho-Chunk Nation, which runs several casinos in
Wisconsin, announced plans to build a 432-acre family entertainment
destination in Lynwood, Illinois. The Ho-Chunk Entertainment Complex
would feature a land-based casino, as well as restaurants, retail
stores, a luxury hotel, a water park, a spa and sports complex, a
Native American museum and Pow Wow grounds.
Amid regional economic stagnation and neglect, the family
entertainment facility would serve as a vital economic engine, bringing
millions in revenue and thousands of jobs to an area in the state that
so desperately needs them. Based on projections, the new complex would
create 5,000 new jobs paying an average salary of $45,000 annually--
that is $16,000 greater than the region's per capita average. In
addition, the massive economic development project would generate $64
million in wages during construction and $78 million in payroll taxes
each year.
Since the announcement, the Ho-Chunk's proposal has generated broad
civic, business and political support in the south suburbs. The Village
of Lynwood, and virtually all of the local communities surrounding it
support the Ho-Chunk proposal, including the Villages of Calumet City,
Steger and Glenwood, the Township of Bloom, as well as the Mayors of
nearby communities Lansing, Thornton, East Hazel Crest and Sauk
Village. In addition, it has the backing of the Southland Chamber of
Commerce, the Illinois AFL-CIO and the local elected officials in the
Illinois General Assembly, including Illinois State Senate Majority
Leader Debbie Halvorson as well as the Chairman of the Southland
Caucus, State Representative David Miller.
Under current regulations set forth in 25 C.F.R. Part 151, the Ho-
Chunk must submit their application to take the Lynwood land into trust
in order to establish the casino complex. As Members of the committee
well know, these regulations require the Department of the Interior to
carefully scrutinize the Indian tribe's ``need'' for additional land,
the ``purpose for which the land will be used,'' the impact on state
and local governments, and ``jurisdictional problems and potential
conflicts of land use which may arise.'' Revised in 1995, Part 151
regulations explicitly address decision-making on applications to take
off-reservation land into trust, requiring, among other things, that as
the distance from the reservation increases, ``greater scrutiny'' be
given to the tribe's application and ``greater weight'' be given to the
acquisition's potential impacts on the regulatory and taxing
jurisdictions of the state and local governments.
If the Ho-Chunk proposal meets all the requirements of 25 C.F.R.
Part 151, then, the Secretary must make a finding under the ``two-part
determination'' exception in Section 20 (b)(1)(A) of Indian Gaming
Regulatory Act (IGRA). Specifically, this section provides that gaming
can occur on the land if the Secretary--after consultation with the
Indian tribe and appropriate State and local officials, including
officials of other nearby tribes--determines that a gaming
establishment on the newly acquired lands would (1) be in the best
interest of the Indian tribe and its members, and (2) would not be
detrimental to the surrounding community. In addition, the governor of
the state must concur with the Secretary's determination. In fact,
since October of 1988, state governors have concurred in only three
positive determinations for gaming on such trust lands.
Therefore, the statutory and regulatory framework currently in
place provides an important, necessary and rigorous process by which
the Ho-Chunk Nation has an opportunity, not a guarantee, to regain
their ancestral land on which to develop the proposed complex. In my
view, 25 C.F.R. Part 151 and IGRA's 20 (B)(1)(A) taken separately, and
together, establish and permit the appropriate safeguards, input,
checks and balances, and scrutiny among federal, state, local and
tribal communities. The existing approval process is deliberative,
detailed, careful and circumspect. Simply put, it works.
However, in its current form, the draft bill would break the
process, throwing out the ``two-part determination'' exception under
IGRA and eliminating a reasonable option by which tribes, such as the
Ho-Chunk, may take land in trust for gaming purposes.
Mr. Chairman, I would urge you to keep the existing provisions of
IGRA and allow tribes, under certain circumstances and thorough
scrutiny, an opportunity to acquire land for gaming in another state. I
thank you Mr. Chairman, Ranking Member Rahall and Members of the
Committee for allowing me the opportunity to testify before you. I
appreciate the Committee's time and attention and look forward to
working with you to address important matters affecting Native
Americans.
______
The Chairman. Thank you. I thank both of you for your
testimony. I know that both of you have scheduling issues this
morning, and because we started late it made it difficult to
stay to those schedules.
Do any of the members of the Committee have any burning
questions that they would like to ask?
If not, I am going to excuse both of you. Thank you for
coming in and testifying on this. It is valuable, and as you
said, Mr. Jackson, the process that we are going through is
that we are having an open discussion on this and trying to
figure out the best way to move forward, and I think your input
and Mr. Weller's input is very important to that process. So
thank you.
Mr. Weller. Thank you.
Mr. Jackson. Thank you, Mr. Chairman.
The Chairman. Panel 2 is up next. If you would join us at
the witness table. Chief Charles Enyart, Vice President Wade
Blackdeer, Vice Chairman William Blind, Senator Bradley
Burzynski and Mayor Craig Foltin.
Before you take a seat, if you could just stand and raise
your right hands. It is the custom of the Resources Committee
that we swear in all of our witnesses.
[Witnesses sworn.]
The Chairman. Thank you. You may have a seat. Let the
record show they all answered in the affirmative.
To begin with, I would like to apologize to the panel for
our late start. It was beyond the Committee's control, but
thank you very much for being here.
Mr. Enyart, we are going to begin with you.
STATEMENT OF CHARLES D. ENYART, CHIEF,
EASTERN SHAWNEE TRIBE OF OKLAHOMA
Mr. Enyart. Good morning, Chairman Pombo, members of the
Committee. My name is Charles Enyart. I am the Chief of the
Eastern Shawnee Tribe of Oklahoma, a federally recognized
Indian Tribe whose aboriginal homeland encompasses what is the
present day State of Ohio. I appreciate the opportunity to be
here today to share our views about Section 20 of the Indian
Gaming Regulatory Act, and to explain the importance of this
issue for our people.
I am here for three reasons today: first, to ensure that
the Eastern Shawnee have the opportunity to return to our
aboriginal homelands in present day Ohio; second, to ensure
that we have the same opportunity to benefit from the Indian
Gaming Regulatory Act as other Indian Tribes have since its
enactment in 1988; third, to advocate for the right of tribes,
States and local communities to work together for their mutual
benefit.
In the interest of time, I will summarize the points
contained in my written testimony which have been submitted in
full for the record.
We understand that this Committee is in the process of
determining whether IGRA should be amended to eliminate the
two-part determination process and the land claim settlement
provisions.
In our view, these changes will be detrimental to tribes
and to local communities who wish to work together to bring
Indian gaming to willing States and will unfairly discriminate
against tribes such as the Eastern Shawnee, who are attempting
to settle historical land claims.
As you are aware, the Eastern Shawnee Tribe has been
exploring the possibility of establishing a presence in our
aboriginal homeland now the State of Ohio. We wish to do this
in cooperation with local communities. The legitimacy of our
historical and cultural ties to Ohio is undeniable. 150 years
ago the tribe was driven out of its homeland, lands that now
comprise the State of Ohio. The historical record is replete
with accounts of destructive raids and burning of Shawnee
villages by the United States Army and the unauthorized taking
of Shawnee land by encroaching settlers. Our people were
forcibly removed from their villages and relegated to a series
of reservations first in Ohio, then in Missouri, and ultimately
Oklahoma. It was an ugly and shameful period in American
history in which our people endured unspeakable fear,
intimidation and military violence used by the United States
and the early Ohioans.
However, our interest is not about retribution for past
wrong. Rather we seek to establish a mutually beneficial
political and economic relationship with the State of Ohio and
the communities that have reached out to us with a vision of
what is possible.
We do wish to finally resolve our outstanding land claims,
but not in a manner that will be detrimental to the people of
Ohio. Those with whom we have established a relationship
understand our intentions and have welcomed us into their
communities to discuss the potential for tribal economic
development. Local communities in the State of Ohio, some of
whom you will hear from today, have actually sought out the
tribe and asked us if they could help bring the Shawnee back to
our homeland. We are committed to working through the
appropriate governmental channels in Ohio to ensure that we are
welcomed back to our homeland.
The Eastern Shawnees are not reservation shopping and view
the phrase as wrong. We have a unique situation in Ohio. Each
piece of land has its own history and so it is with each tribe.
We ask for the same opportunity to work with the State of Ohio
to regain those lands to bring Indian Gaming to those
communities that welcome us, as other tribes have in their
communities.
The land acquisition process in place under current law
already constitutes a formidable barrier to tribes seeking to
regain historical tribal lands. Since 1988 there has only been
three instances in which land outside of the Indian Reservation
has been taken into trust for purposes of gaming and none of
them involved the crossing of State lines. Only 36 gaming
regulated trust acquisitions have been approved since 1988. 30
applications for gaming or gaming-related acquisitions are
pending, only 10 of which involve so-called off-reservation
acquisitions. These numbers are minuscule, even the fact that
there are more than 560 federally recognized tribes in the
United States. The numbers certainly do not justify a major
overall of IGRA.
Only a few tribes have a historic or cultural connection to
any given State. The truth is that the only way for a tribe to
succeed in securing off-reservation land into trust for
purposes of gaming is where there are two willing parties, the
State and the tribe, with the addition of local governments and
community support. Ohio has shown this support.
The Ohio State Legislature, years before the Eastern
Shawnee began exploring the possibility of gaming in Ohio,
anticipated Indian gaming in the State. The Ohio Legislature
enacted legislation effective in 1997 authorizing legislative
approval of tribal-State gaming compacts negotiated by the
Governor.
The proposed amendments to IGRA, however, would permanently
foreclose the possibility of a gaming compact between the Tribe
and the State of Ohio.
I have one more paragraph, Mr. Chairman.
In closing, I would emphasize that until very recently the
historic legacy of the Eastern Shawnee people was one of
poverty and isolation. Left virtually landless for over a
century and a half, my people have had very little realistic
hope that things would ever improve. Like other tribes in
similar circumstances, we had no economy and no tax base. The
lot of the Eastern Shawnee people is improved. We have a long
way to go to achieve the prosperity that once was ours.
I told you a story. We respectfully urge that Congress not
amend IGRA to impede or extinguish the authority of State
Governments to work with tribes to bring Indian gaming to
willing communities. Indian gaming is not out of control. The
land acquisition process is long and difficult, and there are
more than adequate safeguards against the establishment of
unwanted gaming operations. Under IGRA, as it stands today,
tribes cannot conduct Class III gaming in a State that is
unwilling to have Indian gaming. States and local communities
that want Indian gaming should continue to be allowed to work
for the tribes to bring the highly regulated field of Indian
gaming to their States without Federal interference.
Thank you and I appreciate your indulgence.
[The prepared statement of Mr. Enyart follows:]
Statement of The Honorable Charles D. Enyart, Chief,
Eastern Shawnee Tribe of Oklahoma
Good morning. Chairman Pombo, Members of the Committee, my name is
Charles Enyart. I am the Chief of the Eastern Shawnee Tribe of
Oklahoma, a federally recognized Indian Tribe whose aboriginal homeland
encompasses what is the present day State of Ohio. I appreciate the
opportunity to be here today to share our views about Section 20
(Section 2719) of the Indian Gaming Regulatory Act (IGRA) and to
explain the importance of this issue for our people. I am here for
three reasons: (1) to ensure that we have the opportunity to return to
our aboriginal homelands in present day Ohio; (2) to ensure that we
have the same right as other Indian tribes to conduct Indian gaming
under current law; and (3) to advocate for the right of tribes, states,
and local communities tribes to work together for their mutual benefit.
We understand that this Committee is in the process of determining
whether Section 2719(b) of IGRA should be amended to alter the manner
in which land outside of an existing reservation or other presently
occupied Indian lands could be taken into trust for purposes of gaming.
The current proposal is to replace the entirety of sub-section (b),
thereby eliminating the ``two-part determination'' process and the
``land claim settlement'' provisions, and effecting numerous other
changes as well.
The Eastern Shawnee Tribe respectfully urges the Resources
Committee to reconsider the need for such legislation. One need only
review the record to see that the Indian Gaming Regulatory Act is not
broken in this regard. In fact, there have only been three instances in
which land outside an Indian reservation have been taken into trust for
purposes of gaming since IGRA was enacted in 1988 and not one of them
involved the crossing of state lines: (1) in 1990 the Forest County
Potawatomi Community in Wisconsin obtained 15.69 acres of land in trust
250 miles from its reservation through a two-part determination; (2) in
1997, the Kalispel Indian Community in Washington obtained 40.06 acres
of land in trust 60 miles from its reservation through a two-part
determination; and (3) in 2000, the Keweenaw Bay Indian Community in
Michigan obtained 22.00 acres of land in trust 70 miles from its
reservation through a two-part determination.
Out of over 560 tribes, there are only 33 gaming or gaming related
trust acquisitions pending at this time. The mere fact that some dozen
or so tribes are presently considering invoking Section 20(b), which is
entirely lawful, does not mean that they will succeed. The process is
long and tedious with many barriers at every step along the way. Even
the settlement provision of Section 20(b)(2) does not grant, as a
matter of right, the taking of land into trust. First, a settlement
must be reached, then it must be confirmed through Congressional
legislation. The so-called two-part determination of Section 20(b)(1)
requires a finding by the Secretary of the Interior that the
acquisition is in the best interest of the tribe and not detrimental to
the surrounding community and the governor of the state must concur in
the Secretary's determination. The truth is that the only way for a
tribe to succeed in securing off-reservation lands into trust for
purposes of gaming is where there are two willing parties: the state
and the tribe, with the addition of local government and community
support.
The Ohio State Legislature, years before the Eastern Shawnee Tribe
began exploring the possibility of gaming in Ohio, anticipated Indian
gaming in the state. In fact, the Ohio Legislature enacted legislation
effective in 1997 authorizing legislative approval of tribal-state
gaming compacts negotiated by the governor. Ohio Rev. Code Ann.
Sec. 107.25 (West 2005). It is, therefore, apparent that the State has
taken steps to inform itself about IGRA and tribal gaming, and to pave
the way to one day proceed with a tribal-state gaming compact. The
proposed amendment, however, would permanently foreclose the
possibility of a gaming compact between the Tribe and the State of
Ohio.
Some may wonder why a state such as Ohio, or any other, would be
receptive to the establishment of Indian lands and Indian gaming within
its borders. Assuming that a state desires the introduction of gaming
for the unquestioned economic benefits that it produces, we would
suggest that there are many reasons it might prefer Indian gaming over
other alternatives. Foremost among these, there are natural controls on
the scope of tribal gaming which diminishes the potential for
uncontrolled proliferation. Only so many tribes have a historic or
cultural nexus to any given state. Moreover, tribal gaming revenues, as
a matter of law, may only be expended for socially beneficial purposes.
Commercial gaming only benefits private interests. In stark contrast,
tribal gaming lifts entire communities out of poverty, educates
children who once had little hope for higher education, builds schools,
roads, bridges, funds law enforcement and emergency services, preserves
languages and cultures, builds clinics and hospitals and provides
dialysis and diabetes centers, and funds charitable activities of every
kind.
As to the interests of the Eastern Shawnee Tribe, the benefits of
Indian gaming for the Tribe and Ohioans are obvious and the legitimacy
of our historic and cultural ties to Ohio is undeniable. One hundred
fifty years ago, the Tribe was driven out of its homeland: lands that
now comprise the State of Ohio. The historical record is replete with
accounts of destructive raids and the burning of Shawnee villages by
the United States Army and the unauthorized taking of the Shawnee's
lands by encroaching settlers. Our people were forcibly removed from
their villages and relegated to a series of reservations first in Ohio,
then in Missouri, and ultimately Oklahoma. It was an ugly and shameful
period in American history in which our people endured unspeakable
fear, intimidation, and military violence used by the United States and
early Ohioans.
Until very recently, our historic legacy was one of poverty and
isolation. Left virtually landless, for over a century and a half our
people had very little realistic hope that things would ever improve.
Like other tribes in similar circumstances, we had no economy and no
tax base. We did not even have the means to fully redress the wrongs
against us, which is why certain of our claims remain outstanding.
Indian gaming has changed our bleak outlook as to our future. The
revenues from our modest gaming operation, BorderTown Bingo located in
West Seneca, Missouri have provided us the means to make improvements
in the lives of our people and to rekindle the hope for a better life
for our children and grandchildren. However, the rural character of the
land we now occupy, combined with the economic conditions in the
surrounding area, severely restrict our economic potential. The lot of
the Eastern Shawnee people is improved, but we have a long way to go
achieve the level of prosperity that once was ours.
Some press accounts can be read to suggest that our interest in
Ohio is to eject people from their homes. This is not true. Our
interest is not about retribution for past wrongs, but rather about
establishing a mutually beneficial political and economic relationship
with the State of Ohio and the communities that have reached out to us
with a vision of what is possible. The Eastern Shawnee seek to
reestablish a presence in Ohio as part of a welcome and mutually
beneficial relationship conducted on a government-to-government basis
both with the State and the local governments that may one day be our
neighbors once again.
We do wish to finally resolve our outstanding land claims, but not
in a manner that will be detrimental to the people of Ohio. Those with
whom we have established a relationship understand our intentions and
have welcomed us into their communities to discuss the potential for
tribal gaming. In fact, local communities in the State of Ohio, some of
whom you will hear from today, have actively sought out the Tribe and
asked us if they can help bring the Shawnee back to our homeland. We
are committed to working through appropriate governmental channels in
Ohio to ensure that we are welcomed back to our homeland.
The Eastern Shawnee are not ``reservation shopping'' and view the
phrase as a misnomer. Like every other situation, ours is unique. Each
piece of land has its own history and so it is with each tribe. It is
very difficult for a tribe with existing lands to get new, non-
contiguous land for gaming. Since 1988, only 36 gaming or gaming
related trust acquisitions have been approved. Only three tribes have
successfully been able to take land into trust and open Indian gaming
facilities on lands that are outside of their reservation boundaries.
Thirty applications for gaming or gaming related acquisitions are
pending, only ten of which involve so-called ``off-reservation''
acquisitions. These numbers are minuscule given the fact that there are
more than 560 federally recognized tribes in the United States. These
numbers certainly do not justify a major overhaul of IGRA.
We would also point out that the land acquisition process in place
under current law already constitutes a formidable barrier to these so
called ``off-reservation'' acquisitions. The Office of Indian Gaming
Management in the Department of the Interior has developed a thirteen-
page checklist governing acquisitions of land in trust for gaming
purposes. Tribes must comply with the rigors of the Section 151 process
and satisfy the requirements established by Congress in Section 20 of
IGRA. This application process requires a thorough environmental review
under the National Environmental Policy Act, consultation with all
tribes within a 50 mile radius, consultation with all local governments
within a 10 mile radius, and local intergovernmental agreements.
Obviously, there is a great deal of misunderstanding about the
procedures required by the Interior Department. However, Indian gaming
is not ``out of control.'' The land acquisition process is long and
difficult, and there are more than adequate safeguards against the
establishment of unwanted gaming operations.
We respectfully urge that Congress should not amend IGRA to impede
or extinguish the authority of state governments to work with tribes to
bring Indian gaming to willing communities. Under IGRA as it stands
today, tribes cannot conduct Class III gaming in a state that is
unwilling to have Indian gaming. States and local communities that want
Indian gaming should continue to be allowed to work with tribes to
bring the highly regulated field of Indian gaming to their states
without federal interference.
Finally, we assert that the facts do not support the atmosphere
that has evolved around this issue. IGRA contains a proper balancing of
interests with regard to trust acquisitions. Congress should not
interfere with the rights of states and tribes to enter into agreements
that promote economic development and benefit tribal, state, and local
economies.
Thank you.
______
The Chairman. Thank you.
Mr. Blackdeer?
STATEMENT OF THE HON. WADE BLACKDEER,
VICE PRESIDENT, HO-CHUNK NATION
Mr. Blackdeer. Good morning, Mr. Chairman and members of
the House Resources Committee. I am Wade Blackdeer, Vice
president of the Ho-Chunk Nation. I want to thank you for
giving me the opportunity to offer testimony on behalf of the
Ho-Chunk Nation on off-reservation gaming and the draft
legislation now before the Committee.
I would like to begin my testimony today by stating that
the Ho-Chunk Nation is opposed to the present legislation as
drafted. Fundamentally, the Nation supports the idea of
permitting Indian tribes to engage in off-reservation gaming
including gaming in more than one State. Having said that, I
want to emphasize that the Nation is sympathetic to many of the
goals of the legislation, because we too believe that there
must be restrictions on off-reservation gaming. We believe that
those restrictions should be based on two principles. First,
tribal gaming should be only conducted in areas to which an
Indian tribe has specific historical connection, and second,
tribes should not be permitted to enter the established gaming
markets of other tribes without their consent. The Nation's
opposition to the present draft of the legislation is based in
large part of the perception that the legislation is designed
to address problems that do not even exist.
Headlines and political grand-standing notwithstanding,
tribes are not, for all intents and purposes, able to engage in
off-reservation gaming at the present time. The Section 20
approval process has also created so many roadblocks for
approving the taking of land into trust for gaming purposes,
that it is almost impossible to establish off-reservation
gaming unless it is done based on Federal legislation,
specifically granting trust status to land for gaming purposes.
And even there, as we have seen with the Lytton Band in
California, public resistance can be so intense that
legislation may not be enough to ensure that such gaming ever
will take place. The resistance to off-reservation gaming is so
great in fact that the Nation has been unable to conduct gaming
on its pre-1988 trust land in Madison, Wisconsin. The
development of gaming on that land has been blocked by the IGRA
compact negotiation process.
Because the IGRA provides that the location of gaming is an
appropriate topic of Tribal-State compact negotiations, the
Governor of Wisconsin was able to refuse for years to agree to
Class III gaming on pre-1988 trust land. When the present
Governor finally agreed to negotiate over the Madison site, he
insisted that the issue of gaming on our pre-1988 trust land be
put to a public referendum which was subsequently defeated.
It is simply unrealistic to believe that off-reservation
gaming will ever take place without the support of State and
local government. We do not need any more roadblocks such as
the provisions of the draft legislation requiring the approval
of many more local governments entities. What we need and what
legislation can provide are restrictions on off-reservation
gaming that will eliminate the actual problems faced by gaming
tribes and that will address the concerns of non-Indian
communities.
The Nation believes in order to resolve the problem
surrounding off-reservation gaming at least three restrictions
should be applied to the Secretary's approval of trust
transfers of land for gaming purposes.
First, all reservation gaming should be conducted on land
to which the tribe seeking gaming has a historical connection.
That connection could be established by evidence that the land
in question was ceded by the tribe in a treaty. The land was
once the tribe's reservation, or the land was once within the
aboriginal territory of the tribe. Aboriginal territory could
be established through the determinations of the Indian Claims
Commission and the Indian Court of Claims.
Second, approval should not be given to requests to have
land taken into trust that is within 50 miles of an existing
gaming facility without that tribe's consent. This restriction
would provide tribes with some steady market security and would
ensure some stability of tribal revenues that pay for essential
Government programs for tribal members. An exception to this
consent provision would be that if the land in question is
within 5 miles of a reservation of the tribe seeking to enter
the gaming market. In that case the tribe seeking to acquire
trust land for gaming would not need to obtain the consent of
the tribe with the existing gaming operations.
Third, tribes should not be permitted to leapfrog over
another tribe in order to establish a gaming operation closer
to a population center that is a primary market for the
existing gaming facility of another tribe.
These restrictions are designed to prevent strife among
tribes and ensure that the tribal economies remain stable. The
Nation has developed these restrictions in response to its own
experience. Right now, a number of Wisconsin tribes are
attempting to develop gaming operation in the Nation's existing
markets, despite the fact that they have no historic connection
with those areas. They are simply reservation shopping. This in
turn creates a vicious cycle of efforts to steal markets.
Right now, because of the efforts of other tribes to move
into the Nation's markets, the Nation is forced to seek new
markets that are in some cases outside of the Nation's historic
territory. The Nation will be compelled to do so as long as its
markets are under threats from other tribes. So long as the
Nation's market can be undercut as the result of approval of
new gaming operations by the Secretary, the Nation has no
choice but to do precisely what it does not wish to do, attempt
to establish gaming markets in areas to which it may have no
historic connection with the potential effect of reducing the
market of an established gaming facility and the disturbance of
a surrounding non-Indian population.
If the restrictions suggested by the Nation are part of the
present legislation, the Nation would have no reason to seek
sites for new gaming facilities in an area other than its own
historic lands, lands such as the Illinois site. Until they are
adopted, however, the scramble for markets will continue.
I hope that the Committee will consider these proposals in
the spirit in which they are offered. We are trying to
stabilize gaming markets while ensuring that the search for new
markets do not result in the disturbance of the local non-
Indian communities. This will benefit the tribes, their members
and those members of the non-Indian communities who are
concerned about the prospect of uncontrolled expansion of
Indian gaming in our shared communities.
I want to thank you for your attention.
[The prepared statement of Mr. Blackdeer follows:]
Statement of Wade Blackdeer, Vice-President, Ho-Chunk Nation
Good morning Mr. Chairman and members of the House Resources
Committee. I am Wade Blackdeer, Vice President of the Ho-Chunk Nation.
I thank you for giving me the opportunity to offer testimony on behalf
of the Nation on the subject of off-reservation gaming and the draft
legislation addressing off-reservation gaming.
I would like to begin my testimony today by stating that the Ho-
Chunk Nation is opposed to the present legislation, as drafted.
Fundamentally, the Nation supports the idea of permitting Indian tribes
to engage in off reservation gaming, including gaming in more than one
state. Having said that, I want to emphasize that the Nation is
sympathetic to many of the purposes of the legislation, because we, too
believe that there must be restrictions on off-reservation gaming. We
believe that those restrictions should be based on the concept that
tribal gaming should only be conducted in areas to which an Indian
tribe has a specific historical connection, so long as there is a
stipulation that tribes should not be permitted to interfere with the
established gaming markets of other tribes without their express
consent.
Headlines and political grandstanding notwithstanding, tribes are
not, for all intents and purposes, able to engage in off-reservation
gaming. The Section 20 approval process has already created so many
roadblocks for approving the taking of land into trust for gaming
purposes that it is almost impossible to establish off-reservation
gaming unless it is done based on legislation specifically granting
trust status to land for gaming purposes. And even there, as we have
seen with the Lytton Band in California, public resistance can be so
intense that legislation may not be enough to ensure that such gaming
will ever take place. The resistance to off-reservation gaming is
subject to so many barriers, in fact, that the Nation has been unable
to conduct gaming on its pre-1988 trust land in Madison, Wisconsin,
which does not even fall under the Section 20 approval process. The
IGRA provides that the location of gaming is a topic of tribal-state
compact negotiations and, on that basis, the Governor of Wisconsin
refused to even negotiate over Class III gaming on the pre-1988 trust
land, where Class II gaming is already being played. When the present
Governor finally agreed to negotiate over the Madison site, he insisted
that the issue of Class III gaming on our pre-1988 trust land be put to
a public referendum, which was subsequently defeated.
Thus, this legislation appears to be designed to resolve a problem
that does not exist. It is simply unrealistic to believe that off-
reservation gaming will ever take place without the support of state
and local government. We do not need more roadblocks to approval, such
as the provisions of the draft legislation requiring the approval of
many more governmental entities. This is found in proposed Section 2719
(e)(2)(C) and (3)(C). What we need, and what this legislation can
provide, are restrictions on off-reservation gaming plans that
eliminates the actual problems faced by gaming tribes and the basic
concerns of the non-Indian communities and governmental entities.
The Nation believes that, in order to resolve the problems
surrounding off-reservation gaming, a number of basic restrictions
should be applied to the Secretary's approval of trust transfers of
land for gaming purposes. We do not believe that any changes need to be
made to the provisions of the IGRA that related to the restored lands
and newly recognized tribes exceptions found in Section 2719. First,
all off-reservation gaming should be conducted on land to which the
tribe seeking gaming has a historical connection. That connection could
be established on the basis that the land was ceded by the Tribe in a
treaty, the land was once a reservation of the tribe, or the land was
the aboriginal territory of the tribe. Aboriginal territory could be
established through the determinations of the Indian Claims Commission
and the Indian Court of Claims, and thus aboriginal territory would
provide a meaningful and easily determined standard.
The Nation is a useful example of this historical connection
concept. Although the Nation has no reservation, it has it has
maintained a governmental, social and political presence throughout the
Midwest, including the State of Illinois. The headquarters for the
Nation's government is located in Black River Falls, Wisconsin, and it
operates governmental offices throughout Wisconsin, including
Minneapolis and Chicago. The Chicago Office has been in existence since
the early 1980's, providing services to a thriving population of Ho-
Chunk tribal members who live in the Chicago metro area. In fact, the
Nation's ties to the Chicago area are so strong that they have been
recently endorsed by a Federal Agency. In March 2005, the U.S.
Department of Housing and Urban Development recognized the Chicago area
and surrounding counties of Cook, Kane, Lake and Du Page as part of the
service area for the Ho-Chunk Nation for purposes of the Section 184
Indian Housing Loan Guarantee Program. The Ho-Chunk Nation's Housing
and Community Development Agency was approved by H.U.D. for the Section
184 Program accordingly.
In addition, we know that the Nation's tribal members have been in
the Chicago area so long that The Winnebago Club has existed in the
area since the 1950's. The Nation was formerly known as the Wisconsin
Winnebago, and a group of tribal members in the Chicago area formed the
Club as a social organization.
The Nation's ties outside of Wisconsin, and particularly in
Illinois, are more than social or governmental in nature. The Nation
has aboriginal connections throughout the area that would establish our
historical connection to the State. I have provided a map of the
Nation's aboriginal territory for the Committee's review and
consideration. It shows the Nation's historical connections to
Wisconsin, Minnesota and Illinois. Clearly, the Nation has a historical
connection with the states of Wisconsin, Illinois and Minnesota.
Second, approval should not be given to requests to have land taken
into trust that is within the geographical proximity of an existing
gaming facility of another tribe without that tribe's consent. This
provides tribes with some market security and ensures some stability of
tribal revenues that pay for essential governmental programs for tribal
members. An exception to this consent provision would be if the land in
question is within five miles of the reservation of the tribe seeking
to enter the market of the other tribe, the tribe would not need to
obtain the consent of the tribe with the existing gaming operation.
In considering this factor, the Nation's experience is instructive.
The Nation is facing precisely this situation in Wisconsin. Right now,
a number of tribes like the St. Croix Band of Lake Superior Chippewa,
the Bad River Band of Lake Superior Chippewa and the Menominee Nation
are attempting to move into the Nation's existing markets. This is
purely an attempt to capture market share, and is based on no present
historical connection. Under our proposal, a tribe that wishes to enter
into such a market would have to receive the approval of the tribe that
has the existing facility, which would force tribes to communicate on
matters that shared communities should address.
Third, tribes should not be permitted to leapfrog over another
tribe in order to establish a gaming operation closer to the population
center that is the primary basis for an existing gaming facility of
another tribe. The Nation is facing precisely this situation. For
example, the aforementioned Wisconsin tribes do not have a fourth
gaming site provision in their present Tribal-State Gaming Compacts,
yet the Ho-Chunk Nation does. However, those tribes seem to ignore this
preserved ability by one tribe (the Nation) that negotiated for such a
contractual right and prefer to move forward with their own agendas.
These provisions are designed to prevent strife among tribes and to
ensure that tribal economies remain stable. Here, again, the Nation's
situation is instructive. Right now, because of the efforts of other
tribes to move into the Nation's markets, the Nation is forced to seek
new markets that are, in some cases, outside of the Nation's historic
territory. The Nation is compelled to do so, so long as its markets are
under threat from other tribes. The Nation has an extensive tribal
government that provides its members with a variety of benefits and
programs. Those benefits and programs are dependent on a predictable
income stream. So long as the Nation's market can be undercut as a
result of approval of new gaming operations approved by the Secretary,
the Nation has no choice but to do precisely what it does not wish to
do: attempt to establish gaming in areas to which it may have no
historic connection, with the potential effect of reducing the market
of an established gaming facility. If the restrictions suggested by the
Nation are made part of the present legislation, the Nation would have
no reason to seek sites for new gaming facilities in any area other
than its own historic lands. Until they are adopted, the scramble for
markets will continue.
I hope that the Committee will consider these proposals in the
spirit in which they are offered: Communication. The Nation wishes to
assist this Committee in creating legislation that will stabilize
Indian gaming, so that all communities can adequately address their
concerns. This will benefit the tribes, their members and those members
of the non-Indian communities who are concerned about the unplanned
expansion of Indian gaming in our shared communities.
Thank you.
______
The Chairman. Thank you.
Mr. Blind?
STATEMENT OF WILLIAM BLIND, VICE CHAIRMAN,
CHEYENNE AND ARAPAHO TRIBES OF OKLAHOMA
Mr. Blind. Thank you. Chairman Pombo and members of the
Resources Committee, I thank you for inviting me here today. I
consider it a great honor and a privilege.
My name is William Blind. I am the Vice Chairman of the
11,000-member Cheyenne and Arapaho Tribes of Oklahoma. I
understand that the purpose of my testimony is to discuss the
perceived problem of the Land Settlement Exception of Section
20 of IGRA, and more specifically, situations where the land
may be hundreds of miles away from the tribe's current
reservation. I say that it is a perceived problem since in 17
years it has never occurred. There has never been a single case
of land being taken into trust under this rule.
Regardless, the Land Settlement Exception is an important
part of IGRA because it acknowledges that some tribes may have
genuine land claims due to unfortunate past treatment. This is
important both historically and practically. The practical
value of this rule is substantial and does not only benefit the
tribes, which it obviously does, but it benefits everyone,
States, taxpayers, business owners, homeowners, schools and
even the Federal Government, all benefit. We offer New York as
an example of how the Land Settlement Exception can work. There
the Land Settlement Exception may become an essential piece in
solving a complex and expensive problem. With this tool there
is a quick and easy no-cost path to settle a land claim
recognized by the Supreme Court. Without this tool various
alternate settlement proposals could hurt businesses and
homeowners, the New York State budget, local budgets, and
perhaps the Federal budget as well as the tribes the settlement
is intended to help.
Additionally, the Land Settlement Exception is based on the
American principle of fairness. Simply, it says that if you can
prove that your land was unlawfully taken, we will treat
settlement lands the same way as the original lands to try to
right an historic wrong. That is fair.
By no means is the Land Settlement Exception being abused
or easy. As the numbers show, in 17 years no one has achieved
it yet. In practice the Land Settlement Exception is a lot like
the Section 20 two-part test, but with the extra requirement of
getting explicit congressional approval. That is to say that in
practice we need to get local support, the Governor's approval,
the Secretary of the Interior's approval and Congress's
approval. In our case we also had to get the support of the
full Tribal Council of the Cheyenne and Arapaho Tribes of
Oklahoma. I would like to submit into the record the Tribal
Council Resolution which shows the overwhelming support given
to the Homecoming Project. As far as I know, other than in New
York, and as we proposed for Colorado, there are no other
tribes pursuing this very difficult path.
The Cheyenne and Arapaho Tribes of Oklahoma believe that
the Homecoming Project is the model for how the Land Settlement
Exception should work in practice, as a balance of interests.
First, and this is very important, we believe that we have
unusually strong legal claims relating to our history in
Colorado. I would like to submit into the record a short
history of the Cheyenne and Arapaho in Colorado. Recognizing
the cost and time it takes to resolve these issues, we felt all
parties would be best served if we proposed a settlement under
the Land Settlement Exception. We offered a market-based,
privately funded, omnibus settlement that would have no cost to
the Federal Government, no cost to the State Government and no
cost to the local communities. We offered an approach where we
would closely coordinate with the State and local communities
to mitigate any negative local impacts and maximize the
positive impacts. In short, we proposed a solution that is
fast, free, based on cooperation and good for everyone.
The proposal was discussed in detail with all levels of
Federal and Colorado representatives, from Congress to the
Governor, local officials and back over to the Department of
Interior. Draft legislation was presented and discussed, and
eventually unfortunately rejected through this process. The
vast majority of people that have taken the time to understand
our claims and our proposal have received it warmly. However,
our experience illustrates that the Land Settlement Exception,
as drafted, works very effectively to balance the interests of
all parties and through debate and compromise.
I am aware of another speaker on the panel here to speak
out against our efforts. In the past, Mr. Steve Brady succeeded
in confusing Senators, Congressmen and the press regarding his
relationship to this project. Mr. Brady is not a member of our
Tribe. He has no stake whatsoever in the status of our tribal
claims or the claims of any individual member. While he
represents that he is an authority on the history of the Sand
Creek Massacre, which may or may not be true, I believe he has
no qualifications to speak on the matter of Section 20 of IGRA,
nor on the matter of a Cheyenne and Arapaho economic
development effort.
I would like to submit for the record a letter of support
from the Sand Creed descendants.
In the past, Mr. Brady has attacked our project for
utilizing non-natives in the development group. That is a
deliberate misrepresentation. Our developer, the Native
American Land Group, includes nearly 15,000 Native Americans.
While it is true that the developer does have non-native
participants, if it were a disqualifying factor, there would
probably no Indian economic development anywhere. The simple
fact is that the Government urges private businesses to assist
in tribal economic development. Most tribes who do not already
enjoy the benefits of Class III gaming do not have the
resources or expertise necessary to pursue a project through
the expensive, time-consuming process spelled out under IGRA.
This illustrates what we came here to discuss today. IGRA,
as it stands, is a notable success for reducing Indian poverty.
While I cannot speak to each aspect of the law, I can say from
unsurpassed experience that the Land Settlement Exception, in
practice, requires tremendous cooperation between Federal,
State, local and tribal governments. Clearly, with zero
applications of this rule in 17 years, it is clearly not a run-
away problem. However, it remains important as an
acknowledgment of our sad history, a glimmer of hope for those
seeking justice, and as a practical tool for providing a no-
cost device to settle any claims if and where they should
arise.
However, should you choose to amend IGRA, we say that basic
fairness suggests that those who have filed with the Secretary
be allowed to complete their undertaking according to the
current rules.
We thank you for your time and interest in this matter very
much. Thank you.
[The prepared statement of Mr. Blind follows:]
Statement of William Blind, Vice-Chairman,
Cheyenne and Arapaho Tribes of Oklahoma
Chairman Pombo and members of the Resource Committee, I thank you
for inviting me here today. I consider it a great honor and a
privilege.
My name is William Blind, I am the vice-chairman of the 11,000-
member Cheyenne and Arapaho Tribes of Oklahoma. I understand that the
purpose of my testimony is to discuss the perceived problem of the Land
Settlement Exception of Section 20 of the Indian Gaming Regulatory Act,
or IGRA, and more specifically, situations where the land may be
hundreds of miles away from the tribes' current reservation. I say that
it is a ``perceived problem'' since in 17 years, it has never occurred.
There has never been a single case of land being taken into trust under
this rule.
Regardless, the Land Settlement Exception is an important part of
IGRA because it acknowledges that some tribes may have genuine land
claims due to unfortunate past treatment. This is important both
historically and practically. The practical value of this rule is
substantial and does not only benefit the tribes, which it obviously
does, but it benefits everyone: states, taxpayers, business-owners,
homeowners, schools, and even the federal government. All benefit. We
offer New York as an example of how the Land Settlement Exception can
work. There, the Land Settlement Exception may become an essential
piece in solving a complex and expensive problem. With this tool, there
is a quick, no-cost path to settle a land claim recognized by the
Supreme Court. Without this tool, various alternate settlement
proposals could hurt businesses and homeowners, the New York State
budget, local budgets and, perhaps, the federal budget, as well as the
Tribes the settlement is intended to help.
Additionally, the Land Settlement Exception is based on the
American principle of fairness. Simply, it says that if you can prove
that your land was unlawfully taken, we will treat settlement lands the
same way as the original lands; to try to right an historic wrong.
That's fair.
By no means is the Land Settlement Exception being abused or easy.
As the numbers show, in 17 years, no one has achieved it yet. In
practice, the Land Settlement Exception is a lot like the Section 20
two-part test, but with the extra requirement of getting explicit
Congressional approval. That's to say that, in practice, we need to get
local support, the Governor's approval, the Secretary of the Interior's
approval and Congress' approval. In our case, we also had to get the
support of the full Tribal Council of the Cheyenne and Arapaho Tribes
of Oklahoma. I would like to submit into the record the Tribal Council
Resolution which shows the overwhelming support given to the Homecoming
Project. As far as I know, other than in New York, and as we proposed
for Colorado, there are no other Tribes pursuing this very difficult
path.
The Cheyenne and Arapaho Tribes of Oklahoma believe that the
Homecoming Project is the model for how the Land Settlement Exception
should work in practice--as a balance of interests. First, and this is
very important, we believe that we have unusually strong legal claims
relating to our history in Colorado. I would like to submit into the
record a short history of the Cheyenne and Arapaho in Colorado.
Recognizing the cost and time it takes to resolve these issues, we felt
all parties would be best served if we proposed a settlement under the
Land Settlement Exception. We offered a market-based, privately-funded,
omnibus settlement that would have no cost to the federal government,
no cost to the state government and no cost to the local communities.
We offered an approach where we would closely coordinate with the State
and local communities to mitigate any negative local impacts and
maximize the positive impacts. In short, we proposed a solution that is
fast, free, based on cooperation and good for everyone. The proposal
was discussed in detail with all levels of federal and Colorado
representatives, from Congress to the Governor, local officials and
back over to the Department of Interior. Draft legislation was
presented and discussed, and eventually unfortunately rejected through
this process. The vast majority of people that have taken the time to
understand our claims and our proposal have received it warmly.
However, our experience illustrates that the Land Settlement Exception,
as drafted, works very effectively to balance the interests of all
parties and through debate and compromise.
I am aware of another speaker on the panel, here to speak out
against our efforts. In the past, there has been some confusion on the
part of some Senators, Congressmen and the press regarding his
relationship to this project. Mr. Steve Brady is not a member of our
tribe. He has no stake, whatsoever, in the status of our tribal claims
or the claims of any individual member. While he represents that he is
an authority on the history of the Sand Creek Massacre, which may or
may not be true, I believe he has no qualifications to speak on the
matter of Section 20 of IGRA, nor on the matter of a Cheyenne and
Arapaho economic development effort. In the past, Mr. Brady has
attacked our project for utilizing non-natives in the development
group. That is a deliberate misrepresentation. Our developer, the
Native American Land Group, includes nearly 15,000 Native Americans.
While it is true that the developer does have non-native participants,
if it were a disqualifying factor, there would probably be no Indian
economic development anywhere. The simple fact is that the government
urges private businesses to assist in tribal economic development. Most
tribes who do not already enjoy the benefits of Class III gaming do not
have the resources or expertise necessary to pursue a project through
the expensive, time-consuming process spelled out under IGRA.
This illustrates what we came here to discuss today. IGRA, as it
stands, is a notable success for reducing Indian poverty. While I
cannot speak to each aspect of the law, I can say from unsurpassed
experience that the Land Settlement Exception, in practice, requires
tremendous cooperation between federal, state, local and tribal
governments. Clearly, with zero applications of this rule in 17 years,
it is clearly not a run-away problem. However, it remains important as
an acknowledgment of our sad history, a glimmer of hope for those
seeking justice and as a practical tool for providing a no-cost device
to settle lands claims, if and when they should arise. However, should
you choose to amend IGRA, we say that basic fairness suggests that
those who have filed with the Secretary be allowed to complete their
undertakings according to the current rules.
We thank you for your time and interest in this matter.
______
The Chairman. Thank you.
Senator Burzynski?
STATEMENT OF THE HON. J. BRADLEY BURZYNSKI,
STATE SENATOR, 35TH DISTRICT, ILLINOIS STATE SENATE
Mr. Burzynski. Thank you, Chairman Pombo, members of the
Committee, for the opportunity to be here today to address some
of the issues that we have already heard spoken about.
I would like to indicate to you that I am here today as an
individual representing my Senate District, the 35th Senate
District in the State of Illinois, and not necessarily the
Illinois General Assembly. So I want to make that perfectly
clear as we go through this testimony this morning.
I also want to put it into perspective the fact that my
district has been targeted by the Prairie Band of the
Potawatomi Indians as a site for gaming operations in the 35th
Senate District, and I also serve on the Senate Appropriations
Committee in Illinois and I wanted to give you a little bit of
perspective of what is occurring right now with gambling
proceeds from the gaming that is already there. Also, I would
like to indicate that as I understand, and with my limited
understanding of the draft bill that is in front of you, I
would support it conceptually. I think it is a great step and
applaud your efforts for working on this issue.
Illinois is a State that legalized gaming many years ago
beginning with the State run lottery, passed with the promise
that proceeds would benefit our local school districts.
Illinois the passed legislation to issue 20 riverboat licenses
in the State of Illinois to be primarily located in areas that
are depressed, in depressed communities throughout the State.
Obviously, since the advent of the riverboats, lottery proceeds
have grown somewhat stagnant but have also decreased the past
few years to about $570 million per year in revenue to the
State of Illinois.
Also, and because of the huge success of the riverboat
casinos and the inability of our Legislature to slow spending,
a new tax structure was placed on the boats, with the most
successful paying as much as 70 percent on their adjusted gross
revenues. Increased revenues have driven the riverboat casinos
into higher tax brackets, obviously. This has had an impact on
the growth of our existing boats, on the gaming in the State,
the State's revenue, local government's revenue.
Boats have reduced staff. They have cut their hours. They
have established entrance fees, parking fees that they did not
have before. Consequently, Illinois patrons have responded by
traveling across our State borders to gamble in other States to
avoid paying some of these additional fees.
We have seen market share go up in our neighboring States,
where market share in Illinois has continued to decrease. Our
admissions are down tremendously. I think in your packet you
have some of that information.
Obviously, it is my opinion that if off-reservation gaming
were allowed in Illinois, it would have a tremendous impact not
only on the existing licensees but also on our State revenue.
And our State has not begun an economic recovery at this point.
Additionally, in our State many not-for-profits have begun
to have a strong reliance on charitable games to help fund
their services. Further growth of casino gaming could be
devastating to their operations.
Currently, there are several that would like to expand
gaming in Illinois, and believe that this would enable our
State to dig itself out of our deficit. But at the same time we
do have legislation to abolish all gaming in the State of
Illinois that has passed out of a House committee on a vote of
9 to 1, and is pending in the Illinois House of
representatives.
In recent years, Illinois has been the target of various
tribal entities either trying to claim properties as
reservation sites, or trying to establish off-reservation
gaming. At this time no reservations are located in Illinois,
and to the best of my knowledge, there is no concentration of
tribal members in Illinois in any single location.
In 2000, the Miami Tribe of Oklahoma filed suit in Illinois
against landowners in 15 central Illinois counties in an effort
to gain control of 2.6 million acres of land. The case was
eventually dismissed, but only after it was revealed that the
suit was being funded by a New York developer. And I think this
begs the issue of your resolution, of your draft, about who is
gaining from some of these things.
As you are well aware now, the Ho-Chunk Nation has been
negotiating for status in Illinois to establish a casino
complex near suburban Lynwood or south suburban Lynwood. I
noticed that Congressman Jackson did indicate that there was
General Assembly support. Well, there are members of the
General Assembly that support that complex, but certainly the
General Assembly in its entirety does not.
In my district, the Prairie Band of the Potawatomi Tribe
has been trying to claim properties in northern Illinois. By
the way, this is also Speaker Hastert's Congressional District.
They have been willing to purchase options on certain
properties in the area, and the latest last week, decided not
to exercise an option on that property. But the fact of the
matter is they hired representatives who came in and presented
this as a done deal. They are in the process of trying to
reclaim that property. It is not a done deal. There is no
Federal ruling recognizing this or any other claim to the
property.
Just very quickly in closing, in response to that
particular proposal, I introduced Senate Bill 2460 last year in
the Illinois General Assembly. It created the Native American
Gaming Compact Act in Illinois. Very simply, before the
Governor can enter into a compact, a request for authority to
enter the compact, along with a copy of it, must be presented
to the General Assembly for dialog. We have seen too many
things going on in dark rooms, I guess is the way I will put
it, and certainly we were just trying to provide sunshine on
the process.
Again, I just want to thank you for the opportunity to be
here with you today to present some testimony. I will be more
than happy to answer any questions.
Thank you, sir.
[The prepared statement of Mr. Burzynski follows:]
Statement of The Honorable Bradley Burzynski,
State Senator, Illinois State Senate
The Honorable Chairman Pombo and members of the House Resources
Committee:
My name is Brad Burzynski, and I am Senator of the 35th District in
the State of Illinois. Thank you for allowing me the opportunity to
present testimony today on the topic of off-reservation gaming, and in
particular, the potential impact to the State of Illinois.
Additionally, I want to take a few moments to make you aware of
legislation passed during the last session of the Illinois General
Assembly regarding tribal gaming.
While I am not necessarily an expert on the topic of tribal gaming,
I have some understanding of certain aspects of Indian gaming. My
district has been targeted by the Prairie Band of the Potawatomi as a
site for gaming operations. As a member of the Senate Appropriations
Committee I also have some knowledge relative to the income our state
receives from existing non-tribal gaming operations.
Illinois is a state that legalized gaming many years ago, beginning
with a state-run lottery passed with the promise that all proceeds be
utilized to fund education. Illinois then passed legislation to issue
10 licenses for riverboat gambling on waterways in depressed
communities throughout the state. Since the advent of the riverboats,
lottery proceeds have not only grown stagnant, but have decreased the
past few years to $570 million per year.
Because of the huge success of the riverboat casinos and the
inability of the Legislature to slow spending, a new tax structure was
placed on the boats, with the most successful paying as much as a 70
percent tax on adjusted gross revenues. Increased revenue drives the
riverboat casinos into higher tax brackets. This has had an impact on
the growth of the existing boats because in order to make up their tax
share, they have implemented entrance fees, reduced hours and cut
staff. Illinois patrons have responded by traveling across state
borders to Missouri, Iowa, Wisconsin and Indiana to avoid paying
entrance fees and to access greater gaming opportunities.
Obviously, if off-reservation gaming were allowed in Illinois, it
would have a tremendous impact not only on the existing licensees, but
also on state revenue, in a state which has not even begun a strong
economic recovery.
Additionally, many not-for-profits have begun to have a strong
reliance on charitable games to help fund their services. Further
growth of casino gaming could be devastating to their operations.
Currently, there are those who would like to expand gambling in
Illinois believing that this would enable the state to dig itself out
of a multi-billion dollar deficit. But at the same time, legislation to
abolish gambling in the state has passed out of committee and is
pending in the Illinois House of Representatives.
In recent years, Illinois has been the target of various tribal
entities either trying to claim properties as reservations or trying to
establish off-reservation gaming. At this time, there are no
reservations in Illinois, and to the best of my knowledge, no
concentration of tribal members in any location in Illinois.
In 2000, the Miami Tribe of Oklahoma filed suit in Illinois against
landowners in 15 central Illinois counties in an effort to gain control
of 2.6 million acres of land. The case was eventually dismissed, but
only after it was revealed that the suit was being funded by a New York
developer who said he was in hopes of gaining the contract to build and
operate a casino and resort for the Miami Tribe. Additionally, the
state was allowed to intervene in the suit in order to protect the
interests of all Illinois citizens.
As you are well aware, the Ho-Chunk Nation has been negotiating for
status in Illinois to establish a casino complex near Chicago, in the
south suburban community of Lynnwood. While many in the community seem
to be receptive to the idea, it is my understanding that there have
been no community forums or public hearings to date on the proposal.
And as a state legislator, I can tell you for certain that we have not
had the opportunity to discuss this proposal or the role the state
would play in such a development.
Finally, the Prairie Band of the Potawatomi Tribe has been trying
to claim properties in my district in northern Illinois. Some land
owners have been convinced by tribal representatives, including former
state officials hired by the Tribe, that they had a valid claim to the
property. They have been willing to sell options on their property to
the tribe. When asked ``why,'' they comment that they felt no other
recourse existed. The Potawatomi Tribe and its representatives have
presented this as if there is no doubt to their claim and that it's a
``done deal.'' At this time, there is no federal ruling recognizing
this or any other claim on the property. In addition to private
properties, the Tribe laid claim to property owned by the state
consisting of a several-hundred-acre man-made lake, camping facilities
and a small forest preserve. Many unanswered questions remain as to
whether they have any legal claim to the property.
Preliminary plans by the Potawatomi Tribe call for an approximate
1,200-acre development including a casino, two hotels, a 75,000-square-
foot convention center, a bingo hall, a ``Las Vegas-style'' theater and
several restaurants. Consequently, as with other proposals, these
amenities beg the question as to who pays for the necessary
infrastructure improvements to accommodate them, such as roads, sewer &
water, and police.
Constituents in my largely-rural district have been adamantly
opposed to this proposal, but have found little opportunity for their
concerns to be heard. They feel a casino development would
significantly impact and negatively change their quality of life,
including hurting property values and causing uncontrolled population
influx and development. I would suspect residents in the Lynwood area
in suburban Chicago have many of the same concerns, feeling they have
little recourse due to the political nature of this issue.
In response to the Potawatomi's proposal in my district, I
introduced Senate Bill 2460 last year. I recognize that the Federal
Government at some time may provide either land title or authority for
tribal gaming in Illinois and that statute requires the Governor of the
state to enter into a gaming compact in such cases. But I feel that
such a compact should be negotiated in good faith and in public view in
order for local and state interests to be protected.
Senate Bill 2460 (now Public Act 93-1051) created the Native
American Gaming Compact Act in Illinois. Very simply, before the
Governor can enter into a compact, a request for authority to enter the
compact along with a copy of the proposed compact must be submitted to
the General Assembly. The General Assembly would hold hearings to
gather public input from those impacted by the proposal and would make
recommendations to ensure that all concerns are addressed. The bill
passed both chambers, the Governor vetoed the bill, and his veto was
overridden in the Senate by a vote of 52-4, and a House vote of 106-8-
2, therefore becoming law.
In conclusion, I realize that tribal gaming is a very volatile
topic at this time. I am encouraged that this committee and Chairman
Pombo are seeking to resolve this issue in the best interests of all.
It appears to me that outside interests have begun to play a larger
role, sometimes outweighing the intent of the Indian Gaming Regulatory
Act. In Illinois, we have taken steps to best protect all of the
citizens of our state. We hope that this committee and Congress will
also take action to protect all of the citizens of the United States.
Thank you again for the opportunity to present input on this
discussion draft.
ATTACHMENTS: 2002-2004 Gaming Comparison Chart; Illinois Riverboat
Gaming Adjusted Gross Revenue Graph; Illinois Riverboat Gaming
Admissions History Graph; Synopsis and Full Text of Senate Bill 2460
[NOTE: Attachments have been retained in the Committee's official
files.]
______
The Chairman. Thank you.
Mr. Foltin?
STATEMENT OF THE HON. CRAIG FOLTIN,
MAYOR OF LORAIN, OHIO
Mr. Foltin. Thanks for the invite, Mr. Chairman.
I am serving my second term as the elected Mayor of Lorain,
Ohio. We are right on Lake Erie. We are about 30 miles west of
Cleveland, but we are in a suburb. We are a stand-alone city of
68,000 people.
We are a heavily Democrat, urban, blue-collar union steel
town. We call ourselves the International City because of our
diverse culture, and we take our name from the town in France
because the French were the first white men to come to the area
to trade with the Indians. Lorain is a textbook example of the
decline of manufacturing in America. However, we have a
tremendous asset in our city with the undeveloped formerly
industrial waterfront and a deep water harbor.
We have 120 years of manufacturing history in our city. At
one time our steel mill employed 14,000 people. American
Shipbuilding, which is where George Steinbrenner built his
fortune in the City of Lorain, once employed 5,000 people in
the city. We have a long history with Ford Motor Company in
Lorain, which also employed 5,000 people at one time. We were
certainly instrumental in the victory of two world wars with
our steel and ship building manufacturing, and we have
literally helped build America in the City of Lorain.
But those times have changed though, and changed for the
worse. All those jobs that I have just told you about are all
but gone. I think I brought some articles that I submitted for
the record, but you could read the headlines from here that
paint a picture of what has been going on in our community for
the last two decades. ``Say It Ain't So,'' headlines when Ford
Cougar and Thunderbird first announced their departure. ``Ford
Days Are Numbered for the Econoline Van.'' ``Ford to Close at
the End of This Year.'' We make all the Econoline vans in the
country for Ford, but we will not be making them in Lorain any
more at the end of this year.
``Republic Steel Halts its Operations.'' ``Republic
Defaults on Debt, Shuts Down.'' Also didn't pay our property
taxes, which hurt us very badly as well.
The bottom line is Lorain's population has decreased by
20,000 over the last two decades. Average salary, employment
rates and quality of life have suffered immensely. Unemployment
rate remains near the highest of the State, and by the way,
Ohio's unemployment rate is near the highest in the Nation. As
the Mayor, we don't know how to provide city services any more.
We are already down 100 employees, which is 20 percent of our
workforce. The State has cut another 5 percent of our budget in
our share of our local government revenue, and now with Ford
leaving at the end of the year, we don't know how we are going
to be able to provide adequate police and fire protection in
our city.
That is why we want the opportunity to redefine ourselves
because the manufacturing jobs are just not being created in
Ohio, and basically technology of other business jobs aren't
being created. But we have a tremendous plan with the Eastern
Shawnee Nation that includes not only gaming but it has
business, retail, restaurants, a tremendous maritime museum and
plenty of activity which takes advantage of our waterfront,
including things like excursions to the lighthouse that we
have, a historic restored lighthouse.
We have submitted all those details to you for your review,
but our plan not only develops, but it preserves and restores
land to the beauty that has not been seen for over 150 years
because of the industrial use. For the first time we have had
good headlines in the paper, and we have community wide
support. Our council, the county commissioners and even the
councils of the surrounding communities have all supported
this. Keep in mind our city currently owns this land and we
want to put it into public trust. We sought out the Shawnee
Nation, not the other way around. We have researched this. We
have researched them. We know them well, and we are confident
that this deal will benefit both parties.
We feel that this will add and help preserve and bring more
people to this land that currently is not available right now,
aside from bringing the economic dollars that obviously our
city needs. We are not building just a box with slot machines.
We have the whole 9 yards of a destination resort. And Ohio is
currently surrounded by gambling, and the buses leave our town
every day, sometimes taking my mother and wife with them, to go
gamble in other States and even in the State of Ontario, which
Windsor is about 2 hours and 15 minutes.
Mr. Representative, Mr. Chairman, I know your record on
jobs and families and budget, and I am a conservative
Republican guy like you except I am in a sea of Democrats in
Lorain, and I understand the fact that you want to restore the
intentional--original intent of the Indian Regulatory Gaming
Act. I know your concern for reservation shopping, and I
understand your concern for tribes sharing percentages of their
money with debt-ridden cities like Lorain or States like Ohio,
and I applaud what you have done for the economic opportunities
for tribes and strengthening the sovereignty, and I know
there's loopholes, I know there's greedy developers, but don't
paint every deal with the same brush. We have a deal that is
fair to both parties in the City of Lorain. It gives our city a
chance to rebuild itself and gives the Shawnee the needed money
to improve their education, housing, and health care.
So I disagree with the blocking of all tribes to requires
land-in-trust across State lines, at least for communities like
Lorain that are welcoming them. The Shawnee have a great
history in Ohio, and we are welcoming them into Lorain. I know
maybe some regulation may be necessary. I don't know enough of
the laws and details to say what, but what I do know is this,
Mr. Chairman, we want to have the ability to do this and to
have the option to work with the Shawnee. It gives us
alternatives and more opportunities. Please don't take this
choice away from us to form partnerships with the Shawnee
Nation.
I thank you very much for the invitation and opportunity to
do this, and please, as you move forward and refine this
legislation, please keep in mind situations like we have in
Lorain, Ohio.
[The prepared statement of Mr. Foltin follows:]
Statement of The Honorable Craig Foltin, Mayor,
City of Lorain, Ohio
Introduction
Background on Lorain
Right on Lake Erie, 30 miles west of Cleveland, not
suburb
68,000--Heavily Democrat--Urban--Blue Collar--Union
Steel town
International City--diverse culture
Lorain is text book representation of Manufacturing
Decline in America
However we have a tremendous Asset with our undeveloped
(formerly industrial) waterfront and deep water harbor
120 years manufacturing
Ford, Amship, Steel
Times Have Changed Though
Those jobs are all but gone.
Unemployment remains near top of the state which is near
the top in the Nation. We rank 45 out of 50 states in employment.
City Operations
Lorain cannot continue to provide basic services to
citizens. With Ford leaving it also takes 7% of our budget. The state
has dramatically cut its funding of local governments. Already
inadequate police, fire, park and street services will be decimated.
20% of our workforce is gone.
Lorain deserves the opportunity to redefine our self
Manufacturing jobs just aren't being created in Ohio
Technology and other business jobs also are not being
created
For 25 years jobs in our city have been on decline.
Nobody has been able to find the panacea
We have a tremendous plan with the Shawnee that includes
not only gaming, but business, retail, restaurants, a tremendous museum
and plenty of activity which take advantage of our waterfront, like
excursions to our historic lighthouse. (Submitted the details) Our plan
develops, but preserves and restores the land to a beauty that has not
been seen for 150 years because of its industrial use. (Journal front
section)
Ohio is surrounded by gambling in Michigan, Indiana,
Ontario, New York, Pennsylvania, and West Virginia. Busses leave every
day from Lorain from''.. Our citizens want it in the worst of ways.
Specific appeal against restricting off-reservation gaming
We have a deal in Lorain that it fair and just to all
parties. It gives our City a chance to rebuild itself and take
advantage of our waterfront, while allowing the tribe to improve
education, housing, and health care for its members.
In Closing
Maybe some regulation is necessary, I do not know enough
to make that call. But what I do know is we want the ability to do
this. Allow us this option. It gives us additional alternatives and
more opportunities. Do not take the choice away from us or the Indians
to form these partnerships.
I thank you for the opportunity to speak before you
today. And as you move forward, please keep in mind situations like we
have in Lorain Ohio.
______
The Chairman. Thank you. I thank the entire panel for their
testimony.
Senator Burzynski, in your senatorial district, obviously
you walk around and talk to people and get an idea of how
people feel and what their opinions are. With the proposals of
Indian gaming being brought to Illinois, what is the general
feeling amongst the people you talk to at home about Indian
gaming right now?
Mr. Burzynski. Thank you, Chairman Pombo. My district is
still relatively rural in nature. When I talk to most of the
individuals in my district they're very concerned about their
way of life as it exists now. They're very concerned about
changes that would be detrimental to that. They're very
concerned about a tribe coming in, having a casino, and someone
having to help pick up the bills to fund the infrastructure.
What we saw occur with the efforts in recent years in my
district is the fact that there was very little discussion
ongoing with the community itself as to what would be
necessary. There was no discussion with us as legislators until
just recently when we were contacted by lobbyists who were
working for the tribe.
So I think the key is, is there are people that would
support some sort of operation, there are those that don't. But
we certainly want to have an ability to have a voice in the
process. And in addition to that, you know, we want to make
sure that there are viable, there are legitimate claims. I mean
that's one of the things that--you know, if under the IGRA if
it's found that the tribes do have claim to the area, then
that's another issue all together, but certainly when we talk
about off-reservation gaming, it opens up a lot of issues for
us in my district.
The Chairman. The draft that I put together on this, one of
the things that was included in that was the prohibition on
going across State lines, on a tribe having the ability to go
across State lines. If we were to allow some regulated way or
some controlled way that tribes still could go across State
lines, if the communities that you represent felt that they
would have the ability to have some control over what gaming
went on, if they felt they had some guarantee that they would
at least be part of the process, do you think that the fear
they currently have would change?
Mr. Burzynski. I don't believe their fear would change. I
think they would still see a change in their quality of life,
what they're accustomed to, what they're used to having. I
think their fears might be alleviated if there was better
oversight of what would occur on those--you know, that promises
made are promises kept. I think that's a real concern that
people have. I believe that from my standpoint and also from my
constituents' standpoint in the long run, as I've indicated to
you, our State does rely somewhat heavily on gaming right now
for our State's coffers and particularly for education. We
receive about $705 million a year in proceeds from our gaming
already, from our boats, another $570 million from the lottery
that go into our State's general education fund. And I believe
that from that perspective we would see diminished returns in
that area.
And again, our State has not even begun an economic
recovery at this point with the several billion dollar deficit
that we're facing.
The Chairman. Mayor Foltin, listening to your testimony, it
strikes me that Lorain is the kind of community that we were
actually looking at in terms of setting up what we call an
Indian Economic Opportunity Zone, where you had a community
that welcomed the gaming, that wanted to work with the tribes
to establish something like that as part of their economic
activity for the future.
And it appears from what you have testified to here today
that you would fit that kind of a situation in moving forward
and that that would be a possibility if we proceed with this
draft legislation, that you would obviously be one of the
possibilities that the Secretary would look at within your
State and that is kind of what we were going for in terms of
listening to your testimony here today.
Let me ask you if things were different and the people in
Lorain were opposed to establishing a gaming facility there,
would that change the way that you look at the draft
legislation?
Mr. Foltin. No, I don't think so. If Lorain was a very
financially sound community and the citizens didn't want that,
I would still think that communities who did want them should
be able to have that kind of gaming available to them.
But I do point out that the City of Lorain has a long
history of wanting gambling. They tried it in a private sector
fashion and voted it in in the late '90s before there was any
gaming outside of--in the early '90s before there was gaming
outside of Atlantic City and Las Vegas. It passed by about a 3
to 1 margin. Unfortunately, it failed statewide in the State of
Ohio, and thus it was not approved for places like the City of
Lorain. So we have a long history of wanting it, and there's
been three attempts throughout the '90s and each time our city
has overwhelmingly wanted it, even when economic times were a
little better, when Ford was humming along a little stronger,
when our steel mill was thriving a little better.
So I just want to make sure that places like us are--and I
know the last part of your draft bill, it does say
notwithstanding the crossing State lines which is the deal that
we have with the Shawnees. We want to make sure that there are
provisions for communities like ourselves.
Aside from Lorain, if they didn't want it, I don't see why
that should not be allowed if the overwhelming community and
surrounding communities want it. I think that's capitalism in
America. Let it happen.
The Chairman. Thank you. My time has expired.
Mr. Kildee?
Mr. Kildee. Thank you very much, Mr. Chairman. First of
all, again I want to commend you for using the draft method of
presenting this proposed legislation. I think it is fair both
to the Committee and fair to the public out there, and it is
not done very often, and I commend you for doing that.
I am really conservative--that probably surprises you--I am
conservative on the use of the exceptions written into IGRA on
land acquired after October 17th, 1988. But I think that the
present language in IGRA--which by the way, I helped write, I
was on the Committee then, probably one of the few left on the
Committee--I think the present language of IGRA adequately
protects my conservative position on this. I don't see the
proliferation of casinos because of the exceptions we wrote
into IGRA here. There has been no proliferation.
There have only been three tribes that have used the two-
step process, that is the Forest County Potawatomi of
Wisconsin, the Kalispel Tribe of Washington State, and the
Keweenaw Bay of my State of Michigan. Only three have used that
two-step. And I would say one, maybe not completely yet, but
one settlement of land claim. Congress settled the land claim.
The Interior gave them permission to game, but I don't know if
they completed their compact yet. So it is really three or four
who have used these exceptions, so I don't think there has been
a proliferation by using these exceptions which we wrote into
the law when we passed this. So I am really trying to figure
what we are trying to solve here when there is no clear and
present danger, no record of proliferation.
I do know that in California--and I know this has to play
greatly in your mind--there are so many small tribes, all of
them are trying to get into this right to game, but it may be
you are isolated and you are trying to create some
opportunities for them, and I think that that is very
understandable.
May I ask any one of the tribes, you have pretty well
reiterated that you think the present language safeguards
against proliferation of gaming.
Mr. Enyart. I will speak for the Eastern Shawnee. We agree
with you. We have a saying in the area that I come from, and
that is, if it ain't broke, don't fix it, and we don't feel
like it's broke.
Mr. Kildee. Any other of the sovereign nations?
Mr. Blackdeer. Yes. The Ho-Chunk Nation also has the
feeling that the present language does adequately preserve
communities from proliferation of gaming. It is very hard to
establish a new gaming market under the present language.
Mr. Blind. For the Cheyenne-Arapaho Tribes of Oklahoma,
they feel the same way, that the present language of IGRA is
sufficient and workable, and that it's not broke.
Mr. Kildee. Thank you very much.
Again, Mr. Chairman, I have no further questions. I do
again commend you for this process that you are using. I think
it is going to be helpful to all. Thank you.
The Chairman. Thank you.
Mrs. Drake?
Mrs. Drake. Thank you, Mr. Chairman.
Mayor, I would certainly like to welcome you. I am
originally from Elyria, and so I know Lorain very well, and I
know Lorain's had some ongoing problems and that things are
very, very serious for you. However, I am extremely concerned
that--it's my understanding Ohio has had two referendums and
gambling has been voted down. So it concerns me that it seems
like a way around if you get a Governor that is agreeable to
gaming, but I thought I heard from a couple people on the panel
that there is some sort of State or local oversight in this
process, that they wouldn't be able to come if--did I
misunderstand that? With the legislation the way it is now,
with the approval of the Governor and the Secretary, the
Shawnee Indians would be able to come regardless of the
referendum in Ohio?
And I would like to welcome you too, Chief. I know a lot of
history and a lot of legend in northern Ohio, Indian legends.
Mr. Foltin. I think I will handle that if it's OK. Yes,
with--if the Governor or Legislature agree to compact with a
tribe----
Mrs. Drake. Does it have to be the Legislature too or just
the Governor?
Mr. Foltin. Well, the Governor, or the Legislature can
force the Governor to compact with a simple majority vote.
Right now, in the State of Ohio, to have private sector gaming
you would need to amend the constitution which would take two-
thirds, a supermajority vote of our Legislature, plus a
statewide vote. And in a way this does have the opportunity to
sidestep that procedure, but again I point to a situation like
Lorain, where Cincinnati is 20 minutes away from a gambling
casino, but they are 6 hours away from the City of Lorain. How
will a casino impact those places that vote against it? In our
county, we're not against any home rule vote. We are very
confident that it would pass. We just don't think the people
down in southern Ohio, where it's a bit more conservative,
should tell us that we cannot do that.
With that being said, we also, because of the plan we have
with the Shawnee, has created a great deal of talk around the
whole State, and is now talking about pushing for a
constitutional amendment, and we're having kind of separate but
congruous talks with the Legislature. In fact, tomorrow in
Columbus we are going to be down there talking about how to
proceed.
One of the things that we've never had in the State of Ohio
is had all the parties at the same table, which mean the Indian
gaming, the racetracks, the private sector interests. When it
failed in the last few times--the last time I think it was in
'96--the racetracks were aboard. But prior to that the
racetracks two years prior campaigned and lobbied and spent $12
million in 1992 dollars to campaign against gambling coming to
Ohio.
So the Legislature right now, some proponents of gambling,
are bringing the two sides together and trying to go that
route. However, with the Indian gaming route, with the Indian
history that we have of northern Ohio that you are aware about,
and the great want for and the open arms that not only our
community but surrounding communities have had, it gives us an
additional opportunity which we may not have because of some
people that are 5, 6 hours drive from us.
Mrs. Drake. One last question for the chiefs. Your tribes
are only interested in coming to these locations if you are
allowed to do gambling. You're not interested--I mean that's
the impression I got, is you're not interested in going to any
of these tribal lands unless you have the ability to have
gaming?
Mr. Enyart. That is true. We want to come home. Ohio is our
homeland and we want to come home. And I would just make one
further comment, and that is, we believe very much in working
with the community, so we don't want to go into a community
that does not have support. So we work very diligently on that
and have all the time we've been in Ohio.
Mrs. Drake. Thank you.
Thank you, Mr. Chairman. And I am very sorry that I have to
leave.
The Chairman. Ms. Bordallo, did you have any questions?
Ms. Bordallo. I do not have any questions.
The Chairman. Mr. Nunes, any questions?
Mr. Nunes. No.
The Chairman. Well, I want to thank the panel for their
testimony, and it has been very helpful, I think, to the
Committee in our efforts to continue to deal with this issue.
As we move forward with this draft legislation and look at
things that need to be changed or amended within the
legislation, I think your testimony will be very helpful to
that, so thank you very much. Dismiss this panel
The Chairman. Call up our next panel. Mr. Steve Brady, Mr.
John Kindt, the Reverend Cynthia Abrams, if you could join us
at the witness table and remain standing. If I can have you
raise your right hand.
[Witnesses sworn.]
The Chairman. You can be seated. Let the record show they
answered in the affirmative.
Mr. Brady, we are going to begin with you.
STATEMENT OF STEVE BRADY, SR., CO-CHAIR, NORTHERN CHEYENNE SAND
CREEK MASSACRE SITE COMMITTEE AND PRESIDENT OF THE NORTHERN
CHEYENNE SAND CREEK MASSACRE DESCENDANTS
Mr. Brady. When we start late like this, back home we call
it Indian time.
[Laughter.]
The Chairman. I guess we are on Indian time today then. We
have another name for it around here, but I won't say it out
loud.
[Laughter.]
Mr. Brady. I want to thank the Committee for allowing me to
testify here today, and I also want to thank the Chairman for
the invitation to provide testimony here today.
First of all, I want to make it explicitly clear that I am
not here to establish a position for the Northern Cheyenne
Tribe in terms of the proposed legislation by Chairman Pombo,
but I am here to make some remarks on the proposal by
Counciltree with regard to the Cheyenne-Arapaho Tribes of
Oklahoma.
Probably first and foremost the Cheyenne-Arapaho Tribes of
Oklahoma is an independent sovereign nation, and what they do
with Steve Hilliard and his gaming proposal is entirely up to
them. However, when it comes to treaty rights like the 1851
Fort Laramie Treaty, and situations like the Sand Creek
Massacre of November 29th, 1864, which I just testified on here
a couple of weeks ago, it affects us in the north as Northern
Cheyenne, Montana.
We are legally intertwined with the Cheyenne-Arapaho Tribes
of Oklahoma in the 1851 Fort Laramie Treaty. We are also
culturally and historically connected with the Southern
Cheyenne through our traditional cultural way of life, both
language and our religious beliefs. So needless to say, the
proposal that Steve Hilliard has been working with the
Cheyenne-Arapaho on is indeed very pernicious and divisive.
The Northern Cheyenne Tribe, as a government, rejected
Steve Hilliard's proposal about a year or so ago through a
lengthy non-disclosure agreement, and at the conclusion of the
non-disclosure agreement the Northern Cheyenne Tribe, after a
subsequent independent review, rejected his proposal. Steve
Hilliard stood to gain enormously, profit enormously from his
proposal and the tribe would be left holding the bag for quite
some time. Apparently, the Northern Arapaho did not even
entertain Hilliard's proposal at all. They had other concerns.
And with regard to petition for a land claim in exchange
for a casino in Colorado, the Northern Cheyenne Tribal Council
has passed a resolution requesting for the full file of what
was submitted by Cheyenne-Arapaho Tribes to the Secretary of
Interior. However, the Northern Cheyenne Tribe has not formally
requested from the Secretary of the Interior the file. They
just have passed a council resolution. The Tribal Council
Resolution No. is 3305.
And at the same time, the Secretary of Interior has not
informed the Northern Cheyenne Tribe of this petition for a
land claim, and there's a question of whether or not our treaty
rights are going to be affected or impacted as Northern
Cheyenne. As I said earlier the Northern Cheyenne and the
Southern Cheyenne are interconnected with treaty rights, we are
legally intertwined.
The Hilliard proposal has the potential to undermine and
erode any trust or relations that exist or that may exist
between the Northern and Southern Cheyenne, and as I said
earlier, it's pernicious and very divisive, and that concludes
my statement here today.
If you have any questions, I'll be open to them.
Thank you for allowing me to testify.
[The prepared statement of Mr. Brady follows:]
Statement of Steve Brady, Co-Chair of Northern Cheyenne Sand Creek
Massacre Site Committee, and President of the Northern Cheyenne Sand
Creek Massacre Descendants
I would like to thank the Committee for allowing me to provide
testimony and especially, The Honorable Richard Pombo, Chairman of the
Committee for the invitation to testify on issues that remain
profoundly significant, the Sand Creek Massacre of November 29th, 1864,
as well as our treaties with the United States of America.
The Cheyenne signed a series of treaties during the 19th Century,
beginning with the Cheyenne Treaty of 1825 and then Fort Laramie Treaty
of 1851. Among the conditions in the Ft. Laramie Treaty of 1851, the
Cheyenne and Arapaho agreed to the boundaries of their first
reservation. The area of this reservation encompassed approximately 51
million acres from the Rocky Mountains in Colorado to the Plains in
parts of Wyoming, Nebraska and Kansas.
While Western-Europeans had forced the Cheyenne and Arapaho out of
their treaty territory, apparently the boundaries of the 1851 Treaty
remained in effect until the mid-twentieth century when the U.S. Indian
Claims Commission offered to compensate the Cheyenne and Arapaho Tribes
for their treaty territory.
In the early 1960's, the Northern Cheyenne Tribe of Montana, the
Northern Arapaho Tribe of the Wind River Reservation of Wyoming and the
Cheyenne & Arapaho Tribes of Oklahoma (sometimes referred to as
Southern Cheyenne and Southern Arapaho), among other conditions to the
treaty settlement, these Cheyenne and Arapaho Tribes agreed to the
compensation settlement of the Claims Commission. The Treaty, however,
does not distinguish between the Northern Cheyenne and the Southern
Cheyenne nor does it distinguish between the Northern Arapaho or the
Southern Arapaho, the Treaty merely says Cheyenne and Arapaho.
Therefore all of the tribes had to agree to a settlement one could not
opt out they were all legally intertwined, it was the settlement of the
1851 Treaty boundaries of the Cheyenne and Arapaho Tribes.
Apparently, during the 1851 Ft. Laramie Treaty settlement with the
Indian Claims Commission, there was an attempt to include the Article 6
provision of the Cheyenne and Arapaho Treaty of Little Arkansas River
of 1865, in which U.S. Congress admits responsibility to the atrocities
committed at the Sand Creek Massacre of November 29th, 1864 by Col.
Chivington and his troops and promises reparations. However, the Indian
Claims Commission rejected this claim by the Cheyenne and Arapaho
Tribes, due to the fact that the claim was a descendant's claim, not a
tribal claim. The Indian Claims Commission said that the descendants of
the Sand Creek Massacre would have to file the claim, not the tribes,
because Article 6 specifies ``certain bands of Cheyenne and Arapaho,''
and not the entire tribe(s). Again, the Cheyenne and Arapaho Treaty of
Little Arkansas River of 1865 does not distinguish between the northern
or the southern tribes, it just says Cheyenne and Arapaho and for that
matter there are descendants of the Sand Creek Massacre with the
Cheyenne & Arapaho Tribes of Oklahoma, the Northern Cheyenne Tribe of
Montana and the Northern Arapaho Tribe of Wind River Reservation of
Wyoming.
The Northern Cheyenne Tribe rejected Steve Hilliard's (Counciltree)
proposal for a casino in or near Denver in exchange for treaty lands
the tribe may still have and for the atrocities committed the Sand
Creek Massacre and for the tribe to view the proceeds from the casino
as reparations. After a closer analysis, Hilliard stood to gain an
enormous amount of profit while the tribe would be steeped in debt for
quite some time, there was a question of whether the tribe would ever
get out of debt. At the conclusion of a non-disclosure agreement with
Counciltree, the Northern Cheyenne Tribe refused to get involved in the
shady arrangement. The Northern Arapaho Tribe apparently did not even
entertain the idea from Counciltree, the Northern Arapaho had concerns
elsewhere.
In the meantime, the C&A Tribes of Oklahoma apparently are
continuing to entertain the notion of some business proposal with
Counciltree entitled the ``Homecoming Project.'' This proposal by
Hilliard is extremely pernicious and divisive between all of the tribes
mentioned herein. The Hilliard proposal has the potential to undermine
and erode any trust or relations that may exist between any or all of
these tribes.
Moreover, while the Northern Cheyenne Tribal Council recently
passed a resolution for the Secretary of the Interior to provide the
file in its entirety of the Petition submitted by C&A Tribes of
Oklahoma, for a land claim in exchange for a casino operation in
Denver, the Northern Cheyenne Tribe have yet to file a formal request
with the Secretary of Interior. Apparently, the Secretary of Interior,
thus far has rejected the land claim filed by C&A Tribes of Oklahoma.
Again, thank you for allowing me to provide testimony today.
______
The Chairman. Thank you.
Mr. Kindt?
STATEMENT OF JOHN WARREN KINDT, PROFESSOR,
UNIVERSITY OF ILLINOIS
Mr. Kindt. Thank you, Mr. Chairman. Thank you, Mr. Vice
Chairman. Thank you Members of the House Resources Committee.
I'm Professor John Kindt from the University of Illinois. I
apologize--I'm told that technologically they could not put my
overheads up for the Committee. But they are in your packets
and they are attached to my testimony. I will go through those
overheads or those attachments one by one.
Several issues involving my home State of Illinois have
come up, and so I'd like to start off by talking about the
National Gambling Impact Study Commission, which completed its
report in 1999. I'm sure several members of the Committee here
voted in favor of this commission report, or to get it
established. And it calls for a moratorium on the expansion of
any type of gambling anywhere in the United States--and for a
large reason; those are economic types of reasons.
Also, in Illinois, I believe we are the first State which,
after hearing the economic testimony, has passed out of
committee basically unanimously, with only one dissenting vote,
a bill, House Bill 1920 out of the House Administration
Committee, to recriminalize the casinos--or I should say to
eliminate the casinos in Illinois.
There has never been a statewide vote in Illinois as well.
If there were, the polls, which we have monitored for about 15
years now, indicate that the vote would be 2-1 against gambling
or against the expansion of gambling. The most recent poll is
from the Chicago Tribune in 2004. But if you look at your
attachments, you'll see the first one is a headline from the
Omaha World-Herald, which says ``40 Economists Side Against
More Gambling.'' Now, can you get 40 economists to agree about
anything? Well, here are 40 economists who come out and say
that the costs are likely higher than the benefits. And this
was back in 1996. This is basically an Economics 101 type of
problem, if you look at it from an economic-social standpoint.
A notable quote from Donald Trump, a casino owner: ``People
will spend a tremendous amount of money in casinos, money that
they would normally spend on buying a refrigerator or a new
car. Local business will suffer because they'll lose customer
dollars to casinos.'' Basically, what happens with gambling is
that you have consumer dollars coming out of the consumer
economy which then go into the gambling economy. And primarily
we are talking slot machines at this point, because 80 to 90
percent of all the money that's going into the casinos is going
into slot machines.
If you look at the circle diagram attached to my
testimony--it is out of the Michigan State DCL Law Review--and
it shows the 35-mile feeder market around casinos. Now, when an
analysis of what was happening in this feeder market was done
of the Wisconsin tribal casinos, one of the results was that
people were spending 10 percent less on food, 25 percent less
on clothing, and 37 percent had raided their bank accounts in
order to put the money into gambling.
In this same area, we found that initially in these feeder
market areas around casinos, that you weren't creating net new
jobs. And in fact, more recent data coming out indicates that
you're probably losing one job per year for every slot machine
that is located in the feeder market area. So if you have a
thousand slot machines within that 35-mile feeder market,
you're probably losing a net of 1,000 jobs per year. Well, why
is that? Well, you're bringing in $100,000 on average to each
slot machine per year. That translates into $300,000, more or
less, in lost economic multiplier effect. That translates into
a lost job out of the consumer economy.
Also, we find that the taxpayer social costs are $3 for
every $1 in benefits. And that ratio has held up for many
years.
We also find that crime in the feeder market area goes up
10 percent the third year after the casinos open, and then
increases after that.
Business and personal bankruptcies, in a report done by the
American banking industry, increases 18 to 42 percent as the
consumer dollars are lost into these casino establishments.
Drive-by businesses, in one study, are down 65 percent.
The citations for all of this may be found attached to that
circle chart.
There's also a Table 2 here, which indicates the social
costs--analyzes all nine academic studies across the country of
the costs of $3 for every $1 in benefits.
I also have a Table 18, which shows the net economic impact
of the Indian casinos in Wisconsin. It's Table 18. As you can
see, this is not my study, this is someone else's study. It
shows that it's a net loss of between $200 million and $500
million to the State of Wisconsin.
Two final tables. One shows the percentage of expenditures
in the casinos, showing that 25 percent to 75 percent of all
the money going into the casinos is coming out of pathological
and problem gamblers. And then a bankruptcy cost table is
included for your perusal, as well as some of my law review
articles which you may wish to review.
Thank you, Mr. Chairman. Thank you, Mr. Vice Chairman.
Thank you members of the House Resources Committee. It is a
pleasure being here today. I'll take questions when you wish.
[The prepared statement of Mr. Kindt follows:]
Statement of John Warren Kindt, Professor,
University of Illinois
This Statement will address the following issue areas, as requested
by the Committee.
1. U.S. National Security and the Strategic Economic Base: The
Business/Economic Impacts of Legalized Tribal Gambling Activities;
2. Solutions: Transform Tribal Gambling Facilities into
Educational and Practical Technology Facilities;
3. The Feeder Market Impacts of Tribal Casinos;
4. Tribal Gambling Activities: The Issues Involving Market
Saturation; and
5. Are Tribal Games and Slots ``Fair'' to Patrons?
In this testimony I have cited to my own work only as introductions
to the hundreds of source materials cited in the footnotes. These
sources can be referenced by researchers. This Committee has my
permission (and the permissions which I have already received from the
publishers of my articles and the attachments herein) to reprint and
distribute any or all of the articles authored by myself on gambling
issues.
1. U.S. National Security and the Strategic Economic Base: The
Business/Economic Impacts of Legalized Tribal Gambling
Activities
During the 1990s, the international economic and diplomatic
ramifications of the spread of U.S. gambling technologies throughout
the United States and the world were outlined in an article written at
the suggestion and under the auspices of former Secretary of State Dean
Rusk. The article was: John W. Kindt, U.S. Security and the Strategic
Economic Base: The Business/Economic Impacts of Legalized Gambling
Activities, 33 St. Louis U.L.J. 567-584 (1995), reprinted in National
Gambling Impact and Policy Comm'n Act: Hearing on H.R. 497 before the
House Comm. on the Judiciary, 104th Cong., 1st Sess. 519-27, 528-45
(1995).
U.S. tribal gambling issues are larger than myopically trying to
help the selective impoverished. The U.S. tribal model is being
marketed around the world as economic development to Third World
countries, but their economies just become poorer, and their
infrastructures and financial institutions become destabilized.
As commonly utilized by U.S. State Department analysts, the
McDougal/Lasswell methodology for policy-oriented decision-making
highlights these strategic problems with the spread of U.S. gambling
technologies. See, e.g. John W. Kindt & Anne E.C. Brynn, Destructive
Economic Policies in the Age of Terrorism: Government-Sanctioned
Gambling as Encouraging Transboundary Economic Raiding and
Destabilizing National and International Economies, 16 Temple Int'l &
Comp. L.J. 243 (2002-03) (lead article).
2. Solutions: Transform Tribal Gambling Facilities into Educational and
Practical Technology Facilities
Instead of legalizing a casino/slot machine establishment at a
failing racetrack in 1997, the Nebraska Legislature bulldozed the
racetrack and made it into an extension of the University of Nebraska
and a high-tech office park. John W. Kindt, Would Re-Criminalizing U.S.
Gambling Pump-Prime the Economy and Could U.S. Gambling Facilities Be
Transformed into Educational and High-Tech Facilities? Will the Legal
Discovery of Gambling Companies' Secrets Confirm Research Issues?, 8
Stanford J.L., Bus. & Fin. 169-212 (2003) (lead article).
Thereafter, as pro-gambling interests returned to Nebraska, they
were repeatedly rebuffed by the academic community, which was
exemplified in one instance by 40 economists publicly rejecting new
gambling proposals that would ``cannibalize'' the consumer economy.
Robert Dorr, 40 Economists Side Against More Gambling, Signers: Costs
Likely Higher than Profits, Omaha World-Herald, Sept. 22, 1996, at B1.
In a unanimous vote (except for one dissent by a representative
from a casino district) on March 17, 2005, the Illinois House
Government Affairs Committee favorably reported H.B. 1920 to the House
for a vote to re-criminalize Illinois casinos.
Similarly, suggestions have been made to re-criminalize gambling
facilities in other states and transform the gambling facilities into
educational and high-tech assets--instead of giving the gambling
industry tax breaks. Casinos and gambling parlors would generally be
compatible with transformations into educational and high-tech
resources. For example, the hotels and dining facilities could be
natural dormitory facilities. Historically, facilities built for short-
term events, such as various World's Fair Expositions, the 1996 Olympic
Village (converted to facilities for the Georgia University system),
and other public events have been transformed into educational and
research facilities.
Given the allegations of misuse, non-accounting, and even
malfeasance involving gambling revenues in Native American operations,
various legislative personnel in the late 1990s considered potential
legislation that would place Native American gambling revenues in trust
for the benefit of all Native Americans, not just a few senior tribe
members. This policy was to be combined with the partial use of trust
monies to convert Native American gambling facilities into educational,
cultural, and business facilities. For a historical summary of issues,
see Bruce Orwall, Gaming the System: The Federal Regulator of Indian
Gambling is Also Part Advocate, Wall St. J., July 22, 1996, at A1.
For concerns by the 1999 U.S. National Gambling Impact Study
Commission, see, for example, Nat'l Gambling Impact Study Comm'n, Final
Report 7-9 (June 1999). ``Again, the unwillingness of individual tribes
as well as that of the National Indian Gaming Association (the tribes'
lobbyists) and the National Indian Gaming Commission, (the federal
agency that regulates tribal gambling), to provide information to this
Commission, after repeated requests and assurances of confidentiality,
limited our assessment...'' Id. With only one dissenting vote by
Commissioner Robert W. Loesher who was unduly protecting Native
American gambling interests, the 1999 U.S. National Gambling Impact
Study Commission voted eight to one to subpoena information from the
U.S. National Indian Gaming Commission in 1999. However, use of its
subpoena power was thereafter deemed largely ineffectual by the
Commission and was not pursued.
3. The Feeder Market Impacts of Tribal Casinos
The Final Report of the Congressional 1999 National Gambling Impact
Study Commission called for a moratorium on the expansion of any type
of gambling anywhere in the United States. Although tactfully worded,
the National Gambling Commission also called for the re-criminalization
of various types of gambling, particularly slot machines convenient to
the public.
Some of the negative impacts of casinos and slot machines are
detailed in the appendix to the article, Diminishing Or Negating The
Multiplier Effect: The Transfer of Consumer Dollars to Legalized
Gambling: Should A Negative Socio-Economic ``Crime Multiplier'' be
Included in Gambling Cost/Benefit Analyses?, 2003 Mich. St. DCL L. Rev.
281-313 (lead article). The circle ``feeder market'' chart and sources
documentation follow this written testimony.
The most authoritative and specific example involving tribal
casinos is a 1995 Wisconsin report which concluded that ``[w]ithout
considering the social costs of compulsive [addicted] gambling, the
``rest-of-the-state'' areas lose-or, transfer in-$223.94 million to the
local gaming areas. Considering the lowest estimated social costs of
problem gambling, the rest of--[Wisconsin] loses $318.61 million to
gambling.'' This report also concluded that without casino gambling,
many local citizens would have increased participation in other
``outside'' activities. ``More than 10% of the locals would spend more
on groceries if it were not for the casino, while nearly one-fourth
would spend more on clothes. Thirty-seven percent said that their
savings had been reduced since the casino had opened...'' William
Thompson, Ricardo Gazel, & Dan Rickman, The Economic Impact of Native
American Gambling in Wisconsin (Wis. Policy Res. Inst. 1995).
From the business perspective, businesses are not naive. For
example, ``in a rare public stand on a controversial political issue,
the Greater Washington Board of Trade's 85-member board voted
unanimously against'' Mayor Sharon Pratt Kelly's initiative to bring
casino-style gambling to Washington, D.C. Liz Spayd & Yolanda Woodlee,
Trade Board Rejects D.C. Casino Plan, Wash. Post, Sept, 25, 1993, at
A1, A8. With the exception of the cluster services associated with
gambling, new businesses tend not to locate in areas allowing legalized
gambling because of one or more of the aforementioned costs. In areas
saturated with legalized gambling activities, pre-existing businesses
face added pressures that push them toward illiquidity and even
bankruptcy.
4. Tribal Gambling Activities: The Issues Involving Market Saturation
In his classic book entitled Economics, Nobel-Prize laureate Paul
Samuelson summarized the economics involved in gambling activities as
follows: ``There is--a substantial economic case to be made against
gambling. First, it involves simply sterile transfers of money or goods
between individuals, creating no new money or goods. Although it
creates no output, gambling does nevertheless absorb time and
resources. When pursued beyond the limits of recreation, where the main
purpose after all is to ``kill'' time, gambling subtracts from the
national income. The second economic disadvantage of gambling is the
fact that it tends to promote inequality and instability of incomes.''
Paul A. Samuelson, Economics 245 (10th ed.). Furthermore, Professor
Samuelson observed that ``[j]ust as Malthus saw the law of diminishing
returns as underlying his theory of population, so is the ``law of
diminishing marginal utility'' used by many economists to condemn
professional gambling.'' Id. at 425.
The concern of the legalized gambling interests over ``market
saturation'' is largely a non-issue. From the governmental perspective,
focusing on this issue misdirects the economic debate, because fears of
market saturation are predicated upon the unwarranted assumption that
legalized gambling operations constitute regional economic
development--which they do not. In reality, legalized gambling
operations consist primarily of a transfer of wealth from the many to
the few--accompanied by the creation of new socio-economic negatives.
It is well-established that the societal and economic costs to the
taxpayers are $3 for every $1 in benefits.
These issues should first be examined from the strategic
governmental perspective. In this context, the inherently parasitic
manner in which legalized gambling activities must apparently collect
consumer dollars to survive is frequently described as ``cannibalism''
of the pre-existing economy--including the pre-existing tourist
industry. According to the skeptics of legalized gambling activities,
this industry-specific phenomenon means that in comparison with most
other industries, legalized gambling activities must a fortiori not
only grow as rapidly as possible, but also grow as expansively as
possible. John W. Kindt, Legalized Gambling Activities: The Issues
Involving Market Saturation, 15 N. Ill. U.L. Rev. 271-306 (1995). See
also John W. Kindt, The Negative Impacts of Legalized Gambling On
Businesses 4 U. Miami Bus. L.J. 93-124 (1994) (lead article).
In California and Nevada: Subsidy, Monopoly, and Competitive
Effects of Legalized Gambling, the California Governor's Office of
Planning and Research highlighted in December of 1992 ``the enormous
subsidy that Californians provide to Nevada through their gambling
patronage'' and concluded that ``Nevada derives an enormous competitive
advantage from its monopoly on legal gambling.'' The report summarized
that ``[g]ambling by Californians pumps nearly $3.8 billion per year
into Nevada, and probably adds about $8.8 billion--and 196,000 jobs--to
the Nevada economy, counting the secondary employment it generates--
and that this was ``a direct transfer of income and wealth form
California to Nevada every year.'' Thus, the Nevada economy appears to
constitute a classic example of a legalized gambling economy
``parasitically'' draining or ``cannibalizing'' another economy
(primarily Southern California). Cal. Governor's Off. Plan & Research,
California and Nevada: Subsidy, Monopoly, and Competitive Effects of
Legalized Gambling ES-1 (Dec. 1992).
The gambling interests argue that the dollars they take in are
``entertainment dollars'' or ``recreational dollars.'' This observation
is valid with regard to approximately 35% of the ``gambling dollars,''
but it is invalid with regard to the remaining 65%. Opponents of
legalized gambling argue that there are also differences because the
entertainment dollars spent on a movie, for example, largely generate
more movies, and recreation dollars spent on a speedboat, for example,
largely generate orders for more speedboats. Accordingly, while most
entertainment or recreational dollars contribute to a positive
multiplier effect legalized ``gambling dollars'' result in a net
negative multiplier effect. This negative impact apparently occurs, in
part, because approximately two-thirds of the gambling dollars are not
recreationally-oriented, but are spent by a compulsive market segment
reacting to an addictive activity--probable or possible pathological
gambling--as delimited by the American Psychiatric Association. Am.
Psychiatric Ass'n Diagnostic and Statistical Manual of Mental
Disorders, 615-18 Sec. 312.31 (4th ed. 1994). Opponents also note that
gambling dollars spent in a legalized gambling facility are usually
reinvested in more gambling facilities--which just intensifies the
socio-economic negatives associated with gambling activities and
``reduces the national income'' even further.
5. Are Tribal Games and Slots ``Fair'' to Patrons?
Issues have arisen involving how ``slot machines'' are programmed
and whether the astronomical odds are ``fair'' to patrons. ``The
Insiders'' for Gambling Lawsuits: Are the Games ``Fair'' and Will
Casinos and Gambling Facilities be Easy Targets for Blueprints for RICO
and Other Causes of Action?, 55 Mercer L. Rev. 529-593 (2004) (lead
article). See also Subpoenaing Information from the Gambling Industry:
Will the Discovery Process in Civil Lawsuits Reveal Hidden Violations
Including the Racketeer Influenced and Corrupt Organizations Act?, 82
Oregon L. Rev. 221-294 (2003) (lead article). Coupled with pandemic
regulatory failures, these issues of ``fairness'' have been
exacerbated. The Failure to Regulate the Gambling Industry Effectively:
Incentives for Perpetual Non-Compliance, 27 S. Ill. U.L.J. 221-262
(2002) (lead article). See also Follow the Money: Gambling, Ethics, and
Subpoenas, 556 Annals of the Am. Academy of Political & Soc. Sci.,85-97
(1998) (invited article).
The Office of the Inspector General reported in 1993 to the U.S.
Department of the Interior (DOI) that 32 percent of Native American
gambling operations were being conducted in violation of federal
statutes/regulations. Office of the Inspector General, U.S. Dep't of
Interior, Audit Report: Issues Impacting Implementation of the Indian
Gaming Regulatory Act (1993). Thereafter, the National Indian Gaming
Commission (NIGC) arguably suppressed numbers that indicated in
November 1996 that 84 percent of Native American gambling facilities
were openly operating illegally or in violation of federal statutes/
regulations. Nat'l Indian Gaming Comm'n, Report to the Secretary of the
Interior on Compliance with the Indian Gaming Regulatory Act (Nov.
1996). Other reports suggested that there were more than just isolated
instances of crime and corruption caused by Native American gambling
activities.
Furthermore, the implicit goals of the 1988 Indian Gaming
Regulatory Act (IGRA) to enhance the lives of all Native Americans were
not being realized, as the large majority of Native Americans remained
in grinding poverty as the 21st century began. See, e.g., U.S. General
Accounting Office, Indian Programs: Tribal Priority Allocations Do Not
Target the Neediest Tribes 1 (1998). Accordingly, policymakers have
suggested that future legislation should not disproportionately enrich
isolated tribes. Instead, Native American gambling should operate for
the benefit of all Native Americans, if not all of the U.S. public.
This could be achieved via federal administration of a Gambling
Proceeds Trust Fund financed by Native American gambling operations
while they are phased out to become educational and technological
facilities.
In 2000, it was reported that ``[d]espite an explosion of Indian
gambling revenues-from $100 million in 1988 to $8.26 billion a decade
later [1998]-an Associated Press [AP] computer analysis of federal
unemployment, poverty and public-assistance records indicates the
majority of American Indians have benefited little.'' Between 1988 and
1998 ``poverty and unemployment rates changed little,'' as exemplified
by the Fort Mojave Indian Reservation, where despite two casinos, the
Native American ``unemployment rate climbed from 27.2 percent in 1991
to 74.2 percent in 1997.'' This development was attributed to the fact
that ``among the 130 tribes with casinos, a few near major population
centers have thrived while most others make just enough to cover the
bills.'' In addition, any ``new jobs [created by the Indian gambling
facilities] have not reduced unemployment for Indians.'' David Pace,
Casino Boom a Bust for Most Members of Indian Tribes, News-Gazette
(Champaign, Ill.), Sept. 2, 2000, at A1. According to the National
Indian Gaming Association, the lack of net new jobs for Indians was
because ``75 percent of jobs in tribal casinos are held by non-
Indians.'' Unexpectedly, the 55 tribes with casinos before 1992 had
their 1991 unemployment rate of 54 percent even increase somewhat to
54.4 percent by 1997. For an extensive investigative report
highlighting the problems of Native American gambling activities, see
Donald L. Bartlett & James B. Steele, Look Who's Cashing In At Indian
Casinos: Wheel of Misfortune, Time, Dec. 14, 2002, at 44 (cover story).
These situations were exacerbated by illusory accounting standards
that resulted in some tribal members with exorbitant wealth while most
Native Americans remained disenfranchised. The tribes also claimed to
have sovereign immunity from general federal statutes like those
involving labor rules, sexual harassment, equal employment opportunity,
and tortious acts. As reported in the Wall Street Journal and as most
disconcerting to Congressional leaders were the indications involving
alleged organized crime activities. The concerns among the U.S.
Representatives were exemplified by Representative Chris Shays (R-
Conn.) and Representative Frank Wolf (R-Va.) who highlighted these in a
letter to President Clinton.
NOTE: Attachments to Professor Kindt's statement have been retained
in the Committee's official files.
______
The Chairman. Thank you.
Rev. Abrams?
STATEMENT OF REV. CYNTHIA J. ABRAMS, DIRECTOR, ALCOHOL, OTHER
ADDICTIONS AND HEALTH CARE WORK AREA, GENERAL BOARD OF CHURCH
AND SOCIETY OF THE UNITED METHODIST CHURCH
Rev. Abrams. Good morning, Chairman Pombo and honorable
members of the House Resources Committee. I want to thank the
Committee for this opportunity to testify on behalf on the
General Board of Church and Society of the United Methodist
Church.
The United Methodist Church has for many years expressed
its opposition to gambling. Our doctrinal statements, known as
The Social Principles, state that gambling is a menace to
society, deadly to the best interests of moral, social,
economic, and spiritual life, and destructive of good
Government. As an act of faith and concern, we call Christians
to abstain from gambling and to minister to those victimized by
the practice. Furthermore, we call the church to promote
standards and personal lifestyles that would make unnecessary
and undesirable the resort to commercial gambling as a
recreation, as an escape, and as a means of producing public
revenue or funds for support of charities or Government.
We are alarmed at the expansion of gambling and, more
specifically, the proliferation of off-reservation casino and
casino proposals. We believe that off-reservation casinos are
having a negative effect on inter-tribal relations, as you have
seen here today between two tribes, and between tribal and
community relations. In addition, the United Methodists'
historic opposition to gambling is coupled with a very clear
and strong support of self-determination of American Indian
people, and we continue to support good legislation that
supports American Indian people in their long-term best
interest.
Gambling and legislation to expand it is a grave moral
concern. Because of the United Methodist public witness on
gambling, we are on countless mailing lists for groups opposed
to gambling. We believe that off-reservation casinos have
fostered an anti-sovereignty climate, which is growing.
Furthermore, the proposals cast a shadow over legitimate
applications for Federal tribal recognition. And we find the
increase in anti-sovereignty and anti-Indian racist rhetoric by
some of these groups alarming. And we do our best on behalf of
the United Methodist Church to counteract the positions of
these groups at every opportunity. But the careless disregard
for communities and children in promoting off-reservation
casinos, some in the poorest of areas, makes this very
difficult. It is simply unacceptable and contrary to the long-
term best interests of the sovereignty and welfare of American
Indian people as a whole that tribes continue to propose to
build casinos with little or no regard for the social costs to
the communities.
I am a United Methodist, and I want to tell my personal
story because I am also a Seneca.
These proposals are antithetical to my tribe's traditional
beliefs. My grandmother taught me that I am a member of an
immediate family, I am a member of an extended family and a
tribal family, and I am also a member of a global family. This
concept is not foreign to most American Indian people. Yet, I
ask the question, When did we stop caring about the rest of the
world and only care about ourselves and our own best interests
alone?
It is not in the best interest of gamblers to gamble away
their hard-earned dollars. The numbers of people who gamble are
disproportionately poor, lower-income, or seniors on fixed
incomes. Gambling takes away money from the people who need it
the most. Is this the way States, communities, and tribes want
to balance their budgets? And furthermore, is this good
stewardship of the gifts that God has given us?
Moreover, there are other American Indian people who are
opposed to gambling both on-reservation and off-reservation,
but they fear retribution. And this has happened in my own
family. Our family opposed casinos that our tribes proposed.
And in approving the casinos, the Senecas gave away historic
sovereign rights to sign a State compact. Yet, all during this
time of opposition, my family endured death threats, bodily
harm, intimidation tactics, and outright ostracization for our
public stand.
The struggle of our tribe is not unique from other tribes.
The split between pro- and anti-casino groups splits the tribal
community. It divides churches on the reservation and it even
divides families on the reservation. In my own home church on
the Cattaraugus Reservation, it has even physically split the
church. When we worship, the anti-casino people sit on one side
of the church and the pro-casino people sit on the other side.
Is it any wonder that American Indian people opposed to Indian
gambling are afraid to speak up?
The United Methodist Church believes that American Indian
people bring gifts to the world. They have taught people who
have come to this country how to live, how to survive, and how
to care for the Earth and its people. And it is critical at
this time that American Indian people, tribes, not allow the
temptation of greed to overwhelm the gifts that have allowed
American Indians the ability to survive and maintain their
traditions.
Thank you.
[The prepared statement of Rev. Abrams follows:]
Statement of The Reverent Cynthia J. Abrams, Director, Alcohol, Other
Addictions, and Health Care Work Area, General Board of Church and
Society of the United Methodist Church
I thank the Committee on Human Resources for this opportunity to
testify on behalf of the General Board of Church and Society of the
United Methodist Church. The United Methodist Church has for many years
expressed its opposition to gambling. Our doctrinal statements known as
The Social Principles state that ``Gambling is a menace to society,
deadly to the best interests of moral, social, economic, and spiritual
life and destructive of good government. As an act of faith and concern
we call Christian to abstain from gambling and to minister to those
victimized by the practice.'' Furthermore, we call ``The Church to
promote standards and personal lifestyles that would make unnecessary
and undesirable the resort to commercial gambling as recreation, as an
escape, or as a means of producing public revenue or funds for support
of charities or government.'' (United Methodist Social Principles 162G)
We are alarmed at the expansion of gambling and, more specifically,
the proliferation of off-reservation casinos and casino proposals. We
believe that off-reservation casinos are having devastating effect on
intertribal relations, tribal to community relations.
In addiction, to our historic position on gambling we have strongly
supported the self-determination of American Indian people and continue
to support good legislation that supports American Indian people.
Gambling and legislation to expand it is a grave moral concern. Because
of the United Methodist's public witness on gambling we are on
countless mailing lists for groups opposed to gambling. We believe that
off-reservation casinos have fostered an anti-sovereignty climate,
which is growing. We find the increase in anti-sovereignty and anti-
Indian racist rhetoric by some of these groups alarming. We do our best
to counteract the positions of these groups at every opportunity, but,
the careless disregard for communities and children in promoting off-
reservation casinos, some in the poorest of areas, makes this very
difficult. It is simply unacceptable that tribes propose to build
casinos with little or no regard for their social cost on a community.
I am a United Methodist and also a Seneca. These proposals are
antithetical to my tribe's traditional beliefs. My grandmother taught
me that I am a member of an immediate family, I as a member of an
extended and tribal family, and I am a member of a global family. This
concept is not foreign to most American Indian people. Yet, when did we
stop caring about the rest of the world, and only care about ourselves
and our best interests alone? It is not in the best interest gamblers
to gamble away their hard-earned dollars. The numbers of people who
gamble are disproportionately poor, lower income, or seniors on fixed
incomes. Gambling takes money away from the people who need it the
most. Is this the way states, communities, and tribes want to balance
budgets. Is this good stewardship of the gifts God has given us?
Furthermore, there are other American Indian opposed to the off-
reservation and even on-reservation casinos but they fear retribution.
This has happened in my own family. Our family opposed the casinos our
tribe proposed. My family endured death threats, bodily harm,
intimidation tactics and outright ostracization for our public stand.
The struggle of our tribe is not unique from other tribes. The split
between pro and anti-casino groups splits the community, divides
churches on the reservation, and even divides families. In my own home
church it has even physically split the church. When we worship, anti-
casino people sit on one side of the church and the pro-casino people
sit on the other side of the church. Is it any wonder that American
Indian people opposed to Indian gambling are afraid to speak up?
The United Methodist Church believes that American Indian people
bring gifts to the world. They have taught people who came to this
country how to live, how to survive, how to care for the earth and its
people. It is critical, at this time, American Indian people/tribes not
allow the temptation of greed overwhelm the gifts that have allowed
American Indians the ability to survive and maintain their traditions.
______
The Chairman. Thank you.
I am going to start with Mr. Brady. Can you explain to the
Committee why the Northern Cheyenne Tribe rejected the casino
proposal near the Denver airport?
Mr. Brady. It was based upon their legal counsel as well as
independent business analysis. Steve Hilliard stood to gain
enormously while the tribe would be left in debt for quite some
time.
The Chairman. Professor, in looking at your testimony, the
analysis that was done, just so I understand, the economic
analysis that you did, does that--when you talk about money
being taken out of the economy, does it also factor in the jobs
that are created and the money that is generated by that casino
itself?
Mr. Kindt. Yes, sir, Mr. Chairman. Now, my area is
interdisciplinary analysis, or one of my areas. So what I am
doing here is I'm citing to the most authoritative reports,
academic reports across the country. And the one to which I
believe you are referring is the Table 18----
The Chairman. Yes.
Mr. Kindt.--done by Professor William Thompson, Ricardo
Gazel, and Dan Rickman. Ricardo Gazel was formerly at the
University of Illinois; William Thompson at UNLV, University of
Nevada, Las Vegas; and they did factor in those types of
considerations. And you can see down at the bottom of the page
that--the table is on itself in the attachment--it does talk
about the benefits of investment and self-sufficiency. So we
reviewed these to make sure that they're balanced reports. And
even though this report was done in 1995, it's the most
authoritative still, the best report out there about the impact
of tribal casinos on a State and regional economy.
You may wish to bring Ricardo Gazel, by the way. I believe
he's now at the World Bank. He's right here in town. You may
wish to bring him before the Committee. He's done follow-up
studies, and I'm sure he could shed light on these numbers.
The Chairman. There are other studies that I've seen that
show a net positive economic impact. Did you look at any of
those studies?
Mr. Kindt. We try to review all the studies from all across
the country--industry studies, academic studies, Government
studies--that come forward. And you will see from some of my
writings that they're very straightforward in our analysis, or
in my analysis, of some of those studies, and they're very
pointed at times. Sometimes what is occurring by the industry
studies is they can be perfectly valid, but they don't go far
enough. They're just impact studies, or what we call benefit-
benefit studies. They're not cost-benefit studies. And unless
you have a real cost-benefit study on the proper scale, you
really miss what is happening in the regional and State
economy.
And that's why you have such a backlash going on. And the
people of Illinois are obviously getting it. After the State
Committee on Administration, for whom I testified along with
Professor Earl Grinols, and other people were there testifying
about these impacts, the legislators already knew it. They had
it, and they voted, with just one dissent, to report out a bill
that would eliminate the riverboat casinos--which are now land-
based casinos--in Illinois because of the negative social-
economic effects and the negative tax effects that were
occurring.
Now, that's not to say that the people who own the casinos
are--they're cash cows. They bring in a lot of money. But on a
statewide or regional basis, they are taking enormous numbers
of consumer dollars out of the consumer economy, and that
translates, on a regional basis in the feeder market, into lost
jobs and these socioeconomic problems that are outlined in the
tables.
The Chairman. Did you look at the difference between more
of a neighborhood casino that generates most of its money
locally and what would be described as more of a destination
casino? Did you look at the difference on the impact of
economies between those?
Mr. Kindt. Yes. We've reviewed that over time. I could just
make some general observations. A destination area would
generally be, like, Las Vegas. However, in my testimony, I give
a California report, done in 1992 by the California Governor's
Office, that shows the number of jobs and the number of dollars
that were being lost out of the Southern California economy to
Las Vegas. Well, it's really sort of Basic Economics 101.
You're just moving dollars around when you take them out of the
consumer economy and you put them into gambling. But when you
put them into gambling, you're creating very large social
costs, what are called the ABC's of gambling--new addicted
gamblers, new bankruptcies, and new crime.
Now, we can debate the extent of these negatives. But one
of the tables that I've provided for this Committee summarizes,
I believe, the nine leading reports on the socioeconomic costs,
and they all, over the last 15 years, are still coming out at
about $3 in costs for every $1 in benefits.
So on a strategic level--and that's why I sort of started
my written testimony with a strategic concept--on a strategic
level, this is not helping the U.S. economy and there are other
strategic problems involved with the expansion of gambling. And
I would again reference the National Gambling Impact Study
Commission, which had many gambling members on it--several
gambling members on it--and it still came out asking for a
moratorium on the expansion of any type of gambling anywhere in
the U.S.
The Chairman. Finally, in regard to the draft legislation,
is it your opinion that we would be better off if we just stop
the expansion of Indian gaming altogether?
Mr. Kindt. Well, I would have to speak from an academic
standpoint. I know that--with a natural sympathy to the
concerns that are expressed here today. And from an academic
standpoint, I would have to agree with the National Gambling
Impact Study Commission's call for a moratorium on the
expansion of any type of gambling anywhere in the U.S.
The Chairman. What about existing facilities?
Mr. Kindt. Well, I have indicated what the economic and
social negatives are with regard to gambling activities and I
think that the policy decisions should be made on the academic
facts. And so I would leave that to the policy decisionmakers.
I would, however, make one comment, and that is that when one
of the proposals here from the earlier panel for a tribal
expansion for a casino in Madison, Wisconsin, proposed by the
Ho-chunks, I was up there along with other academics when that
came--a few days before that came to a vote. And despite the
fact that, I believe, about $1.5 million was spent by the
tribe, by the interests who wanted to have this pass and have
this casino in that area, the academic community at the
University of Wisconsin came out en masse. The campus
newspapers both editorialized against this casino. Despite the
natural sympathy for the plight of Native Americans and their
interests, they knew academically that this would be a drain on
their community. And I believe the vote was about 55 percent
against allowing this casino to come to that area.
The Chairman. Reverend, I guess I just put basically the
same question to you. In regard to legislation, would you
support the notion that we stop the expansion of Indian gaming
altogether?
Rev. Abrams. I would speak only on the position of the
United Methodist Church, which would then say that--would agree
that expansion of any type of gambling, be it Indian or
otherwise, would be something that we would want to work
against because it's contrary to good Government.
The Chairman. And in regard to existing facilities?
Rev. Abrams. In regard to existing facilities, the United
Methodist Church has a position on self-determination and
sovereignty and so they would not comment on those that are
already existing.
The Chairman. Thank you.
Ms. Bordallo?
Ms. Bordallo. No questions.
The Chairman. Mr. Nunes?
Mr. Nunes. I have a quick question for Professor Kindt.
Your testimony is very much appreciated, and I think this is an
ongoing battle we have between gambling or non-gambling. But I
would like you to comment a little bit on the fact that Las
Vegas is the fastest-growing area of the country and has been
for nearly a decade. I would like to know your thoughts on this
issue. Because obviously it has been a very successful economy.
Every time I go there, there is a new subdivision, or 20 new
subdivisions. And I would like for you to comment on the growth
of gambling there and how you see the economy that's been built
there.
Mr. Kindt. Yes, sir. Basically, and I did address this in
my written testimony, and I would refer back to the California
report that I mentioned that talks about how basically the
dollar just being transferred in from outside the area. Now,
the one thing Las Vegas--So basically you're taking consumer
dollars out of Southern California and much of the rest of the
country, and that's spurring the growth in Las Vegas. You're
transferring those into gambling dollars. But those are lost
dollars to the consumer economy, and that translates into lost
jobs. And then people take their social problems that have been
outlined here in these tables and take them back to their host
communities, so Las Vegas doesn't have to bear the expense of
much of the socioeconomic problems. But when you bring the
casino to the person's backyard, then you have that 35-mile
feeder market and the State having to absorb all these
socioeconomic negatives, and that's a drain on the taxpayer
dollars.
The one other thing I would mention about Las Vegas is they
do appeal to an Asian Pacific market, they do appeal to an
overseas market. But that's not what we're talking about with
all of these other--and Atlantic City also, to some extent. But
these other casinos aren't really doing that. They're
basically--and the casinos themselves call them feeder markets.
They're feeding off of that regional economy. And as Senator
Burzynski indicated, and I think if you brought in many other
legislators they would indicate that we're feeling these
negatives, which we predicted years ago, as socioeconomists and
interdisciplinary analysts, would happen.
And I would also reference in my testimony Economics 101,
the basic, probably the most used textbook in the United States
by a Nobel Price laureate, economics winner Paul Samuelson. He
simply says they're just sterile transfers of wealth when you
take the money out of the consumer economy and you dump it into
gambling. But you're creating all these social problems at the
same time--the increased addicted gamblers, which has been
parallel to drug addiction; the increased bankruptcies as
people lose their money; and the increased crime. And there's a
definitive analysis on the crime which was done by Professors
Grinols and Mustard, and it's even better than what the
National Gambling Impact Study Commission did. It took every
community, every county, every feeder market before and after
it brought in the gambling, and it showed that crime goes up 10
percent, not the first or second year, but the third year after
these establishments open as people lose their money, some
people resort to crime, and then that crime continues to
increase afterwards.
So there are real costs that are associated with this trend
toward more and more gambling.
Mr. Nunes. Thank you, Professor. Thank you, Mr. Chairman.
The Chairman. Well, thank you. I want to thank the panel
for their testimony. And again, it will be very valuable in our
efforts to move forward on this issue.
I remind this panel and the previous panels that there may
be additional questions that Members have. I know Mr. Kildee
had another appointment and had to go out, but I know he had
additional questions he wanted to ask. Those will be submitted
to you in writing, and if you could answer them in writing so
that they could be included as part of the hearing record, it
would be appreciated. The hearing record will be held open for
those responses.
Again, I want to thank this panel and the previous panels
and apologize to you for the delay in starting the hearing.
If there is no further business before the Committee, again
I thank the members of the Committee and our witnesses. The
Committee now stands adjourned.
[Whereupon, at 12:52 p.m., the Committee was adjourned.]
[Responses to questions submitted for the record follow:]
Response to questions submitted for the record by Otto Braided Hair for
the Northern Cheyenne Sand Creek Massacre Committee
A follow-up response on questions from Representative Jim Gibbons,
a result from the oversight hearing regarding draft legislation
proposed by Chairman Richard Pombo to amend the Indian Gaming
Regulatory Act (IGRA) ``Tribal proposals to acquire lands-in-trust for
gaming across state lines; and how such proposals are affected by the
off-reservation discussion draft bill'' before the House Resources
Committee held on April 27, 2005.
Question 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.
a. Do you have any specific suggestions on how Congress
should proceed in this regard?
Comments:
One of the most perplexing problems throughout the westward
expansion of the United States was determining where the exact
boundaries between United States and the Indian Nations existed. Most
boundaries were descriptions of landmarks, for example, rivers,
mountaintops, ridges, a road, etc. The ``boundary problem'' was further
exacerbated by future treaties that redrew the boundary lines which can
be characterized as very difficult to discern and constantly changing.
Even more so, some Indian nations ceded lands claimed by other Indian
nations. The statements and commentary that follow are made partially
in response to Eurocentric historians whose mental constructs and
ideologies unconsciously, and usually, view people different than
themselves as obstructions to a process of human perfection or
achievement of a higher level of civilization. A focus on property
rights and commerce appears to lie at the core of many of the conflicts
between Indian nations and the U.S. government and its citizenry. The
questions at hand, concerning expanded Indian gaming, are the same of
genre of causation of conflict between Indian nations and the American
government and public it represents.
In 1834, the U.S. Congress admitted the multiplicity of Indian
treaties made it very to ascertain what, at any given period, was the
boundary or extent of the Indian country (Report of Commissioner of
Indian Affairs Samuel S. Hamilton, November 26, 1830; and, Report
Commissioner of Indian Affairs Elbert Herring, November 19, 1831, in
The American Indian and the United States, comp. By Wilcomb E.
Washburn, 1:16-17, 21:House Report 474 (ser. 263), 10). An obvious
historical fact is that the U.S. government's unilateral policy of
Indian removal beginning in 1834 considerably simplified the boundaries
leaving very small areas in the east in Indian hands and larger tracts
of land west of the Mississippi designated as Indian country. In the
ensuing historical events from the time of the overt genocidal ``Indian
Removal'' policy the government-to-government relations between Indian
nations and the U.S. government has been a story of betrayal,
usurpation and rapine as it became desirable to denigrate the native
peoples, even the faithful Indian allies, as subhuman.
In the unmistakable spirit of fairness and moral consciousness, it
appears that the subtle underlying intent by certain members of the
U.S. Congress to ``right'' some of the wrongs done to Indian nations
has been to introduce favorable amendments to the Indian Gaming
Regulatory Act (IGRA) that could potentially create an ``economic
bonanza'' for rural poverty-stricken Indian Tribes whose homelands are
primarily situated in the western United States. An extensive document
search and analysis of Indian claims on a comprehensive scale would, in
all probability, establish a measure of historical and legal continuity
and consistency of what constitutes ancestral lands of an Indian Tribe.
Competing ancestral claims would perhaps require usage of the
principles of International law wherein Federally recognized Indian
Tribes would potentially be afforded a forum to assert what has been
described as the right of occupancy which has been frequently referred
to as ``aboriginal title'' or ``Indian title.'' The quest to clarify
ancestral Indian lands would most certainly be within the parameters of
western law since the ``oral tradition'' of the surviving Indian
nations has often been discounted in the established system of American
jurisprudence.
Allowing Indian nations, miles away from a urban area, the
opportunity negotiate with another Indian Tribe with claims to
ancestral lands near a standard metropolitan statistical area (SMSA, an
area with a population of 500,000 or more) would most certainly become
a long drawn out process steeped in bureaucratic regulation and
unquestionable opposition from states and citizens opposed to the
expansion of Indian gaming. If indeed the goals and objectives of the
U.S. Congress is to establish Indian gaming law allowing a Tribe to go
hundreds of miles off their reservation to open a casino in the
ancestral lands of another Tribe, then it would be proper to allow all
potential stakeholders the opportunity to provide commentary in the
American tradition of consent of the governed.
The compelling public interest in the arena of Indian gaming can
only be strengthened by focusing the national spotlight on the
continuing plight of the economically depressed Indian nations, who are
significant in number, whose dependence on Federal largesse and
unabated socio-economic realities has added to a ``social malaise''
that permeates a majority of Indian country. Expansion of Indian gaming
is not a panacea for the depressed economies of Indian Tribes or the
answer to improving the quality of life for Indian people, yet, it is
reasonable to state that if afforded the opportunity to develop and
open a casino in a metropolitan area most Indian Tribes would in all
probability pursue such an economic opportunity.
b. 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 U.S. Congress has the responsibility to set the criteria to
determine whether or not a group of people claiming to be an aboriginal
people within the United States should be federally recognized. The
standard of recognition should be at a standard where there exists
incontrovertible evidence that the group of people seeking recognition
is beyond dispute. Presumptions that a ``newly--recognized tribe intend
to develop gaming operations should not be the most weighted factor
when congress considers federal recognition.
Reservation shopping immediately creates a negative image of native
people and intentionally or unintentionally diminishes the sacredness,
culture and history of an unrecognized Indian nation that has survived
countless attempts to destroy them. True Indian leaders, in their
unique tribal tradition, seeking rightful federal recognition of their
people, in this writer's opinion, will not focus solely on Indian
gaming and they, and their predecessors, may in fact have been
dedicated their lives to achieve federal recognition for their people
decades before the advent of the IGRA. The potential opportunity to
develop Indian gaming in this modern era could be characterized as a
historical artifact similar to the shift in the American economy from
heavy industry to the high tech industry.
The impact on communities with an off-reservation gaming
establishment would vary depending on the state of the economy and
cultural values in an identified area. In a depressed metropolitan area
a high tech modern casino operation would undoubtedly create thousands
of jobs and create opportunities for local entrepreneurs to provide
goods and services to a large casino operation. Negotiated partnerships
between Indian tribes and state and local governments would certainly
improve the quality of life for the citizens of communities where
Indian gaming would be allowed to flourish. On the other hand, off-
reservation gaming in rural areas may not be viable. Today,
professional operators of Indian gaming facilities have accumulated a
considerable amount of data and expertise to sufficiently determine
whether or not a gaming location will be economically feasible and
whether or not a selected community is the ``right fit'' for a casino
operation.
Question 2. When tribes seek to enter already established gaming
areas, doesn't that create an uneven playing field since tribes
are not subject to state regulations; are not subject to the
restrictions placed on other gaming establishments; do not pay
state taxes; etc?
Indian nations with little or no economic development have almost
always entered into negotiations to develop economic projects on an
uneven playing field whether on or off established reservations
especially with the lack of access to investment or financial capital .
In the area of Indian gaming, states have become intransigent in the
required negotiations process for State/Indian gaming compacts. The
scenario presented by the possibility of off reservation gaming,
including in another state, would raise issues of taxation of gaming
operations and more regulation by the National Indian Gaming
Commission. Current Indian gaming operations are in most instances more
heavily regulated than state sanctioned gaming operations. A detailed
comparison of the various State gaming versus NIGC generated
regulations would suggest ``more'' regulation is applicable to Indian
gaming operations.
Question 3. What criteria should be used by the Department of the
Interior in it's determination of land-into-trust?
a. Should there be a requirement of substantial historical
connection between the tribe and the parcel to be taken into
trust? Why/why not?
A key point to take into consideration would be the timeframe when
western trained historians and ethnologists began documenting the
geographic areas occupied by various Indian nations when ``first''
contact was made with sovereign Indian nations. If one is a proponent
of the southerly migration theory by Indian tribes, often presented by
historians and also by native oral tradition, the vast areas south of
Hudson bay and extending south into the United States could be
identified as ancestral homelands of many of the eastern, southern,
great plains and southwestern tribes.
Requiring a substantial historical connection between a tribe and a
parcel of land being considered in a land-into-trust process would be a
logical method of determining if a compelling argument by an Indian
tribe is sufficient to grant trust status to off reservation real
estate. Indian tribes would need to demonstrate connection to the land
in question in the form of identified sacred sites, burial sites,
village or camp sites, or any other empirical evidence (including
treaties) that would pass the scrutiny of ``expert'' scientific and
legal analysis. Aforementioned, a comprehensive document search and
analysis of Indian land claims would be probably necessitated and a
``cut off'' date determined in order to reasonably identify and settle
competing land claims by the various Indian nations.
b. How recent should the historical connection be?
Congress, with the plenary power it maintains over Indian affairs,
and the body of U.S. Supreme Court case law may have already
unilaterally determined the historical connection between Indian tribes
and parcels of land be considered for land-into-trust. Each application
for land-into-trust whether for gaming or any other purposes would need
to be deliberated upon on a case-by-case basis by the Department of
Interior. Special legislation enacted by congress taking land-into-
trust would also need to utilize precedent case law and previous
legislation, bypassing the Department of Interior, as an established
guide for taking land-into-trust.
The recent land-into-trust transactions appear to be reduced to
considerations of national interests, state rights and individual
landowner rights. In addition, the federal government appears cautious
in allowing condemnation of land in the land-into-trust process.
Conversely, when the federal government favors energy development in
environmentally sensitive areas (e.g. The Arctic National Wildlife
Refuge, Powder River Basin, etc.) it has the propensity to take
unilateral action completely disregarding the interests of native
people and the resultant selective application of environmental and
nation historic preservation laws and regulations has occurred.
c. What about distance from the tribe's current service area?
Most tribes are very familiar with issues of distance from tribal
programs and other government service delivery programs for tribal
members (often inter-tribal) through the special considerations and
flexibility of service delivery in urban areas with a relatively large
Indian population (e.g. Urban Indian Centers, I.H.S. clinics, etc.).
The delivery of basic services to Indian people would need to be
considered in the overall planning of Tribal casinos, at whatever
distance from the reservation, and Tribal governments would meet this
responsibility as a matter of protecting the health and general welfare
of tribal members. Modern communications technology and transportation
systems have lessened the issues of distance in nearly all aspects of
American society including Indian reservation lifestyles.
Modern Tribal governments have the capacity and capability to
address the needs of their membership and when necessary to collaborate
with other Tribal governments to provide for the basic needs of Indian
people, especially areas with a concentrated Indian population,
residing at varying distances from the reservation. Tribal trust lands
at short and long distances from the reservation would not diminish the
responsibility of Tribal governments and the Bureau of Indian affairs
(Trustee) to properly manage the real estate, the attendant resources,
Tribal people and others living or doing business on trust lands.
d. 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?)
This is a leading question and requires the responder to speculate
on future events without proper analysis that would assuredly be part
of a comprehensive planning strategy by Tribal governments and
associated gaming developers. A responsible Tribal government, without
question, would investigate in detail the advantages and drawbacks of
developing a casino at any location within the United States. It is
common sense human resource issue when speculating on farther distance
and employment opportunities for Tribal members. Issues of housing,
health care, schools, fire protection, law enforcement, etc.
undoubtedly require appropriate government-to-government relations
between the Tribe and local officials to ensure that the area being
considered for gaming operations would benefit the existing local
community and Tribal members desiring to transplant their families
where employment opportunity would be available.
The inclusion of the local citizenry, business enterprises, and
government officials in the process of developing a casino in a
traditional/service area is an expectation Tribes would in probability
be considered a priority in the formulation of a comprehensive gaming
development scenario. Disruption of a traditional community/service
area denotes a negative development rather than a progressive economic
development initiative by an Indian Tribe. The overall benefits to a
local economy may well outweigh the issues associated with
``disruption.''
Question 4. 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?
a. Designation as a Landless Tribe has the obvious implication
that they have not attained the status of a federally
recognized tribe with all associated government-to-government
experience and network of formal relations with existing Tribal
governments, local communities, and other entities in the
various geographic areas across the United States. Upon
attainment of federal recognition, it would seem appropriate to
locate landless Tribes on land-into-trust lands on or near
current established communities or land specified in acts of
Congress federally recognizing applicant Indian Tribes.
Landless applicant Tribes granted federal recognition is a
monumental achievement in their respective history and is usually the
culmination of years persistence to officially restore their honor and
dignity in the family of Indian nations. It is unimaginable that a
prospective Tribal applicant for federal recognition would neglect or
overlook issues related to jobs, health care and any other type of
services that are required to allow a community to develop and
flourish. Applicant Tribes would most certainly have developed an
extensive and rich knowledge base of the full range of issues
intricately and necessarily associated with status of federally
recognized ``Indian Nationhood.'' Consulting directly with ``newly''
established Indian nations would be in accordance to long history of
progressive developments in the area of federal Indian policy with an
emphasis on Indian self-determination, self sufficiency and sovereignty
as guideposts to government-to-government relations.
Question 5. If some tribes are permitted to select the ``best gaming''
locations, wouldn't all tribe want to do that?
It is incomprehensible that the general American public and U.S.
Congress would authorize some Tribes to select the ``best gaming''
locations in an arbitrary manner or to the advantage of some Tribes
over others. To enact legislation with a process where one Tribe is
allow significant advantage over other Tribes has the appearances of
``conquer and divide the Indian nations.'' A probable ``backlash''
against Indian gaming would assuredly ensue and a disruption in
intertribal relations would become common place.
An overwhelming compelling argument by some Tribes to be allowed an
advantage of a ``best location'' for a gaming operation would need
strong general consensus by all impacted stakeholders, especially
Indian Tribes in the area of taking land-into-trust. Opportunists of
every type would initiate contacts with Tribes seeking ``gaming
riches'' near metropolitan areas in the United States. Of course the
above commentary is directed toward the theoretical scenario of
allowing some Tribes an advantage.
a. 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?
Commenting on a theoretical scenario of allowing Tribes to shop for
a best location for a casino has an element of fear and distrust that
is unmistakable. Indian nations over time and with the evolution of
federal Indian policy has, in general, not strengthened the sovereignty
of Indian nations; has not satisfactorily met the seemingly elusive
goals of Indian self-determination and self-sufficiency; and, has not
raised the quality of life, in western standards of living, for the
majority of Indian people especially when poverty indicators suggest
that Indian people: Have shorter life spans; have higher rates of
infant mortality, suicides, accidental deaths related to substance
abuse, incarceration in jails/prisons, unemployment, etc.; and, the
capital expenditures for education, healthcare, fire protection, law
enforcement services, and other necessary services is declining in
proportion to one the fastest growing ethnic groups in the most recent
U.S. Census.
The past cannot be relived and starting point for a scenario of
allowing Tribes a best location must begin with an extensive and open
dialogue with Indian Tribes. Tribes that have played by the rules and
operate casinos on their current reservation lands, with not so good of
a gaming location, need to express their concerns at each available
opportunity in order add their legitimate interests into cauldron of
concerns and opinions from a wide array of individuals and organization
both private and public.
Question 6. 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.
Tribal governments may need to be subject to the federal campaign
contribution laws, if it is demonstrated that Tribes are violating
applicable law, and since some Tribes have become highly successful and
have discretionary funding to advance their interests at various
governmental levels, they have become an added factor in arena of
partisan politics. The Tribal leaders of Indian nations have the
responsibility of enacting Tribal law to regulate the levels of
campaign contributions also, this is the essence of Indian self-
determination and self-government. Most Tribal governments have very
limited financial resources and Tribal leaders need to be conscientious
of the levels of funding resources in their respective Tribal
treasuries.
During the oversight hearing before the House Resources Committee,
Chairman Pombo posed a question to me, as a witness on a panel, ``why
did the Northern Cheyenne Tribe reject Steve Hilliard's proposal?'' in
reference to a similar proposal for a land claim settlement in exchange
for a casino operation in Denver filed by the Cheyenne-Arapaho Tribes
with the Secretary of the Interior. While I did respond during the
hearing that ``Hilliard stood to profit enormously from the proposed
casino operation and that the Northern Cheyenne Tribe would be in debt
for long period of time,'' I felt that I needed to expound on my
response to the question.
Steve Hilliard, represented Counciltree and the Native American
Land Group (NALG) during the deliberations with the Northern Cheyenne
Tribe for the purpose of proposing a 27 million acre land claim
settlement with the United States under the Ft. Laramie Treaty of 1851
with Cheyenne and Arapaho in exchange for a 500 acre lot near the
Denver International Airport to establish a casino operation and that,
among other things, the tribe should also view this settlement as a
form of reparations for the atrocities committed at the Sand Creek
Massacre of November 29th, 1864.
The Northern Cheyenne Tribe rejected Steve Hilliard's proposal
because Hilliard proposed that the Northern Cheyenne Tribe circumvent
the seven (7) year provision of IGRA pertaining to the length of
management agreements and that NALG would have total control and that
NCT would more or less be just a ``rubber stamp.'' Moreover, that
Hilliard would handle the political end of things through Senator Ted
Stevens from Alaska and that the NCT would not have to notify Senator
Ben Nighthorse Campbell of Colorado or any other political contacts.
Moreover, I responded to Hilliard during a session with the
Northern Cheyenne Tribal Council in Billings that the Ft. Laramie
Treaty of 1851 had already been settled by the Northern Cheyenne Tribe,
Northern Arapaho Tribe and the Cheyenne--Arapaho Tribes of Oklahoma
with U.S. Indian Claims Commission in the 1960's. Secondly, a casino
operation can in no way be viewed as a form of reparation for the
atrocities committed at Sand Creek and that only Congress can provide
the reparation as promised in Article 6 of Cheyenne and Arapaho Treaty
of Little Arkansas of 1865 and not from proceeds through some ``fly-by-
night'' casino operation.
Having already been rejected by the Northern Cheyenne Tribe and the
Northern Arapaho Tribe apparently did not even entertain his proposal,
Steve Hilliard again made his pitch (this time with Cheyenne-Arapaho
Tribes of Oklahoma) at a staff briefing facilitated by Paul Moorehead,
Chief of Staff, Senate Indian Affairs Committee held on September 8,
2004 that was attended by the Congressional Delegation from Colorado,
Bill Owens, Governor of Colorado and Senator John McCain. Again, I
responded to Hilliard that ``He was doing his best to exploit the pain
and misery of the Cheyenne people (in reference to the Sand Creek
Massacre, other acts of genocide and the desperate economic conditions
of the Northern Cheyenne Reservation) and that the Northern Cheyenne
Tribe had not been notified as to the filing of the Land Claim
Settlement before the Secretary of the Interior,'' to date to the
Northern Cheyenne Tribe still have not been notified.
Answers to the questions were prepared by William Walks Along,
Northern Cheyenne Tribal Council and Steve Brady, Co-Chair, Northern
Cheyenne Sand Creek Massacre Site Committee.
For any further questions please contact Otto Braided Hair at the
Northern Cheyenne Sand Creek Office @ Ph (406)477-8026 or e-mail
[email protected].
______
Response to questions submitted for the record by The Honorable Charles
D. Enyart, Chief, Eastern Shawnee Tribe of Oklahoma
Chairman Pombo, thank you for your letter dated May 17, 2005. It
was my privilege and honor to present the story of the Eastern Shawnee
people and our desire to return to our aboriginal homeland in Ohio to
the Committee in April. As requested, below please find my responses to
the specific written questions asked by Congressmen Jim Gibbons and
Dale E. Kildee.
A. Responses to Questions Submitted by Congressman Jim Gibbons
Que stion 1. You already operate a Bingo and Casino in Oklahoma, sited
on top of the Missouri border yet you are attempting to acquire
a tribal casino in Ohio. It is my understanding that the
Governor of Ohio opposes your proposal, is that correct? How
will a casino located in Ohio employ tribal members in
Oklahoma?
In your Chief's Report available on your web site, he
wrote regarding your efforts to acquire tribal gaming in Ohio,
declaring that ``If we are successful, this Tribe will be a
very wealthy Tribe.'' If you believe your casino proposal is
good for the Ohio community and your tribe, why not build a
commercial casino and compete on a level playing field--under
the same labor, wage and safety rules, anti-corruption
oversight and local, state and federal taxes as other private
casinos?
Answer to Question 1.
You are correct that the Tribe currently operates an Indian gaming
operation. The revenues from our gaming operation, BorderTown Bingo
located near West Seneca, Oklahoma have provided us the means to make
improvements in the lives of our people and to rekindle the hope for a
better life for our children and grandchildren. However, the rural
character of the land we now occupy, combined with the economic
conditions in the surrounding area, severely restrict our economic
potential.
However, I disagree that we ``are attempting to acquire a tribal
casino in Ohio.'' The Eastern Shawnee are seeking to return to our
aboriginal homeland in Ohio. One hundred fifty years ago, the Tribe was
driven out of its homeland: lands that now comprise the state of Ohio.
The historical record is replete with accounts of destructive raids and
the burning of Shawnee villages by the United States Army and the
unauthorized taking of the Shawnee's lands by encroaching settlers. Our
people were forcibly removed from their villages and relegated to a
series of reservations first in Ohio, then in Missouri, and ultimately
Oklahoma. It was an ugly and shameful period in American history. We
want to return to Ohio because Ohio is our aboriginal homeland.
You also assert that ``the Governor of Ohio opposes your
proposal.'' We do no know whether this is the case. Press reports
indicate that the Governor is generally opposed to an expansion of
gaming in the state. We have not spoken with the Governor, and, to
date, we do not know whether he has taken any formal position on our
valid land claims. We do know that many local officials support Shawnee
claims in Ohio.
A casino in Ohio would greatly benefit the Tribe and all Ohioans.
As you know, under the Indian Gaming and Regulatory Act (``IGRA''),
tribal governments determine how gaming proceeds are to be spent.
However, IGRA requires that all revenues from tribal gaming operations
be used solely for the following purposes: (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. In addition, the
Eastern Shawnee may agree to pay local municipalities where gaming will
take place to assist them with local costs. Moreover, Indian gaming is
a major catalyst for community growth and economic development,
generating revenues for tribes and local communities like no federal
stimulus effort ever has before. Indian gaming also creates jobs,
increases economic activity and generates tax revenue for local
communities. Finally, Eastern Shawnee gaming will increase tourism in
Ohio and reduce the number of persons who travel to West Virginia,
Michigan, or Indiana for gaming, keeping more money in Ohio.
You also suggest that the Tribe should ``build a commercial casino
and compete on a level playing field.'' We are interested in competing
on the level playing field for all tribes already provided for by the
Congress in the Indian Gaming Regulatory Act. Indian gaming, originally
part of tribal ceremonies or celebrations, existed long before
Europeans came to America. In 1987, the U.S. Supreme Court recognized a
tribe's right to conduct certain kinds of gaming on Indian land without
state supervision. In 1988, Congress affirmed the right of Indians to
conduct gaming operations with the passage of the Indian Gaming
Regulatory Act. IGRA allows tribes to do exactly what the Eastern
Shawnee are seeking--to conduct Indian gaming which benefits the entire
tribal community and surrounding non-Indian communities. In contrast,
commercial gaming only benefits few private individuals. Indian gaming
is the most heavily regulated form of gaming in the United States.
Tribal gaming is regulated on three separate and distinct levels, in
contrast to the single level for other commercial gaming.
We simply seek to ensure that we have the same right as other
Indian tribes to conduct Indian gaming under current law.
Question 2. 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?
Answer to Question 2.
The Department of the Interior should determine which criteria
should be considered as part of the land into trust process through the
normal process of publishing proposed changes to 25 C.F.R. pt. 151 in
the Federal Register and soliciting comments. The Tribe reserves its
right to make comments concerning changes to the land-to-trust
regulations until such time as the Department of the Interior may
choose to amend those regulations. However, we have the following
comments on your concerns:
a. Should historical connections be required? The Congress has
already determined that tribes can have land taken into trust
in settlement of land claims. Obviously, such lands might be
other than those that a tribe has an historical connection.
Requiring a parcel to be one with ``a substantial historical
connection'' to the tribe would limit the flexibility of all
concerned to settle a claim. It could force affected parties to
transfer land into trust which no one preferred. It is hard to
see what benefit this would be to anyone.
b. How recent should the historical connection be? Again, we
do not agree that only land with a ``historical connection''
should be available for a land-to-trust transfer.
However, the legitimacy of our historic and cultural ties to Ohio
is undeniable. The facts do not support changing the law. There have
only been three instances in which land outside an Indian reservation
have been taken into trust for purposes of gaming since IGRA was
enacted in 1988: (1) in 1990 the Forest County Potawatomi Community in
Wisconsin obtained 15.69 acres of land in trust 250 miles from its
reservation through a two-part determination; (2) in 1997, the Kalispel
Indian Community in Washington obtained 40.06 acres of land in trust 60
miles from its reservation through a two-part determination; and (3) in
2000, the Keweenaw Bay Indian Community in Michigan obtained 22.00
acres of land in trust 70 miles from its reservation through a two-part
determination. IGRA and the land-to-trust process are not broken. There
is no problem that Congress needs to address.
Question 3. 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 to Question 3.
The Tribe believes that, like every other tribal nation, our
situation is unique. Each tribe and piece of land has its own history.
It is very difficult for a tribe with existing lands to get new, non-
reservation contiguous land for gaming. Since 1988, only 36 gaming or
gaming related trust acquisitions have been approved. Only three tribes
have successfully been able to take land into trust and open Indian
gaming facilities on lands that are outside of their reservation
boundaries. Each particular situation must be considered on its own
merits. The best way for a tribe to succeed in securing off-reservation
lands into trust for purposes of gaming is where there are willing
parties: with state, tribal, local government, and community support.
The Eastern Shawnee are not ``reservation shopping'' and view that
phrase as a misnomer. We also do not agree that the ``over 300 tribes
seeking recognition'' are doing so to conduct gaming, as you suggest.
We do not know why certain tribes are seeking recognition or why
certain tribes seek land into trust. However, there are many important
sovereign rights that hinge on federal recognition. Numerous factors
come into play--we suggest that gaming is often not one of them. As for
the Eastern Shawnee, we are already a federally recognized tribe. We
are pursuing claims in Ohio because Ohio is our aboriginal homeland.
Question 4. 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 to Question 4.
We believe the current exception in IGRA dealing with land
acquisitions for ``landless'' tribes is sufficient and does not need to
be amended. However, ``landless'' tribes should be consulted on this
matter. The Eastern Shawnee is fortunate not to be a landless tribe.
Therefore, we do not feel as though it would be appropriate to comment
on statutory changes that do not affect the Tribe. Needless to say,
however, economic development and economic diversification for Tribes
and tribal communities are critically important regardless of where
that economic engine is located. The only way for tribes to break the
cycle of poverty and achieve self-governance is through economic
development. Indian gaming has been a crucial and successful means of
providing such a means to achieve tribal self-sufficiency and tribal
economic development. It can produce revenues that can be used for
jobs, health care and services for tribal members wherever they reside.
Question 5. 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 to Question 5.
We do not know what tribe you are referring to when you speak of
tribes seeking the ```best gaming' locations.'' We cannot speak for
other tribes. The Eastern Shawnee seek to return to our aboriginal
homeland in Ohio. We are not seeking ``some abstract ``best gaming''
locations.'' We are not pursuing claims in New York, for instance. We
are seeking to settle our claims to aboriginal lands we once occupied.
One way to do that is to accept lands in settlement of those claims
that might be suitable for gaming.
We disagree with your suggestion that certain tribes may not be
``playing by the rules.'' To our knowledge, all tribes are playing by
the rules as set out by Congress. Since 1988, only 36 gaming or gaming
related trust acquisitions have been approved. Only three tribes have
successfully been able to take land into trust and open Indian gaming
facilities on lands that are outside of their reservation boundaries.
Thirty applications for gaming or gaming related acquisitions are
pending, only ten of which involve so called ``off reservation''
acquisitions. These numbers are minuscule given the fact that there are
more than 560 federally recognized tribes in the United States. All
these tribes have played by the rules as created by Congress and
implemented by the Department of the Interior. We are simply seeking to
ensure that we have the same right as other Indian tribes to conduct
Indian gaming under current law.
Question 6. 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 to Question 6.
We do not see how this question is relevant to scope of the April
27, 2005, hearing on ``Tribal Proposals to Acquire Land in Trust for
Gaming Across States Lines, and How Such Proposals are Affected by the
Off Reservation Discussion Draft Bill'' or my testimony before the
Committee. Nevertheless, we answer generally as follows.
Indian tribes engage in a government-to-government relationship
with the United States and represent a number of tribal people, thus
they are defined as an unincorporated entity according to the Federal
Election Commission (``FEC''). This relationship makes tribes unique.
As such, Indian tribes are generally able to donate to election funds
assuming that each donation does not exceed the limits set by the FEC.
A tribe may use its general treasury funds to contribute directly
to federal candidates (and to Indian PACs which will give to federal
candidates), under the following conditions: (1) the tribe is
unincorporated and its primary purpose is not to make political
contributions; (2) the tribe, or any business operated within the
tribal structure, is not a federal contractor with procurement
contracts; (3) any revenues from a tribal corporation must not be
commingled with tribal treasury funds to be used to make contributions
to federal candidates; and (4) the federal funds the tribe receives
under Pub. L. 638 contracts and federal grants must be kept separate
from, and not commingled with, general treasury funds to be used for
federal contributions. If the above conditions are met, the tribe may
use its general treasury funds to contribute ``hard'' money, subject to
the same federal limits that apply to any person's contributions.
``Hard'' money contribution limits apply to tribes because a tribe is
treated as a ``person'' under federal election law, but not as an
``individual'' for the purposes of the applicable federal aggregate
limits.
B. Responses to Questions Submitted by Congressman Dale E. Kildee
Question 1. Please explain whether you believe the current federal
administrative process for taking land into trust and those
requirements of the Indian Gaming Regulatory Act are sufficient
to prevent a tribe from building a gaming facility on land far
away from its existing reservation where the tribe may not have
an historical or ancestral connection to the land?
Answer to Question 1.
We believe the current law and the current process work as
intended. The Tribe further believes that, like every other situation,
ours is unique. Each piece of land has its own history and so it is
with each tribe. Each particular situation must be considered on its
own merits. This process works.
Question 2. Do you believe a tribe should have an historical
connection to the land on which it seeks to building a gaming
facility?
Answer to Question 2.
Again, we believe that like every other situation, ours is unique.
Only so many tribes have a historic or cultural connection to any given
state. Each piece of land has its own history and so it is with each
tribe. Each particular situation must be considered on its own merits.
For the Eastern Shawnee, there is no question that Ohio is our
homeland. The Eastern Shawnee seek to reestablish a presence in Ohio as
part of a welcome and mutually beneficial relationship conducted on a
government-to-government basis both with the State and the local
governments that may one day be our neighbors once again.
We do wish to finally resolve our outstanding land claims, but not
in a manner that will be detrimental to the people of Ohio. Those with
whom we have established a relationship understand our intentions and
have welcomed us into their communities to discuss the potential for
tribal gaming. In fact, local communities in the state of Ohio have
actively sought out the Tribe and asked us if they can help bring the
Shawnee back to our homeland. We are committed to working through
appropriate governmental channels in Ohio to ensure that we are
welcomed back to our homeland. We do not believe a tribe need have a
historical connection to the specific parcel of land on which a gaming
facility is sited. To so require, would tie the hands of all those
involved in attempting to settle claims. It might require the
displacement of current owners of historical land rather than allowing
flexibility in choosing land to settle the claims.
Question 3. What would you recommend as the standard for determining
whether a tribe has an historical connection to the land?
Answer to Question 3.
We do not believe we are in a position to suggest a ``standard''
for determining whether a tribe has ``an historical connection to the
land.'' Many factors may come into play. For instance, issues such as
whether a tribe had a reservation, villages, or hunting and fishing
rights in a particular state may be relevant. Each particular situation
is unique must be considered on its own merits.
Question 4. Should a tribal land claim resolved by the Indian Claims
Commission, Court of Claims, Congress or other forum involving
land in a state where a tribe once occupied, but is no longer
situated, prevent a tribe from claiming that it has an
historical connection to that land for purposes of building a
gaming facility there?
Answer to Question 4.
``Land claims'' per se were not resolved by the Indian Claims
Commission. The Indian Claims Commission had limited jurisdiction. The
Commission was created by the Indian Claims Commission Act of 1946, 25
U.S.C. Sec. 70 et seq., in order to resolve claims for compensation for
lands that were taken by the United States from tribes without just
payment. Tribes, and the persons who advanced claims on behalf of
tribes, had to present evidence of aboriginal use and occupancy of
lands that were normally memorialized in findings of fact of the
Commission. If the Commission found evidence of exclusive use and
occupancy for a certain period of time, the Commission would normally
award some nominal compensation. However, the Indian Claims
Commission's final orders only dealt with compensation, not
determinations of unresolved land claims, land title or use rights.
For instance, the Indian Claims Commission was not empowered to
resolve claims concerning violations of the Nonintercourse Act, 25
U.S.C. Sec. 177, or claims concerning trespass or wrongful possession.
There is no federal statute of limitations governing federal common-law
actions by Indians to enforce property rights. Therefore, we do not
believe that the Indian Claims Commission should be used as a vehicle
to deny an ``historic connection'' to land. However, Commission
findings of fact concerning use and occupancy of lands by tribes may be
considered as a factor, among others, that Congress or the Department
of the Interior may wish to consider as evidence of historical
connection to a particular place.
Question 5. Please describe any tribal claims against the federal
government that have been initiated by your tribe or resolved
by the Indian Claims Commission, Court of Claims, Congress or
any other forum arising in the state in which you propose to
build a gaming facility?
Answer to Question 5.
Because the Tribe may end up in litigation concerning its claims in
Ohio, we do not believe it would be appropriate for the Tribe to
discuss these matters in detail at this time. However, some claims were
initiated by persons acting as representatives of the Eastern Shawnee,
the Absentee Shawnee, and individual members of the Shawnee Tribe. See
generally, ICC Docket No.64, 64-A, 335 and 338. As discussed below, in
that litigation the Indian Claims Commission did determine that the
Shawnee aboriginally used and occupied vast areas of what is now the
state of Ohio. Additional research also supports that determination.
The areas found to be Eastern Shawnee lands included what is know
as Central Royce Area 11. This area is bounded on the east and the
south by the Ohio River, on the west by the drainage between the Scioto
River and the Great Miami and little Miami Rivers (which may be
described as a north/south line from northeastern Logan County on the
Greenville Treaty line to the southeastern corner of Brown County on
the Ohio River), and on the north by the Greenville Treaty line from a
point in northeastern Logan County east to the northeast corner of Knox
County. Strong v. United States (Dkt. Nos. 64, 335 & 338), 31 Ind. Cl.
Comm. 89, 157 n. 6 (1973), Strong v. United States, 518 F.2d 556 (Ct.
Cl. 1975), cert. denied, 423 U.S. 1015 (1975). The predominant
topographical feature of this region is the Scioto River which flows
into the Ohio River at present-day Portsmith and the Scioto's
tributaries. Id. In central Royce Area 11 ``the Shawnees were
predominant.'' Id. at 98. ``[T]he Shawnees continuously used and
occupied [central Royce Area 11] from the late 1730s until they were
forced to abandon these lands in the late 1770s.'' Id. at 122. Until
they were forced out in the late 1770s, the Indian Claims Commission
concluded that ``the Shawnees had established Indian title to the area
bounded on the north by an east-west line running along the 40 north
latitude and on the south by a straight line running from the City of
Athens in Athens County west to the town of Highland in northern
Highland County, and bounded on the east and west by the lines
described in the aforementioned footnote as the east-west boundaries of
central Royce Area 11.'' Id. at 123, 136.
In addition, the Indian Claims Commission noted that the Shawnee
were known to have hunted extensively in this area and had ``as many as
sixteen villages on the upper Great Miami River and its tributary, the
Mad River.'' Id. at 123. The Indian Claims Commission also acknowledged
that the ``Shawnees are also known to have hunted extensively in
western Royce Area 11. Id. at 125. Moreover, the Indian Claims
Commission noted that archaeological evidence from sites around
Cincinnati indicates the possible presence of Shawnee or Shawnee-
related Indians at an early date in the area (approximately 1660). Id.
at 153 n.2. In Docket No. 64-A, the Indian Claims Commission affirmed
Shawnee aboriginal possession and determined that the Shawnee held an
undivided one-tenth interest in Royce Area 87 (northwest Ohio). Strong,
43 Ind. Cl. Comm. at 331.
Question 6. Please provide the details if your tribe has shared a
judgment award granted by the Indian Claims Commission, Court
of Claims, Congress or any other forum with other bands, tribes
or groups for tribal claims arising in the state in which you
propose to build a gaming facility. And, please explain whether
you believe those bands, tribes, or groups, if federally
recognized as an Indian tribe, should have the same opportunity
to build a gaming facility in the same area where your tribe
proposes to build a gaming facility?
Answer to Question 6.
Please see answer to Question 5 above. The plaintiffs in the Strong
litigation accepted $1,745,146.86, a little more than one dollar an
acre, for compensation of the Shawnee's exclusive ownership of
1,667,496 acres in present-day Ohio. Strong v. United States, Findings
of Fact On a Compromise Settlement, 40 Ind. Cl. Comm. 161, 161, 173
(1977) (Dkt. Nos. 64, 335, and 338). The plaintiffs were generally
descendants of five ``Shawnee'' groups, known as ``septs''. The five
septs are as follows: Chillicothe (Calaka, Chalaakaatha, Chalahgawtha);
Hathawekela (Oawikila, Thaawikila, Thawegila); Kispoko (Kiscopocoke,
Kispokotha, Spitotha); Mequachake (Maykujay, Mekoce, Mekoche); and the
Piqua (Pekowi, Pequa). We note that this settlement has nothing to do
with the lands or other claims at issue in our present claim. The three
plaintiff groups involved in the ICC case included the Eastern Shawnee,
Absentee Shawnee, and Cherokee Shawnee. Of these, only two (i.e.,
Eastern Shawnee and Absentee Shawnee) are federally recognized tribes.
No other tribes have made a claim for lands in Ohio and no other
tribe has a similar history of such gross injustice in the state. In
addition, the state of Ohio and the Eastern Shawnee may enter into a
compact to limit Indian gaming to just the Eastern Shawnee on lands
that the Tribe may obtain in settlement of its claim. We do wish to
finally resolve our outstanding land claims, but not in a manner that
will be detrimental to the people of Ohio.
Thank you for the opportunity to answer the Committee's questions.
______
Response to questions submitted for the record by Craig Foltin,
Mayor, City of Lorain, Ohio
Thank you for your letter of May 17, 2005 seeking my responses to
Representative Gibbons' questions in follow-up to the Committee's
recent hearing on ``off-reservation'' gaming. It was a privilege to
testify before the House Resources Committee to present our view that
the Indian Gaming Regulatory Act should not be amended to preclude
tribe's from establishing ``off-reservation'' gaming facilities. We
hope that our testimony was useful in establishing that there are many
good reasons to leave the door open to Indian gaming in cities such as
ours that would welcome a tribe such as the Eastern Shawnee to re-
establish a presence in its aboriginal homeland. In our view, the
complete elimination of such opportunity benefits neither tribal or
state and local governments. As the law stands today, the opportunity
exists, but may only be realized if the ends are desired by tribal,
local and state governments. Accordingly, it is my pleasure to respond
to the questions posed by Congressmen 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?
In our view, the law as currently in place, is appropriate and
should not be changed. We believe that it is important for Congress to
understand that the proposed changes in the legal framework not only
restrict opportunities for Indian tribes, but also those of state and
local governments. In addition to the economic benefits that a
distressed city such as ours would derive from the establishment of a
gaming operation generally, Indian gaming provides certain advantages
that are absent in the context of commercial gaming.
From a public policy perspective, a major issue in relation to
commercial gaming is the question of how to limit proliferation. While
some communities might embrace the establishment of a gaming
destination, many of these same communities would not approve of
multiple sites or the introduction of gaming machines in every bar or
restaurant. Moreover, the greater the number of gaming locations, the
greater the regulatory burden and the potential for abuses. However, it
is more difficult to place legislative parameters on the proliferation
of commercial gaming given Constitutional and other legal constraints.
If you were to proceed with changes, I would suggest an allowance
for off reservation gaming if approved by the local government or even
a vote of the citizens of a local government.
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.
Use of the term ``reservation shopping'' presumes that tribes are
unilaterally seeking to establish gaming operations outside of their
present geographic locations. In the case of the Eastern Shawnee, it
was the City of Lorain that made the initial contact with the Tribe.
The fact that the law provides a means for a tribe to return to its
aboriginal homeland also provides a means for cities and states to
reach out to tribes to establish political and economic relationships
of mutual benefit to both parties. I again would suggest allowing the
local government to have a choice in the matter.
2. When tribes seek to enter already established gaming areas, doesn't
that create an uneven playing field since tribes art not
subject to state regulations; are not subject to the
restrictions placed on other gaming establishments; do pay not
state taxes; etc.?
As there are no federally recognized Indian tribes located within
the State of Ohio, the issue of having a tribe enter an established
gaming market of another tribe is not applicable to our particular
situation. Ohio state law, however, does provide for a state lottery,
horse racing, and charitable gaming. Since the establishment of Class
III tribal gaming requires a tribal-state compact, however, the state
has a means to work with the Tribe to resolve any issues that may arise
in relation to competition among the various gaming interests in Ohio.
As to state regulation, the requirement for a tribal-state gaming
compact in the IGRA serves as a mechanism for the tribe and a state to
mutually agree upon the scope of state regulation, hence IGRA does
provide a mechanism for state regulation in relation to tribal gaming.
On the tax issue, it is true that tribes may not be taxed by state and
local governments, but tribes as a routine matter compensate state and
local jurisdictions for the delivery of governmental services by means
of payments in lieu of taxes and IGRA permits revenue sharing with
states to off-set the regulatory costs associated with tribal gaming
facilities pursuant to mutual agreement through the compacting process.
Moreover, tribes and states and local governments routinely enter into
additional compacts to address other taxation issues, such as the
collection and remittance of state taxes on employees of tribal gaming
operations as tribal employees are not exempt from state and federal
income taxes as a general rule. In our case, we have addressed these
concerns with the Eastern Shawnee Tribe to our mutual satisfaction.
3. What criteria should be used by the Department of the Interior in
it's determination of land-into-trust?
We understand that the Interior Department has a longstanding
regulatory framework for taking land into trust for tribes and has
issued a proposed rule governing the taking of land into trust for
tribes for purposes of gaming under Section 20 of IGRA. We believe that
the policies reflected in the existing regulatory framework as well as
in the proposed Section 20 regulation adequately address concerns in
this regard.
Should there be a requirement of substantial
historical connection between the tribe and the parcel to be
taken into trust? Why or why not?
We understand that the Interior Department at least informally
already requires such a connection and can readily address this issue
through the rulemaking process.
How near in time should the historical connection be?
100 years? 200 years?
Our view is that any specific requirement for a historical
connection should not be subject to an arbitrary timeframe, but rather
be focused on whether the area constitutes the aboriginal territory of
the tribe. We understand that the Indian Claims Commission decades ago
established a map demarcating the aboriginal territories of tribes
based on archeological and anthropological data. This information could
be used as a basis for determining an historic nexus between tribes and
particular sites.
What about distance from the tribe's current service
area? 10 miles? 20 miles? 70 miles?
Such a limitation on distance would preclude the Eastern Shawnee
Tribe from establishing a gaming facility in the City of Lorain or any
other site in Ohio. Accordingly, we would not be supportive of a
distance restriction.
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?]
In our view, it is true that the City of Lorain would likely derive
greater direct benefits from the establishment of an Eastern Shawnee
tribal gaming facility than will the Eastern Shawnee Tribe in terms of
increased employment, jobs, related business development, increased
tourism, and the income tax on employees of the facility. However, the
benefit to the Tribe is that the revenue potential from a facility in
the City of Lorain or any site in Ohio is vastly greater than possible
if the Tribe were restricted to gaming in its current largely rural and
underdeveloped location.
While the City would welcome members of the Tribe and anticipate
that some may desire to relocate to work at the facility, we view it as
highly unlikely that the entire general membership would relocate to
Ohio. Our view is that the Tribe will more likely invest its revenues
so as to improve the quality of life and economy of its members
residing in Oklahoma. Moreover, we believe that achieving a higher
level of prosperity will strengthen, not weaken the tribal community.
4. If landless, shouldn't land-into-trust be restricted to the area
where the tribe is located? Where they live, need jobs, need
health services?
See previous answer. We believe the Eastern Shawnee have an
opportunity not only to dramatically improve its own economic
conditions, but those of non-tribal communities in both Oklahoma and
Ohio. Therefore, we believe such restrictions would not be good and
prevent Lorain from improving its own condition.
5. If some tribes are permitted to select the ``best gaming''
locations, wouldn't all tribes want to do that?
In our view, all communities want to maximize their economic
potential. Such desire, however, is not determinative of whether a
tribe will succeed in establishing an ``off-reservation'' gaming site.
The IGRA contains checks and balances that restrict the capacity of
tribes to establish off-reservation facilities where such facilities
are not welcome by the state and local community. The question, thus,
is not one of what a tribe may wish, but rather whether it is able to
meet all the legal requirements and establish the political
relationships essential to the establishment of an off-reservation
gaming site. Under existing law both tribes and states have the
opportunity to establish mutual beneficial relationships; but there is
no guarantee that such opportunity will be realized in the absence of
willing parties to the relationship.
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?
All tribes must comply with the law and implementing regulations.
The IGRA does not restrict the opportunity for tribes with existing on-
reservation sites from seeking to establish off-reservation gaming
sites as well. Again, however, it does not guarantee any particular
tribe success in such endeavor. We feel an Indian Casino in Lorain,
Ohio would not negatively impact any gaming facilitates on any
reservations.
6. 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.
We respectfully decline comment as we are unfamiliar with the law
in this regard.
Thank you again for the opportunity to provide additional comments.
______
Response to questions submitted for the record by John Warren Kindt,
Professor, University of Illinois
Question 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 regard?
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.
Response: The honorable Member raises salient questions concerning
the extensive and rapid spread of tribal gambling facilities and their
negative impacts upon the U.S. economy and population. One option for
Congress is to enact legislation eliminating land-into-trust and
prohibiting reservation shopping. Experts have maintained that
eliminating land-into-trust is the only workable solution.
Another option which would eliminate the many abuses of the Indian
Gaming Regulatory Act (IGRA) would be to repeal this problematic
legislation. For a recent example, the case of Dalton v. Pataki,----
N.E.2d----, 2005 WL 1017641 (N.Y. Ct. App., May 3, 2005) is currently
scheduled for appeal to the U.S. Supreme Court, because it apparently
held that IGRA preempted and superseded the ban on gambling mandated in
the New York Constitution (see N.Y. Const., Art. I, sec. 9).
Congressional hearings on the option of repealing IGRA would also
provide opportunities to delimit practical alternatives to IGRA.
Jointly and severally to acting on eliminating land-in-trust and/or
IGRA, Congress should enact the National Tribal Gambling Impact Study
Commission as proposed by U.S. Representatives Christopher Shays, Frank
Wolf, et alia.
Economics codifies that a nation cannot gamble itself rich.
Furthermore, summary analyses of the socio-economic costs of gambling
have continued over the years to conclude that the cost/benefit ratios
for gambling activities are $3 in costs for every $1 in benefits (see
Table of Studies from 22 Manag. & Decision Econ. 143, 153 (2001) which
is attached to Prof. Kindt's testimony of April 27, 2005). In this
context, proposals to spread tribal casino gambling would be rejected
by objective analysts.
Activities which are commonly termed ``reservation shopping'' and
``off-reservation gaming'' coalesce as attempts to locate close to
major population areas with as many slot machine/electronic gambling
devices (slots/EGDs) as can be negotiated. These machines constitute 70
to 100 percent of casino gambling revenues--except most notably in Las
Vegas where this percent has had traditional limits (e.g., 50 percent)
to keep card games with a viable market share. The Final Report of the
1999 National Gambling Impact Study Commission noted that these
machines were delimited by the psychological community as the crack-
cocaine of gambling addiction (see, e.g., NGISC Final Report at 5-5)
and recommended that these machines not be located convenient to the
public and that states ``should cease and roll back existing
operations'' (NGISC recommendation 3.6).
The honorable Member notes that there are currently ``over 300
tribes seeking recognition and presumably gaming,'' but these 300
tribes would only be the first wave of off-reservation gambling.
Accordingly, reservation shopping and off-reservation gambling would be
extremely detrimental to the host communities in the casinos' feeder
markets and to the entire U.S. strategic economy.
Question 2: When tribes seek to enter already established gaming
areas, doesn't that create an uneven playing field since tribes
are not subject to state regulations; are not subject to the
restrictions placed on other gaming establishments; do not pay
state taxes; etc.?
Response: This question lists only some of the competitive
advantages which tribal gambling establishments have over nontribal
gambling establishments and also over nongambling businesses trying to
compete for consumer dollars. Regarding one topic of the Committee's
April 27 hearing, local business and community opposition was evidenced
by 9,000 petitions against the Ho-Chunk casino proposal for the
Lansing/Lynnwood area of Illinois (Chicago Tribune, Oct. 16, 2004, at
16). On February 17, 2004, a similar Ho-Chunk casino proposal was
defeated by a 65 to 35 percent vote of the University of Wisconsin
academic community in Madison, Wisconsin--despite a $1.3 million Ho-
Chunk campaign against little organized opposition (see, e.g., Judith
Davidoff, Defeated, Ho-Chunk to Refocus, Capital Times (Madison, Wis.),
Feb. 18, 2004, at A1).
Tribal leaders with gambling operations have been outspoken about
protecting these competitive advantages via expanding the scope of
tribal sovereignty. States such as Minnesota have experienced
difficulties and friction in their dealings with tribes over their
casinos and the practical inability to adjust compacts. The National
Gambling Impact Study Commission complained about the ``unwillingness
of individual tribes, as well as that of the National Indian Gaming
Association (the tribe's lobbyists) and the National Indian Gaming
Commission (the federal agency that regulates tribal gambling), to
provide information to this Commission, after repeated requests and
assurances of confidentiality, ``.'' (NGISC Final Report at 7-9). If
enacted, the proposed legislation for a National Tribal Gambling Impact
Study Commission could address these issues.
Question 3: 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? 20 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?]
Response: This question poses many of the issues which arise
involving the Department of Interior's determination of land-into-
trust. One option for serious consideration would be legislatively to
eliminate land-into-trust because it is an unworkable concept when
linked with gambling. Each of the honorable Member's questions raises
definitional issues which have inherent ambiguities, such as: What
constitutes a ``substantial historical connection''? The lobbying power
of tribal gambling interests vis-a-vis social welfare groups almost
guarantees that the ambiguities inherent in land-into-trust issues will
be decided in favor of expanding tribal gambling to the public
detriment. Legislatively eliminating land-into-trust (or at least,
prohibiting gambling on any land-into-trust properties) would appear to
eliminate these issues.
With regard to jobs for Native Americans via tribal gambling
facilities, a study sponsored by the Associated Press has raised
significant doubts about job benefits to most Native Americans (see,
e.g., Assoc. Press, Casino Boom a Bust for Most Members of Indian
Tribes, News-Gazette (Champaign, Ill.), Sept. 2, 2000, at A1). The
issue of a tribal casino's distance from the tribe's main population
base would argue for less impact on tribal unemployment, particularly
since middle and upper management positions reportedly tend to be
filled by nontribal employees. However, the main job impact involves
lost jobs in the consumer economy ``feeder markets.'' These lost jobs
to the pre-existing consumer economy significantly outnumber the jobs
created by the tribal casino (because of the reliance of tribal
casinos, in particular, on slots/EGDs). These lost jobs in the consumer
economy correlate to the numbers of slots/EGD machines.
It has also been postulated that absent tribal gambling, none of
the aforementioned definitional issues is really an issue. These
concerns argue for the enactment of the proposed National Tribal
Gambling Impact Study Commission.
Another legislative option would be to repeal the Indian Gaming
Regulatory Act and transform the existing gambling facilities into
educational and practical technological facilities. Such an option may
have to survive a challenge to the U.S. Supreme Court, but given the
many abuses linked to IGRA and the socio-economic arguments, California
v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) may be ripe to
be overturned. Since IGRA was drafted and enacted on a fast track the
year after Cabazon, IGRA's multiple defects should have been expected.
Congress should consider repealing IGRA in anticipation of new
legislation tempered by two decades of problematic experience.
Question 4: 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?
Response: It would seem logical that land-into-trust should be
restricted to where the tribe is located if the tribe is landless, but
how is the ``location'' of a landless tribe initially to be delimited?
Given the historical roaming of many tribal bands, it would be unusual
if a band could not find some historical connection to one or more of
today's population centers.
The more important problem with landless tribal members is that
tribal members can claim that individual bands should have tribal
status or that even individual Native Americans should be recognized as
a tribe.
Theoretically, numerous Native Americans could eventually claim
distinctions under their tribal law that argued for tribal status as
separate bands, and it would be reasonable to anticipate new landless
small bands or even individuals involved in future reservation
shopping. Prodding this trend would be millions of dollars in
incentives to establish Native American gambling facilities as close as
possible to population centers. Tribes with three members or a few
dozen members have already been recognized (see, e.g., Donald L.
Barlett & James B. Steele, Look Who's Cashing In At Indian Casinos:
Hint: It's Not The People Who Are Supposed To Benefit, Time, Dec. 16,
2002, at 46 (cover story)).
In the instance of the Ione Band of Miwok Indians, the Bureau of
Indian Affairs (BIA) reportedly opened the membership roles in 2004 and
``Among the new members are several BIA employees and dozens of their
relatives.'' (Don Thompson, Assoc. Press, Seattle Times, Feb. 23,
2004).
Question 5: 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?
Response: From the perspective of the operators of tribal gambling
facilities, the U.S. population centers constitute the prime gambling
locations. By whatever justification or rationale, the ``fairness'' of
allowing one tribe vis-a-vis another tribe to conduct gambling in the
U.S. population centers needs to be weighed against the overall
detriment to the consumer economy and increased criminal costs
(summarized previously as $3 in costs for every $1 in benefits).
Related problems involve many tribes with gambling who are
diverting their surplus cash (or even cash which should be used to
benefit their own members) to seek out and use other tribes as conduits
for reservation shopping. For example, the Iowa tribe of Kansas and
Nebraska, a small Kansas tribe with a few hundred members, is proposing
to move their casino 236 miles from their reservation in northeast
Kansas to Park City, which borders Wichita, the largest city in Kansas.
Approximately 700,000 people live within the 50-mile feeder market of
the proposed casino. However, the Mashantucket Pequot tribe of
Foxwoods, Connecticut, will provide the necessary $270 million
financing and operate the casino. To date, the Kansas legislature, the
Wichita City Council, and the Sedgwick County Commission have shown no
interest in this proposed casino. Kansas Governor Kathleen Sebelius has
therefore refused to engage in compact negotiations with the tribe--
despite the efforts of the casino promoter retained by the tribe, a
former Wichita mayor (see generally, Glenn O. Thompson, Casino Plan a
Threat to Community, Wichita Eagle (Kan.), May 12, 2005).
Question 6: 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.
Response: The honorable Member notes ``that tribes are exempt from
overall donor limits and can give directly from their treasuries.'' The
potential abuses have increased exponentially since the article in 556
Annals of the Am. Acad. of Political & Soc. Sci. 85 (1998). See also,
e.g., Editorials, N.Y. Times, Mar.1, 2002 & Apr. 4, 2002; Susan
Schmidt, Wash. Post, Feb. 22, 2004. These types of concerns argue
further for the need for a National Tribal Gambling Impact Study
Commission and for the elimination of land-into-trust gambling
acquisitions.
______
NOTE: Responses to questions from Wade Blackdeer, Vice-President,
Ho-Chunk Nation, and William Blind, Vice-Chairman, Cheyenne and Arapaho
Tribes of Oklahoma, have been retained in the Committee's official
files.