[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
H.R. 4893, TO AMEND SECTION 20 OF THE INDIAN GAMING REGULATORY ACT TO 
                    RESTRICT OFF-RESERVATION GAMING

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

                           LEGISLATIVE HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                       Wednesday, March 15, 2006

                               __________

                           Serial No. 109-43

                               __________

           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
Henry Brown, Jr., South Carolina     Mark Udall, Colorado
Thelma Drake, Virginia               Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico         Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel


                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Wednesday, March 15, 2006........................     1

Statement of Members:
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     1

Statement of Witnesses:
    Cason, James, Associate Deputy Secretary, U.S. Department of 
      the Interior...............................................     3
        Prepared statement of....................................     4
    Hogen, Philip N., Chairman, National Indian Gaming Commission     5
        Prepared statement of....................................     6


  LEGISLATIVE HEARING ON H.R. 4893, TO AMEND SECTION 20 OF THE INDIAN 
       GAMING REGULATORY ACT TO RESTRICT OFF-RESERVATION GAMING.

                              ----------                              


                       Wednesday, March 15, 2006

                     U.S. House of Representatives

                         Committee on Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 3:03 p.m. in Room 
1324 Longworth House Office Building, Hon. Richard W. Pombo 
[Chairman of the Committee] presiding.
    Present: Representatives Pombo, Gibbons, Grijalva, Herseth, 
Kildee, Pearce, Wu, Costa, Udall of New Mexico, Walden

  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 H.R. 
4893, a bill to amend Section 20 of the Indian Gaming 
Regulatory Act to restrict off-reservation gaming.
    Under Rule 4[g] of the Committee Rules, any oral opening 
statements at hearings are limited to the Chairman and the 
Ranking Minority Member. This will allow us to hear from our 
witnesses sooner and help Members keep to their schedules. 
Therefore, if other Members have statements, they can be 
included in the hearing record under unanimous consent.
    At this time, I ask unanimous consent to allow Mr. Wu of 
Oregon to participate in today's hearing. Without objection, so 
ordered.
    H.R. 4893 is the product of nearly two years of Committee 
hearings, tribal consultation, and meetings with county and 
state officials and private citizens' groups. During this time, 
I made two discussion draft bills available to the public for 
review and comment. I intend to continue in this spirit of 
openness and transparency as the bill moves through the 
committee process and to the Floor.
    Indian gaming in 2006 looks a lot different from Indian 
gaming in 1988, the year that the Indian Gaming Regulatory Act 
was signed into law. Measured in terms of revenue, it has grown 
100 times in size over 18 years. In this light, there is almost 
no way that Congress can escape a review of IGRA.
    An industry that has grown by such leaps and bounds on 
reservation is now proposing new casinos off reservation in 
order to obtain access to more lucrative markets. In many 
cases, proposals to build casinos in communities that did not 
expect them are a great source of distress to private citizens, 
landowners, and nearby Indian tribes. Keeping those facts in 
mind, here are the basic problems the legislation is meant to 
address.
    Some tribes seek to cross state lines to open casinos in 
states that currently have no recognized tribes or Indian 
gaming. The resulting backlash in those states affects not only 
these tribes but all of Indian gaming. Some tribes filed 
lawsuits or claims seeking to recover land in areas more 
lucrative for gaming. Often these claims are filed seeking 
large areas of land with the intention of forcing a settlement 
involving a casino and a small parcel of land in compensation.
    There are tribes who currently have a gaming operation but 
seek better, more lucrative land closer to population centers. 
Landless, newly restored, and newly recognized tribes sometimes 
try to stretch the limits of what area qualifies for an initial 
reservation in order to get the most lucrative lands possible 
for gaming, irrespective of their ties to that land.
    In these foregoing examples, local communities and nearby 
Indian tribes feel that they have no power in the land-into-
trust process to oppose casinos that they are not in favor of. 
H.R. 4893 will make these problems disappear.
    The bill repeals the two-part determination, the land claim 
exception, and establishes new requirements for newly restored, 
recognized, and landless tribes to meet. The requirements for 
more local participation are my response to strong comments I 
have received over the last two years from states and county 
governments.
    Finally, to encourage consolidation of gaming facilities 
within existing reservations where casinos are welcome, the 
bill authorizes tribes to collocate their casinos when invited 
by the host tribe.
    H.R. 4893 is a carefully balanced, reasonable bill that 
provides a tune up for an important economic engine for tribes. 
I look forward to hearing from today's witnesses. I would like 
to call up our two witnesses today, Jim Cason, the Associate 
Deputy Secretary of Interior; and Phil Hogen, Chairman of the 
National Indian Gaming Commission. They are accompanied, 
respectively, by George Skibine and Penny Coleman.
    If I could have you stand and administer the oath. Please 
raise your right hand.
    [Witnesses sworn.]
    The Chairman. Thank you. Let the record show they answered 
in the affirmative.
    Let me take this time to remind all of today's witnesses 
that, under Committee Rules, oral statements are limited to 
five minutes. Your entire written statement will appear in the 
record.
    We are going to begin with Mr. Cason.

  STATEMENT OF JAMES CASON, ASSOCIATE DEPUTY SECRETARY, U.S. 
  DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY GEORGE SKIBINE, 
 ACTING DEPUTY ASSISTANT SECRETARY - INDIAN AFFAIRS FOR POLICY 
   AND ECONOMIC DEVELOPMENT, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Cason. Good afternoon, Mr. Chairman. Thank you so much 
for giving us an opportunity to come up and discuss H.R. 4893, 
a bill to restrict Indian gaming and amend Section 20 of IGRA. 
I have a couple of brief comments to make, and then we will 
leave the rest of the time for questions from the Committee.
    First, the bill being relatively new, the Administration 
has not taken a position on the bill yet, so what I am offering 
is some observation and comments that we can discuss later.
    First, it is clear that Congress has a plenary power to 
establish the rules of the game to allow Indian gaming in 
certain ways. It did so initially with establishing IGRA, and 
Congress has the power to amend the rules. However, there is 
some concern on our part about the effects of amending the 
rules that we are looking at here.
    One of the things that we would like to just get on the 
table is that there is both a good side of the issue of Indian 
gaming, which is initially when the bill was passed in 1988, 
there was a recognition that Indian Country, as a subpopulation 
of the United States, is relatively poor and that the need for 
economic development was a profound one and that seeing on the 
horizon a general constraint on tax revenues that could be 
provided to Indian Country to foster economic development and 
operations of the Indian programs would not be a complete 
enough answer, Congress provided an opportunity for self-
economic development through gaming. As you mentioned, Mr. 
Chairman, that has had a pretty profound effect on Indian 
Country so far, getting us to a position of producing about $19 
billion into Indian coffers in various quarters. So it has an 
important element to play in Indian Country.
    We also have some of the same concerns as the 
Administration and the Department of the Interior about the 
prospects for reservation shopping and venue shopping, and, in 
large part, the Department of the Interior is on the front line 
of managing that issue, and we have that concern as well. But 
in terms of how to address that concern, one of the things that 
we would like to discuss with the Committee is the right tools 
to look for a proper balance between affording opportunity to 
Indian Country and how we manage the concerns of the public 
about venue shopping or reservation shopping.
    So we would like to have some opportunity in providing 
feedback on the bill to talk about other mechanisms that might 
be used, both regulatory or statutory, to try and constrain in 
a proper way what the concerns are about reservation shopping 
and venue shopping.
    The end result of our thinking process so far is that we 
would like to see if we can find the right balance between the 
concerns of the public and the needs of Indian Country, and it 
appears at this point that where we are with the bill is that 
there is a prospect that those who had their reservation lands 
as of 1988 end up in a relatively good position that they can 
conduct gaming on reservations. It would constrain their 
ability to come off the reservation to better opportunities to 
conduct gaming, and those who are landless tribes or new 
tribes, newly recognized tribes, would not have the privilege 
of using gaming as a tool to foster economic development.
    So we would like to see if there are other tools that we 
can bring to bear to try to have both the benefits of economic 
development and constrain reasonably how it gets used.
    So with that, Mr. Chairman, that is our opening statement, 
and I am happy to answer questions.
    [The prepared statement of Mr. Cason follows:]

         Statement of James Cason, Associate Deputy Secretary, 
                    U.S. Department of the Interior

    Good morning, Mr. Chairman and members of the Committee. My name is 
James Cason, and I am the Associate Deputy Secretary at the Department 
of the Interior. I am accompanied by George Skibine, the Acting Deputy 
Assistant Secretary--Indian Affairs for Policy and Economic Development 
at the Department of the Interior. I am pleased to be here today on the 
Department's behalf to speak to some of the issues raised by H.R. 4893, 
a bill to amend Section 20 of the Indian Gaming Regulatory Act (IGRA) 
to restrict off-reservation gaming.
    The Administration has not yet determined a position on H.R. 4893, 
which was introduced just last week on March 8, 2006. The bill modifies 
the current law in significant ways, and we will need time to assess 
the implications of these proposed changes. As noted below, however, 
there are some provisions in the bill that raise important issues to be 
addressed.
    H.R. 4893 would eliminate the so-called ``two-part determination'' 
exception contained in Section 20(b)(1)(A) and would eliminate the 
``settlement of a land claim'' exception contained in Section 
20(b)(1)(B)(i). The bill would also modify the exceptions contained in 
Section 20(b)(1)(B)(ii) and (iii) by imposing additional requirements 
before gaming can be authorized on land taken into trust for restored, 
newly-recognized, or landless tribes. The bill would add a new 
subsection (e) to Section 20 to permit an Indian tribe to host one or 
more other Indian tribes to participate in gaming activities on the 
host tribe's reservation. Finally, H.R. 4893 would add a new subsection 
(f) to prohibit tribes from conducting gaming outside of a State in 
which the tribe has its reservation as of the date of enactment. The 
only exception would be for tribes that have contiguous land to that 
reservation in another State.
    Nearly twenty years ago, Congress enacted IGRA as a tool to promote 
tribal economic development and self-sufficiency. Certainly, Congress' 
vision has been realized, and gaming has enabled well over 200 Indian 
tribes to generate their own revenue and reduce their reliance on 
Federal funds to implement a variety of tribal economic initiatives in 
the areas of health, housing, education, and other government services. 
Consistent with IGRA, the Department supports the right of Indian 
tribes to engage in gaming activities for the purpose of developing 
strong tribal economies.
    The success of Indian gaming in general has had the perhaps 
unintended consequence of fostering proposals for Indian gaming 
facilities on off-reservation lands, often near interstate highways or 
urban areas, and sometimes in states where the tribe is not presently 
located. Currently, the Department has identified twenty-three pending 
applications to take off-reservation land into trust for gaming under 
the exceptions contained in Section 20, and we are aware that there are 
numerous other proposals in the making. The Department has raised 
concerns in the past regarding the scope of the exceptions contained in 
Section 20, and we support the efforts of this Committee to address 
some of these issues. For instance, we agree that it makes sense to 
require a tribe to have a historical nexus to the area where the land 
for gaming purposes is located, and to extend the analysis of detriment 
to the surrounding community and a requirement to negotiate inter-
governmental agreements for the purpose of mitigating direct impacts.
    However, the bill would also impose some additional requirements on 
restored, newly recognized, and landless tribes that could effectively 
stifle any opportunities these tribes may have to engage in gaming 
activities under IGRA. The bill would also grant veto power to State 
legislatures and nearby tribes located within 75 miles of a proposed 
acquisition, provisions that may not be necessary to achieve the 
intended goal of the legislation. As you know, since IGRA was enacted, 
only three off-reservation casinos have been approved pursuant to the 
current two-part determination contained in Section 20(b)(1)(A). Under 
current law, tribes can chose to submit an application for a two-part 
determination at any location, and can seek out willing communities. 
That will not be the case for restored, newly recognized and landless 
tribes if this bill becomes law, for these tribes will have to stay in 
an area where they have historical ties. H.R. 4893 would thus make the 
above process more difficult for newly recognized, restored, or 
landless tribes by requiring the state legislature and nearby tribes to 
concur, in essence adding a veto power.
    Subparagraph (E) requires the tribal applicant to pay for an 
advisory referendum, which could be a problem for restored, newly 
recognized or landless tribes. As a general proposition, these tribes 
have very limited financial resources, and thus would not be in a 
position to fund the cost of a referendum unless they are sponsored by 
a wealthy developer. This provision could force such tribes to rely on 
the financial resources of third parties.
    Finally, a new subsection 20(e) proposed in the bill allows for the 
creation of tribal partnerships for class II and class III gaming 
development. We agree with the purpose of this subsection, but would 
like to work with the Committee on certain aspects, such as liability, 
sovereignty, jurisdictional, and agreement approval issues.
    This concludes my statement. I will be pleased to answer any 
questions the Committee may have. Thank you.
                                 ______
                                 
    The Chairman. Thank you. Mr. Hogen?

STATEMENT OF PHILIP N. HOGEN, CHAIRMAN, NATIONAL INDIAN GAMING 
  COMMISSION; ACCOMPANIED BY PENNY COLEMAN, GENERAL COUNSEL, 
               NATIONAL INDIAN GAMING COMMISSION

    Mr. Hogen. Good afternoon, Chairman. I bring you greetings 
from the National Indian Gaming Commission. Commissioner 
Choney, who is the other half of the Commission right now, is 
out in Oklahoma meeting with the national tribal gaming 
regulators, but he sends his greeting.
    The relatively narrow mission of the National Indian Gaming 
Commission is to regulate gaming, so most of our days are spent 
looking at rules to play blackjack and things of that nature. 
But it is important that we know and understand that that 
gaming that is conducted by Indians pursuant to the Indian 
Gaming Regulatory Act is, indeed, on Indian lands, as that term 
is described by the Indian Gaming Regulatory Act, and that, as 
your bill obviously points out, is not a simple task.
    So there are times that we have to inquire into the nature 
of that tribe's ownership of those lands and what its history 
may have been, and we have found that there is not a single 
model that is one single model that would apply uniformly to 
all of those situations. I could, but I do not think I will 
right now, go through the existing framework, but that is the 
framework that we are working with today.
    We have a lot of Indian lands issues on our plate right 
now. Some 32 situations confront us where either NIGC or the 
Department of the Interior likely will opine whether those 
places are Indian lands pursuant to the current law. Fifteen of 
those that are before us are questions that raise the issue, 
are these tribes restored tribes, and are the lands that they 
seek to game on, and in some cases, are gaming on, restored 
lands, as that issue is defined in the Indian Gaming Regulatory 
Act?
    So in some instances, there is already land in trust, but 
the determination, are these Indian lands under IGRA, has not 
yet been made. In one instance, the land is in trust, the tribe 
has not opened its facility, but they seek to do that soon, and 
they have submitted to NIGC a site-specific ordinance, that is, 
an ordinance that defines, identifies these particular lands. 
Under IGRA, we have a limited time within which we can approve 
or disapprove those ordinances, so that starts the clock 
running with respect to those decisions.
    Looking back, there have been 10 instances when either NIGC 
or the Department of the Interior have already concluded that 
lands qualify as restored lands, and in three instances, the 
Department of the Interior has identified lands where this 
gaming is occurring as the initial reservations of tribes, and, 
as has been often talked about, there are only three instances 
where the two-part determination, the Governor concurring with 
the Secretary, has permitted gaming on such lands.
    With respect to the current bill, as we are studying it, we 
are not clear what the bill's application will be to these 
existing and proposed facilities, that is, we understand that 
theoretically it is prospective, but is it prospective to those 
lands that are already into trust and things of that nature, 
and we hope that can be clarified as this process continues.
    We would also observe that this impact will be primarily on 
those tribes that are trying to get in the game, that are 
landless and, in many cases, resourceless, and they may be the 
least well-situated to fund the challenge that would then lay 
before them under a different arrangement. Unfortunately, in 
some instances, such tribes are susceptible to folks that we 
perhaps would rather see they not partner with in connection 
with getting into gaming, given the concern we have for 
suitability.
    We have been trying to do several things at NIGC to get our 
arms around this. We are establishing an Indian Lands Data base 
so that we can have before us in readily accessible measure a 
data base that identifies the Indian lands. We are trying to 
come up with some licensing regulations that would say when the 
tribe licenses its own facility, they would have to identify 
the lands and clearly certify and establish the background 
therefore that these are Indian lands under the Indian Gaming 
Regulatory Act.
    We are also working with the Department of the Interior to 
come up with a memorandum of understanding to better coordinate 
their activities and ours as we address these, and, of course, 
the Department is working on a two-part determination set of 
regulations, and we are working with them in that connection.
    That basically concludes my statement, and I stand ready to 
respond to questions.
    [The prepared statement of Mr. Hogen follows:]

                     Statement of Philip N. Hogen, 
                   National Indian Gaming Commission

    Good afternoon Chairman Pombo, Ranking Member Rahall and members of 
the Committee.
    I am Philip Hogen, an Oglala Sioux from South Dakota, and I have 
had the privilege of chairing the National Indian Gaming Commission 
(NIGC) since December of 2002. Currently the NIGC consists of two 
members, Associate Commissioner Cloyce Choney and me.
    I understand the Committee seeks to gather comments on H.R. 4893, 
introduced by Chairman Pombo last week. Further, I understand that the 
Committee desires an explanation of the role and function of the NIGC 
as it relates to determining the status of Indian Lands for purposes of 
regulatory oversight and the application of current statutory 
definitions in the determination of Indian land status.
    The narrow mission of the NIGC is to provide regulatory oversight 
of gaming conducted by Indian tribes on their lands. To accomplish this 
mission, occasionally, we need to take a broader view of Indian tribes 
as part of regulating their gaming activities. In the context of this 
hearing, this occurs when we need to determine if gaming activity 
tribes conduct is in fact occurring on those lands which Congress 
categorized as eligible for such gaming under the Indian Gaming 
Regulatory Act (IGRA). Mere ownership of land by Indian tribes does not 
qualify those lands as permissible sites for gaming under the Indian 
Gaming Regulatory Act. Rather, in IGRA, Congress limited such gaming to 
``Indian lands'' as it then defined that term in that Act.
    Thus, the nature and quality of a tribe's ownership of lands where 
it intends to conduct gaming must be understood and analyzed by the 
NIGC to conclude that where the tribe's bingo hall or casino is located 
so qualifies.
    America's Indian tribes are very diverse. Their histories and 
cultures vary from Northwestern fishermen, Navajo shepherds, hunters of 
the Plains, Pueblo farmers, woodsmen of the Eastern forests as well as 
many others. One common characteristic that all tribes share, however, 
is that they once owned and lived on lands that were subsequently owned 
and occupied by what became the dominant society. Land-based treaty 
tribes, such as my own tribe, the Oglala Sioux in South Dakota, retain 
some of the lands they originally owned, while ceding away the vast 
majority of the lands they once owned and occupied. Other tribes were 
totally divested of the lands they owned and lived on when they 
encountered what is now the dominant society, having been relocated 
elsewhere by the federal government, or otherwise forced from those 
lands. Notwithstanding their removal or eviction, many of those tribes 
kept their communities intact, and later acquired new homelands and in 
some instances, although such acquisitions have not yet occurred, 
aspire to so acquire new homelands.
    Thus, there is not a single model that applies to the lands of all 
Indian tribes with respect to lands they own, occupy or conduct their 
businesses upon. It therefore is somewhat problematic to develop a fair 
and even handed system or set of rules that classifies those lands 
where tribes can govern and conduct activities such as gaming. On a 
daily basis the NIGC attempts to apply the existing rules, and that 
application is not without its challenges. The NIGC thus agrees it is 
appropriate to evaluate this process, and consideration of H.R.4893 is 
an opportunity to do that.
    It might first be useful to look at the history of the process 
which has been followed to date in determining those properties that 
have been found to be ``Indian lands'' for purposes of conducting 
tribal gaming under IGRA, as well as some instances where lands have 
been determined not to so qualify.
    When Congress enacted IGRA in October of 1988, it specified that 
``Indian lands'' would include lands within the limits of then existing 
Indian reservations and lands held in trust for tribes and individual 
Indians over which the tribes exercised governmental powers. The Act 
then further specified that lands acquired after the enactment of IGRA 
(October 17, 1988), could only be used for Indian gaming if they were 
within or contiguous to a reservation that was then in existence, or, 
if the tribe had no reservation on that date, then, if such lands were 
in Oklahoma, that they were acquired within the boundaries of the 
tribe's former reservation or contiguous to other pre-IGRA trust lands 
held by Oklahoma tribes in Oklahoma. Elsewhere, such lands had to be 
within the tribes last recognized reservation (in the state where in 
they were then located) or, a two-part determination occurred, wherein 
the Secretary of the Interior concluded that acquisition of such lands 
for gaming purposes would be in the best interest of the tribe and not 
detrimental to the surrounding community, and the governor of the state 
wherein the lands were located would have to concur in that 
determination.
    Further exceptions, where post-IGRA acquisitions could be utilized 
for gaming included instances where lands were taken into trust as part 
of the settlement of a land claim, the creation of an initial 
reservation of a tribe under the federal acknowledgment process or the 
restoration of lands for tribes that were restored to federal 
recognition.
    As we previously testified before the Senate Committee on Indian 
Affairs, for a tribe to be restored to federal recognition under the 
IGRA, it must have been previously recognized; it must have lost its 
recognized status; and it must be returned to a recognized status.
    Whether lands are restored lands requires a case-by-case analysis. 
Under the federal court decision on lands of the Grand Traverse Tribe 
and other court decisions, the factors to consider include (1) the 
factual circumstances of the land acquisition; (2) the location of the 
acquisition (including such questions as whether it is close to the 
tribe's population base and important to the tribe throughout its 
history); and (3) the temporal relationship of the acquisition to the 
tribal restoration (in other words, was this land acquired a year after 
the tribe was restored to recognition or 30 years later and after the 
tribe acquired 20 other parcels).
    As a result of this process, there are many Indian lands questions 
pending At least fifteen of these pending opinions present the question 
of whether the lands qualify as restored lands under IGRA. Two of the 
tribes already have open facilities and another is scheduled to open 
its facility by June of this year. All three of these tribes already 
have their land held in trust. Another tribe also has its land held in 
trust but does not have a gaming operation. That tribe has submitted a 
site specific ordinance to the Commission for approval. By statute, we 
must approve or disapprove ordinances within 90 days.
    The Department and the NIGC have issued an additional ten opinions 
where we have concluded that the tribes' lands qualify as restored 
lands. Of those ten, seven tribes have open gaming facilities. The 
other three tribes have pending trust acquisitions.
    In addition, the Department has approved trust acquisitions for 
three tribes that would qualify as initial reservations. None of these 
three tribes has an open gaming facility on these parcels.
    The Secretary has issued three positive two-part determinations 
since the passage of IGRA where the Governor of the State has concurred 
in that determination and the land was acquired into trust. There are a 
number of other proposed trust acquisitions that would qualify for 
gaming only if the Secretary makes a positive two-part determination 
and the Governor concurred in that determination.
    Finally, one tribe falls within the settlement of a land claim 
exception. That Tribe is operating a facility and is moving forward to 
establish a second facility under the same exception.
    While these tribes are not the entire universe of those that are 
potentially impacted by H.R. 4893, we have attached an exhibit to 
reflect the existing and potential facilities described above.
    It is unclear to what extent this bill is intended to impact the 
existing and proposed facilities. While there is a savings provision 
that indicates that the legislation is intended to apply prospectively 
only, that provision arguably only saves those agreements that are 
already in place. It is not clear how the savings provision would 
affect tribes with lands that are already acquired into trust but have 
no gaming facility or existing gaming facilities that are playing only 
Class II games and do not have a tribal-state compact. It is also 
unclear what the intent of the proposal is when agreements, such as 
compacts, expire on their own terms.
    We also note that the major impact of the proposed legislation will 
be on restored, newly acknowledged or landless tribes. These tribes 
usually have the least resources available to fund an advisory 
referendum and a Secretarial two-part determination. It is our 
experience that such tribes are susceptible to partner with those who 
take advantage of tribes under these circumstances because traditional 
financial support is not available for a difficult process with such an 
uncertain outcome.
    Finally, having recognized the difficulties that the post 1988 
exceptions pose to the NIGC, the tribes, and the surrounding 
communities, we have undertaken several initiatives to bring clarity to 
the process. First, we are establishing an Indian lands data base. That 
data base will identify all of the existing and proposed facilities, 
include documentation necessary for an Indian lands analysis, and 
identify whether the lands were acquired after October of 1988 and fall 
within one of the post 1988 exceptions. Second, we are drafting 
licensing regulations that, as proposed, would require tribes to notify 
the NIGC before it opens a new gaming facility and would require tribes 
to document that the gaming facility is located on Indian lands. Third, 
the Indian lands determinations are presently issued pursuant to a 
memorandum of understanding between the NIGC's Office of the General 
Counsel and the Department of the Interior's Office of the Solicitor. 
We are working with the Department to develop a strategy for improving 
coordination between the two offices. Finally, we are assisting the 
Department of the Interior on its draft regulations which will 
establish a process for issuing Secretarial two-part determinations and 
more clearly define the restoration and initial reservation exceptions.
    I would like to thank the Committee for holding this hearing and 
will be happy to answer any questions that you may have.

[GRAPHIC] [TIFF OMITTED] T6652.001

[GRAPHIC] [TIFF OMITTED] T6652.002

                                 ______
                                 
    The Chairman. Thank you. I thank both of you for your 
testimony. Before we begin on the questions, I would like to 
recognize former House Member, Senator Ben ``Nighthorse'' 
Campbell, who has joined us today.
    [Applause.]
    The Chairman. I would like to begin the questions, and I 
have a couple of questions for Mr. Skibine. I am going to ask 
you a series of questions that I would like you to answer with 
a yes or no answer, if at all possible.
    You were quoted in a March 1, 2006, Las Vegas Review 
Journal article where you testified in front of the Senate, the 
Indian Affairs Committee, stating, ``The Interior Department 
has approved only three applications for off-reservation gaming 
since the regulatory act was enacted in 1988.'' You went on to 
say, ``Historically, off-reservation gaming really hasn't been 
a problem.'' Do you stand by those quotes from your sworn 
testimony in front of the Senate?
    Mr. Skibine. I do if it is from sworn testimony before the 
Senate. I think what I was referring to is we only have 
approved three off-reservation gaming acquisitions under the 
two-part determination.
    The Chairman. Which is what I wanted to get into. We are 
all familiar with the two-part exception as one way that a 
tribe can get land into trust for gaming purposes after the 
enactment of IGRA, but it is only one of many ways that a tribe 
can do this, and that is, I think, the issue here.
    So focusing solely on the two-part determination and then 
saying that since only three tribes have successfully gone 
through the process, does that give an accurate picture of how 
many casinos have opened on land that was not held in trust on 
October 17, 1988?
    Mr. Skibine. No, because----
    The Chairman. OK. Are you familiar with the testimony that 
Former Assistant Secretary of Indian Affairs Kevin Grover gave 
to Congress in 1998 when he testified that BIA had approved 13 
land acquisitions under Section 20 exemptions as of 1988?
    Mr. Skibine. I do not recall that particular testimony, but 
I can tell you how many we have approved as of today under any 
of the exceptions in Section 20.
    The Chairman. The former Acting Assistant Secretary of 
Indian Affairs, Irene Martin, gave testimony to the Senate 
Indian Affairs in 2003 that there had been a total of 23 off-
reservation gaming applications approved at that time. Are you 
familiar with that?
    Mr. Skibine. Yes, I am.
    The Chairman. Are you familiar with the March 21, 2005, 
news report entitled ``Exceptions to IGRA More Common Than 
Often Cited,'' which documents at least 38 Indian casinos 
operating on lands acquired after 1988?
    Mr. Skibine. No, I am not.
    The Chairman. Can you tell the Committee, as of this 
moment, how many tribal casinos are in operation in the United 
States?
    Mr. Skibine. No, I cannot. I do not have that at the tip of 
my fingers.
    The Chairman. The answer is 405.
    According to the National Indian Gaming Commission, there 
are, as of today, 405 tribal casinos open in the United States. 
At least 38 of those are operating on lands that were not held 
in trust on October 17, 1988. Nearly 10 percent of the current 
tribal casinos operating in the United States are doing so as a 
result of one exception to IGRA or another.
    So we have already established that there are not three 
casinos operating on lands that were not part of a reservation 
in 1988. There are at least 28. That is a big difference, and 
there are over a dozen times more than what you have been 
publicly claiming. Can you tell the Committee with any 
certainty how many casinos are currently operating on post-1988 
land?
    Mr. Skibine. How many casinos are operating on land taken 
in trust after October 17, 1988? The only thing I can tell you 
is how many we have approved. We have approved 32, and I can 
make this list that we have part of the record. Some are on 
reservation, but the land was not in trust and taken into 
trust. Some are contiguous with the reservation, and all others 
qualify under one of the exceptions, whether they would be the 
two-part determination, the restored land exception, the 
initial reservation exception, or the settlement of a land 
claim exception.
    The Chairman. I would like to focus a bit on what the 
future might hold were the Committee to adopt your publicly 
stated views that off-reservation gaming is not a problem and, 
thus, enact no reform.
    In Mr. Cason's testimony, he indicates there are 23 pending 
applications to take land into trust for gaming under Section 
20 exemption. Is that correct?
    Mr. Skibine. That is correct.
    The Chairman. There are 103 federally recognized tribes in 
the State of California. Many of those tribes are landless, 
making them eligible for restored land exceptions to IGRA. 
While some of the 23 applications on the desk are for restored 
lands for these tribes, many of these tribes have yet to 
formally apply for their restored lands and casino.
    Testimony received by the Senate from a citizens' group 
indicated that as many as 40 applications may be in the 
pipeline to your office from these tribes alone. Wouldn't you 
agree that this means that in California alone there is 
significant potential for dozens more land-into-trust 
applications for tribal gaming in the next few years?
    Mr. Skibine. There is the potential. If I may clarify one 
thing, when I said that historically the off-reservation issue 
has not been a problem with respect to the two-part 
determination, it is because we have only approved three, and 
the IGRA contains a very difficult standard for those tribes to 
meet. That is what I said.
    The Chairman. Mr. Skibine, we have established that nearly 
10 percent of the casinos operating today are operating on land 
that was not in trust as of 1988. To continue to go back to 
your figure of three is an inaccurate and misleading statement.
    The figure of 23 pending applications only includes 
proposals that have reached your desk. That number of 23 would 
not include proposals where a tribe or developer has purchased 
land, or declared their intent to purchase land, and open a 
casino in a community but has not yet filed a formal 
application. So your number of 23 would not include the plans 
by the Eastern Shawnee to open up to eight casinos in the State 
of Ohio, the five potential casinos in the Catskills in New 
York, the three proposals for casinos in Illinois, the three 
casino proposals in Nebraska, the casino proposal for Fort 
Smith, Arkansas; the casino proposal for Fort Payne, Alabama; 
or the casino proposal for up to 40,000 slot machines across 
the river from the City of Philadelphia, would it?
    Mr. Skibine. That is correct.
    The Chairman. The 23 applications on your desk do not 
include dozens and dozens of casino proposals that have been 
made over the last several years, as documented by countless 
published news reports, yet for the citizens in the communities 
targeted for these casinos, these proposals are very real.
    Can you tell the Committee how many groups currently are 
petitioning the Federal government for recognition as an Indian 
tribe and, thus, if successful, would be eligible for tribal 
gaming under the current IGRA Section 20 exemptions?
    Mr. Skibine. No. I do not have that information.
    The Chairman. The answer, as of today, according to the 
Department of the Interior: There are 19 petitions that are 
active or ready for active consideration and another 232 that 
have been submitted but are not yet ready for evaluation, 
meaning that there are potentially another 251 groups that 
could want to exercise their right to game and, thus, one day 
be seeking casino gaming on land not held in trust prior to 
1988. And since the majority of these petitions have been filed 
since 1988, I think it is safe to say that if recognized, most 
all of these tribes will want to pursue their right to game. 
Would you agree with that?
    Mr. Skibine. I cannot agree or disagree because I am not 
really involved in the recognition process.
    The Chairman. No, but you are involved with the gaming 
process and taking land into trust.
    We see that far from there just being three tribes who have 
gotten exceptions from IGRA since 1988, there are already at 
least 38 existing facilities and may be more. Now, if we start 
adding the 23 current applications that are on your desk, 40 or 
more California restored lands petitions, dozens upon dozens of 
other proposals for off-reservation gaming over the past 
several years made by tribes who already have at least one 
casino and over 250 tribal groups seeking Federal recognition 
and the right to game, I see the potential for several hundred 
applications for new casino gaming on post-1988 lands in the 
coming years, yet you have stated to Congress and the press on 
multiple occasions that you do not feel off-reservation gaming 
is really a significant problem.
    In light of what we have learned, would you like to revise 
that statement about the extent of the problem of off-
reservation gaming and the problems that it may present at this 
time?
    Mr. Skibine. No, I do not think so. I think that what I 
have said is that historically there has not been a problem 
with the multiplication of actual off-reservation gaming 
casinos under the two-part determination, and the fact that 
only three have been approved, I think----
    The Chairman. But it has not been three. There are 
currently 38 that are operating in lands that were not in trust 
on October 17, 1988.
    Mr. Skibine. The other ones that are operating that we have 
approved; I do not think it is 38. I think we have approved, as 
I said before, 32. Let me see that. Yes, 32, and I think that 
these tribes were, as I said, either on reservation or 
contiguous with the reservation, or they qualified under one of 
the exceptions, but they qualified under one of the exceptions 
that you, in Congress, enacted for them, essentially those that 
were newly restored tribes or landless tribes or tribes that 
would have been restored under the----
    The Chairman. And those are the exceptions that we are 
addressing, so it is very misleading to say that there are only 
three that have been approved because there have been 
considerably more than that.
    Mr. Skibine. I only said that there were three under the 
two-part determination process, not that there were three under 
any of the other exceptions, and we have made our lists of 
pending applications or approved applications under these other 
exceptions available to the Senate Committee on Indian Affairs 
also.
    The Chairman. My time has expired. I am going to recognize 
Mr. Grijalva for his questions.
    Mr. Grijalva. Thank you, Mr. Chairman, and let me, if I 
may, begin with Mr. Cason on a couple of questions.
    I think, in your testimony, you reminded us that Interior, 
at this point, has no position because of the newness of the 
legislation.
    Mr. Cason. That is correct.
    Mr. Grijalva. But you reminded us also that under current 
laws, tribes can choose to submit an application for a two-part 
determination at any location and can seek out willing 
communities. Do you believe this provision of IGRA is working 
as it was intended?
    Mr. Cason. Yes. I would suggest, Congressman, that under 
the two-part determination, we do take into account the views 
of local communities. I personally have done that, to meet with 
individuals from local communities, local government leaders, 
as well as tribal leaders, in areas where we have a gaming 
issue in play, and I do take seriously the views of local 
communities in this issue, as well as the views of the tribe.
    I mentioned in my opening comments that we need to look at 
balance, that I did not see anything in IGRA that said 400 
casinos was the right number, too low, too high, or 38 going 
through an exceptions process was too high or too low. I have 
not heard anything to suggest that the 38 that were approved 
should not have been approved, that they were legitimate under 
the exceptions.
    I think Congressman Pombo makes a great point, that there 
is an expectation, and I agree with him, that there is an 
expectation that there will be a lot more requests and that it 
presents some difficult decisions for us in the future as to 
whether or not to authorize gaming.
    Mr. Grijalva. And those decisions in the future may 
continue, sir.
    Mr. Cason. They will.
    Mr. Grijalva. What difficulties would landless, restored, 
or newly recognized tribes face if this particular legislation, 
as it stands, were to be enacted into law?
    Mr. Cason. It is my assessment that, in large part, those 
categories of Indian entities wishing to game would have 
little, if any, real chance of doing so.
    Mr. Grijalva. OK. Just for the information's sake, how many 
tribes have opened casinos under that Section 20 process, and 
how many has the Department rejected?
    Mr. Cason. I do not know that on a tribal basis. George 
said we had 32 instances, but I do not know tribe by tribe.
    Mr. Grijalva. Well, just numerically.
    Mr. Skibine. Are you asking for the number?
    Mr. Grijalva. Yes, number of tribes.
    Mr. Skibine. Number of tribes. I do not think we have a 
repeat here, so I think it probably means that we have 32 
tribes.
    Mr. Grijalva. And rejected?
    Mr. Skibine. That, I do not have the information right 
here.
    Mr. Grijalva. Could that be forthcoming at some point?
    Mr. Skibine. We can do that, yes.
    Mr. Grijalva. Thank you. And how many of those that have 
been approved, and we do not know how many have been rejected 
at this point, how many of those that have been approved have 
been approved over, let us say, local community opposition?
    Mr. Cason. While George is looking at the list, I would 
like to just make one comment, that in my own experience, 
limited to the last year of working with Indian gaming, I 
presently have decided not to take land into trust for a 
California tribe that wanted to have land into trust for gaming 
purposes, and because of the steadfast local opposition, the 
answer they got was, no, we are not going to do it. So it does 
happen.
    George, do you have any assessment on numbers there?
    Mr. Skibine. We would have to research our files to look at 
exactly what the record shows. Some of those were approved 
before I was--but I can say that some of these acquisitions 
were mandatory, so if they were mandatory----
    Mr. Grijalva. A different issue. We will submit those 
questions to you, and maybe the information can come back to 
the Committee.
    Mr. Skibine. OK.
    Mr. Grijalva. My time is running out, and I wanted to ask 
Mr. Hogen a question. In your testimony, you stated, sir, that 
with the least resources available to fund the two-part 
determination, specifically, restored, newly acknowledged, and 
landless tribes, they would be susceptible to partner with 
unscrupulous third parties because traditional financial 
support is not available for the difficult process with such an 
uncertain outcome.
    In describing the current process as difficult, what 
additional hurdles would tribes face if this legislation were 
to be enacted in law?
    Mr. Hogen. If I understand the legislation, not only would 
they have to make their case to the Federal family, so to 
speak, but within the local community there would be that 
advisory referendum. There would have to be expenses, I expect, 
to tell the story there, which maybe they would want to do 
anyway. They would need to persuade the state, the legislature, 
that it was something that they would want to agree with, and I 
expect that would be something of a burden for them.
    Mr. Grijalva. You stated also that the Secretary has issued 
only three positive, two-part determinations. In your opinion, 
does this provision need revision, and if it does, could you 
quickly elaborate on what that revision would look like?
    Mr. Hogen. I think that provision was designed for a tribe 
that wants to go off the reservation, and, therefore, the state 
probably ought to have a say, and the Secretary ought to have a 
say, is this in the best interest of the tribe and its members? 
That is the way it works. I think it has worked well. 
Certainly, it has limited application, but I think that it has 
been useful, and I do not know if that portion cries out to be 
changed.
    Mr. Grijalva. Thank you, Mr. Chairman. My time is up. I 
appreciate it.
    The Chairman. Mr. Gibbons?
    Mr. Gibbons. Thank you very much, Mr. Chairman, and to our 
panel, thank you for being here today. Your testimony is very 
important to us.
    First, let me make it very clear that I am in opposition to 
off-reservation gaming. I think it creates an unfair playing 
field, to begin with, and goes against my belief of what the 
core principle of the original Indian Gaming Regulatory Act was 
established for. However, before we can move forward as a body 
on this type of legislation, I think it is important for us to 
understand how many tribes are currently in the process of 
getting approval for gaming on their land. I think we ought to 
know how many tribes are currently in this process. 
Specifically, what about those landless tribes who have been in 
the process of seeking land for gaming for some time and who 
can demonstrate that the parcel of land they are seeking for 
gaming purposes is in their ancestral or aboriginal territory?
    So maybe I should ask Mr. Cason, can you tell me how many 
restored, landless tribes are in the process of getting this 
approval?
    Mr. Cason. Congressman, I do not know off the top of my 
head, framing it that particular way. I know that we are trying 
to be very careful about the evaluation we make on any one of 
the exceptions, including the restored lands exception. Ten. It 
looks like the number is 10.
    Mr. Gibbons. Could you get us the specifics of every tribe 
currently in the process of applying of getting this approval, 
whether they be a restored, landless tribe, an off-reservation 
or an on-reservation tribe? Would you provide that information 
for the Committee?
    Mr. Cason. Sure, sure.
    Mr. Gibbons. Is it your understanding that IGRA, the Indian 
Gaming Regulatory Act, under that Act, that those restored, 
landless tribes seeking to establish a reservation within their 
ancestral homelands should be treated differently than those 
seeking a two-part determination to establish gaming on lands 
where there is no nexus to their reservation land?
    Mr. Cason. Well, I think my reaction to it is the original 
IGRA, in providing the various categories of exceptions to 
enable us to deal flexibly with Indian Country, is an important 
thing to consider, that there is no one size fits all, and, 
unfortunately, we have a very complicated environment where if 
you pick any one exception, it will not satisfy the need for 
all parties.
    So that is why we have some flexibility in the process, and 
flexibility introduces the prospect that we will have more 
applications, as Chairman Pombo said. We will have more 
applications.
    But one of the other things I think we need to be mindful 
of, as well as the prospect for applications and the need to 
make decisions on those, is there is also still an underlying 
need for economic development in Indian Country and that one of 
the things we have to discuss in framing a bill or framing the 
Administration's support is how we try to be cognizant of the 
need for economic development and what the impacts are on local 
communities and how we find a reasonable balance between those.
    Mr. Gibbons. Let me see if I can restate my question.
    Mr. Cason. OK. I am sorry.
    Mr. Gibbons. Perhaps what I should have asked is, is it 
your understanding that under the rules, the current, existing 
IGRA rules, that landless or restored landless tribes have a 
difference of a process by which, for example, they are treated 
different than an on-reservation tribe seeking gaming within 
that under IGRA. Is there, throughout this whole process, an 
opportunity leading to some kind of discrimination between 
reservation tribes applying for gaming and those restored 
tribes, landless tribes?
    Mr. Cason. Congressman, it is my view that there is some 
discrimination involved already. The burden for on-reservation 
gaming is much less than the burden for off-reservation, 
whether it be through an initial reservation determination or a 
restored lands determination or a land settlement determination 
or a two-part determination, that if you are attempting to 
enter into a gaming arrangement on reservation, the hurdle is 
less than the other options.
    Mr. Gibbons. So the answer to your question, then, would be 
that there should be a difference in the treatment between 
those restored, landless tribes seeking gaming and those tribes 
seeking gaming on their own reservation. You would say, then, 
that there should be a discrimination problem.
    Mr. Cason. Well, rather than should be, I would say there 
is and that the threshold right now is different and harder if 
you are trying to get in the game if you do not have 
preexisting 1988-and-before reservation land on which to try to 
game on.
    Mr. Gibbons. Thank you, Mr. Chairman.
    The Chairman. I recognize Mr. Costa.
    Mr. Costa. Thank you very much, Mr. Chairman.
    The gentlemen from Interior, how many states would you 
classify throughout the country that have what we in California 
refer to as ``Class 3 gaming'' under the tribal law?
    Mr. Cason. Twenty-four.
    Mr. Costa. Twenty-four states. How would you describe the 
policy among those states with the Department in terms of how 
gambling, Class 3 gaming, has been implemented over the period 
of the last 15 years? Could you describe to the members of the 
Committee what the policy is among the 24 states that have----
    Mr. Cason. I will take a stab at it, Congressman. George is 
probably more knowledgeable about it than I am. The generic 
policy is we basically authorize Indians to game. Where we 
authorize them to game, we authorize them to engage in gambling 
activities that are permitted in the state. So as a general 
policy, we basically follow the lead of the state in what we 
authorize them to do.
    Mr. Costa. Would you indicate that it is a fair statement 
that the policy overall among the 24 states that have Class 3 
gaming has been uneven, at best, in terms of the implementation 
and what the rules have been for application?
    Mr. Cason. Yes. I think the reality of it is, on a state-
by-state basis, state legislatures make different decisions 
about what they think is acceptable, so it is not a homogenous 
playing field. Within the general rubric of gaming, you have 
various opportunities for games of chance, but the games may 
differ, and the Administration may be different.
    Mr. Costa. Where I am going with this, it just seems, 
having spent many years in the California State Legislature and 
watched this process more from the late 1980s into the 1990s 
and seeing what has developed, which has been at least three 
different sets of policies between three different Governors, 
that, frankly, it would be, I think, helpful for the 24 states 
that do have Class 3 gaming for there to be some sort of 
criteria on how the Department handles.
    We have this issue on landless, for example, that was asked 
about landless tribes that are petitioning, and they have 
obviously a point. But the fact is we have granted compacts in 
California, 64 of them at this point out of 107 recognized 
sovereign nations, that are based upon their existing lands. 
Now, we have a new set of rules coming in that, in essence, is 
going to be allowing for franchises to be developed along very 
major transportation artery in California among those that are 
landless, if they can, in effect, make this work. That seems to 
be inherently unfair for those that were required to develop 
their facilities in their existing tribal lands.
    Mr. Cason. Well, Congressman, I agree that there is a 
difference. I find it an interesting irony that the concern is 
one of good businessmen finding a way to utilize opportunity 
within the statute because if I were an Indian businessman, and 
I was a landless tribe, and I had the distinction as a 
federally recognized tribe, I would go shopping for the best 
property I could find.
    Mr. Costa. Absolutely. It is let us-make-a-deal time.
    Mr. Cason. Well, it is just being smart about the process. 
So there is a concern with venue shopping, and certainly that 
is going to cause all of us, both Congress and the 
Administration, some challenges in making decisions about how 
we balance those interests of local communities versus the need 
to promote economic development in Indian Country. It is not 
going to be easy.
    Mr. Costa. Well, that is why I think there ought to be a 
call for some sort of a state-Federal policy with certain 
criteria defined for the 24 states that, in fact, do have Class 
3 gaming. I think, within certain parameters, that guidance and 
that direction might be helpful.
    Let me ask you one other question before my time is up. We 
have 64 that have compacts, as I said. We have 107 sovereign, 
recognized nations in California, I believe. Forty-three of 
them, many of them have lands in areas that are just not 
suitable for such facilities because they are so remote.
    Now, the new deal is, as I understand it, to try to take 
their ability to establish a compact and establish that compact 
and then relocate that facility next door to an existing tribal 
land facility and put them on their land to kind of create the 
kinds of situations that you have in Las Vegas or in Tahoe or 
others where you have clusters of casinos. Does the Department 
have a policy on that?
    Mr. Cason. I am familiar with one circumstance where that 
is occurring in California, and it is my understanding that we 
have not found a way under current law to make that work. And I 
notice a provision in 4893 to attempt to address that issue, to 
allow, through jurisdictional findings, for one or more tribes 
to operate on the same piece of property, hosted by another 
Indian tribe.
    So if we are going to try to make that work, there would 
need to be some additional legislation to allow that to happen.
    Mr. Costa. Do you think that is a good policy?
    Mr. Cason. I think there are certain circumstances in which 
it would be prudent for Indian tribes to partner on similar 
property, and where there is not a critical mass for an Indian 
tribe, enough resources and members and stuff, that it makes 
some sense in some cases. I think the distinct issue is whether 
it is compelled, or it is a choice.
    Mr. Costa. Thank you, Mr. Chairman. My time has expired, 
but I do want to pursue this, and you and I have discussed it 
in the past about the issue of trying to develop a broad, 
national framework for states that do have Class 3 gaming, and 
we will continue that conversation.
    The Chairman. Mr. Walden?
    Mr. Walden. Thank you very much, Mr. Chairman. I appreciate 
all of your work on this issue.
    Mr. Cason, does the Department support a provision like 
that in Section 10 of Senator McCain's bill that allows the 
limited number of tribes already engaged in the Secretary's 
two-part determination, tribes that have, in some cases, spent 
significant amounts of time and money to follow the current 
law? Would you support a fair and equitable opportunity to 
conclude that process without changing the rules mid course on 
them?
    Mr. Cason. Congressman, if you are referring to a basic 
grandfathering approach, I believe that would be a prudent 
thing to do.
    Where we are right now is we have a number of tribes--I 
think George referred to 23--in the mix right now who have 
expended considerable resources in preparing applications under 
the current law, and it seems to me it would be a prudent thing 
to have some sort of grandfathering clause to enable them to 
finish the process and make good on the investment they made in 
the process, notwithstanding that at the end of the process, 
the answer may be no, but at least be able to go through the 
process to conclusion.
    Mr. Walden. And I appreciate knowing that because that is 
an issue I have raised here and raised in prior hearings with 
the Chairman. This process, some other process? I think 
Americans get really tired of being told to follow a process by 
the government, and when it looks like they are doing so and 
may succeed, and somebody does not like it, they try and pull 
the rug out from under them and stop the process. I just do not 
like that, whether it is tax law or this or something else.
    The two-part determination process has been there since the 
law was passed. There have been very few that have met the 
test, and some are trying. Now, obviously, there is an issue in 
my district, which others, including guests on the Committee, 
have had a lot of strong comments about, and they are going 
through that two-part process. I think it is only fair that 
they be allowed to at least continue the work they have started 
and not be upended, not have a sort of bait and switch occur to 
them.
    Mr. Skibine, on March 3, my colleague, Mr. Wu, wrote a 
letter to you, including a copy to Secretary Norton, and issued 
a press release in which he stated that at a Senate Indian 
Affairs Committee hearing on February 28, he asked you, and I 
quote, ``if on-reservation alternatives would be explored in 
the scope of the environmental impact statement'' now underway 
for the Warm Springs Resort and Gaming Project. Representative 
Wu's letter also accused you of violating a ``commitment'' he 
says you made that such alternatives would be considered.
    Mr. Skibine, have you had a chance to review what was said 
at that hearing?
    Mr. Skibine. Yes, I have.
    Mr. Walden. Can you tell me, yes or no, did Representative 
Wu specifically and clearly ask you to explore on-reservation 
alternatives?
    Mr. Skibine. Well, Congressman, I think those yes-and-no 
questions are very tricky, and I think, from past experiences, 
it is not necessarily the way I want to answer that. Let me 
just tell you what it is that I did commit, and what I did, I 
think, commit is that we were aware of the issues that 
Congressman Wu raised because of a letter from Friends of the 
Gorge, and we would be looking into this matter because we have 
concerns with the issues that were raised, and we are doing 
that.
    Mr. Walden. So you did say you would explore the issue on 
reservation alternatives.
    Mr. Skibine. I would say that we would look into the 
matter, and what we are doing now is looking into that issue, 
on the issue of whether the EIS process was being not done 
properly, and we are in the process of doing that.
    Mr. Walden. OK. Now, I have a copy of the official scoping 
record conducted for the Warm Springs Project, and I want to 
note for the record the report lists 13 various alternative 
sites that were evaluated at a wide array of different 
locations. The report includes consideration of two specific, 
non-reservation sites, and the report concludes that based on 
economic analyses, these two on-reservation locations will not 
meet the financial requirements of the tribe.
    Now, I have one last question, Mr. Skibine. Have you been 
encouraged to disregard the scoping report and to interject 
your office into the EIS process to reconsider onsite, on-
reservation sites, even though those sites do not meet the 
tribe's financial requirements?
    Mr. Skibine. It is our job to look into these questions 
because eventually a draft EIS would be submitted to my office, 
eventually down the road. We would look at those issues then 
for sure, and if we find then that the process was flawed and 
that these alternatives were excluded improperly, then the 
regional office would have to go all the way back and redo it 
over.
    So I think that when the scoping report was issued the day 
after our February 28 hearing, that was unfortunate. It does 
not detract from our commitment to look into that matter, and 
that is what we are doing right now.
    I think that the question is we will look at whether on-
reservation alternatives were excluded and for what reason, and 
we will try to see whether, in fact, that was the right thing 
to do.
    Mr. Cason. Congressman, if I could add something.
    Mr. Walden. Yes.
    Mr. Cason. I just saw the scoping report like two days ago.
    Mr. Walden. Right.
    Mr. Cason. And I have asked our solicitor's office and the 
gaming office to take a look at it to see if it represents a 
reasonably complete set of alternatives to look at. So if it 
does, then great, we go forward. If it does not, then we will 
send it back to the regional office and say, we would like you 
to look at the following other alternatives as well. I do not 
know what the answer to that is because we just got it to take 
a look at.
    Mr. Walden. Is that what you do with each of the scoping 
reports?
    Mr. Cason. It depends on relatively how controversial the 
issue is. There may be some that are not terribly 
controversial, and in each case what we try to do is get a 
reasonable set of alternatives to evaluate because the prospect 
is, if you do not, and you go through and spend the hundreds of 
thousands of dollars to do an EIS with an improperly set number 
of alternatives or type of alternatives, you have to go back 
and redo it. What we try to do as a uniform practice is make 
sure that the alternatives that are laid out up front are 
reasonable, can pass the red-face test at the end of the NEPA 
process, so we do not have to go back and redo work.
    Mr. Walden. What I want to make sure of is that we do not 
end up with a casino on the east side of the Hood River on land 
already in trust when IGRA was passed.
    Mr. Cason. Yes.
    Mr. Walden. So I hope whatever steps you are taking will 
not cause that to be the end result because that would be a 
real scar on the gorge.
    Mr. Cason. What we are trying to do is get probably, if 
anything, more alternatives than less to take a look at.
    The Chairman. Mr. Kildee?
    Mr. Kildee. Thank you, Mr. Chairman. Again, thank you for 
the hearing and your work on this bill.
    I would like to ask Mr. Cason or Mr. Skibine, either one of 
you or both, how generally has the BIA helped tribes acquire 
land pre-IGRA and post-IGRA? Has there been any change of 
attitude, procedure in the Department pre-IGRA or post-IGRA?
    Mr. Cason. Congressman, my tenure at Interior has not 
been----
    Mr. Kildee. That is why I said either you or Mr. Skibine.
    Mr. Cason. We will have George comment. It is my 
understanding that there has been a longstanding process to 
bring land into trust over time, that that process has been 
around, I think, since 1934. We currently refer to it as the 
``151 process,'' which is the 25 C.F.R. Sec. 151, which is our 
land-into-trust rules or regulations, and that we take land 
into trust in a variety of circumstances for a variety of 
purposes.
    In this particular case, the reason that it is important is 
for some of the restored tribes, the new tribes, the ones that 
do not have land, landless tribes, we use basically the 151 
process to bring land into trust, and that is the first part of 
the gaming issue, and then the second part of it is to actually 
authorize or not authorize gaming on the property.
    So the 151 rules for bringing land into trust have been 
there for a long time, and we still have that in play.
    Mr. Kildee. George, do you have a comment on that?
    Mr. Skibine. I just want to point out that, of course, 
before IGRA in 1988, all applications, I think, to take land 
into trust, the authority was delegated to regional directors, 
at the time, BIA area directors. When IGRA came about, I know 
that Secretary Lujan, in 1990, required all gaming acquisitions 
to be processed not only at the regional office, but they have 
to come to the central office. So with respect to gaming 
acquisitions, the Department has been much more concerned and 
has really taken a close look at what we are doing at the 
central office, so they take a lot longer.
    Mr. Kildee. So closer and more centralized scrutiny, then. 
Is that so you would have the same policies throughout the 
country rather than----
    Mr. Skibine. Yes. That is the reason, essentially, yes.
    Mr. Kildee. Has the concept of historical connection 
changed any during that period, of that land having some 
historical connection with the tribe? Is there any change of 
policy or attitude in the Department?
    Mr. Skibine. You are talking about the historical 
connection for restored lands?
    Mr. Kildee. Yes, for that tribe.
    Mr. Skibine. It seems to me that we have required, when we 
decide whether an acquisition would qualify under the restored-
land-for-restored-tribe exception, we have always required an 
historical connection to the area. I know that the NIGC has 
done work in this area, so if you disagree with me, then----
    Mr. Kildee. OK. Fine.
    Mr. Cason. Congressman, I might add, I think there is a 
growing body of law with respect to this area, and perhaps 
gaming has fostered that. There have been more cases that have 
delved into this, and for that reason, a little more guidance 
or a little more specificity may have come to the process, but 
I think, generally, the idea is the same.
    Mr. Kildee. Is that usually raised by someone objecting to 
gaming, saying this is not a historical connection to this 
land, or is it within the Department?
    Mr. Cason. In some instances, states, for example, have 
been the proponents of those positions, yes.
    Mr. Kildee. The state? OK. They would argue that there is 
no historical connection.
    Mr. Cason. Yes.
    Mr. Kildee. All right. First of all, also, Mr. Chairman, I 
would like to associate myself with Mr. Walden's remarks on 
grandfathering and on the two-step process because I do know 
many tribes have entered in good faith, gone through a rather 
difficult process, and to have them say they changed the rules, 
if we can do anything to address that, I would like to work 
with both of you on that and see how we can be helpful.
    If I have time, in your statement, Mr. Cason, you mentioned 
you would like to work with the Committee on issues relating to 
liability, sovereignty, jurisdictional, and would you elaborate 
on those issues of liability, sovereignty, and jurisdictional 
problems?
    Mr. Cason. Sure, Congressman. I think Congressman Pombo, 
the Chairman, laid out clearly the prospect for lots and lots 
of applications into the future for additional gaming 
opportunity, and within the framework of that, we have to take 
a look at jurisdictional issues like in the case of the 
California congressman that I mentioned a while ago, we have 64 
approved compacts in the State of California. There are 
prospects for dozens more, and as you take a look at the mix 
between Indian Country, where you have to have Indian 
jurisdiction in order to have gaming, and local jurisdictions, 
from counties and cities, you end up being neighbors.
    One of the things I talk about often when I visit with 
tribes and local community government representatives is the 
need to basically be good neighbors in the process because they 
do co-exist, and in both cases, both parties are trying to do 
the best they can for their constituencies. Inevitably, no 
matter who you mix together, there are always conflicts that 
have to be managed.
    So, one of the things I think we have to find ways to 
address in the prospect of additional gaming, and even the 
current gaming, is how you manage jurisdictions, who gets to do 
what, how you manage service agreements between jurisdictions 
because often an Indian tribe who wants to conduct gaming 
activities or housing activities needs to have a relationship 
with the local service providers that are there from local 
government like fire, sewer, ambulance, water, electricity, et 
cetera. So we need to take a look at all of those issues and 
figure out how to manage those in a cooperative way.
    Mr. Kildee. I thank you very much. I thank all of you for 
your responses.
    The Chairman. Mr. Pearce?
    Mr. Pearce. Thank you, Mr. Chairman. You may have answered 
these. I apologize for being late. When we discussed with 
nearby Indian tribes, in other words, what would constitute a 
problem with a nearby tribe if you are looking at an off-
reservation gaming facility?
    Mr. Cason. Well, let me make sure I understand the 
question. When you are saying a problem with a nearby tribe, 
are you talking about between a local jurisdiction and the 
tribe, or are you talking about a tribe-to-tribe?
    Mr. Pearce. I am talking about in the case of approving an 
off-reservation facility in the legislation that is proposed by 
the Chairman, one of the hurdles that has to be gotten over is 
not to cause damage to any nearby tribe, and we have a 
situation developing in our state.
    Mr. Cason. OK. So tribe to tribe.
    Mr. Pearce. Yes.
    Mr. Cason. OK. Just as an initial reaction, since the bill 
is relatively new, and we have not taken any firm 
administrative position on it, but just as an initial reaction, 
I think one of the issues that we have to address is the role 
of competition between tribes who both want to gaming and that 
we end up in a position or a concern on our part that if you 
have a certain geographically defined area, and there is an 
Indian tribe in that area that has gaming opportunity and 
another Indian tribe that would like to, to be in a position 
that essentially the one who has veto power over the one that 
has not potentially is an issue.
    So we would like to be mindful of the overall purpose of 
why Congress authorized gaming and that was to enable economic 
development of Indian tribes, and in this particular scenario, 
it is how do we fairly address the issues of the ones who do 
not to have that tool available to them in a marketplace of 
those who do?
    Mr. Pearce. If we are going to be aware of the role of 
competition, let us say that you approve the off-reservation 
casino to come into the area where the tribe currently has a 
casino. Are you going to allow that tribe in Ruidosa now to go 
up into Albuquerque and provide competition up in there, or is 
it going to be one-way competition, that is, we will let people 
come into your district, but we will not let you go out and 
compete with other tribe?
    Mr. Cason. Well, I think that is a difficult question to 
answer in the hypothetical. What I have found so far in my 
tenure dealing with Indian gaming is no two applications are 
the same, no two fact sets are the same, and that we have 
varying degrees of public support or opposition and various 
complications associated with it, and that is why I think one 
of the things we need to discuss is, is there a way to sharpen 
up the administrative decisionmaking process that will address 
materially the concern, or is it a matter of we need to have 
basically a very firm statutory position that gives no 
flexibility?
    So I think we need to take a look at that and see if there 
is a better way to get balance, and maybe it is a mixture of 
the two, that we have some issues that are addressed in the 
statute and some that are done by regulation.
    Mr. Pearce. Now, as you consider the role of competition in 
the balancing veto power, which of those has the greater value 
in the determination?
    Mr. Cason. Well, my sense of it, Congressman, is that what 
we are trying to accomplish is not fostering competition in the 
normal sense of the word, which is, gee, if I have one casino 
here, I need to place another in for competition, like grocery 
stores. It is not that. It is more of a monopoly competition 
situation: If I have one in the area, it prohibits anyone else 
from coming into the area.
    So I think that is one of the things that we have to take a 
look at, and in terms of the veto process, I have concerns, as 
we look at this, to either place an absolute veto with local 
authorities so it is basically the Indian tribe who is 
interested in doing gaming has no option if a local authority 
says, well, I am opposed, or if a nearby tribe says, I am 
opposed, or anybody else says, I am opposed, that anybody in 
the process has an absolute veto because that places the Indian 
tribe in a position where they have nobody to be an advocate.
    So I think we have to be mindful of the various players and 
try to make good-quality, objective, balanced decisions, and in 
some cases, it will end up being a situation where we would 
make a decision that the overall good is enough to say yes or a 
situation where we think the negatives are too high, and the 
answer is going to be no, and that is the role that we are 
placed in. It is a difficult one because on both sides there 
are strong feelings on these that say, yes, you should do it 
and, no, you should not, and ultimately you can only have one 
side of that.
    Mr. Pearce. Mr. Chairman, I have just got one more 
question.
    Now, in the case that is existing in the district that I 
represent, you make an observation that there are tribes 
without casinos.
    Mr. Cason. Yes.
    Mr. Pearce. Now, they have the land to put the casino on; 
they just choose not to put it there. They would rather come 
into another market. Wouldn't we all rather have the best 
market available? I mean, that is, to me, a very serious 
consideration that we would all like to be in New Mexico in 
Albuquerque, but, frankly, I did not grow up there, and I do 
not have a house here, and I doubt that I will move. But to say 
that one tribe can declare their place not as economically 
suitable in allowing them to move around and establish one 
seems to be a fairly significant decision for us to be making 
and kind of arbitrarily making at that.
    Mr. Cason. I think there is some concern about that, 
Congressman. I would say, in my opinion, there are two pieces 
of an answer. The first is that is the manifestation of smart 
businessmen who are saying, under law, I have the opportunity 
to look for an off-reservation venue that is better than the 
venue I have, because if we remember the history of how we got 
to where we were, we, as a country, chose places for Indians to 
reside and have reserved reservations that basically 
prioritized the relative interests at the time, and some of 
those venues are not very economically desirable.
    And I would suggest that what we are seeing is a lot of 
smart people saying, hey, there is a better place I can go 
under law than where I have as the reservation, and I think 
that the balance in the check-and-balance system that Congress 
placed into IGRA in 1988 is to say, if that is where you want 
to go, you need to use a two-part determination process that 
balances the interests of the state through having the Governor 
endorse the deal, as well as the balancing act that the 
Secretary is placed under to say this is in the best interest 
of the tribe and is not an undo detriment to the local 
community, and we have to have the endorsement and concurrence 
of the Governor.
    So a check-and-balance option was put into place to be able 
to address that situation, and as George says, in that 
particular area, the two-part determination has not been used 
broadly.
    Mr. Pearce. Thank you, Mr. Chairman.
    Mr. Udall of New Mexico. Thank you, Mr. Chairman.
    Mr. Cason, in your testimony, you voice concern that 
requiring tribal applicants to pay for advisory referendums 
would force heavy reliance on the financial resources of third 
parties. Two questions. What role have third parties played 
throughout the development of Indian gaming, and would you say 
there are both positive and negative examples?
    Mr. Cason. Congressman, I think third parties do play a 
role, and, in large part, at least my understanding of the 
process is it gets to the root of some of the problems that we 
are looking at, and what I mean by that is part of the reason 
Congress authorized gaming is because there is little economic 
opportunity for some Indian tribes across the country, and this 
was an opportunity to develop economic opportunity. And when 
you start with very little, then if you want to get into the 
game, you have to find a partner to help because you do not 
have the capital wherewithal to start.
    So I think there is a role that is currently being played 
by third parties, and it is a role that we take a look at and 
NIGC takes a look at in the process. So I think it is there, 
and it has the potential to be bad, but it also has the 
potential to be good, and that is some of the things that we 
look at, both on the authorization side and the regulatory 
side.
    Mr. Udall of New Mexico. Would the Chairman like to comment 
on that also?
    Mr. Hogen. Well, I think Mr. Cason very well described the 
situation, and I agree with what he said. We have seen 
instances where tribes without the wherewithal to get started 
have partnered with folks that, at the end of the day, ended up 
with the lion's share of the profit, and we are not real 
pleased with that. On the other hand, they might have ended up 
with nothing if those folks had not come along, so which is the 
lesser of those two evils?
    The way we get involved in this process with some 
specificity is when we review and approve management contracts, 
and that is kind of a limited universe. There are other 
instances where developers come along, and we are not privy to 
all of those details. But I think there is a role for 
investors, developers to assist folks who are pursuing an 
opportunity. You just have to be careful that it does not reach 
the point where [a] they were nefarious folks--they should not 
have been doing business with them in the first place--or the 
tribe is not getting their fair share of the take when it is 
all done.
    Mr. Udall of New Mexico. Do you think this advisory 
referendum part of the legislation could cause those kinds of 
problems?
    Mr. Hogen. Well, it is certainly going to mean that whoever 
pursues this path is going to have to be well funded. There 
will be a lot of dollars required to do all of the things that 
need to be done, and it may have some tribes shopping around 
where we would wish they were not shopping in terms of those 
investors.
    Mr. Udall of New Mexico. Thank you very much. I yield back, 
Mr. Chairman.
    The Chairman. Ms. Herseth?
    Ms. Herseth. Thank you, Mr. Chairman. I was in a 
subcommittee hearing for the Agriculture Committee earlier, so 
I apologize for not being here for your opening statement, Mr. 
Cason, but I just reviewed again your opening statement that 
you had submitted, but during your opening statement or perhaps 
in response to another question, did you express an interest at 
all in pursuing other mechanisms, either regulatory or 
statutory, to address reservation shopping?
    Mr. Cason. Yes.
    Ms. Herseth. Do you mean mechanisms that do not appear in 
Chairman Pombo's legislation, or could you just elaborate in a 
bit more detail what you might be suggesting there?
    Mr. Cason. Overall, what I suggested is some additional 
dialog to address the twin concerns of venue shopping and 
reservation shopping and the concern about providing 
opportunity for economic development in Indian Country. Those 
two are co-existing, and they push against each other, and what 
we are basically looking at is, is there opportunity for us to 
work with Congress to get a clearer picture of exactly what the 
concern is in venue shopping and reservation shopping? We know 
it is there, and we deal with it in the Administration as well, 
but we are also trying to find a way to be thoughtful and 
receptive and respectful of the concerns of the local community 
when we are looking at a casino authorization or a gaming 
authorization.
    So we are trying to be mindful of that, and we are trying 
to be mindful of the needs of the tribe that is involved, and 
we have a variety of circumstances and a basic approach that 
says there is no opportunity to even be in the game, which is 
of concern. And so what I have proffered is we would like to 
work together with the Committee to see if there is a better 
way that we can meet our mutual needs.
    Ms. Herseth. I appreciate that. In the context in which 
some of this tension has arisen, has there been some 
consideration given, from your perspective, about differently 
situated tribes? Obviously, when you make reference to each 
individual tribe and the economic development needs and some of 
what has happened in certain parts of the country or what has 
not, and certainly we see a level of competition among tribal 
gaming operations in certain parts of the country that you do 
not necessarily see in geographically rural areas with some of 
the tribes that I represent from South Dakota. So is that some 
of what you would consider in that ongoing dialog as well?
    Mr. Cason. Yes. We have a very broad array of circumstances 
that we try to manage, and we are trying to be mindful to look 
at them on a case-by-case basis, looking at all of the facts 
that are involved. And I know from personal experience, having 
just been to the State of Washington about three weeks ago, one 
of the things that I did was sat down and held two nights of 
public hearings for individuals in the area of Locenter, 
Washington, to come in an express themselves on what their 
concerns were, both I want this proposal to go through, or I do 
not want this proposal to go through, and give people an 
opportunity to do that. And in some cases, the feelings are 
very strong on both sides of the issue in the same area.
    But we also have circumstances where we have an unnamed 
tribe in New Mexico where they have found that their pueblo is 
one that is not very suitable for gaming and actual economic 
development who have found a town in New Mexico that wants them 
as a partner because they also need economic development.
    So there are opportunities here for good things to happen, 
and there are opportunities for wanted or undesirable 
consequences, and the issue for all of us basically is to find 
that happy middle where we get as much positive out of the 
process while containing the negative.
    Ms. Herseth. Thank you, Mr. Chairman.
    The Chairman. Mr. Wu?
    Mr. Wu. Thank you very much, Mr. Chairman, and thank you 
both for your very hard work on this issue of this bill and 
having me participate in this committee hearing today.
    Mr. Hogen, in his testimony, referred to some sections of 
H.R. 4893 as potentially not clear, and, Mr. Chairman, I was 
struck by the exchange between you and Mr. Skibine because, 
depending on definitions, you have three casinos or 38 casinos 
that have either gone through the two-part test or are on post-
1988 land, and so the definitions are very, very important to 
the question of is there a problem?
    So I would like to enter into a colloquy, if I may, Mr. 
Chairman, with the witnesses, you, and Committee Counsel about 
one section of this particular bill, H.R. 4893, which I hope to 
have clarified in one manner or another because I am focused 
like a laser beam on one particular casino and one particular 
issue, and that is the proposed casino in the Columbia River 
Gorge National Scenic Area. It would draw 3 million visitors 
per year, a million extra car trips. This, ladies and 
gentlemen, would be like building a casino on the floor of 
Yosemite Valley.
    You need to look at the Columbia River Gorge and check this 
site out, and it is very, very important to me that this 
national scenic area, which is a national treasure and a 
treasure of the State of Oregon, that it be protected, and what 
happens with the other applications under this process, that 
can be resolved in any which way.
    The section that I am referring to is Section 2 on page 6 
of the draft bill, and Committee staff explained to our staff 
that it was not the intention of the Committee staff or the 
Chairman to grandfather any applications but that it was the 
intention of the drafters to protect existing casinos. Does 
Committee Counsel have an answer to that? Is that the 
Chairman's intent, to protect existing casinos?
    The Chairman. You can just ask me. The purpose of that 
particular section of the bill was dealing with a couple of 
states that have existing compacts and existing situations, and 
what my intention was with that section was to make sure that 
we did not undo existing compacts and structures within states 
that are working within those states, and that was the purpose 
for doing that. That does not affect the taking-land-into-trust 
provisions.
    Mr. Wu. So if a compact has been signed by the Governor of 
a state, but there is no existing casino, and the language here 
says, ``The amendment made by paragraph 1 of this section shall 
be applied prospectively,'' does the bill apply to that 
situation where the compact has been signed by the Governor, 
and the compact exists? There are other agreements which are 
also----
    The Chairman. It does not undo an existing compact that any 
tribe has with the state. It does not affect whether or not 
land is being taken into trust. With your specific situation, 
it does not allow land to be taken into trust. It does not 
address that issue at all. This is more geared toward a couple 
of states that have somewhat unique compacts, and we were 
concerned that the language would somehow undo a system that is 
working.
    Mr. Wu. If that is the case, I would dearly like an 
opportunity to work with both the Chairman and the Counsel, 
Committee Counsel, to make sure that if the intent is to not 
grandfather this casino in the Columbia River Gorge, that the 
language be so drafted so it does not grandfather the casino in 
the Columbia River Gorge, because apparently, as Mr. Walden 
referred to, there is language on the Senate side to 
specifically grandfather that casino and others, and I----
    The Chairman. That is a completely different issue. The 
issue of grandfathering in tribes that are already working 
their way through the system is a different issue. It is 
something that has been raised by a number of members of the 
Committee, and I believe it is something that ultimately the 
Committee will have to deal with when we get to the markup 
stage. This provision of the underlying bill does not 
grandfather in in terms of what you are talking about. What it 
does is grandfather in existing compacts specifically because 
there are a couple of states with unique systems in terms of 
the way their compacts work, and we were trying to address 
that.
    Mr. Wu. Understood, Mr. Chairman. With great respect to the 
Committee's work, I have consulted some private attorneys and 
some government attorneys, and there is some concern about----
    The Chairman. It sounds like you are spending too much time 
with attorneys.
    Mr. Wu. Well, I wish I did not have to, but, gee, sometimes 
I live with one. There seems to be some concern about the 
clarity of this particular provision.
    The Chairman. It is pretty clear to me. That is what my 
intent is, and if the gentleman still has questions, we will 
continue to talk to him about what the intentions are of this 
particular provision, and as this moves forward, obviously we 
will make it perfectly clear what this provision is geared 
toward.
    Mr. Wu. Terrific. Thank you very much, Mr. Chairman. I look 
forward to working with you, both on that issue and on whether 
grandfathering of applications is appropriate or not. Thank 
you.
    The Chairman. I will say, in terms of grandfathering 
provisions, this entire process has been an open process. I put 
out two drafts that were out for discussion. We received 
hundreds of comments on both of those drafts. We have gone 
through this process in a very open and transparent way. I 
intend on proceeding in an open and transparent way and, in a 
bipartisan manner, working with the members of this committee 
so that we produce the best possible legislation that we can. I 
am sure if you had the opportunity to talk to Mr. Kildee or 
Rahall or any of the members of this committee, they will tell 
you that that is the way I run this committee, and that is the 
way I am going to continue to do it.
    Mr. Wu. Well, I thank you for the opportunity to be here 
today. I look forward to working with you and the other members 
of this committee on this very important legislation.
    The Chairman. Thank you.
    I have a number of other questions, but most of those I 
will just submit to our witnesses.
    I do have a question, Mr. Cason, that I want to bring up 
with you, and that is that, under the current system, obviously 
there are issues that have not only been raised by Members of 
Congress and members of the public, questions, concerns about 
interpretations, expanded gaming throughout the country, but it 
appears to me that the Administration is taking a position that 
they can fix whatever problems that exist through the 
regulatory process through administrative changes and is not 
and has not been open to suggestions from Members of Congress. 
Can you comment on that?
    Mr. Cason. Sure, Mr. Chairman. I would not characterize my 
testimony or George's or the rest of the panel as being the 
Administration's position because clearly we have not taken 
one. We have not done a SAP yet.
    The purpose of the dialogue from the panel here is 
basically to suggest that we have some competing interests, and 
we recognize, and I am sure the Committee does, too, that there 
are some benefits associated with Indian gaming, and there are 
some down sides associated with Indian gaming, and that within 
the environment we have, there are some in Indian Country who 
already enjoy those benefits, and there are some who do not but 
could.
    The suggestion back is we are very willing to work with the 
Committee to take a look at statutory adjustments to more 
carefully define the direction to the Department of the 
Interior and Indian Country about how we want to execute a 
gaming program, and as I said earlier, Congress has the plenary 
authority to set the rules. So we are very willing to work with 
the Committee on that, and depending on what the objectives 
are, there may need be some statutory adjustment, but I think 
that it is also possible that in the regulatory environment we 
can also make differences that are helpful.
    So I think there is room for accommodation, and it is not 
the testimony on our part to say there is no role for Congress, 
or there is no role for Interior. We can work together and 
maybe come out with a better balance.
    The Chairman. Well, I appreciate your answer to that 
because sometimes when I read things that have come out of the 
Department, it makes me believe that some believe that some 
within the agency believe that they are the ones who should be 
making the rules and that Congress should shut up and go away, 
and I do not take that very kindly.
    I also say, in response to your comment that some have been 
able to take advantage and some have not, I agree, some have 
and some have not. I have tribes within California that have 
invested millions of dollars in a remote location and, as a 
result of that, have developed a successful business, and they 
have been able to take advantage of that, and I think it is 
great because they are doing good things with it.
    I have others that are not in a position that they could 
take advantage of gaming and have to look at other economic 
development. Some tribes have timber resources; some do not. 
Some have fisheries resources; some do not. Congress has done a 
horrible job in allowing tribes, and I believe the Department 
has done a horrible job in allowing tribes, to look at other 
economic-development opportunities other than gaming. If you 
put them in a box, and you tell them the only way that they can 
succeed is by gaming, that is the only way they are going to 
look.
    There are a lot of other issues that we have to deal with 
to allow economic development on tribal lands other than 
gaming, and I think it is a mistake to try to put them in the 
position that that is the only way that they can create jobs 
and create economic development on their reservations.
    We have a lot of work to do in order to fulfill that 
obligation that I believe we have.
    Mr. Cason. Mr. Chairman, I agree with you. We have 56 
million acres of land in trust, and there are lots of resources 
on those lands, and gaming is a tool, not the tool. There are 
other things that we are doing to assist tribes in looking at 
economic development, and what we ought to be looking at is how 
can we put as many tools into the basket as we can so we do not 
depend on just one?
    The Chairman. Well, I appreciate that, and I know that in 
the three years that I have been Chairman of this committee, 
there are a number of things I have tried to do, and I would 
appreciate the--how to nicely say this, but I would appreciate 
it if we had more support and more help on some of the other 
ideas that we have put out there. When it comes to energy 
issues and forestry issues and the ability to take advantage of 
resources that they have, sometimes the support for those has 
been lacking, and that makes it more difficult.
    Mr. Kildee, do you have any additional questions?
    Mr. Kildee. No additional questions. Again, Mr. Chairman, I 
do appreciate the process you have used in this. You and I 
still have some major differences, but no one can fault you on 
the process you have used all the way through this, and I may 
be working with you on certain amendments that may address some 
of my problems, and hopefully if we move a bill, my problems 
can be resolved. But I do commend you on the process, and I 
thank again the witnesses for their testimony.
    The Chairman. Thank you. Ms. Herseth? Mr. Wu?
    Well, thank you. I want to thank the panel for their 
testimony and for answering the questions. I do know that there 
will be additional questions that will be submitted to the 
panel, and those will be submitted in writing. If you could 
answer those in a timely manner so that they can be included as 
part of the hearing record, I would appreciate it. So thank you 
for being here.
    Mr. Cason. Thank you, Mr. Chairman.
    Mr. Hogen. Thank you.
    The Chairman. The Committee is adjourned.
    [Whereupon, at 4:35 p.m., the Committee was adjourned.]

                                 
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