[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, April 5, 2006
__________
Serial No. 109-46
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
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
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C O N T E N T S
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Page
Hearing held on Wednesday, April 5, 2006......................... 1
Statement of Members:
Cole, Hon. Tom, a Representative in Congress from the State
of Oklahoma, Prepared statement of......................... 28
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan.......................................... 3
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Statement of Witnesses:
Arnold, Donald, Chairman, Scotts Valley Band of Pomo Indians. 11
Prepared statement of.................................... 12
Response to questions submitted for the record........... 78
Davis-Van Huss, Jacquie, Tribal Secretary, North Fork
Rancheria of Mono Indians of California, Oral statement of. 15
King, Randy, Chairman, Board of Trustees, Shinnecock Indian
Nation..................................................... 61
Prepared statement of.................................... 62
Osmond, Hon. Jo Ann, State Representative, 61st District,
State of Illinois.......................................... 45
Prepared statement of.................................... 47
Shagonaby, John, Treasurer, Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians, Gun Lake Tribe........................ 3
Prepared statement of.................................... 5
Sheen, Hon. Fulton, Michigan State Representative,
Representing 23 is Enough!................................. 38
Prepared statement of.................................... 40
Worthley, Steven, Tulare County Supervisor, and Member,
Indian Gaming Working Group, California State Association
of Counties................................................ 49
Prepared statement of.................................... 51
Additional materials supplied:
Conway, Connie, CSAC President, California State Association
of Counties, Letter submitted for the record............... 73
Cowlitz Indian Tribe of Washington, Statement submitted for
the record................................................. 74
Fink, Elaine, Tribal Chairperson, North Fork Rancheria of
Mono Indians of California, Statement submitted for the
record..................................................... 17
Ho-Chunk Nation Legislature, Statement submitted for the
record..................................................... 77
LEGISLATIVE HEARING ON H.R. 4893, TO AMEND SECTION 20 OF THE INDIAN
GAMING REGULATORY ACT TO RESTRICT OFF-RESERVATION GAMING.
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Wednesday, April 5, 2006
U.S. House of Representatives
Committee on Resources
Washington, D.C.
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The Committee met, pursuant to call, at 11:04 a.m. in Room
1324, Longworth House Office Building. Hon. Richard W. Pombo
[Chairman of the Committee] presiding.
Present: Representatives Pombo, Kildee, Cardoza,
Faleomavaega, Costa, Pallone, Christensen, McMorris, Kind,
Inslee, Gibbons, Cole, and Dent.
STATEMENT OF THE HONORABLE 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 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 schedule. 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. Cole of
Oklahoma and Mr. Dent of Pennsylvania to participate in the
hearing today. Without objection, it is so ordered.
Today, the Committee Members will receive a second round of
testimony on H.R. 4893, a bill to restrict gaming on certain
kinds of newly acquired lands for Indian tribes. By now, many
are familiar with my reasons for sponsoring this bill.
H.R. 4893 establishes a new set of rules for tribes that
want to acquire gaming rights on newly acquired trust lands by
invoking an exception under Section 20[b] of the Indian Gaming
Regulatory Act.
Since the time H.R. 4893 was introduced, a number of tribes
seeking Section 20(b) exceptions have expressed great concern.
Some with pending applications have spent considerable sums of
money and worked for a long time under the existing process to
acquire their gaming rights. They argue the bill's effective
date changes a set of rules just as they are nearing the finish
line, forcing them to start over or even lose an opportunity to
have gaming altogether.
Others argue that unique historical, legal, or geographic
circumstances warrant special exceptions for them, and some
will argue that all they seek is a more favorable market. For
the sake of simplicity, I will refer to the tribes in this
category as tribes who seek a grandfathering amendment.
On the other side, some tribes, as well as local elected
officials and private citizens groups, say the bill should not
include any kind of grandfathering language. In their view,
IGRA is not an entitlement to riches. It does not contain a
guarantee that every tribe in the country can and will prosper
from gaming. They say under the current law many local
communities do not have a strong enough voice in the process of
considering off-reservation casinos, and to begin carving out
exceptions is to defeat the purpose of passing H.R. 4893.
Finally, a number of those submitting comments have views
that fall somewhere in the middle. Continuing a policy of
fairness and allowing all sides to have a say in the crafting
of this legislation, I am hopeful today that my colleagues on
the Committee will hear from witnesses representing those
varying positions on what is clearly a complex set of issues.
I would now like to recognize Mr. Kildee for his opening
statement.
[The prepared statement of Mr. Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
Today, the Committee Members will receive a second round of
testimony on H.R. 4893, a bill to restrict gaming on certain kinds of
newly acquired lands for Indian tribes. By now, many are familiar with
my reasons for sponsoring the bill.
H.R. 4893 establishes a new set of rules for tribes that want to
acquire gaming rights on newly acquired trust lands by invoking an
exception under Section 20(b) of the Indian Gaming Regulatory Act.
Since the time H.R. 4893 was introduced, a number of tribes seeking
a Section 20(b) exception have expressed great concern. Some with
pending applications have spent considerable sums of money and worked
for a long time under an existing process to acquire their gaming
rights. They argue the bill's effective date changes the set of rules
just as they're nearing the finish line, forcing them to start over or
even lose an opportunity to have gaming altogether. Others argue that
unique historical, legal, or geographic circumstances warrant special
exceptions for them. And some will argue that all they seek is a more
favorable market.
For the sake of simplicity, I will refer to tribes in this category
as tribes who seek a ``grandfathering'' amendment.
On the other side, some tribes--as well as local elected officials
and private citizens groups--say the bill should not include any kind
of ``grandfathering'' language. In their view, IGRA is not an
entitlement to riches. It does not contain a guarantee that every tribe
in the country can and will prosper from gaming. They say that under
current law, many local communities do not have a strong enough voice
in the process of considering off-reservation casinos, and to begin
carving out exceptions is to defeat the purpose of passing H.R. 4893.
Finally, a number of those submitting comments have views that fall
somewhere in the middle.
Continuing a policy of fairness and allowing all sides to have a
say in the crafting of this legislation, I am hopeful today that my
colleagues on the Committee will hear from witnesses representing these
varying positions on what is clearly a complex set of issues.
______
STATEMENT OF THE HONORABLE DALE E. KILDEE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Kildee. Thank you, Mr. Chairman.
Mr. Chairman, while I admire your effort to take on the
complicated and controversial issue of off-reservation gaming,
I have serious reservations about the bill, but will continue
to work with you on this issue, and you have shown nothing but
goodwill from the very beginning as you approach this issue.
Fundamental concerns I have about this bill relate to the
numerous requirements that this country's poorest tribes, the
landless tribes, would have to meet in order to obtain trust
land in which to conduct gaming; second, the veto authority
granted to state legislatures and involvement of county
government; and third, the requirement that an applicant tribe
would have to foot the bill to pay for a local advisory
referendum.
While I remain reluctant to open up IGRA to attack by our
colleagues who want to harm Indian gaming, I would like to work
with you to improve the bill so that it supports tribal self-
determination rather than hinder it. I look forward to hearing
from the witnesses today, and again, Mr. Chairman, I thank you
for this hearing and for the process which you are using.
I yield back the balance of my time.
The Chairman. Thank you, Mr. Kildee.
I would now like to call up our first panel of witnesses.
They are: John Shagonaby, Donald Arnold, and Jacquie Davis-Van
Huss. They represent the Gun Lake Tribe, the Scotts Valley Band
of Pomo Indians, and the North Fork Rancheria, respectively.
Let me take this time to remind all of today's witnesses
that under our Committee Rules oral statements are limited to
five minutes. Your entire written testimony will appear in the
record.
Mr. Shagonaby, we will begin with you.
STATEMENT OF JOHN SHAGONABY, TREASURER, MATCH-E-BE-NASH-SHE-
WISH BAND OF POTTAWATOMI INDIANS, GUN LAKE TRIBE
Mr. Shagonaby. Good morning, Chairman Pombo, Ranking Member
Rahall, and Members of the Committee.
My name is John Shagonaby. I am a tribal counsel member and
Treasurer with the Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians located in southwestern Michigan. Most people know us
as the Gun Lake Tribe.
We appreciate the Chairman's invitation to appear today. We
are a federally recognized tribe but currently have no land
base. Although we are landless, we have finished the regulatory
process. The Department of Interior, in May of 2005, after four
years issued a final determination to acquire 146 acres of land
in trust as our initial reservation upon which to build our
gaming project.
Mr. Chairman, we would have those 146 acres as our initial
reservation in trust today but for a frivolous lawsuit that is
holding it up.
When Congress enacted Section 20 of IGRA, it clearly stated
that newly acknowledged tribes should have the opportunity to
realize congressional goals of IGRA, that is, utilize gaming as
a means of economic development and self-sufficiency. We are
concerned that some provisions of H.R. 4893 place our tribe's
final determination to take land in trust at risk, and it will
forever deny the Gun Lake Tribe and what Congress clearly
intended in IGRA, the opportunity for economic development
through gaming.
Let me turn to the legislation by recognizing the
straightforward and transparent process in which this Committee
has proceeded over the past year. We appreciate the hard work
of the Chairman and the Committee in addressing the issues of
off-reservation gaming, reservation shopping that is going to
be raised by some witnesses.
Let me be clear, as a landless tribe we are not going off-
reservation, and are not reservation shopping. We are merely
seeking to have land placed in trust as our initial reservation
on our historic Pottawatomi homeland.
Our written statement offers two recommendations for
amendments. This morning, however, I will focus on one--the
absolute need for a grandfather clause to exempt certain tribes
from H.R. 4893. Our tribe presents a textbook example of on why
the grandfather clause is not only fundamentally fair, but
warranted.
After achieving Federal recognition in 1999 through the
Federal acknowledgment process, which is very difficult to get
through, we decided to pursue gaming as a form of economic
development. In 2001, we applied to the Department of Interior
for an initial reservation, and we stated on our application we
intended to operate gaming on this reservation just like the 11
other federally recognized tribes in Michigan.
We identified a site within our original homelands and only
three miles from our ancient burial grounds. We did not engage
in reservation shopping. We played by the rules. We selected a
parcel of land that was already zoned by the local government
for commercial development, an abandoned manufacturing
facility. We entered into cooperative agreements with local
governments for police, fire, and emergency services.
As a part of the fee-to-trust application submitted in
2001, the tribe and the BIA conducted an environmental
assessment to assess the potential impacts of our proposed
project which is required by the National Environmental Policy
Act.
We went through an extensive and atypically long 75-day
public comment as compared to the Department's 30-day practice.
We went above and beyond what the rules required. Many Michigan
citizens and local government officials submitted comments to
the BIA. We enjoy overwhelming support from local governments,
chambers of commerce, and a grass roots group consisting of
over 10,000 citizens of Michigan. There is not one single unit
of government that opposes this proposed casino. All support
comes as no surprise since the Gun Lake Casino will bring many
high-paying jobs to an area that badly needs it.
After an exhaustive review of the evidence and the
extensive public comment period, the BIA concluded that our
proposed casino would have no significant impact. On May 13 of
2005, nearly four years after we started the journey, the BIA
issued its final determination to acquire land in trust for
gaming purposes.
As I testified a moment ago, our land would be in trust
today but for a frivolous lawsuit filed last June against the
Department of Interior seeking to block this project. The
Department of Justice is defending litigation against the
plaintiff, which is anti-gaming group in Michigan. They are not
a local government.
The Gun Lake Tribe has intervened to support the Department
of Interior's decision and Wayland Township, the local
government with jurisdiction over the land has joined the
lawsuit along with groups to support the tribe and the BIA.
Now, let me be frank with the Committee. As we read H.R.
4893, the Gun Lake Tribe may have more hurtles to clear if the
bill is enacted prior to the final order in our litigation. It
is our understanding that without clarification by the
Committee we could be pulled back into the regulatory process
and meet many new requirements of the bill. This scenario will
lead to substantial new delays and an incredible expense for
the tribe.
Most importantly, further delay would impede our tribe's
hopes for the future and our ability to provide some badly
needed services to our members. Therefore, a provision that
would exempt tribes that have pending trust applications must
be included, and especially for my tribe which has already
received a decision from the administration to acquire land for
our initial reservation.
Let me leave you with this final thought. We know that
Congress, when it enacted IGRA, carefully considered the unique
history of tribal-Federal relationship. We hope it would do the
same when it considers the special circumstances of tribes like
mine who have spent many years playing by the rules. Please do
not change the rules for us at the eleventh hour.
It is our honor and privilege to testify before the
Committee today. I am happy to answer any questions you may
have.
[The prepared statement of Mr. Shagonaby follows:]
Statement of John Shagonaby, Treasurer,
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, Gun Lake Tribe
Chairman Pombo, Ranking Member Rahall and respected Members of the
Committee, thank you for the opportunity to testify today regarding
H.R. 4893. My name is John Shagonaby and I am a tribal council member
and Treasurer of the Match-E-Be-Nash-She-Wish Band of the Pottawatomi
Indians, also known as the Gun Lake Tribe. Our Tribal homeland has
always been in Western Michigan. We are a landless tribe, but have
received a final determination from the United States Department of the
Interior to place 146 acres of land in to trust in Allegan County,
Michigan for the benefit of the Tribe. A private organization has
challenged Secretary's decision in federal court and the United States
Department of Justice is defending the Department's decision to acquire
the lands.
First, let me express my appreciation to the Members of the
Committee, and specifically the Chairman, for the straight-forward,
cooperative and open process in which this Committee has proceeded over
the past year regarding potential amendments to 25 U.S.C. Sec. 2719 of
the Indian Gaming Regulatory Act. Indian Country has had significant
opportunity to work with the Committee on the review of this
legislation through two draft bills, many consultations at various
Indian association meetings across the country and several oversight
hearings. Our Tribe, in particular, has enjoyed a solid working
relationship with many of the Committee Members and staff, including
Representative Dale Kildee (D-MI), who has always maintained an open
door to our Tribe. We recognize the Committee's hard work on addressing
concerns with the so-called reservation shopping and off-reservation
issues and understand the goals of H.R. 4893. In the spirit of
cooperation, we would like to offer two recommendations for amendments
and share our general concerns about certain provisions of the bill.
H.R. 4893 IMPOSES NEW REQUIREMENTS ON LANDLESS TRIBES
H.R. 4893 expressly prohibits newly recognized landless tribes from
acquiring any trust land on which those tribes may conduct gaming
unless the tribe can meet the following new requirements: First, the
Secretary of the Interior must determine that the proposed gaming is
not detrimental to the surrounding community and nearby Indian tribes.
Next, this determination must be approved by the Governor, the State
Legislature and any other Indian tribes within a 75 mile radius.
Finally, the petitioning Tribe must pay for a local ``advisory''
referendum and enter into a memorandum of understanding with the county
or parish where the land is located. These additional requirements pose
new and we believe unintended challenges to those landless tribes
seeking to reclaim their homelands as an initial reservation. While our
overall preference would be to exclude landless tribes altogether from
these requirements, we offer the following comments for the Committee's
consideration.
PROPOSED AMENDMENT: INCLUDE A GRANDFATHER CLAUSE
If the proposed legislation moves forward, our primary
recommendation is the inclusion of a so-called ``grandfather clause''
to exempt tribes like ours that have completed or nearly completed the
federal regulatory process. As the Committee is aware, many Indian
tribes across the country have made tremendous investments into their
gaming projects--both financially and in terms of the time and effort
of tribal members. This should not be overlooked by Congress.
In fact, one need only review the five year history of our land-to-
trust application to appreciate the need for such a grandfather clause:
At every step of the process we have followed the rules. After
finally gaining federal acknowledgment in 1999, our Tribal Council
identified suitable land for economic development that is only three
miles from our ancient tribal burial grounds. The land has an existing
industrial warehouse on it and is zoned light industrial. It was always
our intent to use this land and the building to develop a casino. The
Tribe submitted its fee-to-trust application pursuant to 25 C.F.R.
Sec. 151 et seq., to the Minneapolis Area Office of the Bureau of
Indian Affairs on August 12, 2001. As part of the fee-to-trust
application to acquire land into trust for gaming purposes, the Tribe
and the Bureau of Indian Affairs (BIA) conducted an Environmental
Assessment (EA) in satisfaction of the requirements of the National
Environmental Policy Act (NEPA). Our Tribe is highly sensitive to our
natural environment. This is why the Tribe made every effort to be
extraordinarily cooperative and responsive to the Bureau of Indian
Affairs during the agency's determination of whether our casino project
might pose any significant impact on the environment of West Michigan.
As the Committee is aware, federal regulations require that our
Tribe comply with NEPA in order to have land acquired in trust for our
benefit. Compliance with NEPA is achieved if an EA of the proposed
project results in a Finding of No Significant Impact, to the
environment by the BIA ``often referred to as a ``FONSI''. NEPA
requires, however, that if the BIA finds that a project has a
significant impact on the environment, an Environmental Impact
Statement must written by the agency. Over a three year period,
beginning in mid-2002, the Tribe worked closely with the BIA Regional
Office's environmental resources experts to produce an EA. The Tribe
and its consultants prepared several revisions of the EA following
comments from both the BIA and the public.
During an extensive and atypically long 75-day public comment
period (November 2002--February 2003), Michigan citizens and local
government officials submitted over 300 letters to the BIA containing
project comments and concerns. Each public comment, as reflected in the
administrative record, was painstakingly reviewed by the BIA. In the
end the EA examined everything from the project's effects on the water
supply, traffic and air quality to the effects on animals in the
surrounding area. In addition, since such great scrutiny is placed on
casino projects, the EA examined the effects of secondary development
resulting from the casino and its operations and examined potential
alternatives to this project.
After an exhaustive review of the evidence and the extensive public
comment, the BIA concluded that a FONSI was appropriate, and with this
finding of no significant impact, an EIS was not required. The BIA
issued the FONSI on February 27, 2004. More than a year later, on May
13, 2005, the BIA published in the Federal Register its final
determination to acquire the land in trust for the benefit of the
Tribe.
Mr. Chairman, our land would be in trust today but for a lawsuit
filed June 13, 2005 against the Department of the Interior seeking,
among other things, to enjoin the Secretary from moving forward with
her decision to acquire land in trust for our Tribe. As I mentioned
above, the Department of Justice is defending that litigation. The
Plaintiff in this action is a private anti-gaming group from West
Michigan. In fact, the attorneys representing the plaintiffs
challenging the Secretary's determination are the same attorneys that
lost a challenge to the previously landless Pokagon Tribe in Michigan
on nearly identical causes of action. Today, the Pokagon lands are now
in trust. Our case is nearing completion and we are confident that we
will also prevail.
If H.R. 4893 is enacted prior to a final order in our litigation,
it is our understanding that without clarification the Gun Lake Tribe
could be pulled back into the regulatory process and required to meet
many of these new criteria. This scenario would lead to substantial
additional delays and incredible expense for the Tribe. Most
importantly, such further delay would seriously impede our Tribe's
hopes for the future and our ability to start to provide some of the
services so badly needed by our tribal members. Therefore, we
respectfully request that a provision exempting tribes like ours from
this new legislation be included in H.R. 4893.
PROPOSED AMENDMENT: ALLOW FOR ALTERNATIVE COMPACTING
As you know before a Tribe can conduct Class III gaming, it needs a
gaming compact with the State--for which the state is required to
negotiate in good faith. Eleven federally recognized Tribes in Michigan
have gaming compacts, some of which were negotiated by former Governor
John Engler and subsequently approved by the Michigan Legislature.
The United States Supreme Court in Seminole Tribe of Florida v.
Florida, 517 U.S. 44 (1996) ended a tribe's right to bring a cause of
action in federal court against a state that refused to bargain in good
faith for a tribal state gaming compact--unless that state waives its
sovereign immunity. There is currently no remedy for an Indian tribe to
sign a compact with a state refusing to negotiate in good faith. Our
recommendation would be the authorization of the Department of the
Interior to issue alternative compacts when a state Governor or state
legislature refuses to negotiate in good faith a compact with an Indian
tribe. This amendment would promote intergovernmental cooperation
between states and tribes and result in the furtherance of a
cooperative relationship between the states and tribes. Specifically,
such an amendment would codify by statute the authority of the
Secretary to issue the Class III gaming procedures of 25 C.F.R. Part
291 et seq.
GENERAL CONCERN WITH H.R. 4893: THE ADVISORY REFERENDUM IMPOSES A
DIFFICULT CHALLENGE
We are concerned that the ``advisory referendum'' requirement
creates a significant impediment to Indian tribes. First, H.R. 4893
does not impose deadlines requirements on the county officials to act
and there are no federal or state regulations in place for such an
event. Also there needs to be clarification of whether the election
could be called as a special election or held in regular course during
the Primary or General elections.
Next, the Committee may want to consider exempting the tribe from
state laws addressing the qualification of a referendum for the ballot.
Most states require the collection of hundreds of signatures and
payment of a filing fee. Another related concern is that not all states
allow local referendum and, as such, those local officials may be ill-
equipped to hold and manage a ballot initiative. Third, a tribe would
need to reach a financial arrangement with the county on the cost of
the election for its particular referendum. Perhaps the Committee can
offer guidance as to what costs would or could be included or limited
by this arrangement.
Fourth, the element of campaign costs associated with a referendum
should be carefully weighed by the Committee. A tribe would need to
hire public and political relations experts to campaign for its side of
the referendum. This creates a new significant financial investment for
the tribe. Fifth, there is a general concern that Congress does not
possess the constitutional authority to compel a local government to
act. Finally, the results of this election, as stated in H.R. 4893, are
only advisory and have no impact on the mitigation of public concerns
about proposed gaming projects. In other words, is it the intent of the
Committee to require that tribes and local governments conduct what is
essentially a very expensive public opinion poll?
GENERAL CONCERN WITH H.R. 4893: PROPOSED TWO-PART DETERMINATION IS
UNFAIR TO INITIAL RESERVATION TRIBES
This new two part determination in the initial reservation
exception appears contrary to basic elements of fundamental fairness.
Such a determination would create an uneven playing field and further
disadvantage the most disadvantaged tribes in America. Landless
restored and newly acknowledged tribes have been without land and the
benefits of federal recognition for significant periods of time. These
tribes are forced to carve out small pieces of their original homeland
from local jurisdictions that typically are not eager to lose land from
their tax rolls and regulatory authority. Indeed, the very reason IGRA
contains exceptions for the initial reservations of a tribe is because
Congress did not want to penalize those tribes that were not yet
recognized by October 17, 1988.
GENERAL CONCERN WITH H.R. 4893: INTERFERENCE BETWEEN TRIBAL SOVEREIGNS
H.R. 4893 requires the concurrence of other Indian tribes within
seventy-five (75) miles of the applicant project site to concur with
the proposed acquisition for gaming purposes. Such a provision, for the
first time under Congress' plenary authority, enables neighboring
Indian tribes to interfere with another tribal sovereign's internal
decision-making and self-determination. Allowing and requiring
concurrence by neighboring tribal governments is tantamount to economic
warfare between neighboring tribal governments.
In fact, the application and effect of this provision will be
uneven in various regions in the nation and undermine economic
development. For example, California tribal projects under this
provision may be required to seek upwards of twenty-five (25)
concurrences from neighboring tribes while Tribe in the mid-west might
have merely one (1) or no tribes required to concur because shear
geographic distance gives these tribes a free pass. In practical terms
such a concurrence is a death-blow to a gaming project. Why would those
other tribes agree to allow a competing casino? Their market shares
will inevitably be cut. Landless tribes, like ours, are recognized by
the federal government with the same privileges and immunities as other
tribes with land prior to October 17, 1988. This provision in its
present form makes landless tribes a different class of tribes because
is denies us the ability to have an opportunity to use IGRA under the
same rules as everyone else.
In short such a provision undermines the spirit of IGRA: economic
development through self-determination.
GUN LAKE MEETS THE PRIMARY GEOGRAPHIC, SOCIAL, HISTORICAL, AND TEMPORAL
NEXUS TEST
The legislation also creates a new test for tribes seeking their
initial reservation. Under H.R. 4893, the Secretary is required to
determine that the tribe has its primary geographic, social, historical
and temporal nexus to land. Although we are uncertain how these terms
may ultimately be defined in light of case law and Departmental
practices, we firmly believe that Gun Lake Tribe has such a nexus to
the land.
In fact, we have long and established ties to an area that is now
Western Michigan. The Gun Lake Tribe descends primarily from the
Pottawatomi Band, led by Chief Match-E-Be-Nash-She-Wish. Prior to
European contact, the Gun Lake Tribe used and occupied lands in the
Great Lakes, in what is now known as present-day Michigan Lower
Peninsula. This is where we are today. In the late 1700s, the Gun Lake
Tribe lived under the direction of Chief Match-e-be-nash-she-wish at a
village at Kalamazoo, which we called ``Kekamazoo,'' and which is
located near where Michigan Highway 43 crosses the Kalamazoo River.
In 1821, the Michigan Indian Tribes and the United States entered
into the 1821 Chicago Treaty, under which the tribes ceded all Michigan
land south of the Grand River to the United States. Match-e-be-nash-
she-wish signed this treaty on behalf of the Gun Lake Tribe, and as a
realization from stipulations from the 1795 Treaty, he and his band
were provided a 3-mile square of land at Kalamazoo. The northeast
corner of the reservation was a short distance northeast of present day
Michigan Avenue Bridge which crosses the Kalamazoo River as part of
Michigan Highway 43. Today, Western Michigan University's main campus
is located approximately in the center of the 3 square mile area which
was known as the Match-E-Be-Nash-She-Wish Reservation.
Despite previous treaties between the United States and the
Michigan tribes, and despite the huge amounts of land ceded, pressure
continued on the tribe to cede more land. In 1827, Match-e-be-nash-she-
wish agreed to cede his small reservation at Kalamazoo for an equal
size land base adjacent to the Nottawaseppi Reservation near Mendon.
However, the Tribe was never paid for the land cession and they did not
move to this location. Before the land could be surveyed and provided
to Match-e-be-nash-she-wish and his Tribe, all the major chiefs in
southwest Michigan except Match-e-be-nash-she-wish signed the 1833
Chicago Treaty, ceding their land rights to the United States. To avoid
a forced removal to Kansas as a ``hostile'' Band, Match-e-be-nash-she-
wish moved the Tribe north, first to Cooper, then Plainwell, then
Martin, and finally to Bradley in 1839. Tribal members maintained a
connection with the Kalamazoo area into the 20th century, as residents
of the Bradley settlement would collectively move south to the
Kalamazoo River during the summer months to camp, fish, and socialize.
The United States never fulfilled its treaty obligation to make payment
for the Gun Lake Tribe's Kalamazoo land cession.
In 1839 in Bradley, Allegan County, the Tribe placed itself under
the protection of an Episcopalian Mission while the Tribe occupied what
was known as the Griswold Colony, or Bradley settlement. Indian
colonies like the Griswold Colony were established pursuant to the 1819
Civilization Act, which allowed five participating denominations to
establish trust agreements, in which the missionary societies would
hold land in trust for the Indians, build churches and schools, clear
and fence fields, teach farming techniques, and make blacksmiths and
mills available to the tribes.
Funding for the Griswold Colony had been set by treaty for 20
years. In 1855, the assistance provided by the treaty came to an end
and a new treaty was made with the Tribe whereby they were granted
outright ownership of lands in Oceana County near Pentwater, Michigan.
The majority of the Griswold Indians took advantage of the provisions
of the new treaty and moved northward, while a few families stayed
behind. Within 10 years, however, most of the Griswold Indians had lost
their lands in Oceana County, and many returned to the mission grounds,
which had not been disposed of, despite the fact that the work there
had come to an end. The Indians lost their lands in Oceana County not
to taxes, but because the patents to the lands were never delivered to
those that held land certificates, and thus the land selection process
in Oceana County was never legally completed by the United States
government.
When the land patents were not delivered, the Gun Lake tribal
members returned to Allegan County, to the 360 acre reservation which
was still in trust with Bishop McCoskry. However, during the period
when some members lived in Oceana, the reservation members that
remained behind refused to pay Allegan county taxes on the reservation
lands, based on treaty rights. Tribal members returning from Oceana
County met with court action by Allegan County and the reservation land
was put up for sale for back taxes. Within a few years, practically all
of the Tribal members had lost their land to non-Indians for failure to
pay their taxes.
In 1890, pursuant to federal law allowing the ``Pottawatomi Indians
of Michigan and Indiana'' to receive a payment from the United States
for past annuities, the Pokagon Band and Nottawaseppi Pottawatomi filed
cases in federal court. However, only the Pokagon Band was paid, and
not the Allegan County Pottawatomies, our Tribe. In 1899, the Supreme
Court ruled that the Allegan County Indians were also eligible to share
in the judgment. The Taggart Roll was developed to establish the
additional parties to be paid, and it contains 268 Pottawatomi Indian
names, many of whom are descendants of Match-E-Be-Nash-She-Wish's Band.
The Bradley Indian community used the funds to expand and acquire land
in the area.
The Tribe had unambiguous previous Federal acknowledgment, which is
demonstrated by treaties extending at least through the 1855 Treaty of
Detroit with the Ottawa and Chippewa Indians of Michigan, to which the
Tribe's chief was a signatory, through the 1870 date at which annuity
payments under prior treaties were commuted. There was never an express
congressional legislation terminating the Tribe; the Tribe was simply
passed over for a Treaty before treaty making ended in 1871
Over one hundred years later, in 1992, the Gun Lake Tribe
petitioned the Bureau of Indian Affairs for acknowledgment. In August
of 1999, the Tribe was acknowledged as a federally recognized Indian
Tribe, re-establishing their government-to-government relationship with
the United States. Since restoration as a federally recognized tribe,
the Tribe has identified a site in Allegan County within the Wayland
Township as a proposed site to place in trust for the benefit of its
members. In fact, most of the Tribal members currently reside in the
Allegan area. The Tribe chose to remain in Allegan County because it is
part of the Tribe's aboriginal lands and the land on which the Tribe
has lived since 1839.
It is also important to highlight that on June 25, 2003, the Tribe
received a Department of the Interior Solicitor Opinion that
acknowledged Gun Lake Tribe's historical nexus to proposed land
acquisition site and determined that land acquired in trust for the
land would be proclaimed the Tribe's initial reservation. The opinion
concluded that the Tribe could conduct gaming activities on the land
under the ``initial reservation'' exception in Section 20 of the Indian
Gaming Regulatory Act.
THE GUN LAKE PROJECT IS WIDELY SUPPORTED
As Senate Committee on Indian Affairs Chairman, Senator John McCain
(R-AZ) observed during the May 18, 2005 committee hearing on trust
lands, the Gun Lake Tribal project has received ``a pretty impressive
display of local support.'' This is quite true, as part of the public
comment period for the Environmental Assessment, the Bureau of Indian
Affairs received letters supporting the Tribe's proposed land
acquisition and development from the following groups/individuals:
Wayland Township
International Brotherhood of Electrical Workers
Michigan House of Representatives
City of Wayland
Allegan Public Schools
Barry County Economic Development Center
Gun Lake Area Chamber of Commerce
Allegan County Health Department
Wayland Area Chamber of Commerce
Plumbers/Pipe Fitters Union
Wayland Union Schools
Dorr Township
Barry County Area Chamber of Commerce
Allegan County Board of Commissioners
Wayland City Police
Deputy Sheriff's Association of Michigan
Michigan House Democratic Leader Buzz Thomas
Michigan State Majority Floor Leader Randy Richardville
Unfortunately, there are a small handful of detractors such as
MichGo and 23 is Enough!--a witness testifying in the second panel
today. We understand that these two organizations are led and funded by
a small collection of businessmen who operate their companies
regionally. We also believe that 23 is Enough! has not opposed any
other gaming projects in Michigan aside from the Gun Lake project--not
even the commercial gaming operations recently opened in Detroit. This
group seems solely focused on our Tribal project.
Furthermore, none of this group's leaders submitted comments during
the lengthy environmental review conducted by the Bureau of Indian
Affairs. This raises a legitimate question of whether this group has
gathered to oppose Indian gaming in the State or to oppose what
promises to be a significant local competitor for the job base in
Western Michigan. After all, the Gun Lake Casino is expected to bring
4,300 new jobs to the area, as well as local supplier purchases, local
and state revenue sharing, a proven recreational attraction, and other
economic development to the depressed area.
As a final thought, we know that Congress, when it enacted IGRA,
carefully considered the unique history of tribal-federal relationship
and we hope it will do so when it considers the special circumstances
of landless tribes affected by this legislation. It is an honor and
privilege to present testimony to Committee today and I am happy to
answer any questions you have of me.
[GRAPHIC] [TIFF OMITTED] T7014.001
______
The Chairman. Thank you.
Mr. Arnold.
STATEMENT OF DONALD ARNOLD, CHAIRMAN,
SCOTTS VALLEY BAND OF POMO INDIANS
Mr. Arnold. Good morning, Honorable Chairman Pombo, and
Members of the House Resources Committee.
My name is Don Arnold, Chairman of Scotts Valley Band of
Pomo Indians. Also with me today is our Vice-Chairman, Crista
Ray, and also Dore Bietz of the Indian lands consultant.
As a small landless tribe in California, we have an
application in with the Department of Interior to place in
trust restored land for gaming purposes and economic
development.
The tribe has expended a considerable amount of time and
resources toward this project. We were one of 41 tribes that
California terminated pursuant to the Rancheria act of 1958.
Termination means we lost our property rights.
During the '60s and the '70s, the Federal government then
implemented the relocation, relocating Indians to the Bay Area.
The majority over the Scotts Valley Band of Pomo Indians
relocated to the Bay Area. I, myself, was relocated to San
Francisco.
Twenty-seven years later, in 1992, Scotts Valley was
restored to recognition by court order along with three other
tribes, Guidiville, Mechoopda and Lytton. The court precluded
us from returning to our former Rancheria area, our land base.
In 2000, BIA recognized that the majority of our tribal
members live in the Bay Area. Contra Costa County has been
designated our service population, service area. Our tribe has
researched and have documents, ethnohistory, facts linking
Contra Costa County to our historical Pomo site. The territory
ceded to the United States in the Nineteenth Century.
Based on this history, and our modern ties, the tribe has
decided to seek restoration in our land base in Contra Costa
County. Our application was submitted in January of 2005. Our
tribe has offered the county a limited waiver of sovereign
immunity to make enforceable the terms of our MSA with these
agreements.
The tribe currently is negotiating with the City of
Richmond, although our site is in an unincorporated area of
Contra Costa County. The tribe wants to be a good neighbor. We
continuously reach out to the community for communications with
them.
Concerns: We would now like to express our ideas on the
legislation.
First, there must be a mechanism for landless and newly
restored and recognized tribes. California tribal history is
unique and complex as you mentioned earlier, Congressman. There
must be a way to combine, protect for the small, needy, unjust
landless tribes while ensuring that requirements should be in
place for historical claims that the tribe must meet. Every
tribe should have the same rights as others.
Second, we need to maintain the standard and process for
acquisitions, and without having to change the long-standing
Federal policy, and recognizing tribal sovereignty. We have
concerned while giving veto power to local governments and
other tribes. However, we do recognize the need for local
community involvement.
Finally, there needs to be a grandfather clause for those
tribes already in the process. Many of these tribes have
exhausted much time and resources like Scotts Valley. Changing
the rules to the game is unfair. Any grandfathering should be
inclusive in any tribe who has an application in for the
purpose of gaming on the date of enactment of any new bill.
This is the only fair and equitable remedy for those tribes,
all tribes that have spent any time in the process.
Grandfathering does not guarantee approval as you know, and
Scotts Valley will continue to follow the process as outlined.
What about other tribes who do not have an application in?
Their rights should also be protected.
In closing, the rules of the game should not be changed
midway through the seventh inning. Let us say a rancher has
spent several years and hundreds of thousands of dollars in
working through the local zoning regulations so he could put a
new building on his property. Toward the end of the process the
local government changes the law and does not grandfather his
application. He has to start all over again and jump through
this even higher hurtles. The result is that he will lose his
investment, the time and money just like tribes will if we are
not grandfathered.
Grandfathering language is critical for landless tribes,
and I want to thank you for your time and the Committee. We are
open for questions and answers. Thank you.
[The prepared statement of Mr. Arnold follows:]
Statement of Donald Arnold, Chairman,
Scotts Valley Band of Pomo Indians,
Introduction
Honorable Chairman Pombo and members of the Committee, my name is
Don Arnold and I am the Chairman of the Scotts Valley Band of Pomo
Indians. Thank you for the opportunity to speak in front of you today
on such an important issue.
Scotts Valley is a small landless Tribe in California that has an
application with the Department of Interior to have land placed into
trust as a restored tribe for gaming purposes. To date, the Tribe has
expended a considerable amount of time and resources in order to comply
with the federal fee to trust and restored lands applications process.
I hope that I can provide some valuable information about the unique
history and needs of California Tribes as well as update you as to
where we are in our project and why we are concerned with the proposed
legislation. We also would like to specifically speak to the issue of
grandfathering and why Scotts Valley and other tribes should not have
the rules changed in the seventh inning of the game.
Scotts Valley History
The Scotts Valley Band of Pomo Indians of California is a federally
recognized Indian tribe, which has absolutely no trust land base. The
Tribe's status as a federally-recognized Indian tribe was illegally
terminated in 1965 under the California Rancheria Termination Act, and
restored in 1992 pursuant to a judgment of the Federal District Court
for the Northern District of California. The Judgment, however,
specifically precludes the Tribe from re-establishing our former
Rancheria.
As a result of the Federal Government's termination and relocation
policies throughout the 20th century, the vast majority of tribal
members were relocated to the San Francisco Bay area, and, in 2000, the
Bureau of Indian Affairs designated Contra Costa County, California as
the Scotts Valley Band of Pomo Indians ``service population area.''
Because a large percentage of tribal members reside in and around the
County and the County has been designated as the Tribe's service
population area, the Tribal Council has determined to restore the
Tribe's trust land base in the County, and to fully establish the
Tribal Government and Tribal community in Contra Costa County. The
Property is located in the extreme western end of the County close to
the sites of historic Pomo villages and trails and the territory the
Pomo ceded to the United States in the 19th century. The Property is
thus the closest part of the Tribe's present day service population
area to historic Pomo territory. As a result, the Tribal Council has
determined that the development and operation of a gaming facility on
the Property is an important Tribal Government project designed to
improve the economic conditions of the Tribe and its members, increase
tribal revenues, enhance the Tribe's economic self-sufficiency and
promote a strong Tribal Government capable of meeting the social,
economic, educational, cultural and health needs of the tribal members.
Accordingly, the Tribe has requested that the Secretary of the Interior
acquire title to six (6) parcels of real property totaling
approximately 29.87 acres located within an unincorporated area of the
County in trust for the benefit of the Tribe.
Application for Land Into Trust
After much time and resources, the Scotts Valley Tribe submitted an
application under 25 C.F.R. 151 on January 25, 2005 This application is
an extensive compilation of both required and submitted documents
filling numerous binders that includes a narrative addressing all
requirements within 151 such as need, authority, impacts on the State
and Political Subdivisions jurisdictional issues and title
requirements.
In addition, a detailed Environmental Impact Statement (EIS) was
developed which identifies a range of measures necessary to mitigate
significant impacts our project will have on the local community. Not
only has the Tribe publicly agreed to mitigate those impacts, but also
has offered the County in which our restored trust land base would be
located a limited waiver of sovereign immunity in order to make fully
enforceable the terms of a Tribal-County agreement regarding the
mitigation of impacts to the County.
The Tribe also is currently in negotiations with the City of
Richmond to develop an MSA that addresses the mitigation of the impacts
to the City of our proposed project. Quite simply, the Tribe wants to
be good neighbors of the community in which our restored trust land
base is located, and continuously reach out to the community to ensure
that happens.
Since Congress included the ``restored lands exception'' when it
enacted IGRA, it is clear that Congress knew and understood the plight
of landless illegally terminated tribes, such as Scotts Valley.
Congress did not give landless, illegally terminated tribes a free
pass. Instead it created a rigorous mechanism for a landless, illegally
terminated tribe, like Scotts Valley, to restore its trust land base
and operate a gaming facility as a means of promoting tribal economic
development, self-sufficiency and a strong tribal government. Scotts
Valley is following this mechanism; the only mechanism which can
provide our Tribe assurances of its sovereign survival.
Concerns with H.R. 4893
In 1988, Congress saw Indian gaming as an appropriate expression of
tribal sovereignty and, accordingly, Congress enacted IGRA to protect
and regulate that activity. It is clear, however, that, with certain
exceptions, Congress intended to limit Indian gaming to Indian lands
that existed on the date of enactment (October 17, 1988).
The problem was that not all tribes held tribal lands in 1988.
Congress very specifically intended to assist such disadvantaged tribes
by providing that, when they finally obtained land, their land would be
treated as if it effectively had been in trust since before October 17,
1988. In other the words, Congress provided the restored lands
exception of Section 20 (b) (1)(B)(iii) of IGRA so that eligible tribes
such as Scotts Valley could be placed closer to the position they would
have been in had the Tribe been restored and held lands in trust prior
to1988. By so doing, Congress provided a mechanism by which newly
restored tribes would be on a more level playing field with the tribes
that were lucky enough to have been restored and had a land base on the
date of IGRA's enactment. Congress knew that locking restored landless
tribes out of the economic development opportunities made available by
IGRA would do an incredible injustice to those tribes.
The purpose and intent of IGRA's restored lands provision is
informed by the opinions of the federal courts that have considered
this issue. In 2003, in a case involving a California tribe, the D.C.
Circuit (in an opinion joined in by now Chief Justice Roberts)
explained that the restored lands and initial reservations exceptions
``serve purposes of their own, ensuring that tribes lacking
reservations when IGRA was enacted are not disadvantaged relative to
more established ones.'' City of Roseville u Norton; 348 F.3d 1020,
1030 (D.C. Cir. 2003). In 2002, in an opinion involving a Michigan
tribe that was later affirmed by the Sixth Circuit, the District Court
said nearly the same thing, saying that the term ``restoration maybe
read in numerous ways to place belatedly restored tribes in a
comparable position to earlier recognized tribes while simultaneously
limiting after-acquired property in some fashion.'' Grand Traverse Band
of Ottawa and Chippewa Indians v. U.S. Attorney for the Western
District of Michigan, 198 F. Supp. 2d, 920, 935 (W D. Mich. 2002),
aff'd 369 F.3d 960 (6th Cir. 2004) (referring to the factual
circumstances, location, and temporal connection requirements that
courts have imposed). The restored lands provision ``compensates the
Tribe not only for what it lost by the act of termination, but also for
opportunities lost in the interim.'' City of Roseville, at 1029.
Only rarely does Congress provide the Secretary with special
authority or direction to acquire trust land for a particular restored
tribe. Therefore, newly restored tribes like Scotts Valley must rely on
the general discretionary land acquisition authority given to the
Secretary pursuant to Section 5 of the Indian Reorganization Act. (25
U.S.C. 465) As a consequence, landless restored tribes must submit to
Interior's usual process for reviewing fee-to- trust applications,
including complying with the requirements of Interior's fee-to-trust
regulations (25 C.F.R. Part 151).
H.R. 4893 would amend Section 20 to impose on newly recognized,
newly restored and landless tribes an extensive laundry list of new
requirements before those tribes could obtain trust land for gaming.
Such comprehensive requirements have never been imposed on tribes with
reservations in existence in 1988. Indeed, on its face, H.R. 4893
appears to conflict with Congress' own policy direction to the federal
agencies that they may not promulgate regulations or make any
determination that ``classifies, enhances or diminishes the privileges
and immunities available to the Indian tribe relative to other
federally recognized tribes.'' \1\
---------------------------------------------------------------------------
\1\ See 25 U.S.C. Sec. 476(f).
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Section 20 is working as Congress intended. The Section 20
exceptions were intended to place tribes that were either unrecognized
or landless in 1988 (Scotts Valley was both) on an equal footing with
recognized tribes that had established trust land bases. The exceptions
were not intended for recognized tribes with established land bases to
improve their competitive environment, and therefore these tribes
should not be attempting to use the exceptions for such purposes.
Grandfathering Tribes already in the process
Scotts Valley is a landless illegally terminated/restored tribe
that is following the federally established procedures for taking land
into trust for gaming purposes, and it is truly hurtful when the
illegal termination of our Tribe and the relocation of our people are
ignored and we are accused of ``off reservation shopping.'' We are not
``reservation shopping'', instead we are following the very vigorous
requirements the Congress established for restored tribes to restore
their trust land base. The tens of thousands of pages included in the
Tribe's trust application will show that the Tribe has both a strong
historic connection to our proposed restored trust land and an even
stronger modern day connection to that same proposed trust land.
Our tribe, as it always has, will tenaciously move forward in its
fight for its survival, this time by following the federal procedures
set forth for establishing a restored land i.e. pursuant to the
provisions and case law governing Section 20(b)(1)(b)(iii) of IGRA and
25 C.F.R. 151. This section provides adequate safeguards for tribal,
state and local governments, and should not be changed.
There are considerable provisions under current law for public
input into the Tribe's restored lands application. In addition to the
public consultation and comment requirements built into the fee to
trust process, there are a significant number of opportunities for
public participation required by the National Environmental Policy Act
(``NEPA''). The Department of the Interior has made clear in its
recently revised guidelines for gaming acquisitions that most tribal
casino projects will require preparation of an EIS to assess a wide
range of potential impacts, including ecological, social, economic,
cultural, historical, aesthetic, and health impacts. The Scotts Valley
project is no exception.
The enormous amount of public opinion that is made a part of the
NEPA and EIS processes is perhaps best demonstrated by walking through
the extensive process in which Scotts Valley has been engaged:
On July 20, 2004 the Bureau of Indian Affairs (BIA)
published a notice of intent to prepare an EIS in the Federal Register
describing Scotts Valley's proposed project, explaining the NEPA
process, announcing a scoping meeting, and soliciting written comments
on the scope and implementation of the proposed project. Public notices
announcing the proposed project and the scoping meeting also were
published in local papers. The scoping process was intended to gather
information regarding interested parties and the range of issues that
would be addressed in the EIS.
The BIA held the public scoping meeting on August 4, 2004
in Richmond, California, and received comment letters during the
scoping process. In December 2004 the BIA issued a scoping report
describing the NEPA process, identifying cooperating agencies,
explaining the proposed action and alternatives, and summarizing the
issues identified during the scoping process.
The BIA then prepared a preliminary draft EIS, which was
circulated to the cooperating agencies for comment. Cooperating
agencies for the Scotts Valley project included the County of Contra
Costa, California, the City of Richmond, California, the California
State Department of Transportation and the Environmental Protection
Agency.
Based on the comments received from the cooperating
agencies, the BIA then prepared a draft environmental impact statement
which was released for public comment on February 17, 2006. The BIA
also held a public meeting in Richmond, CA on March 15, 2006 after the
draft EIS had been made available to the public. At that meeting,
several members of the community commented on the draft EIS; many of
them positively.
All the comments on the draft EIS, whether received in
writing or through the public meeting, are being considered and
addressed in the final EIS. The information included within that final
EIS will be considered by the Secretary while he/she determines whether
or not to take the Scotts Valley parcel into trust. Therefore, the
views of local elected officials, local citizens, and even the card
rooms will be available to the Secretary for consideration before he/
she makes a decision as to whether to take this land in trust for
Scotts Valley.
Finally, after the Secretary of the Interior has
considered all the public comments, including information about impacts
and mitigation, if he/she does decide to acquire trust title to the
land, Interior's regulations provide the public with a very clear and
very unambiguous opportunity to challenge the Secretary's decision in
federal court before he/she implements that decision. 25 C.F.R.
151.12(b) requires the Secretary to give the public at least 30 days
notice of his/her decision to take land into trust before he/she will
actually take the action to acquire trust title. Accordingly, if the
public ultimately is not satisfied that its concerns have been
addressed through either the fee to trust, the NEPA or EIS processes,
it can exercise all available remedies at its disposal to prevent the
Secretary from taking the land into trust.
In summary, I am here today to advocate among other things for the
insertion of ``grandfathering language'' in H.R. 4893 that protects
those illegally terminated landless tribes, who like Scotts Valley have
already gone to considerable effort in their petitions to the federal
government for a land base, on which to conduct gaming under the
original provisions of IGRA. In conclusion, we hope that if passed, the
Pombo Bill will add such ``grandfathering language'' and cut off dates
to its final form before enactment to protect the Tribes who have
followed the process and been engaged with time and resources.
Thank you for your attention to this testimony.
______
The Chairman. Thank you.
Ms. Davis-Van Huss.
STATEMENT OF JACQUIE DAVIS-VAN HUSS, TRIBAL SECRETARY, NORTH
FORK RANCHERIA OF MONO INDIANS OF CALIFORNIA
Ms. Davis-Van Huss. Thank you, Chairman Pombo, for the
opportunity to appear before the Committee today.
While my tribe has concerns about the specific proposals
contained in this legislation, we understand the circumstances
that have caused the Chairman to introduce this bill. I would
like to focus my statements on what we believe are unintended
consequences of this bill, and specifically how it would
preclude my tribe from engaging in gaming on restored lands
located within our modern day and ancestral homelands, an
effort that we have pursued with strong local support for over
two years.
Our tribe is the largest restored tribe in California. We
have 1,386 tribal citizens, and we are growing. For several
years, we have been engaged in a process to acquire gaming-
eligible lands to provide our tribal citizens the same economic
development opportunities as enjoyed by other tribes. We are
proceeding through this difficult process because the only
gaming-eligible lands available to us, the North Fork
Rancheria, sits on a rocky hillside adjacent to the Sierra
National Forest, and is in trust for six individuals, not the
tribe.
Neither the tribe, the local community, nor the State of
California considers the Rancheria to be appropriate for
commercial development, and any such development would do
little to advance the needs of either the tribe or the larger
community.
In 2003, we began working cooperatively with Madera County
to identify an appropriate location for a gaming facility on
our historical lands in Madera County. We eventually identified
a 305-acre parcel on an unincorporated area just north of the
City of Madera. The parcel is located within lands set aside
under the unratified treaties of 1851 and near the reservation
operated for our ancestors in the 1850s.
Our proposed gaming and entertainment project is consistent
with the county's land use and development plans for the
location. Further, the location avoids impacts to the
environmentally sensitive foothills and minimizes the impact on
gaming operations of neighboring tribes.
In August 2004, the Madera County Board of Supervisors
unanimously approved an MOU with the tribe under which the
tribe will provide $87 million over 20 years for mitigation of
project impacts on the county, and for sustained charitable
contributions.
A year later the county passed a second resolution in
support of the tribe's proposals project at the proposed
location. I believe the Committee is in receipt of written
testimony from Madera County's Supervisor Gary Gilbert that
outlines the county's support of our project.
The North Fork project has become something of a model for
responsible development, one where the tribe working with the
county has identified an environmentally and economically
viable location within our homeland to provide sorely needed
economic resources through the creation of living wage, full
benefit jobs, sustained charitable contributions, and
significant shared revenues.
Our project is distinguished by its strong local support,
its emphasis on collaboration, its adherence to the spirit and
letter of the law, and its goal for improving the lives of all
Madera County residents.
Yet despite all this, our project would never be able to
satisfy all of the requirements in this proposed legislation.
Indeed, it seems unlikely that any tribe in the country,
particularly in California, could satisfy the requirements of
the legislation. Most problematic is the requirement that
requires the concurrence of any tribe within 75 miles of the
proposed site. This provision is anti-competitive. It
effectively provides other tribes without jurisdiction or land-
use authority over the lands the power to veto another tribe's
gaming project simply to protect their market share.
There are 107 federally recognized tribes in California,
and five are within 75 miles of our proposed site. The two
tribes with the largest gaming facilities in our area, despite
our best efforts, oppose our project for competitive reasons.
While we agree that these tribes should be consulted as
part of the Federal process, they should not have the same
power as the Secretary or the Governor.
We also request that the Committee eliminate the
requirement for concurrence by the state legislature of the
Secretary's decision to approve an application. This bill
already provides for concurrence by the Governor, which has
only occurred three times in 18 years since IGRA was enacted.
Given the Governor's role as chief executive of the state, it
is unlikely a Governor would concur in a decision by the
Secretary without strong local support. Requiring additional
concurrence of the state legislature simply provides successful
gaming tribes who enjoy tremendous influence, especially in
California, with the state legislature additional power to veto
projects that threaten their competitive position.
We also question the need for a countywide referendum. We
elect our officials to make tough decisions concerning land use
and development. Those officials already have the power under
California law to call for an advisory vote when appropriate.
Madera County does not require an advisory vote or referendum
when approving large or controversial developments, whether
that be a new Wal-Mart or a rock quarry, and we do not see why
the Federal government should impose such a requirement on a
gaming development. A referendum simply creates another
opportunity for competitive interest to spend hundreds of
thousands of dollars in creating a high-profile political
campaign that ultimately has little to do with what the
residents of the affected community want.
As you can see, this well-intentioned legislation will have
significant unintended consequences on my tribe. Our tribe has
been following the spirit and letter of the law for over two
years, and the process we, along with local elected officials
and business leaders, have invested an enormous amount of time
and resources. It would be unfair to change the rules on us and
the community at this stage.
We urge the Committee to consider adding a grandfather
provision that would allow us to continue through the process
under the existing law.
I appreciate this opportunity and thank you very much.
[A statement submitted for the record by Ms. Davis-Van Huss
on behalf of Elaine Fink, Tribal Chairperson, North Fork
Rancheria of Mono Indians of California, follows:]
Statement submitted for the record by Elaine Fink, Tribal Chairperson,
North Fork Rancheria of Mono Indians of California
Introduction
The North Fork Rancheria of Mono Indians first wishes to thank
Chairman Pombo for the opportunity to appear before the Committee today
and provide our Tribe's story as well as our perspectives on H.R. 4893,
a bill to amend the Indian Gaming Regulatory Act of 1988. While the
Tribe has concerns about the specific proposals contained in this
legislation, we understand the circumstances that have caused the
Chairman to introduce this bill and also understand his perspectives in
wanting to further tighten the authority of restored and newly-
recognized tribes to acquire land for gaming beyond those already
contained in section 20 of the IGRA. I would like to focus my
statements on what we believe are unintended consequences of this bill
and specifically, how it would preclude the Tribe from engaging in
gaming on restored lands located within our modern day and ancestral
homelands--an effort that we have pursued with strong local support for
over two years.
Tribal History
The North Fork Rancheria of Mono Indians is a federally recognized
Indian tribe with governmental offices in Madera County, California and
the largest restored tribe in California. Our ancestors were Northfork
Mono, and also included members of local Yokut and Miwok tribes.
Historically, our ancestors used and occupied overlapping territories
of the San Joaquin Valley tribes, gaining access to specific regions
through a complex and interdependent system of social, political, and
economic ties between Native groups.
The arrival of non-Natives in the San Joaquin Valley, as early as
the 1810s, thoroughly disrupted our life there, as our ancestors were
pushed farther and farther into the foothills and mountains, in order
to flee from the kidnapping, violence, and disease which decimated our
populations. With the 1849 California Gold Rush, tensions between
Native peoples and miners as well as settlers escalated rapidly in the
San Joaquin Valley, and culminated in the Mariposa Indian War of 1850-
51. The Gold Rush accelerated the destruction of Native society to a
pace never before seen in North America, as literally a million new
immigrants came to California in the span of a few years to seek gold
on our lands. In response the federal government sent three treaty
commissioners to California to negotiate treaties for peace and the
cession of land in exchange for the establishment of reservations. The
interests of the Northfork Mono were represented directly in the
ensuing treaty negotiations by trusted chiefs of neighboring Mono and
non-Mono tribes with whom we had kinship and socio-political ties. The
April 29, 1851, treaty expressly provided that our ancestors were
intended beneficiaries of the treaty. This and two other treaties
reserved adjacent tracts of Native lands on the Valley floor where the
present-day City of Madera is located and near the site for our
proposed gaming facility.
The lands reserved in these treaties were quickly overrun by
settlers, ranchers, miners and, later, farmers, leaving only a series
of small ``Indian farms'' operating over a large area. One of these,
the Fresno River Farm, was located in the immediate vicinity of the
present-day City of Madera and later became the headquarters for the
entire reservation. Although Congress eventually refused to ratify the
treaties based on objections from the California Legislature, by 1854
the Fresno River Farm or Reservation was viewed as one of the five
reservations authorized by Congress a year earlier. In 1856, the Indian
Agent for the Fresno River Reservation identified a significant number
of our tribal ancestors who lived on, visited, and recognized the
Reservation as their home and headquarters. At the same time, most of
our ancestors integrated the Reservation into their yearly subsistence
cycle, spending part of the year on reservation lands cultivating crops
and collecting treaty-stipulated goods, and part of the year off
reservation grounds hunting, gathering, and fishing. Operation of the
Reservation was plagued with problems, however, and in 1860 the
Reservation was closed. Our tribal ancestors subsequently integrated
into the mining, lumber, ranching, and agricultural economies, thereby
adapting their use and occupancy of the Valley floor and foothills to
supply their subsistence in new ways.
Beginning in the 1890's, the federal government made a limited
number of land allotments to Native people. Because very few public
domain lands were available, the government turned to the National
Forests for lands that could become Indian allotments. Consequently,
most lands allotted to Tribal ancestors were in the Sierra National
Forest, although some were within approximately 18 miles from the City
of Madera. In 1903, a Presbyterian Mission was established in the town
of North Fork. Native parents began sending their children to be
educated and sheltered at the Mission while continuing their migratory
patterns by working as wage laborers on farms and logging operations in
the San Joaquin Valley. In 1916, at the urging of the Mission, the
Federal Government purchased the 80-acre North Fork Rancheria next to
the Mission to provide shelter to Indian families whose children were
attending the Mission. The rocky soil and precipitous landscape were
unsuitable for farming, however, and the Rancheria never was able to
support more than a few families.
In 1961, the federal government terminated the Tribe's federally
recognized status and transferred the Rancheria land to fee for the
lone resident then living on the Rancheria. The Tribe's status as a
federally recognized Indian tribe was restored in 1983 under a
stipulation for entry of judgment in Tillie Hardwick v. United States
of America, No. C-79-1710-SW (N.D.Cal 1983). Four years later, the
lands within the Rancheria boundaries were restored to the status of
``Indian Country'' as part of the same lawsuit under a stipulation for
entry of judgment for Madera County. The lands within the Rancheria
boundaries were subsequently transferred into trust for the benefit of
the six individuals who had been residing on the land, not for the
Tribe.
The Tribe subsequently opened an office in rented quarters in the
early 1990's, adopted its Constitution in 1996, and since then has used
its limited funding to establish a modern tribal government. We have
purchased lands for tribal housing and are currently constructing a
community center and single-family homes for tribal citizens on those
lands. Our tribe has also assumed responsibility for administering
Temporary Aid for Needy Families for Indians residing in Madera,
Merced, and Mariposa Counties. We have an active environmental
deqpartment and are working to maintain our language and culture. I am
very proud that today, our Tribe is the largest restored tribe in
California with some 1380 tribal citizens.
Economic Self Sufficiency
Like other California tribes whose restored reservations are
nothing more than several dozen acres of inadequate lands, and which
are held in trust for a few tribal members, we have sought to acquire
gaming-eligible trust lands on which to provide economic development
opportunities for our tribal citizens. Our own Rancheria sits on a
rocky hillside adjacent to the Sierra National Forest about a 40 minute
drive from Yosemite National Park, and can only be accessed from a dirt
road. Neither the Tribe, the local community, nor the State of
California consider the Rancheria to be appropriate for commercial
development, and any such development would do little to advance the
needs of either the Tribe or the larger community.
Consequently, in 2003, the Tribe approached its local district
supervisor for the County of Madera about working cooperatively to
identify an appropriate location for a gaming facility on historical
tribal lands in Madera County. The County agreed, recognizing the
opportunity to diversify its agriculturally based economy and to lower
unemployment rates that hover around 12% in the County and as high as
25% in the City of Madera. Working cooperatively with the County, the
Tribe eventually identified a 305 acre parcel in an unincorporated area
just north of the City of Madera in Madera County, California,. The
parcel is located near the former reservation where our ancestors
worked and lived in the 1850's . Developing our proposed gaming and
entertainment project at this location would be consistent with the
land use and development plans of the County. Further, it would avoid
impacts to the environmentally sensitive foothills and minimize the
impact to the gaming operations of neighboring tribes. Although the
lands may qualify as restored lands under Section 20, we have requested
the Secretary to make a determination that the lands are eligible for
gaming under the two-part process under Section 20(b)(1)(A) of IGRA.
Community Benefits
In August 2004, following two well publicized and attended public
meetings, the Madera County Board of Supervisors unanimously approved a
Memorandum of Understanding with the Tribe in which the Tribe has
agreed to provide $87 million over 20 years for mitigation of project
impacts on the County and for sustained charitable giving. A year
later, in August 2005, the Madera County Board of Supervisors passed a
second resolution in support of the Tribe's proposed project at the
proposed location. I believe the committee is in receipt of written
testimony from Madera Supervisor Gary Gilbert that outlines the
County's support of the Tribe's project.
In October 2004, the Bureau of Indian Affairs issued a Notice of
Intent to prepare an environmental impact statement for the project
pursuant to the National Environmental Policy Act. Once the draft
environmental impact statement is issued early in the summer of 2006,
the Tribe also expects to enter into additional agreements with the
City of Madera and Caltrans, and likely other entities, to mitigate any
project impacts on roads and other resources within their respective
jurisdictions which are identified in the report.
The North Fork project has become something of a model for
responsible development--one where the Tribe, working with the County,
has identified an environmentally and economically viable location
within our homeland to provide sorely needed economic resources to a
struggling local economy. The proposed destination resort and hotel is
expected to create 1500 living wage jobs plus 750 additional
construction jobs. The majority of jobs are expected to be secured by
Madera residents. The project is also expected to stimulate an
additional 2100 jobs and provide increased discretionary spending from
payroll and additional income to local businesses.
The Tribe's announcement has resulted in a significant number of
proposals for large retail and other commercial development in the
immediate vicinity of the Tribe's proposed site. Development of any one
of the proposals would result in millions in sales tax revenue for the
cash-strapped City of Madera and hundreds of new jobs in an area with
one of the highest unemployment rates in California. However, potential
developers have indicated that their projects will not be built unless
the Tribe is able to construct its proposed resort. Much is at stake
here both for the Tribe's nearly 1400 citizens and for thousands of
area residents looking for jobs and a better life for their children.
Community Support
As I have indicated, our project is distinguished by its strong
local support, its emphasis on collaboration, its adherence to the
spirit and letter of the law and its goal of improving the lives of all
Madera County residents. It offers the promise of economic vitality for
the Tribe, the community and the state through the creation of living-
wage/full-benefit jobs, sustained charitable contributions and
significant shared revenues.
Concerns Regarding H.R. 4893
Yet despite all this, our project would never be able to satisfy
all of the requirements in the proposed legislation. Indeed, it seems
unlikely that any tribe in the country, particularly in California,
could satisfy the requirements of this legislation. Most problematic is
the requirement that requires the concurrence of any tribe within 75
miles of the proposed site. This effectively provides other tribes
without jurisdiction or land use authority over the lands the power to
veto another tribe's gaming project for competitive reasons. There are
107 federally recognized tribes in California, and five are within 75
miles of our proposed site. The two tribes with the largest gaming
facilities in our area, despite our best efforts, oppose our project
for competitive reasons. We believe this provision is anti-competitive,
in that it provides tribes the power to stop any project that might
compete with existing gaming facilities. The nearby tribe requirement
usurps the land use and development planning authority of local
jurisdictions by providing a nearby tribe the power to veto a project
supported by a local jurisdiction. While we agree that nearby tribes
can and should be consulted by the Secretary as part of the process,
they should not have the same power as the Secretary or the Governor.
We also request that the Committee eliminate the requirement for
concurrence by the state legislature of the Secretary's decision to
approve an application. This bill already provides for concurrence by
the Governor, which has only occurred three times in the eighteen years
since IGRA was enacted. Given the governor's role as chief executive of
the state, it is unlikely a governor would concur in a decision by the
Secretary without strong local support. Under his May 2005
proclamation, California's Governor states that he will consider
concurring in determination by the Secretary only when there is local
support and the project satisfies an independent public policy.
Requiring the additional concurrence of the state legislature simply
provides successful gaming tribes, who enjoy tremendous influence with
the state legislature, additional power to veto projects that threaten
their competitive position.
We also question the need for a county wide referendum. We elect
our officials to make the tough decisions concerning land use and
development. Those officials have the power under California law, and
presumably in other states, to call for an advisory vote when
appropriate. In Madera County, the Board of Supervisors does not
require an advisory vote or referendum when approving large or
controversial developments, whether that be a new Walmart or rock
quarry, and we do not see why the federal government should impose such
a requirement for a gaming development. This is particularly true for
our project where the County has thoroughly considered the issue and
entered into a binding agreement with our Tribe regarding future land
use, development, and jurisdictional issues. A referendum simply
creates another opportunity for competitive interests to spend hundreds
of thousands of dollars in creating a high profile political campaign
that ultimately has little to do with what the residents of the
affected community want.
As you can see, this well-intentioned legislation will have
significant unintended consequences on our tribe. Our tribe has been
following the spirit and letter of the law for over two years. In the
process, we, along with the County and the local community, have
invested enormous time and resources. It would be unfair to change the
rules on us and on the community at this stage, particularly given our
inequitable land situation and the fact that our proposed site is
within our home county and on lands which our people have used and
occupied for centuries. We urge the Committee to consider adding a
grandfather provision that would allow us to continue through the
process under existing law.
I appreciate this opportunity to submit comments to the Committee.
______
The Chairman. Thank you. I thank the entire panel for your
testimony.
I would like to begin the questioning and start with Ms.
Davis-Van Huss.
In your written testimony and in your oral testimony you
spoke of your concerns over having the state legislature,
having concurrence from the state legislature. Can you expand
on what those concerns are?
Ms. Davis-Van Huss. I believe my tribe's concerns with the
state legislature, especially in California, is as of late you
know that it has been very difficult for new compacts to get
through the legislature and to get ratified. I mean, I attended
last week an informational hearing with the GO committee, and
the actual informational hearing was over four hours.
And I think our concern is because there is influence from
the large gaming tribes, the big gaming tribes, that it is very
difficult to have a project heard on its own merits.
The Chairman. And why would that be any different with the
Governor?
Ms. Davis-Van Huss. Well, the law already allows the
Governor, the existing Section 20, the two-part determination
under IGRA already says the Governor has to give concurrence
for your project.
The Chairman. Do you believe that under the current rules
your tribe would be able to negotiate all of the hurtles that
are in front of you and that you could have this land taken
into trust for gaming proposes?
Ms. Davis-Van Huss. Yes. We are completely confident that
we can go through the process and be successful.
The Chairman. Mr. Arnold, do you believe that under the
current rules that your tribe could negotiate all of the
hurtles that currently exist, and that the land could be taken
into trust in Contra Costa County for gaming purposes?
Mr. Arnold. I do. I think that Scotts Valley is a unique
case in the fact that we have moved forward with this for the
last two years, dotting the i's and crossing the t's in a
fashion to abide by the process that is in place.
One of the reasons where our site is is because exactly
Contra Costa County is one of our service population areas.
Therefore we are not reservation shopping. We don't have a
reservation. A lot of the termination of other discussions were
that we were reservation shopping. That is not a true
statement, sir.
The Chairman. You mentioned that the judgment of 1992
restoration case precludes your tribe from reestablishing your
former Rancheria. Why is that?
Mr. Arnold. Well, unfortunately, a lot of the litigation
was done by the California--what is it--the California Lawyers
Association there, and some of the practicing lawyers were new
to the cases. They were all mitigated differently. There was no
process of understanding the findings of the tribe itself.
As you could see, Guidiville, Mechoopda, Scotts Valley and
Lytton, we were all different findings in the courts, so the
process was not--there was no process in the fact of going
through the process.
Now we have a lot more knowledge of what is happening, and
so therefore in working with Congress and understanding the
process and policies of Section 20, everybody should move
forward with the understanding that there is a process. A lot
of the people in right now do not understand that there is a
policy.
The Chairman. Where was the original Rancheria?
Mr. Arnold. Our Rancheria was ours, given to us in 1906 in
Lakeport, California, 57 acres, and the topo of the land was
between two hills.
The Chairman. Well, that is fairly typical.
Mr. Shagonaby, you obviously believe that you are close to
getting approval on your application.
Mr. Shagonaby. Yes, we do have our final determination and
if we did not have a lawsuit pending, it would be in trust.
The Chairman. What was the basis of the lawsuit?
Mr. Shagonaby. The basis of the lawsuit is pretty much
typical of the challenge that the Pokagon Band of Pottawatomi
Indians, our sister tribe, just resolved. They did win their
court litigation and are moving on. But basically we didn't do
a thorough enough job to take the land in trust on
environmental concerns. They challenged whether the Secretary
even has the authority to take land into trust for tribes.
There are some other points that they do raise, but we feel
that all those issues have been successfully litigated already,
so we feel we are in a very strong position to win this
lawsuit.
The Chairman. I will tell the three of you that you do all
have compelling testimony and it is something that obviously we
have taken into consideration and will continue to do that in
working with you, but I have heard testimony so many times that
there is only three tribes that have negotiated the process up
to this point, and all three of you believe that you will be
successful in negotiating the process, and that alone would
double the number that claim that they have gotten through the
process right now, and we all know that there are dozens of
tribes that are somewhere in the process of moving forward with
this, and that is one of the reasons why this bill ended up
being introduced to begin with.
Obviously, you all believe that you have unique situations,
and have been working with the current rules, and that is
something that we are trying to address.
I appreciate you being here and sharing your testimony.
This is important to the Committee to hear this side of it as
we move forward with this legislation. So thank you for that.
I am going to recognize Mr. Kildee for his questions.
Mr. Kildee. Thank you very much, Mr. Chairman. I would like
to address my questions first to Chairman Shagonaby.
I was there the night or the day when your tribe had
finished the arduous BRAC process and got your recognition, the
reaffirmation of a recognition of your sovereignty and attended
the social event that evening, and been close to the tribe
since that time. I think it was in 1999, wasn't it?
Mr. Shagonaby. Yes, it was.
Mr. Kildee. The process was, it was a very, very arduous
process, and you have waited now for about seven years now to
really get to the next step, the big step that will enable you
to exercise your sovereignty, and the elements of sovereignty
as defined by the Cabazon decision of the U.S. Supreme Court.
What is the current financial state of your tribe at the
present time?
Mr. Shagonaby. Right now, it is not very good. The tribes
in Michigan are successful today because of the economic
development that they have brought to their homelands. We are
on the short end when it comes to appropriations, the BIA, HUD,
EPA. We do not get very much funding right now.
We operate out of a strip mall in Dorr, Michigan, and lease
space. We really need resources to fully service our membership
with housing, with health care, with a clinic. I mean, there
are a lot of things, as you well know, Mr. Kildee, that tribes
can do with revenues that they generate from their economic
development through gaming.
So right now our financial situation is not strong at all.
Mr. Kildee. How much land are you seeking to put into
trust, to have put in the trust?
Mr. Shagonaby. We are seeking to 146 acres placed in the
trust.
Mr. Kildee. Have you acquired that land in fee now or are
you seeking to acquire it?
Mr. Shagonaby. It is in fee simple right now.
Mr. Kildee. Fee simple.
Mr. Shagonaby. Yes.
Mr. Kildee. And that would be basically the land in which
you would construct whatever needs your tribe might have,
including a casino and housing?
Mr. Shagonaby. That land is just slated for economic
development purposes right now. We hope to have revenue to
purchase other lands and place them into trust for those type
of services.
Mr. Kildee. OK, for housing and------
Mr. Shagonaby. Correct.
Mr. Kildee.--maybe a medical facility or school or whatever
you might------
Mr. Shagonaby. Well, we have a little master plan that we
put together to hopefully implement those services soon.
Mr. Kildee. You never lost your connection with Michigan,
have you? I mean, your------
Mr. Shagonaby. No.
Mr. Kildee.--history goes way, way back, I know, and I have
worked with your cousins, the Pokagon Band. They are on the
Michigan/Indiana border. The court decision just within the
last few weeks would really probably spill over into your final
decision, would it not?
Mr. Shagonaby. Yes, it would. We feel it is the same type
of lawsuit. It is from the same law firm that filed suit
against the Pokagon Band. So we feel confident that the Pokagon
decision has really cleared up all the issues that are out
there as far as the lawsuit. We feel we just have to go through
the motions, and make our arguments, and we feel that we are
backed up pretty solidly by case law.
Mr. Kildee. I have followed gaming in Michigan since the
time I used to work at the bingos at St. Mary's Church in
Flint, Michigan. We used to have pretty well the monopoly on
gaming, the churches.
[Laughter.]
Mr. Kildee. We lost that in 1972, when they changed the
constitution of Michigan. All gaming was forbidden until about
1974, give or take a year. So all gaming was forbidden, and had
they not changed the constitution, then no one could game in
Michigan.
There are two states where native gaming cannot take place,
that is Utah and Hawaii. Michigan would have been one of those
states, the third one, were it not for the fact the people
amended the constitution of Michigan, removing the prohibition
on gaming and letting the legislature pass whatever laws would
be necessary after that.
But the fact of the matter was those who are against gaming
probably should more broaden their--if they really are against
on moral grounds, broaden their view and say let us outlaw all
gaming. But very often it is the Indian gaming that irritates
them, but not the St. Mary's.
I was a good runner at those bingo games.
[Laughter.]
Mr. Kildee. And got the cash back to them fast. I was in
the seminary, studying to be a priest at the time. Of course,
it was almost part of our training then to do that.
[Laughter.]
Mr. Kildee. With that, I yield back the balance of my time,
Mr. Chairman.
The Chairman. I think that is a good time.
[Laughter.]
The Chairman. Mr. Gibbons.
Mr. Gibbons. Thank you, Mr. Chairman, and I first want to
admit that I have never been a bagman for the gaming.
[Laughter.]
Mr. Gibbons. Well, I appreciate the panel being here. Thank
you very much for your testimony. You know, there has been a
great deal of discussion before this Committee for the need to
accommodate those tribes that have already begun the IGRA
process, and some claim that this legislation is or will
unfairly penalize those tribes who have already begun or
invested in that process.
I can appreciate the value of that philosophical argument,
and that it is not right for the government to change the rules
in those entities that have abided by those rules since they
were created in 1988.
However, I also believe that it is important for this
Committee, that if this Committee adopts any grandfather
language, we do so in a way that does not create a
significantly broad definition that does not properly curb the
off-reservation issue.
Now with that being said, I have a couple of ideas that I
want to run by you and to see what your thoughts are about
certain restrictions that could be adopted in this legislation,
and if you will tell me what your belief is, your position is
on these issues, that would be great, if you do agree with them
or if you don't agree with them.
First let me say that I think providing tribes with the
ability to fund economic development and investment is
important. Once a tribe has already established a gaming
industry, let me ask this question, and I will begin with Ms.
Davis Van-Huss.
Should Congress bend the rules to allow for this same tribe
to build additional facilities? In other words, a tribe that
already has economic benefits from one casino, why should they
be allowed to build another?
Ms. Davis-Van Huss. As you know, that already happens in
California. There is a tribe that I know that has two
facilities.
I believe, I think my tribe's stand would be that as long
as it was on their reservation, that that would be acceptable.
Does that answer your question?
Mr. Gibbons. Well, I am just asking for your input.
Mr. Shagonaby?
Mr. Shagonaby. Yes, I have already gave a whole lot of
thought about that. I guess if you go through the regulatory
process and follow the rules, if you did want to choose a
second site, then I guess that is the prerogative of the tribal
government.
And the purposes of Gun Lakes, we are just looking to
create our initial reservation, and then just enjoy the
economic development that tribes in Michigan have already
recognized.
So with the off-reservation controversy, I just want to
make a point is that we are not--I don't feel we are embroiled
in that controversy of a tribe already having a casino, and
then going for a second one. I mean, we are in the process of
just working on our sole casino.
The way the compacts in Michigan work and the way that we
have already passed a compact in 2002, and waiting for final
ratification, is that the state negotiated that provision one
per customer. So if we ever wanted to go back and I am not
saying we would ever do that, but if we did want to go back for
a second gaming facility, the state has all the leverage in the
world to say yes or not to that position. So I think that falls
within the state compact process if you are going to have
another casino.
Mr. Gibbons. Mr. Arnold?
Mr. Arnold. Thank you. We believe that if in fact you have
an opportunity to do that, then we should also give thought to
the reason why IGRA was created in 1988, the gaming process,
and that is to benefit the Indians.
So the fact that if you get an opportunity to build a
second casino, you must give it back to the people that are to
benefit from that, and that is the Indian people.
We do have a lot of people right now that got their hands
out that are in Indian gaming right now that shouldn't have
their hands out.
Mr. Gibbons. OK.
Mr. Arnold. We believe that the money should go back to the
oversight of health care, the process of health services for
the Indian people, and donate that money toward them. They
should give it back from what they received. Thank you.
Mr. Gibbons. Mr. Chairman, would you indulge me for just
one more question on this? I realize my time has expired on
this, but I have just one follow-up question with regard to
this if I could just begin. I know there is a need for some to
test the historical nexus of distance to a tribe and its
efforts in economic development.
My view is that distance shouldn't be 200 miles. It should
be more like closer to 50 miles. What do you think of that
historical nexus being limited to something like 50 miles, and
I will start with Mr. Shagonaby.
Mr. Shagonaby. I would support that provision of the 50
miles. At the outskirts of our service area is probably about
50 miles. Just for purposes of our personal application our
original settlement is less than three miles and our offices
are about eight miles, and the majority of our membership lives
within the county that we are proposing it, so I would support
a 50-mile radius.
Mr. Gibbons. Mr. Arnold.
Mr. Arnold. We also support the 50-mile radius. We believe
that the input from these people and the concerns from
community should also reach there. Thank you.
Mr. Gibbons. And finally, Ms. Davis Van-Huss.
Ms. Davis-Van Huss. We would also support the 50 miles.
Mr. Gibbons. Thank you, Mr. Chairman.
The Chairman. Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman, and I want to
thank the members of the panel for their testimony. Certainly
would like to offer my personal welcome to Congressman Cole
joining us in our hearing this afternoon. Proud member of the
Choctaw Nation from Oklahoma. Very happy to------
No, Chickasaw.
[Laughter.]
Mr. Faleomavaega. Well, they are good friends anyway.
[Laughter.]
Mr. Faleomavaega. Well, as a member of the Samoan Tribe.
[Laughter.]
Mr. Faleomavaega. Mr. Chairman, I certainly want to thank
you for your leadership and the attention that you have given
since holding the chairmanship of this committee and your
sensitivity to Native American issues. Certainly also the same
can be said for our Senior Ranking Member, Mr. Rahall, West
Virginia. And I would be remiss if I don't also offer my
commendation to Senator McCain as Chairman of the Indian
Affairs Committee.
It is quite obvious that what has happened in most recent
months or the last year that we hit a very sensitive nerve here
ever since the situation with Abramoff and the problems that he
has had in terms of tribal contributions not only to campaigns
of Members of Congress, but something is being triggered here,
and I hope that we are not going fishing just to make it more
difficult for the members of the Native American community that
do participate in the gaming operations.
I know that members have very strong feelings. Some are
very much against gaming on moral grounds, and I know my good
friend from Nevada has questions of that too given the fact
that states are totally free to do lottery and the multi-
billion dollar industry that does provide needs for the state's
educational programs, and so we are in a quandary here,
sometimes where do you put your values and how do you really
get to understand what we really are trying to address here.
In the years that I have served here, I have hardly seen
any real serious amendments brought for any changes to IGRA.
This is what, 18 years now that IGRA has been in operation, and
I want to ask the members of the panel your take in terms of
any provisions in IGRA that you find deficient that we need to
address seriously, also the Chairman's proposed bill provide
for that, to facilitate more the allowing our Native American
communities to participate in gaming operations?
I would like to ask the members of the panel if you feel
that the current provisions of IGRA adequately addresses your
needs, or if not, obviously the Chairman definitely has strong
feelings about why he has introduced this legislation, and I
wanted to ask the members of the panel if you could respond to
that.
Mr. Shagonaby. Thank you for that. My tribe is on record,
along with many tribes across the country, that the Seminole
decision in 1996 basically said, it gave states, we feel, that
leverage over the tribes in a sovereign-to-sovereign
negotiation process.
So we feel that amendment to IGRA should include a fix, the
Seminole fix to make compacting with states and tribes on a
level playing field as the original intent of IGRA was supposed
to be.
Mr. Arnold. As to the answer to that question, we do have--
the Supreme Court has touched basically on that policy that
what is in place today is adequate for a land acquisition,
although a lot of the confusion is between a gaming acquisition
and a housing acquisition is well noted that we have confusion
there.
But as it may remain in effect, these regulations are
suitable for Scotts Valley. Thank you.
Ms. Davis-Van Huss. I will radiate the same sentiments on
behalf of the North Fork Rancheria. We feel that IGRA is
working. In our particular instance we are going through the
process. We are following the letter of the law just how it was
intended, and we feel that at the moment it is working on
behalf of our tribe, and we don't feel IGRA should be amended.
Mr. Faleomavaega. I know the gentlelady had expressed
concerns about requiring state legislative approval and also a
county referendum. You don't agree to the provisions of the
proposed bill to that effect, and I wonder if the other two
gentlemen also agree to that concern.
Mr. Shagonaby. No is, I guess, the short answer. You know,
a tribe is sovereign. We have a relationship with the Federal
government, and I think that relationship is--I mean the
Federal government understands the relationship with the
tribes, and I think that is the best place to do it. Local and
state governments is a huge education process on tribal
sovereignty. You know, we spend a lot of time consulting with
the local community and the state, and we feel we have a great
relationship, and we don't think we need any regulation to
force that. We are already doing it, so we feel it is fine the
way it is.
Mr. Arnold. Good question. I think that Scotts Valley is in
a position to--our sovereignty is very important. Congress
understood that in 1988. That is why they afforded the tribes
that right of sovereignty.
As it is today, the cities and counties and states are not
looking at tribes with same sovereignty situations before them.
We are treated like second-class citizens. We need that
understood that we are sovereign nations.
With that, we concur with the older regulations as it
stands today. With all due respect to Chairman Pombo, I think
that the bill stipulates more regulation and overdue process
that we need to jump through that higher hoop to create our
same sovereignty and retrieve land into trust on behalf of
tribes. Thank you.
Mr. Faleomavaega. Well, this has always been one of the
unique features of our system of government. It is gray area
when you talk about sovereignty, and I think that is the reason
why over the years you have had to go to the Supreme Court to
get a decision, and they also at times have been contradictory
in their statements as well.
With that, Mr. Chairman, thank you.
The Chairman. Ms. McMorris, did you have questions?
Ms. McMorris. No.
The Chairman. Mr. Cole.
Mr. Cole. Thank you, Mr. Chairman. Thank you, first of all,
for your indulgence in letting me participate as a non-member.
I would like to ask unanimous consent to submit a statement for
the record.
The Chairman. Without objection.
[The prepared statement of Mr. Cole follows:]
Statement submitted for the record by The Honorable Tom Cole, a
Representative in Congress from the State of Oklahoma
Chairman and distinguished Members of the Committee:
Thank you for allowing me to participate in this important hearing
today. As an enrolled member of the Chickasaw Nation, Native American
issues are something that I truly hold dear to my heart, and I
sincerely appreciate all the hard work the House Resources Committee
does on behalf of the Native American community. In particular, I would
like to thank you, Mr. Chairman, for your willingness to work with
tribes as you have carefully re-drafted this bill a number of times in
hopes of allaying as many tribal concerns as possible while still
achieving the intended purpose of the bill. In addition, Mr. Chairman,
I greatly appreciate your thoughtfulness in allowing me to share my
views.
As Members of the House and representatives of diverse
constituencies, we each feel a powerful sense of responsibility to our
constituents and seek always to address their concerns responsively.
The bill before the Committee today presents even greater difficulties
in this regard than is typical in that it affects relationships between
governmental entities, each of which are accorded certain legal
prerogatives and often have competing interests.
The need to balance the tribal, state, and federal interests is
evident in the very structure of the Indian Gaming Regulatory Act,
otherwise known as IGRA. By striving to achieve this balance, enactment
of IGRA is consistent with basic tenets of federal Indian law and the
fundamental principles of modern federal Indian policy as well as
principles of federalism. Provisions for federal oversight of tribal
gaming and federal approval of--gaming compacts reflects the primacy of
the federal-Indian relationship, but by leaving to state and tribal
governments a large measure of freedom to negotiate specific compact
terms, subject to federal review and approval, IGRA was crafted to
minimize federal intrusions into either tribal or state sovereignty.
Under current law, a state governor negotiates the tribal-state
compact. In some states, there are even constitutional restraints on
the power of the governor to bind the state, requiring gaming compacts
to be authorized by state legislatures as well. It is perfectly
legitimate for each individual state to determine whether or not the
state legislatures have a say in such matters.
Mr. Chairman, I must confess the current law works just fine as it
is. There has not been one instance in which a tribe has opened a
casino without the consent of the local community, the state governor,
and the Secretary of the Interior. Creating additional levels of local
bureaucratic approval for a state-tribal compact seems to be a solution
looking for a problem, and treads on tribal sovereignty.
In my opinion, this bill goes too far by extending to county-level
governments the authority to affect federal decisions. The granting of
such authority to local units of government is unprecedented in federal
Indian law and policy. County and parish governments are instruments of
state government, deriving their authority by operation of state law.
Empowering a local government to influence negotiations between a tribe
and state directly diminishes tribal sovereignty.
In addition, I disagree with the federal government mandating that
the state legislature should be involved in such a decision making
process. Again, this is a matter of state jurisdiction, and one which
each state has dutifully addressed when necessary. I cannot help but
question the propriety of federal legislation subjecting federal
decisions to local referenda or mandating how a state should manage its
own affairs.
Another portion of the bill seeks to allow tribes to co-locate
their casinos on the land of just one tribe. While I share your belief
that tribes, working with their local and state counterparts, should be
able to respond to the demands of the market, I am concerned that the
current proposal is overly prescriptive.
Mr. Chairman, I also believe it is extremely important that this
bill not negate any aspect of a tribal-state compact already in
existence. As you know, tribal economic development and diversification
relies heavily on the agreements within these compacts. Extensive
planning and resources are invested in the future of a tribe based on
its agreement with the state. In order to avoid inadvertently harming
the future vitality of a tribe, I believe it is important that nothing
in this bill adversely affect existing tribal-state compacts.
I will close by commending the Committee for the manner in which it
has approached this subject matter. Regardless of how strongly the
Native American community may feel about the bill's content, everyone
appreciates the manner in which the Committee has proceeded by first
circulating drafts and affirmatively listening to the feedback from
Indian country. Without question, this process reflects this
Committee's commitment to the principle of government-to-government
consultation, a cornerstone in the federal Indian relationship. I wish
to express my profound appreciation to the Committee for the
opportunity to share my views on behalf of Indian Country on this
critical matter.
______
Mr. Cole. Thank you. Thank you for your testimony. Let me,
if I may, add a preface. You all have very specific tribal
concerns obviously with how this legislation might impact you.
I represent a state with 39 tribes, only two of which are
indigenous. So all of them theoretically have claims beyond
their borders, although most of them are not involved in trying
to do anything outside the State of Oklahoma. Again, there are
some notable exceptions to that, and some of them, frankly, are
like your situation. Some of them have land. Some of them are
landless even though they have maintained their tribal
identity. They were taken from areas, moved onto existing
reservations, told that they could negotiate with the existing
tribe for a land base, and that never happened for whatever
reason. There just simply wasn't a large enough land base for
them to purchase.
So a lot of the problems that we are confronting in this
legislation, I really want to commend the Chairman for trying
to take a stab at something that is tough because it does set
tribe against tribe. You are trying to untangle really
difficult historical patterns of removal and resettlement that
were unjust at the time, and we are trying after the fact to
deal with the consequences.
Let me just pull you all back from your concerns because
there are some areas, and you have addressed this, that I have
specific questions about, want to know what you think.
First of all, and I would appreciate it you just answer
this in turn, maybe starting with you, Ms. Davis Van-Huss, and
kind of go across the panel. Would you prefer that the system
just simply not be changed? I mean, would you prefer that the
existing laws regulate everything, that we not legislate in
this area?
Ms. Davis-Van Huss. Well, specifically in the case of my
tribe, the North Fork Rancheria, we feel like, as I stated
earlier, we feel that the process is working, especially we
are, you know, halfway, maybe three-quarters of the way going
through it with the amount of money that we have expended, the
time, the energy, the dedication by our tribal council. So we
feel that the process is working and we feel that it should not
be amended.
Mr. Arnold. Scotts Valley also agrees with that. We have
been through meetings clear across the United States from
California to New York addressing the same issues. All tribes,
I am saying all tribes that I have talked to across the United
States have indicated that we do not want to open IGRA at this
time. Thank you.
Mr. Shagonaby. I would concur with the panel on that. I
think obviously there are a lot of issues out there that are
the hot topic, you know, a second casino is going offsite, far
from your homelands. You know, we are not really in that fight,
but we feel that IGRA should not be open at this time to do
that, but we just wanted to make sure with respect to the
Committee and the Senate Committee that we are just telling our
story on that situation, and providing our input, but we would
have to concur with a lot of tribes across the country that it
would be a dangerous time to open up IGRA.
Mr. Cole. So it seems fair to say, and correct me if I am
wrong, that while you are here all of you seeking to be
grandfathered in in one way or the other, that is sort of the
secondary solution. The preferred solution would not to be in
the position of petitioning to be grandfathered in.
Second question. I particularly have the same concerns that
a number of you expressed about local governments being
empowered to basically make decisions where tribes are
concerned. We have a recognized sovereign-to-sovereign
relationship between tribal governments and state governments.
Counties, in particular to me, are an extension of state
sovereignty, and if there is a difference between what a county
and the state wants, that is something for the state to resolve
internally. That is not something for us to legislate either in
a specific geographic area, and what I am worried about is to
press it more broadly for Indian country.
In Oklahoma right now, our tribes negotiate sovereign to
sovereign to with our state government. We have a very good
relationship, although we certainly have our differences. They
don't have to go down to the county level to negotiate. They
try to take those things and concern.
Do you have the same set of concerns that all of a sudden
you will be trapped into multiple negotiations with different
entities that have almost been elevated to a sovereign status?
Mr. Shagonaby. Yes, I would concur with that. I think when
it comes to gaming, you know, there is a state compact process
in play here, and I mean, the state--you know, the county
being, I guess, a creature of the state government, then the
county has a lot of say to the state on how the compact should
be negotiated.
So with that being said, we stress the importance of
government-to-government relationships in cooperation with the
county and all governments. I think if you sit at the table and
talk about that issue without being mandated or given, I guess,
a veto power over what a tribe wants to do, I think that
wouldn't be in the best interest of the tribe.
Mr. Arnold. Scotts Valley believes that there is a
mechanism here to negotiate with cities, counties, and states,
just like the Federal government deals with tribes. It is
government to government. There is a mechanism at work here
that would resolve all the problems, but you have to sit down
and talk about it. You cannot not ask the question and assume
that that is the way it is.
So many of our counties and cities assume that is what is
going to happen, and they project the obvious downfall of the
community when an Indian casino is in their neighborhood. So
what we have is a lack of communication in this area. We need
to more or less negotiate with the cities and counties and sit
down and talk. They need to be open just like the tribes.
Tribes are here to build a building that is safe for everybody.
We are here to enact the same laws that state, county, and
cities enact when they are in that position. Why would we do a
less than adequate job of doing that?
Our governments are the same. We have the same concerns as
everybody else, and that is the safety of the patrons. Thank
you.
Ms. Davis-Van Huss. I just want to make the comment on
behalf of North Fork. We did sit down with our local government
probably the beginning of 2004, to identify an environmentally
appropriate and economic area within our historical land in
Madera County. We worked with the local government right at the
beginning of 2004. We sat down with them. We negotiated a
memorandum of understanding to mitigate the impacts off of the
reservation that would take place. We have a very good working
relationship with the county.
Even in our MOU that we negotiated, if there is future
development on the site, we would have to renegotiate. We
agreed to renegotiate the MOU with the county so any future
development or any expansion we would have to sit back down at
the table with the county before anything else would transpire,
so we have a very, very good relationship with the county.
Mr. Cole. May I ask one last question, Mr. Chairman? I
yield back. I am sorry.
The Chairman. Mr. Kind.
Mr. Kind. Thank you, Mr. Chairman. I appreciate another
opportunity to have a hearing on this very important piece of
legislation. I want to thank the panels for your testimony here
today, and this is a complicated issue because of the varying
degrees of interest that tribes from across the country have.
Each of you have expressed your own individual concerns in
regards to the pending legislation, and because of that there
has been kind of a lack of uniformity in regards to tribes
throughout the country in light of this legislation, which
makes our job all the more difficult and more complicated.
But I think we do have a very solemn obligation as members
of this Committee with jurisdiction over Native Americans to do
our best to make sure that whatever we do is fair, as
equitable, that it respects the sovereign rights of tribes
across the country.
So what I would like to have you focus on right now is the
sovereignty issue. I think legislation can be introduced with
the best of intentions, and have local input in a project may
make sense. Having a Governor's approval or state legislative
approval before any project moves forward intuitively makes
sense, but it may not be consistent with the sovereign rights
of Native Americans in this country as granted under the U.S.
Constitution, the recognition of sovereign in the U.S.
Constitution.
So if each of you could kind of come back to the
sovereignty issue because I think that is something that all
tribes across the country are going to have an interest in.
They are not going to want to see any type of diminishment in
regards to sovereign rights in regards to any type of
legislation, let alone this one.
I know there have been some expression of concern just
through your own testimony in regards to local veto power for
instance, and the requirement under the bill requiring not only
Governor approval but also state legislative approval.
So could you address that briefly just to highlight any
sovereignty concerns that you have with the pending
legislation?
Mr. Shagonaby. I guess we do have a lot of concerns about
putting up more hurtles to get the project going. I just know
working with the counties and the states and being aware of
what goes on across the country is that it would make more
politics in play with the tribe.
I mean, the tribe, we have a clear case, I mean, there are
11 or 12 tribes, we are the twelfth, and we just wanted to be
on the same par playing field with the rest of the tribes, and
I feel that it would be harder for us to exercise our sovereign
right to game with more hurtles involved with it, and it would
just delay and cost the tribes more, and that many more years
that we will go without services that are enjoyed by other
tribes across the country.
Mr. Kind. Mr. Arnold?
Mr. Arnold. One of the things that we would beg the
Committee to look at is the sovereignty of a tribe is looking
at the Federal government sovereignty of the United States in
comparison. Whenever you chip away, when another country chips
away at the United States, we are irritated, and the same thing
happens with sovereignty of Indian tribes. If you take an inch,
you take a yard.
As it continues to wear down the sovereignty of Indians,
what do we have left? We do not have the power, and this is
what is happening locally in your cities and counties.
Understanding of the sovereignty and the reason why we have it,
Native American tribes have sovereignty. We need to compare
that in the thought pattern of making the law so it is a level
playing field for all. The sovereignty of cities and counties
is the same situation. So impeding on sovereignty of Indian
tribes is very harsh. Thank you.
Mr. Kind. Thank you. Ms. Davis Van-Huss.
Ms. Davis-Van Huss. I believe the legislation represents a
significant shift in the historical relationship between tribes
and the Federal government, and it represents a diminishment of
sovereign rights.
And to touch on what you said about other tribes' sovereign
rights, what it does, especially in my area, is it ends up
pitting a sovereign government against a sovereign government,
and I am speaking of it pits another tribe against another
tribe, and I don't feel that another tribe should have the veto
power. They should--you know, I am responsible, I am an elected
official for my tribe to represent the best interest of my
tribe. I don't feel it is right for another tribe to come in
and tell me what is right for my own people. So I think that is
another issue that I know the North Fork Rancheria has a grave
concern with.
Mr. Kind. What I have heard from your previous testimony is
a recognition that any land acquisition or any project before
it moves forward you necessarily have to have local and state
community acceptance, and developing that relationship
otherwise, and I am not aware of any project moving forward if
there is great local opposition to it, to begin with, and I
think your previous testimony was recognizing that reality.
I thank you all again for your testimony. Thank you, Mr.
Chairman.
The Chairman. Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman.
I guess I should say initially that I am sympathetic to the
idea that we should not be opening IGRA at all. I am concerned
about the impact of opening IGRA, and you know what the
consequences would be, so I am sympathetic to some of the
statements that have been made in that regard because I think
the process is working for the most part.
The way I read the proposed changes though in the
legislation under certain circumstances a tribe that does not
have gaming but wishes to have gaming would have to locate
their casino on another tribe's land and pay up to 40 percent
of their revenues to the landholding tribe.
My question is, is there any evidence--I guess this would
be to Chairman Arnold or to Tribal Secretary Davis Van-Huss, is
there any evidence that a tribe with an existing reservation
and casino would want to have other tribes locate casinos on
their land? Isn't this just a windfall for the existing tribe
which basically does nothing but is able to collect royalty
payments that could be worth millions of dollars? And why
wouldn't the landholding tribe simply build itself another
casino?
Mr. Arnold. One of the unique things that we have in the
State of California is that there is 109 federally recognized
tribes there, and in 1999 compact, we have a situation where
they help the non-gaming tribes. The process works. As you
could see around, we do have better education programs. We do
have better health care to the other tribes that need help. It
is working. It is going to take awhile to build but the process
is working.
The whole point of what Congress did in 1988 was to provide
self-sufficiency for the Native American. If in fact this is
working, and it is going to take time, in doing so the second
casino or the assistance of another tribe helping another
tribe, this is what we believe it is all about.
Where the revenue does, that is the big problem that the
government is trying to tell us where to send it to how, how to
spend our money. These are infringements of our sovereign
rights.
But as the process is working, the intent of 1988 is
working. You may not see it as big and gigantic as it is today,
but it is working, and we have looked into it. We have seen it
work. There is a lot of tribes out there, Table Mountain for
example has extensive dental care, they have child care, they
have education programs that are working. I am very proud of
these tribes that have looked into the process and health care
of what it was all meant to be. Thank you.
Mr. Pallone. Did you want to say anything, Ms. Davis? Go
ahead.
Ms. Davis-Van Huss. Mr. Pallone, I believe upon reading the
provision that is set forth in H.R. 4893 in reference to what
your statement was about pairing up another tribe, I believe in
California what Chairman Arnold stated is that California is
unique, and I believe reading the provision that it makes an
exception for a tribe in California, the Viejas Band that is
teaming up with, I believe it is the Ewiiaapaayp Tribe to
locate their future casino site on Viejas's reservation. I
don't believe that will happen again in California. I don't
believe so.
Like I told you earlier about North Fork, we have 1,386
tribal members and we are growing. Chairman Arnold alluded to
the revenue-sharing trust fund that comes to non-gaming tribes
in California. We get $1.1 million per year from the gaming
tribes.
With our tribe, we have 1,386 people. $1.1 million does not
benefit our tribe that much for education, health care, child
care. A lot of tribes in California disburse that $1.1 million
to their tribal members. Some tribes in California, as you are
very well aware of, Chairman Pombo, they might have six tribal
members. Some tribes have 18. Like ours, we are one of the
largest--well, we are the largest restored tribe in California.
You know, we are pushing 1,500 tribal citizens. Economic
development is needed by my tribe.
Mr. Pallone. OK. I was going to ask another question. There
is not much time here. But Mr. Shagonaby, if I am pronouncing
it, you gave several good suggestions for amendments in your
testimony with regard to grandfathering and alternative
compacting. You recommend that the Secretary of the Interior be
authorized to approve a compact if the Governor and state
legislature is not negotiating in good faith.
We know that the Secretary has this authority which would
kick in only after a state refused to waive its sovereign
immunity to enter court over a compact. But how would we gauge
when a legislature is not acting in good faith? What if one
entity supports but the other will not? How would that be
handled under what you are suggesting?
Mr. Shagonaby. Well, I think a Seminole fix would address
that situation. I guess that just for the instances of our
tribe we got through the process of the legislature,
overwhelming majority on both houses voted for it, but then the
Governor refused to--declined to sign it on the way out the
door so it is pending for another Governor.
I think for the best interest of tribes in the way we, I
guess the spirit of IGRA, and Congress's intent was to make
sure that it is a level playing field, and then the tribes and
the states sit down and negotiate, and not take a long time to
do it.
I would be happy to provide some written testimony to this
committee addressing that issue in depth, but off the top of my
head I don't really have any.
Mr. Pallone. With the Chairman's permission if we could
have him respond in writing, I would appreciate it.
The Chairman. Absolutely.
Mr. Pallone. That would be fine. Thank you.
The Chairman. I recognize Mr. Cole who had another
question.
Mr. Cole. Thank you very much for your indulgence, Mr.
Chairman.
I had a question that is really--I am not sure it is quite
fair to address it to you because really you have got a concern
about it, but it relates to the approval process for compacting
inside a state.
Right now this legislation would mandate that state
legislatures participate in that compacting situation. I know
in my own state their participation is relatively minor. It is
the Governor to--it is an executive agreement by and large with
a legislative committee that approves the final result, but it
doesn't even go to the full legislature. That is the way we
chose to set it up in our state.
There are other states where full legislative approval is
required. There is some where no legislative input is required.
So number one, I think at least one of you, I think Ms.
Davis Van-Huss addressed this. How do you feel about the
prospect of legislative approval?
Then number two, whether you oppose it or favor it, do you
see it is within the right of the state to decide how it wants
to approve a compact, or is that something we should mandate at
the Federal level so there is uniformity on a state-to-state
basis?
Mr. Shagonaby. Well, I guess we feel that the compact
process is a tough one. In the State of Michigan, there are 11
tribes. There are 11 compacts. We are still waiting for our
compact. There is also commercial gaming. I mean, it is legal.
The way we read IGRA is that if it is allowable within a state,
the tribe has a right to do it also, and anything that could
help streamline the process and not take such a long time I
think would be very supportive, our tribe would support that.
On how you do that, I think if similar fix is a good way to
do it, but if Congress isn't amenable to taking a harder look
at that and make sure the process is fair, I feel that IGRA's
intent was is to--you know, if the state allows it and it is
legal, then the tribe and the state should sit down in a timely
manner and negotiate the agreements, but I feel that it would
be beneficial for the tribe for that to happen.
Mr. Cole. Just to clarify my question before we move on
because you got part of it, but the real question is whose
right is it--we have the ability if there is deliberate
obstructionism to stop that or to intervene. But whose right do
you think it is to decide how the state from its side is to
negotiate or approve a compact?
Is that something that ought to be uniform across the board
or again is that something that is a state prerogative and each
individual state ought to be free to do what they want to do?
Mr. Arnold. Are you------
Mr. Cole. Yes.
Mr. Arnold. OK. We believe that it is mandatory that the
states be regulated in that fashion. What it is now is dollar
sign out there that is holding Governors at bay as they can
hold up a compact, and get the tribes to come to an
understanding of unfair practices.
There has to be a mechanism that holds the state
accountable to the tribes, like in the State of California we
have the compact. In that compact it states that you must
negotiate a fair compact, but in doing so there is no limit on
the dollar sign amount. There has got to be a percentage that
is standard across the United States, and take that--carry it
away from the states as to gigging the tribes or taking their
sovereignty right away, and getting the job done. Thank you.
Ms. Davis-Van Huss. Thank you, Mr. Cole. I think North Fork
Rancheria's position would be, especially in California, we
would hope that the Governor would work with the legislature
and work with the tribes on coming up with some kind of
amicable procedure on negotiating a compact, like Chairman
Arnold said about the percentages, but I feel each state should
have their own.
Mr. Cole. Their own. That, just for the record, I think
would be the position in our state, Mr. Chairman. We would
prefer that somebody not tell us from Washington about how we
want to approve individual contracts. We would want to have
that procedure.
Can I ask you just a question for clarification? It is the
last question I have. It is my understanding that the bill does
not affect existing compacts that are already in place,
negotiated, and approved. Is that correct?
The Chairman. That is correct.
Mr. Cole. Thank you very much, Mr. Chairman.
The Chairman. Mr. Kildee, you had a follow up?
Mr. Kildee. Yes, just briefly. We thought when we wrote
IGRA, and I helped to write IGRA back in 1988, we thought we
put a Seminole fix in before there was a Seminole problem.
[Laughter.]
Mr. Kildee. And Babbitt actually wrote the rules and
regulations on how to--when the state government was not
negotiating in good faith, but that got held up in the courts.
Just about two weeks ago the Senate voted on a Seminole fix
which would have put in some regulations, but that went down by
one vote, so it is still of interest to the Congress that
Seminole situation.
Thank you, Mr. Chairman.
The Chairman. Mr. Cardoza, did you have a question at this
time?
Mr. Cardoza. No, I abstain.
The Chairman. I will tell the panel that there may be
further questions that the Committee has, and they will be
submitted to you in writing, and if you could answer those in
writing so that they can be included as part of the hearing
record.
I think that as we have gone through this whole process in
trying to move forward with this bill many of the issues that
you have brought up obviously are issues that we have concerns
over in trying to move forward with this, so I appreciate you
being here and sharing your testimony with us.
Mr. Costa has joined us, and I wanted to give him an
opportunity if he had a question before I dismiss the panel.
Mr. Costa. Thank you very much, Mr. Chairman. I appreciate
your focus and attention on I think what is an important issue
in states that have Class III gaming throughout the country,
and what the policy is both on the national level and what
individual state policies are, and that has been really at the
crux of a concern that I have had for several years.
As I have shared with members of the Committee, my
experience is somewhat similar to Congressman Cardoza in the
sense that we were in the state legislature for a number of
years, and I saw a policy evolve over 15 years.
So let me begin by asking our witness from California who I
am somewhat familiar with if she could describe to us what she
believes the policy is in California toward Class III gaming as
best you know it.
Ms. Davis-Van Huss. Can you elaborate on your question a
little bit?
Mr. Costa. Well, I mean, you are going through a process
now, I am somewhat familiar with that process you are going
through, not obviously every detail as it relates to your
tribe, and your particular circumstance, but it seems to me
that going back to the early 1990s we had one set of policies
within Governor Wilson under the flexibility given him under
the national act. We had another policy under Governor Davis,
and we have a third policy under the current Governor, Governor
Schwarzenegger.
Ms. Davis-Van Huss. So are you referring to the compact
negotiations?
Mr. Costa. Right.
Ms. Davis-Van Huss. How you enter into that?
On my tribe's part, we have met with the State of
California. We have met with the Governor's Office, but those
negotiations are confidential. As far as his policy, he came
out with his proclamation that kind of outlines what he will
and will not accept.
Mr. Costa. What do you believe are the differences between
this policy and the policy of previous administrations?
Ms. Davis-Van Huss. Well, that is hard for me to answer. I
have only been in Indian politics and tribal council for the
last three years, but I see that--some tribes don't agree with
this, but I think our opinion is that the Governor is trying to
do the best he can with volatile situations being there is, you
know, the big dollar tribes fighting against the smaller tribes
such as ours, and I think he tries to stay out of the fight but
he tries to do the best he can for the state, and I can just
say he has worked well with my tribe. I don't know if that
quite answers your question.
Mr. Costa. Well, I think it points out to the fact of a
belief that I have, and I have related it to the Chairman and
to others who are willing to listen, that, frankly, we don't
have a consistent policy in California, and maybe it is
different in other states. But I think the biggest thing that
we could do on the national level is to really require all
states that have Class III gaming come up with a defined policy
prospectively, I mean, because my view is that we have had one
set of arrangements or ``let us make a deal'' time under
Governor Wilson, and then we had another set of agreements
under Governor Davis in terms of ``let us make another deal''
time, and now we are on to a third variation of policies.
It seems to me unless we clearly outline a requirement that
states ought to come up with a policy that relates to how much
gaming you are going to have in your state, how you are going
to spread it geographically throughout the state, how you are
going to spread the benefits between the large tribes, the
medium, and the smaller ones, and have some clarification on
how you are going to regulate it in the future all together,
that you are going to continue to have a different policy from
administration to administration.
I think it is incumbent upon us to set some standards, some
criteria both on the Federal level to states with their
legislatures and their Governor to define what gaming policy in
their state is going to be if they have Class III gaming.
Mr. Arnold. As Scotts Valley looks at that, we do have
several policies. We have three in the State of California. The
Governor right now refuses to agree to a compact or to
negotiate a compact if you don't have land in trust. So that is
one of his points.
But if you would surround that with a grandfather clause
and that would be the negotiating point for negotiating with
your state, they can't use it against you and you would be on
the same level.
Mr. Costa. No, in draft legislation that I have looked at,
I have always assumed that there would be a grandfather clause,
if you will bear with me, Mr. Chairman, because whatever
previous agreements have been made, I think need to be honored
and kept, unlike many of the treaties that we have had with
Native Americans historically, but that is another matter.
But I think these compacts that have been made should be
honored and kept, but I think the policy ought to be required
as we go forth prospectively and every state that has Class III
gaming ought to have one, and clearly define what their policy
is in the future.
Thank you, Mr. Chairman, for your time.
The Chairman. Thank you, and I thank the panel for your
testimony. I am going to dismiss this panel, and call up our
second panel of witnesses. They are Representative Fulton Sheen
of the Michigan Legislature; Representative Jo Ann Osmond of
the Illinois Legislature; Steven Worthley who represents the
California State Association of Counties; and Randy King of the
Shinnecock Indian Nation.
The Chairman. I want to thank our witnesses for joining us.
I would like to take this time to remind all of our witnesses
that under Committee Rules your oral statements are limited to
five minutes. Your entire written statement will appear in the
record.
Representative Sheen, we are going to begin with you.
STATEMENT OF FULTON SHEEN, MICHIGAN STATE REPRESENTATIVE,
REPRESENTING 23 IS ENOUGH!
Mr. Sheen. Thank you, Mr. Chairman, and thank you to the
Committee for being able to speak to you.
My name is Fulton Sheen. I am the State Representative from
Michigan's 88th District. I was County Treasurer previous to
being elected state representative, and my wife and I have a
financial planning business there, and I talk with many small
businesses who are my clients in Allegan County.
I commend the Chairman and the Committee for their
foresight in tackling this long overdue issue. IGRA has not
changed since 1988 and this industry has gone from $100 million
then to nearly $20 billion now. Reservation shopping needs to
stop, but it is only one part of the problem.
The casino concept that we are dealing here with today I do
not think was on the minds of the people signed the treaties on
either side originally, and then this concept was manufactured,
I think, out of thin air in the 1970s by attorneys and then
IGRA took hold of it in 1988.
But specifically, I would suggest a two-year moratorium to
thoroughly study this issue and find a full solution. Twenty-
three Michigan casinos is more than enough, and so is the $18.5
billion that we spend at the Indian casinos. I believe Congress
needs to get their arms around this while they still can.
Michigan is in an economic and employment crisis right now.
Tribal casinos are booming, but our economy is probably the
worst in the nation. Unemployment is high, manufacturing jobs
that make up 25 percent to the nation's total loss of its
manufacturing base are leaving our state as well, and our 23
casinos don't seem to be helping that bottom line, and I would
venture to say it is hurting it.
Casino proliferation will perpetuate these problems and
threaten our recent investments and our progress toward trying
to fix the situation that we have in our state. And because of
the sovereign nation status, I believe we have no recourse once
that casino comes into place. Currently we have 23 total
casinos, 17 Native American casinos, only three of which are
still paying the State of Michigan or have to pay into their
local communities, and now those three are now suing the State
of Michigan because of the lottery/Keno gambling plan that was
put into effect that constitutes statewide gambling, and so
soon we will have no Native American casinos contributing to
the state at all.
So what was considered to be an asset by some now becomes a
liability to all.
In August of 2001, the Gun Lake Tribe filed plans to build
a Class III casino in Allegan County in my district. Grand
Rapids commissioned an independent study by the Anderson Group
which you have, and in that study interestingly enough it found
that two jobs were lost for every one job that was created, and
that found that there would be a net loss of 800 million,
affecting not only Allegan County but all the counties that
surround Allegan County.
We wanted to slow down this process and get a full
understanding of the consequences. IGRA has not allowed us to
do this. It has ignored the voters in the state and the local
officials. Only one municipality out of 34 in my county is
supportive of the Gun Lake Tribe coming in officially.
The fact that I am testifying here before you today
basically is the testimony of the sentiment of the people in my
county because there were options. When I ran in 2002, there
was 11,000 signatures collected on a petition against the
casino. However, they couldn't even collect 1,000 supporting
it, and that was in 2002. The majority of those signatures came
from Allegan County, but there were some input from around us
as well.
Almost all of West Michigan officials oppose it, as do the
majority of Michigan Federal officials. The Detroit casinos who
we voted somewhat 10 years ago to put into effect, we have
referred to that vote a number of times, they have had their
time there, but now in 2004, we also had a vote, Proposal 1,
which was against any more expansion of gambling in our state
and 64 percent of the people voted they didn't want any more.
The State Senate rescinded its previous support of the
casino. The house refused to take it up, or will follow the
lead in the senate. The survey recently showed that 85 percent
say 23 casinos are enough and 64 percent oppose the Gun Lake
casino. The people of Allegan County don't want the casino. Yet
it seems to be being shoved down our throats.
Less than half of the states have Native American casinos,
thus it doesn't seem to be what I can see to be mandatory, and
to my knowledge I know of no state that has ever been forced by
the Federal government to have one. These facts should
influence the decision in Washington but they have not.
Something is wrong when out-of-state interests like Station
Casino can override the voters and state officials. In my
county, the current homebuilder association director was for a
time the director of tourism in Las Vegas. He then went from
the tourism in Las Vegas to go to Mount Pleasant and became the
tourism director there. At that point in time he talked to the
very same people and he knew them all by name that he talked to
in Las Vegas.
These Michigan details, I think, show a need for a
moratorium. The current laws are not working. How can the
government in good faith allow a single new tribal gaming
development to go forward?
Current and future casinos don't want IGRA opened because
after almost 20 years the people don't like the results. I urge
you to consider the following sets of specific reforms:
Mandatory requirement of a comprehensive, regional
Economic, Environmental and Social Impact Statement for all
land-in-trust applications;
Mandatory reporting and full disclosure of financial and
legal records of non-tribal casino management companies;
Local government, state, legislative, and gubernatorial
approval for land-in-trust;
Local and statewide voter approval for any land-in-trust
application for the purposes of a Class III casino gambling
license;
Clarification of Class II gaming to eliminate abuses and
loopholes in electronic bingo games;
And I reiterate my plea for a moratorium and a reform to
take care of this problem before more jobs are lost and more
families are put at risk.
Thank you.
[The prepared statement of Mr. Sheen follows:]
Statement of The Honorable Fulton Sheen, State Representative,
State of Michigan
Good morning. Thank you Chairman Pombo and members of the House
Committee on Resources for the opportunity to testify today.
My name is Fulton Sheen and I'm the State Representative from
Michigan's 88th District. This district is largely rural, and contains
the land that has been slated for casino development by the Gun Lake
Tribe. I have served in the Michigan State Legislature since 2003, and
held the position of Allegan County Treasurer prior to taking state
office. Since this casino was proposed some five years ago, my position
as an elected official as well as my deep ties to Allegan County have
caused me to spend a great deal of time and effort studying the issue
of tribal gaming and realizing the deep need for IGRA reform.
I want to commend the chairman and members of this committee for
their leadership and foresight in tackling this issue that has been
ignored for far too long. The rampant proliferation of tribal gaming is
running roughshod over states' rights and local control and is
jeopardizing everything from my own neighborhood to, as the Jack
Abramoff scandal has demonstrated, the very integrity of our federal
political system.
In 1988, Congress passed the Indian Gaming Regulatory Act
(``IGRA'') in an effort to control the development of Native American
casinos, and, in particular, to make sure that the States had a
meaningful role in the development of any casinos within their borders.
At that time, Native American gambling accounted for less than 1% of
the nation's gambling industry, grossing approximately $100 million in
revenue.
Since that time, the Native American casino business has exploded
into an 18.5 billion dollar industry that controls 25% of gaming
industry revenue, with no end in sight. Despite this unbridled growth,
IGRA and the land-in-trust process remains basically unchanged, and the
body charged with oversight of this industry, the National Indian
Gaming Commission (``NIGC'') limps along with 78 employees and an
annual budget of $10.5 million. In contrast, the State of Nevada runs
its oversight agency with 439 employees and an annual budget of $36.4
million.
While I wholeheartedly agree that ``reservation shopping'' is an
activity that must be stopped, it is just one tiny component of the
full legislative overhaul that is needed. My message to you today is
that IGRA and its associated land in trust process is outdated, broken,
open to manipulation by special interests and in desperate need of
immediate reform. It has unfairly and inappropriately fostered an
industry that creates enormous wealth for a few select individuals and
Las Vegas interests at the expense of taxpaying families, small
businesses, manufacturing jobs, and local governments. My plea to you
is that you study these issues in depth, and that you impose an
immediate two-year moratorium on any further casino expansion pending
the results of your study, as suggested by Michigan Congressman Mike
Rogers. Twenty-three casinos in Michigan is more than enough, and so is
the $18.5 billion this nation already spends in American Indian
casinos. Congress needs to get its arms around this while it still can.
In my home state of Michigan, we are in the midst of a fiscal and
job crisis. While tribal casinos are booming, our state economy lags
among one of the worst in the nation. Michigan has been among one of
the hardest hit states in the nation due to new global market forces,
outsourcing of jobs, and skyrocketing labor and health care costs.
Michigan ranks among the top in the nation with the most number of
casinos, with 20 existing facilities (17 tribal, 3 non-tribal) and
three approved tribal facilities for a total of 23 casinos.
Unfortunately, Michigan also ranks top in the nation for our
unemployment rate, with manufacturing job losses in Michigan alone
accounting for approximately 25% of our nation's lost manufacturing
base. Discretionary spending is down, bankruptcies are up, and several
cities, including Detroit, are on the verge of receivership.
Casino proliferation is bound to make the economic picture even
worse for Michigan. Our research shows that Michigan has reached a
saturation point in casino gambling and any jobs and money tied to new
tribal gaming will only displace jobs and consumer spending that would
otherwise occur in traditional taxpaying entertainment-related
industries. In other words, further casino development will not add
jobs and value to the Michigan economy. Rather, it will shift jobs and
money from existing taxpaying businesses to tribal operation that do
not pay state or local taxes.
Our research also shows that while local and state governments
receive some revenue sharing percentages from tribal gaming, the
dollars pale in comparison to the overall new costs to government and
social service agencies from increased infrastructure demands, traffic,
bankruptcies, crime, divorce, and general gambling-related ills.
The bright lights, big numbers, and empty promises of casino
gambling have blinded too many local and state governments. In Detroit,
the three proposed casinos were hailed as new economic engines that
would revitalize the downtown area with new jobs, new buildings, and
spin-off entertainment businesses. They promised new hotels, new
restaurants, new entertainment, and more tourists from outside of the
area. Five years since the casinos opened, the promises remain empty or
broken.
According to a recent Detroit Free Press article, ``beyond the
casinos walls, little spin-off is evident.'' The Michigan Restaurant
Association reported that there has been little to no new restaurants
and many restaurants that were on the brink have shut down. Analysis
also reveals that an overwhelming majority of the dollars spent in
Detroit casinos are siphoned from individuals located within a 50-mile
radius. Bankruptcy has doubled, crime has risen, and the city is
running a $1.2 million budget deficit on police, fire, and gambling-
related services, even after receiving their revenue sharing payments.
Uncontrolled proliferation of casino gambling will also threaten
the investments that we have made in Michigan to transform ourselves in
the wake of manufacturing losses. We are cultivating innovative
economic development opportunities in the areas of life sciences,
advanced manufacturing, and information technology. We are also
investing billions to revitalize our core cities with new and improved
arts, cultural, and entertainment related activities to curb sprawl and
draw in more tourist, homeowners, businesses, and tax revenue. In Grand
Rapids alone, more than $1 billion in public and private investments
has been spent in the last two decades to revitalize our core city. The
proliferation of casino gambling threatens to suck jobs and dollars
away from these emerging economic development efforts.
I am presenting you with these Michigan-specific details because I
believe it demonstrates the urgent need for you to act swiftly and
decisively to impose a two-year moratorium, to study the issues
thoroughly, and then to craft a new solution that takes into account
the new realities of the Native American gambling business as it exists
today. The existing laws and regulatory tools are not working. We
cannot afford to let casinos proliferate while this study goes on
because the costs will be too high.
In August 2001, the Match-E-Be-Nash-She-Wish Band or Gun Lake Tribe
of Pottawatomi Indians filed an application to put 10 parcels of land
into federal trust with the Bureau of Indian Affairs and released plans
to build a 180,000 square foot Class III casino with 2,500 slot
machines, 75 game tables, a hotel, convention center, golf course,
specialty restaurants, and entertainment facilities in Allegan County,
which is my district, between the core cities of Grand Rapids and
Kalamazoo. The casino would operate around the clock.
Following this announcement, myself along with a group of concerned
community leaders turned to the Grand Rapids Area Chamber of Commerce
with questions about the impact the proposed Gun Lake casino would have
on the region. The Chamber commissioned the Anderson Economic Group to
conduct an independent economic impact study to assess the impact of
the proposed tribal casino in Allegan County.
The economic impact study revealed that for every one job created
by the casino, more than two jobs would be lost in the surrounding
counties. The study also found that the surrounding counties of
Kalamazoo, Kent, Ottawa, and Barry would suffer an economic hemorrhage
of more than $880 million lost over 10 years. The net economic loss to
the entire region significantly outweighs the modest localized gains in
the immediate area around the casino.
The independent economic research underscored what similar studies
have found. Unlike the destination casinos in Las Vegas, most casinos
in places like Michigan do not generate new dollars or new jobs; rather
they siphon off jobs, money, and economic vitality from surrounding
communities in a 50-mile radius and increase costs to government and
social service agencies. In fact, the vast majority of casino revenues
come from the surrounding communities. Almost all of those dollars
would have been spent in other local, taxpaying businesses in the
absence of the casino.
As this Committee knows, any major new federal project--and that is
what this casino will be if the federal trust process goes forward--
must complete an Environmental Impact Statement (``EIS''). The only way
a project can avoid this requirement of the law is by demonstrating
that there is no conceivable way in which the project will have a
significant impact on the host community. The Bureau of Indian Affairs
made this finding for the Gun Lake project--erroneously in our view--in
early 2003.
On February 10, 2003, the Grand Rapids Chamber objected to the
finding and to the Environmental Assessment that supposedly supported
it. At a minimum, the Chamber urged the BIA to complete a full scale
EIS for the project. Incidentally, a tribe promoting a casino project
in Battle Creek, about 70 miles or so from the Gun Lake project, is now
completing a full scale EIS after a Judge Penfield Jackson here in
Washington rejected the Environmental Assessment the BIA had relied
upon to evade the EIS requirement in that case. But at Gun Lake, the
BIA persisted in its refusal to proceed with an EIS for the Gun Lake
project and published its decision to proceed with a trust acquisition
for the Gun Lake tribe.
The Gun Lake Tribe's environmental assessment was an incomplete and
inaccurate reflection of the regional economic, environmental, and
social impacts associated with the proposed casino. The Tribe's study
took a cookie-cutter approach to a very complex issue, basically
stating that this proposed government-subsidized development would have
no negative impact on the surrounding community and would result in the
creation of 4,500 jobs.
Of course, the BIA-approved study did not consider the associated
economic hemorrhage for the entire region, as shown by the Anderson
study. It will now be necessary for citizens like me, who are
determined to spare my community the negative effects of this casino
project, to resort to litigation, as citizens have done elsewhere in my
State and throughout this Country. I do not think this is what Congress
had in mind when it adopted IGRA almost 20 years ago for a then-
struggling Native American casino industry.
Unfortunately, IGRA and the rules pertaining to the Land-in-Trust
process for casino site acquisitions do not require a comprehensive,
regional environmental impact study and instead only require a pin-
point study of the proposed development. Nor does the process include a
failsafe process for ensuring that the will of the citizens in the host
community is carefully considered. Our polling demonstrates that over
64% of the citizens in the region are opposed to the casino
development. In fact, my State recently voted overwhelming 58%-42% to
subject any new non-Indian casino gambling in the State to a vote of
the people. And yet, we are now told by the BIA and others that this
overwhelming voice of the citizenry--supported as it is by solid
economic and social research--cannot be heard at all, and will have
nothing to do with whether this project is rammed down the throat of an
unwilling host community.
This is not the way it should be, and I do not think this is what
Congress had in mind when it passed IGRA. In fact, when Congress
originally enacted IGRA, it provided that, as a general rule, casino
gambling would not take place on newly acquired trust land. There were,
of course, some exceptions, but the general rule was no casino gambling
on new trust acquisitions. I believe Congress passed this general rule
to prevent precisely what we see actually happening now: namely, a mad
and largely unregulated land rush pushed by casino developers eager to
cash in on a profitable revenue stream that is not burdened by the same
tax rates or regulations that other businesses have to incur. Somewhere
along the way, the good intentions of Congress have been hijacked, and
it is time for this body to re-assert control over this process.
Since 1988, Las Vegas investors and tribal casino owners have
become wealthier, smarter, and better equipped with new technology and
a barrage of lawyers and lobbyists to manipulate the federal gaming
law. Casino stakeholders and special interests have started ``tribe-
shopping'' and existing tribal casinos have stretched the limits of the
law with ``off-reservation casinos,'' something this committee has
realized must be stopped. Casino stakeholders and tribal casino owners
have manipulated the definition of Class II gaming by introducing slot-
machines that somehow supposedly meets the definition of Class II
bingo-style gaming. When Congress approved the definition of Class II
gaming in 1988, a bingo-hall meant a bingo-hall. They did not intended
for slot machine like to pass as a bingo-machine without regulation or
oversight from appropriate authorities, and without the approval of a
valid state compact.
Tribal leaders and their Las Vegas investors have also become
brazen in their threats to open casinos with or without state approval.
They have used ethically questionable promises of contracts, marketing,
and charitable giving as a means to foster support. And, in the case of
Gun Lake, threats to only use contractors that are members of the
Kalamazoo Chamber vs. the Grand Rapids Chamber because one supported
the project and one opposed it.
As Senator John McCain recently stated in an AP story, ``he never
envisioned the explosive growth'' triggered by the federal Indian
gaming law. It is fair to assume that seventeen years ago, the other
Members of Congress also likely did not foresee nor consider the
potential negative regional impacts of tribal casinos. The current law
reflects an outdated form of thinking and rules that desperately need
reform and updating to require a comprehensive and regional
environmental, economic and social impact assessment for any and all
land-in-trust applications.
IGRA, as currently implemented by BIA, also ignores and ultimately
disregards the will of the voters, the sentiment of state and local
elected officials, state legislative action opposing a tribal casino
development, and/or regional opposition to a proposed tribal casino
project. Case in point is the proposed Gun Lake tribal casinos:
First, every state and several of the federally elected official in
West Michigan wrote to the BIA opposing Land-in-Trust for the proposed
Gun Lake casino. I was deeply involved in these efforts and was amazed
at the resounding unity expressed by my colleagues. However, the casino
project is going forward.
Second, Michigan voters established an overwhelming public mandate
against the expansion of casinos in the state with 58% approval of
Proposal 1, a constitutional amendment requiring a local and statewide
vote of approval before any new non-tribal casino gambling will be
allowed to operate. In Allegan County and the counties surrounding the
proposed Gun Lake tribal casino, the margin of voter approval for
Proposal 1 was even greater (Allegan County 64-36, Kent County 63-37,
Kalamazoo 59-41, and Ottawa County 70-30). The project is going forward
anyway.
Third, in December 2004, the Michigan State Senate rescinded
support for the Gun Lake tribal casino compact, citing voter sentiment
in Proposal 1 and the Anderson Economic study results. The project is
going forward anyway.
Fourth, 23 is Enough just released an independent public opinion
poll conducted by Harris Interactive, one of the nation's largest and
most respected polling firms, to assess public support for the proposed
Gun Lake casino.
The results reveal strong opposition to the proposed Gun Lake
casino among West Michigan voters in Kent, Kalamazoo, Ottawa, Allegan
Counties. Most notably, 85% polled said 23 casinos are enough (47% too
many casinos, 38% just enough casinos). 59% said Governor Jennifer
Granholm should not negotiate a compact with the Gun Lake Tribe (59%
not negotiate, 36% negotiate). 64% oppose Gun Lake casino after being
informed about the positive and negative impacts (64% oppose, 33%
support). Women 35+ years old are among the core group of opponents to
the casino. The project is going forward anyway.
These polling results, coupled with the overwhelming statewide
voter approval of Proposal 1, action by the State Senate, and
overwhelming opposition among state elected officials in West Michigan
are considered meaningless and are disregarded in the Land-in-Trust
application process. This is important and meaningful information that
bears significant weight and demands consideration. This is not the way
it should, nor the way it was intended to be.
In summary, IGRA is broken, outdated, and after 17 years without
review or updating, needs significant overhaul and reform. While I
commend Chairman Pombo's initiative to remove ``reservation shopping,''
much more is needed. I urge this committee to take its reforms one step
further by imposing a moratorium on all land-in-trust applications,
including the Gun Lake Tribe's land acquisition, until a thorough
debate and comprehensive review is conducted and IGRA is updated and
reformed to address the following concerns:
1. Mandatory requirement of a comprehensive, regional Economic,
Environmental, and Social Impact Statement for all Land-in-Trust
applications. The Tribes should be required to account for and project
the regional economic, social, and environmental impacts of a proposed
casino. Indicators could include job creation/loss, business investment
creation/loss, absenteeism, productivity, tardiness, bankruptcy rates,
crime rates, divorce rates, abuse/neglect rates, and overall rate
increase of problem/addicted gamblers.
2. Mandatory reporting and full disclosure of financial and legal
records of non-tribal casino management companies. With a growing
number of tribal casinos declaring bankruptcy and record level of fines
for improper conduct being assessed to casino management companies,
full disclosure should be mandatory on all financial and legal records
and issues.
3. Local government, state legislative, and gubernatorial approval
for land in trust. Congress should amend IGRA to require that a
Governor must concur in all cases before state lands are put into trust
for the purposes of gambling. There should also be a provision that
requires the support of the state legislature and affected local units
of government before land is removed from the tax rolls. Mechanisms
such as this will go a long way to restoring the general rule Congress
established in 1988 against casino gambling on newly acquired trust
land.
4. Local and statewide voter approval of any Land-in-Trust
application for the purposes of Class III casino gambling. In Michigan,
precedent was first set in the local and statewide vote on the Detroit
casinos, and then in 2004, Michigan voters established a public mandate
by requiring a local and statewide for any casino-style expansion.
Tribal casinos were exempt because of federal constitutionality issues.
The federal law should follow Michigan's lead and apply the same voter
approval standards to tribal casinos.
5. Clarification of Class II gaming to eliminate abuses and
loopholes for ``electronic bingo games''. In order to get around the
compact requirements of IGRA, many tribes and their non-Indian sponsors
have turned to ``gray games'' to open or expand a casino. Class II
gaming allows bingo to be played on tribal lands even without a state-
tribal compact. Slot machines, however, are a Class III device and
require a compact. Manufacturers of slot machines have now created
electronic bingo games that look and feel like a slot machine, but that
the gambling industry is trying to pass off as allowable Class II
bingo. The Class II loophole has created a difficult situation for
states either trying to halt the expansion of casinos or regulate them
in a responsible manner. I recognize that the NIGC is trying to address
this problem, but frankly it cannot wait. NIGC does not have the
resources to reign in this problem. Indeed, it lacks the resources to
effectively regulate an expanding $18.5 billion industry, much less
take on this added regulatory burden. Congress needs to re-assert its
express intent to forbid slot machines of any kind--whether tagged with
a ``bingo'' name or not--in the absence of a valid state compact
In closing, I reiterate my plea to you to study these issues in
depth, and urge you to take immediate action and impose a moratorium on
any further casino expansion pending the results of your study. It is
imperative that Congress takes swift and decisive steps today to get
its arms around this issue before more jobs are lost and more families
are put at risk.
______
The Chairman. Thank you.
Ms. Osmond.
STATEMENT OF THE HONORABLE JO ANN D. OSMOND,
STATE REPRESENTATIVE, STATE OF ILLINOIS
Ms. Osmond. Good afternoon, Mr. Chairman and members of the
Committee. I wish to thank you for allowing me to appear before
you on the matter of the Wisconsin, Kenosha casino, and its
potential impact on Lake County, Illinois.
I am Jo Ann Osmond. I am the Illinois State Representative
for the 61st District. The 61st District has Lake Michigan
boundary on the east and the State of Wisconsin on the north.
Several towns in my district are within a six-mile radius of
the Kenosha casino. The 61st District is part of Lake County,
an urbanized county of 665,000 residents just north of Chicago.
The Federal Indian Gaming Regulatory Act requires that the
Secretary of the Interior consult with appropriate state and
local officials in order to determine whether a tribal casino
on newly acquired land would not be detrimental to the
surrounding communities. The Bureau of Indian Affairs'
checklist for gaming-related acquisitions specify that
communities within 10 miles of the proposed casino are part of
the surrounding community, and must be consulted.
This 10-mile radius includes the northeastern part of the
61st District. It includes the towns of Zion and Winthrop
Harbor. This 10-mile radius is too small when you consider the
impact of the massive casino. Most casinos consider their
marketing area to be within an hour's drive of the casino and
the environmental impact statement required for the Indian
casinos consider economic markets as far away as 75 to 100
miles.
Indeed, according to the Kenosha's own plan, approximately
71 percent of the revenue projected from the casino and 62
percent of the customers will come from outside the Kenosha
area, most of which will come from northern Illinois. Despite
this overwhelming evidence suggesting that most of the casino's
impacts will come from northern Illinois and despite the fact
that my district lies within the BIA's 10-mile radius, the
Kenosha draft EIS makes only a small reference to it in over
its 100 pages of reference.
As to consulting, none of the towns in my district within
the 10-mile radius of the casino were consulted by the BIA.
Lake County, which has repeatedly written to the BIA expressing
its concerns, was also ignored by the BIA.
Since the BIA would not hold a hearing in Illinois, would
not study or consider northern Illinois impacts, I held a
hearing on March 6th and invited the BIA to attend. They did
not, but did say that they would accept the comments as part of
the record.
At the hearing on March 6th, a representative from
Congresswoman Melissa Bean's office was present, and made
testimony. Letters expressing serious concern from the proposed
casino were read into the record from State Representative Mark
Beaubien, 52nd; Ed Sullivan, 51st; Kathy Ryg, 59th, Robert
Churchill, 62nd. All are elected Lake County representatives.
Over the last seven years, 16 letters from elected public
officials have been written to the BIA raising concerns about
the project, and I have copies of them if you wish to put them
into your record.
The Menominee Tribe of Wisconsin wants approval of 223
acres in Kenosha, Wisconsin, to Indian lands. The Menominee
Tribe Reservation is 200 miles from Kenosha. The tribe, in
partnership with the Kenosha businessmen, who was part of the
first failed attempt to build a Kenosha casino, and the Mohegan
Tribe of Connecticut, want to build an $808 million casino,
giving 3,100 positions, casino-hotel entertainment project. The
Mohegan Tribe has been hired to run the casino.
When completed, this project will be the largest in the
Midwest, and will rival the size of Las Vegas' largest casinos.
First, the problem that was identified in the meetings
where the Menominee Tribe estimates that the facility will
offer 5,000 jobs. The jobs will be given, in priority, to
Kenosha, Racine, and Milwaukee Counties, next to all other
residents of Wisconsin. There is no mention of Illinois in any
of their plans.
Illinois, once again, would be denied the jobs. They would
have the benefits.
The environment, there is 3 million visitors from my
district traveling through the district to the casino. Both
Lake County and Kenosha Counties are non-attained areas for
ozone. What happens to the ozone level when these people begin
to drive through my district?
Then there is the traffic congestion, which is a huge
problem. Lake County politicians are more identified as being
pro- or
anti-growth than Democrats or Republicans, with an estimated 3
million visitors to the Kenosha casino annually from the south
anticipated, this is a very big problem. Illinois taxpayers are
expected to carry the burden for road repairs, traffic
management, police, and first responders without any support
from this casino.
I know I am out of time so I am trying to go to my final
statement. I apologize.
Our local services, social services will also have the
burden.
My fellow representative, Mark Beaubien, has repeatedly
made a point that the Menominee are trying to locate a casino
in an area outside of the traditional and historic homeland.
This doesn't make sense to me. If a tribe can locate casinos
outside their traditional homelands, then can they locate
casinos anywhere, including casinos in our largest city,
Chicago, New York, Miami?
Finally, I worry about the Indian casinos coming to
Illinois. Several tribes like the Ho-Chunk and the Prairie Band
Potawatomi have tried to put casinos in Illinois. We really
have a well regulated commercial gaming industry and do not
need poorly regulated, huge Indian casinos coming from out of
state.
In closing, I understanding, Mr. Chairman, that your casino
bill, H.R. 4893, addresses the problems that we have in
Illinois, and with the Indian casinos. Further, unlike Senator
McCain's legislation, it would not grandfather in flawed
sitting process we have experienced in Illinois.
On behalf of my constituents, I wish to thank you in
allowing me to speak today.
[The prepared statement of Ms. Osmond follows:]
Statement of The Honorable JoAnn Osmond, State Representative,
61st District, State of Illinois
Good morning Mr. Chairman and members of this committee. I wish to
thank you for allowing me to appear before you on the matter of the
Wisconsin, Kenosha casino and its potential impact on Lake County,
Illinois. I am Jo Ann Osmond, Illinois State Representative for the
61st District. The 61st District has Lake Michigan boundary on the east
and the State of Wisconsin on the North. Several towns in my district
are within 6 miles of the Kenosha casino. The 61st district is part of
Lake County, an urbanized county of 665,000 just north of Chicago.
The federal Indian Gaming Regulatory Act requires that the
Secretary of the Interior consult with ``appropriate state and local
officials'' in order to determine whether a tribal casino on newly
acquired land ``would not be detrimental to the surrounding
community''.
The Bureau of Indian Affairs' Checklist for Gaming Related
Acquisitions specifies that communities within 10 miles of a proposed
casino are part of the surrounding community and must be consulted.
This 10-mile radius includes the northeastern part of the 61st
District, including the towns of Zion and Winthrop Harbor. This 10 mile
area of impact seems very small to me when you are considering the
impact of a massive casino. Most casinos consider their marketing area
to be within an hour's drive of a casino and the Environmental Impact
Statement required for Indian casinos considers economic markets as far
away as 75-100 miles. Indeed, according to Kenosha's own study,
approximately 71% of the business projected from the casino and 62% of
the customers will come from outside the Kenosha area, most of which
will come from Northern Illinois. Despite this overwhelming evidence
suggesting that most of the casino's impacts will come from Northern
Illinois and despite the fact that my district lies within the BIA's 10
mile radius, the Kenosha Draft EIS makes only an off hand reference to
Illinois on one of its hundreds of pages. As to consultation, none of
the towns in my district within 10 miles of the casino were consulted
by the BIA. Lake County, which has repeatedly written the BIA
expressing its concern, was also ignored by the BIA. Since the BIA
would not hold a hearing in Illinois and would not study or consider
Northern Illinois impacts, I held a hearing on March 6 and invited the
BIA to attend. The BIA did not attend the meeting, but did say they
would make the comments part of the record. The hearing transcript and
all the exhibits were then submitted to the BIA for the record.
At the hearing on March 6th, a representative from Congresswomen
Melissa Bean's office was present. Letters expressing serious concerns
with the proposed casino were read into the record from State
Representative Mark Beaubien -52nd District, State Representative Ed
Sullivan -51st District, State Representative Kathy Ryg-59th District
and State Representative Robert Churchill-62nd District. All are Lake
County representatives. Over the last 7 years, 16 letters from elected
public officials have been written to the BIA raising concerns about
this project. Among those writing have been Congressman Mark Kirk,
Former Congressman Phil Crane, Congresswoman Melissa Bean and Lake
County Board Chairman Suzi Schmidt.
The Menominee Tribe of Wisconsin wants approval to change 223 acres
in Kenosha, Wisconsin, to Indian lands. The Menominee Tribe's
Reservation is 200 miles from Kenosha. The Tribe, in partnership with a
Kenosha businessman, who was part of a first failed attempt to build a
Kenosha Casino, and the Mohegan Tribe of Connecticut, want to build an
$808 million, 3100 position casino-hotel entertainment project. The
Mohegan Tribe has been hired to run the casino. When completed, this
project will be the largest in the Midwest and will rival the size of
Las Vegas' largest casinos. Through our public hearing and comment
process, we have identified a number of concerns. First, there are
jobs. The Menominee Tribe estimates that when the facilities are fully
up and running that approximately 5,000 people directly and indirectly
could be employed. As part of the Tribe's intergovernmental agreement,
80 percent of the facility's workforce must come from Kenosha, Racine
and Milwaukee counties. The agreement, which has been adopted by the
Menominee Legislature and the tribe's Kenosha Gaming Authority, gives
first preference to Kenosha County Residents, followed by Racine and
Milwaukee counties. Fourth preference will go to Wisconsin residents
outside of those three counties. No consideration will be given for
Illinois Residents which are just 6 miles away.
According to comments made by former Menominee Chairman Michael
Chapman to the Kenosha News:
``The tribe's commitment is to Kenosha and southeastern
Wisconsin. It was never the tribe's intent to employ an
Illinois resident-dominated workforce. The tribe will also work
with potential retail and commercial leaseholders to encourage
them to do the same.''
In short, we provide the casino revenues, Wisconsin keeps all the
jobs.
Next, there is the environment, which does not respect state
borders. The problem here is 3 million visitors from my district and
traveling through my district to reach the casino. Both Lake County and
Kenosha County are non attainment areas for ozone. What happens to the
ozone level when all these people begin driving to the new casino?
The National Environmental Policy Act establishes procedures for
Federal agencies to follow to ``insure that environmental information
is available to public officials and citizens before decisions are made
and before actions are taken''. The combination of these two federal
laws requires that the Department of the Interior investigate and
disclose to Illinois citizens and local governments exactly how this
$808 million casino project, expected to attract 4.9 million visitors
annually, will impact Illinois and its environment. Yet, our worsening
ozone problem has been ignored by the BIA in the Draft EIS.
Then there is the traffic and congestion, which is such a huge
problem Lake County politicians are more identified as being pro or
anti growth than they are Democrats or Republicans. With an estimated 3
million visitors to the Kenosha casino annually coming from south of
the casino site, one can imagine what impact that the traffic is going
to have on Lake County's already clogged major arteries into Wisconsin,
including Hwy 41, Sheridan and Green Bay roads. Illinois taxpayers will
be expected to carry the burden for road repairs, traffic management,
police and first responders without any support from the casino. Yet,
the BIA doesn't even bother to examine or consider these problems.
Then there is drinking and driving. Prior to the standardization of
the drinking age in both Illinois and Wisconsin at the age of 21, the
townships of Illinois just south of the Wisconsin state line were known
to professionals as the ``Blood Border''. In January 1980, legislation
signed by former Gov. James R. Thompson(R-IL) increased the drinking
age in Illinois from 18 to 21. Wisconsin, however, refused to
voluntarily enact a parallel law until September 1986. For more than 6
1/2 years, from January 1980 until September 1986, the minimum legal
drinking age was 21 in Illinois but only 18 in Wisconsin. This
irrational disparity in these two laws gave thirsty young Illinoisans a
lethal incentive to try to go north to Wisconsin, drink and drive home
while intoxicated. Victims of the ``Blood Border'' included young
adults southward after a night of drinking in Wisconsin bars and
taverns just across the state line. The Alliance Against Intoxicated
Motorists counted 65 separate victims of ``Blood Border'' in the early
1980's. My late husband, Tim Osmond, was a volunteer paramedic with the
Antioch Rescue Squad who spent many Friday and Saturday evenings in the
Squad building waiting for the siren calling them to the scene of
another accident. In those days drinking seemed to be the main factor.
You are no doubt asking why I am bringing this up for your
consideration. The estimation of the amount of traffic coming thru the
61st district can only bring to mind how will the district cope with
traffic control, accidents and the need of paramedics? Some Casino
goers, like the young driver many years ago, will enjoy their gaming
too much and head home drunk thru the 61st District. Then, we will have
the blood border once again.
Finally, there is the increased need for Illinois social services
for our problem gamblers frequenting the new casino. The Kenosha casino
is going to provide this support to Kenosha residents but will not give
any support to Illinois governments. Our own local social service
agencies, which are already being asked to do more with fewer
resources, will be charged with picking up the pieces for any number of
Illinois residents and their families that may be negatively impacted
by compulsive gambling. Illinois also has a self-exclusion list for
problem gamblers that bars these individuals from betting at any of our
nine casinos and those in northern Indiana. The mega casino being
planned in Kenosha may be too close and too tempting for those
individuals on the self-exclusion list. There are no efforts being made
to screen or recognize known problem gamblers crossing state lines.
While I think of all the difficulties this proposed casino will
cause for my district and the problems I have had being heard by the
BIA, I was alarmed to learn that this project would be grandfathered
under Senate Bill S. 2078 which just passed out of the Indian Affairs
Committee. How can you grandfather a proposal, which excludes local
input and ignores local community impacts? This Kenosha Casino project,
which has been pursued for 7 years, is the poster child for how not to
site a casino.
Then there are all the press reports alleging organized crime ties
for the first group of Kenosha Casino developers. While most of these
first developers are no longer part of the project, others still
remain. I worry that the procedures which allowed the first developers
to be a part of this project will be inadequate to protect my
constituents from being exposed to criminal elements.
Also, my fellow representative Mark Beaubien has repeatedly made
the point that the Menominee are trying to locate a casino in an area
outside their traditional or historic homeland. This doesn't make any
sense to me. If tribes can locate casinos outside their traditional
homelands, they can locate casinos anywhere including casinos in our
largest cities like Chicago, New York or Miami.
Finally, I worry about these Indian Casinos coming into Illinois.
Several tribes like the Ho-Chunk and the Prairie Band Potawatomi have
tried to put casinos in Illinois. We already have a well regulated
Commercial gaming industry and do not need poorly regulated, huge
Indian casinos coming from out of state.
In closing, I understand Mr. Chairman that your Casino reform bill,
HR 4893 addresses the problems we have had in Illinois with Indian
Casinos. Further, unlike Senator McCain's legislation, it would not
Grandfather in the flawed sitting process we have experienced in
Illinois. On behalf of my constituents, I thank you for pursuing the
right kind of reform legislation and for holding this hearing.
______
[NOTE: Letters submitted for the record by Representative
Osmond have been retained in the Committee's official files.]
The Chairman. Thank you.
Mr. Worthley.
STATEMENT OF STEVEN WORTHLEY, TULARE COUNTY MEMBER, INDIAN
GAMING WORKING GROUP, CALIFORNIA STATE ASSOCIATION OF COUNTIES
Mr. Worthley. Thank you. On behalf of the California State
Association of Counties, I would like to thank Chairman Pombo,
Ranking Member Rahall, and the other Distinguished Members of
the Committee on Resources for providing us with the
opportunity to submit testimony on H.R. 4893.
Chairman Pombo, I also would like to thank you for your
considerable outreach to CSAC throughout the development of
this important legislation.
I am Steven Worthley, 4th District Supervisor for Tulare
County. I want to disclose I am not a member of the CSAC Indian
Gaming Working Group, but I am very happy to pinch hit for them
today. I am in my second term of office, and I am here
representing the entire CSAC represented body.
CSAC is the single unified voice speaking on behalf of all
58 California counties and the issues raised in this hearing
and addressed by this legislation has a direct and unique
bearing on counties, more so than any other jurisdiction of
local government.
Because of this, CSAC had devoted considerable staff time
and financial resources to address the impacts of Indian gaming
on county services and affected communities.
CSAC's approach to the issue of Indian gaming is simple: To
work on a government-to-government basis with gaming tribes who
have followed the provisions of IGRA and to seek a mechanism
that allows local governments to work with tribes to mitigate
any off-reservation impacts from proposed casinos.
Examples of our approach are numerous in California where
comprehensive agreements between tribes and counties, each
addressing the unique concerns of the tribe and the community,
have been negotiated in the past few years.
I want to quickly mention the model for negotiation between
local government and tribes provided by the most recent state
tribal compacts negotiated by the Schwarzenegger
Administration. The result of this model has been improved
government-to-government relationships and the successful
incorporation of major gaming facilities into counties and
communities.
Now to comments specific to H.R. 4893. Chairman Pombo, CSAC
is pleased to support your off-reservation gaming legislation
which includes provisions that would require tribes seeking to
acquire trust land for purpose of gaming to negotiate
judicially enforceable mitigation agreements with counties as a
condition to having trust land acquisitions approved by the
Department of Interior.
This provision largely addresses the overriding principal
supported by CSAC in its tribal lands policy. Please note that
CSAC recommends that the language of H.R. 4893 be modified to
further clarify the legislation's meaning of ``direct effects
of the tribal gaming activities on the affected county or
parish infrastructure and services.''
We recommend that the definition of infrastructure and
services include but not be limited to infrastructure
maintenance and improvements, health and welfare service, law
enforcement and emergency services, and environmental services
such as air quality, watershed management and erosion control.
Enumerating the specific costs and services impacts would help
to ensure that sound mitigation agreements are developed
between county and tribal governments.
In addition to the mitigation agreement requirements of
H.R. 4893, CSAC is supportive of provisions of the Pombo bill
that would require more extensive oversight with respect to
casino proposals for newly recognized landless tribes. While we
support giving local communities a seat at the table to decide
whether or not a casino should be located in a particular area,
CSAC supports giving county boards of supervisors, which
represent all county residents, the right to consent to gaming-
related trust acquisitions.
A countywide advisory referendum as called for in the bill
represents a prudent step in gauging a community support or
opposition to a particular gaming proposal. However, CSAC
believes that a vote by elected county boards of supervisors
represents an equally critical component in the process of
determining the viability and suitability of a casino proposal.
Because counties would ultimately be responsible for
negotiating mitigation agreements with tribes under H.R. 4893,
CSAC urges you to consider modifying the legislation to allow
county or parish-elected bodies to have the right to concur
with the Department of Interior's prescribed determinations.
With regard to the bill's tribal gaming consolidation
proposal, CSAC is supportive of the legislation's language that
would require all consulting gaming operations to take place on
already existing reservation lands deemed suitable for such
operations in accordance with IGRA.
CSAC also believes that there is an opportunity to clarify
H.R. 4893 to ensure that tribes that are allowed to consolidate
gaming operations are required to negotiate judicially
enforceable agreements with the affected county for the
mitigation of all off-reservation impacts, and that such
agreements must be reached each time tribes agree to
consolidate gaming operations.
In conclusion, CSAC is pleased to support H.R. 4893 which
represents a significant improvement over the provisions of
current law. Additionally, CSAC believes that with necessary
and appropriate revisions, such as enumerating services and
cost impacts of mitigation agreements, as well as allowing
county boards of supervisors to determine the viability and
suitability of a casino proposal, H.R. 4893 would further the
original goals of IGRA while also helping to minimize the
abuses that have proven to be detrimental to those tribes in
full compliance with applicable Federal laws.
I want to thank again Chairman Pombo and members of the
Committee for their prolonged attention to this important
issue. CSAC looks forward to working with you to ensure the
best possible outcome for tribal governments and those
communities affected by Indian gaming. Thank you.
[The prepared statement of Mr. Worthley follows:]
Statement of Steven Worthley, Supervisor, Tulare County, and Member,
Indian Gaming Working Group, California State Association of Counties
On behalf of the California State Association of Counties (CSAC) I
would like to thank Chairman Pombo, Ranking Member Rahall, and the
other distinguished members of the Committee of Resources for giving us
this opportunity to submit testimony as part of the hearing to consider
Chairman Pombo's legislation (HR 4893) to restrict off-reservation
gaming. I am Steven Worthley, District 4 Supervisor for Tulare County
and a member of the CSAC Indian Gaming Working Group.
CSAC is the single, unified voice speaking on behalf of all 58
California counties. The issue raised in this hearing, and those
addressed by H.R. 4893, have direct and unique bearing on counties,
more so than any other jurisdiction of local government.
There are two key reasons off-reservation gaming is of heightened
importance for California counties. First, counties are legally
responsible to provide a broad scope of vital services for all members
of their communities. Second, throughout the State of California and
the nation, tribal gaming has rapidly expanded, creating a myriad of
economic, social, environmental, health, safety, and other impacts. The
facts clearly show that the mitigation and costs of such impacts
increasingly fall upon county government.
For the past three years, CSAC has devoted considerable staff time
and financial resources to the impacts on county services resulting
from Indian gaming. We believe that California counties and CSAC have
developed an expertise in this area that may be of benefit to this
Committee as it considers amendments to the Indian Gaming Regulatory
Act.
Introduction:
At the outset, the California State Association of Counties (CSAC)
reaffirms its absolute respect for the authority granted to federally
recognized tribes. CSAC also reaffirms its support for the right of
Indian tribes to self-governance and its recognition of the need for
tribes to preserve their tribal heritage and to pursue economic self-
reliance.
However, CSAC maintains that existing laws fail to address the off-
reservation impacts of tribal land development, particularly in those
instances when local land use and health and safety regulations are not
being fully observed by tribes in their commercial endeavors. As we all
know, these reservation-based commercial endeavors attract large
volumes of visitors.
Every Californian, including all tribal members, depends upon
county government for a broad range of critical services, from public
safety and transportation, to waste management and disaster relief.
California counties are responsible for nearly 700 programs,
including the following:
,-- ,
sheriff elections & voter services
jails public health
roads & bridges flood control
fire protection welfare
indigent health family support
probation child & adult protective services
alcohol & drug abuse
rehabilitation
Most of these services are provided to residents both outside and
inside city limits. Unlike the exercise of land use control, such
programs as public health, welfare, and jail services are provided (and
often mandated) regardless of whether a recipient resides within a city
or in the unincorporated area of the county. These vital public
services are delivered to California residents through their 58
counties. It is no exaggeration to say that county government is
essential to the quality of life for over 35 million Californians. No
other form of local government so directly impacts the daily lives of
all citizens. In addition, because county government has very little
authority to independently raise taxes and increase revenues, the
ability to adequately mitigate reservation commercial endeavors is
critical, or all county services can be put at risk.
CSAC fully recognizes the counties' legal responsibility to
properly provide for and protect the health, safety, and general
welfare of the members of their communities. California counties'
efforts in this regard have been significantly impacted by the
expansion of Indian gaming.
Certainly compounding this problem is the fact that the expansion
in gaming has led some tribes and their business partners to engage in
a practice that is sometimes referred to as ``reservation shopping'' in
an attempt to acquire land not historically tied to these tribes but
which has considerable economic potential as a site for an Indian
casino. CSAC opposes ``reservation shopping'' as counter to the
purposes of the Indian Gaming Regulatory Act (IGRA). ``Reservation
shopping'' is an affront to those tribes who have worked responsibly
with local, state and federal authorities on a government-to-government
basis in compliance with the spirit and intent of IGRA as a means of
achieving economic self-reliance and preserving their tribal heritage.
CSAC commends Chairman Pombo and the other Members of the House
Resources Committee for seeking to curb the increasing practice of
``reservation shopping.'' This written testimony is in support of H.R.
4893, which would preserve the original goal of IGRA while minimizing
the impacts of ``reservation shopping'' on local communities. CSAC
offers its assistance to Chairman Pombo and the House Resources
Committee as H.R. 4893 is advanced through the legislative process.
Background:
A. The Advent of Indian Gaming
Even before the enactment of IGRA in 1988, California counties were
experiencing impacts in rural areas from Indian gaming establishments.
These early establishments were places where Indian bingo was the
primary commercial enterprise in support of tribal economic self-
reliance. The impacts on local communities were not significant in
large part because the facilities where Indian bingo was played were
modest in size and did not attract large numbers of patrons. Following
enactment of IGRA, the impacts to counties from Indian gaming
establishments increased with the advent of larger gaming facilities.
Even so, the impacts to local communities from these larger gaming
facilities were generally manageable except in certain instances.
Over the last six years, the rapid expansion of Indian gaming in
California has had profound impacts beyond the boundaries of tribal
lands. Since 1999 and the signing of Compacts with approximately 69
tribes and the passage of Propositions 5 and 1A (legalizing Indian
gaming in California), the vast majority of California's counties
either have a casino, a tribe petitioning for federal recognition, or
is the target or focus of a proposed casino plan. As the Committee is
aware, many pending casino proposals relate to projects on land far
from a tribe's ancestral territory.
A 2004 CSAC survey reveals that 53 active gaming operations exist
in 26 of California's 58 counties. Another 33 gaming operations are
being proposed. As a result, 35 counties out of 58 in California have
active or proposed gaming. Most important, of those 35 counties
impacted by Indian gaming, there are 82 tribes in those counties but
only 20 local agreements for mitigation of the off-reservation impacts
on services that counties are required to provide.
B. Development of CSAC 2003 Policy
In 1999, California Governor Gray Davis and approximately 65 tribes
entered into Tribal-State Compacts, which permitted each of these
tribes to engage in Class III gaming on their trust lands. The
economic, social, environmental, health, safety, traffic, criminal
justice, and other impacts from these casino-style gaming facilities on
local communities were significant, especially because these gaming
facilities were located in rural areas. The 1999 Compacts did not give
counties an effective role in mitigating off-reservation impacts
resulting from Indian casinos. Consequently, mitigation of these
impacts could not be achieved without the willingness of individual
tribes to work with the local governments on such mitigation. Some
tribes and counties were able to reach mutually beneficial agreements
that helped to mitigate these impacts. Many counties were less than
successful in obtaining the cooperation of tribes operating casino-
style gaming facilities in their unincorporated areas.
The off-reservation impacts of current and proposed facilities led
CSAC, for the first time, to adopt a policy on Indian gaming. In the
fall of 2002, at its annual meeting, CSAC held a workshop to explore
how to begin to address these significant impacts. As a result of this
workshop, CSAC established an Indian Gaming Working Group to gather
relevant information, be a resource to counties, and make policy
recommendations to the CSAC Board of Directors on Indian gaming issues.
CSAC's approach to addressing the off-reservation impacts of Indian
gaming is simple: to work on a government-to-government basis with
gaming tribes in a respectful, positive and constructive manner to
mitigate off-reservation impacts from casinos, while preserving tribal
governments' right to self-governance and to pursue economic self-
reliance.
With this approach as a guide, CSAC developed a policy comprised of
seven principles regarding State-Tribe Compact negotiations for Indian
gaming, which was adopted by the CSAC Board of Directors on February 6,
2003. The purpose of this Policy is to promote tribal self-reliance
while at the same time promoting fairness and equity, and protecting
the health, safety, environment, and general welfare of all residents
of the State of California and the United States. A copy of this Policy
is attached to this written testimony as Attachment A.
C. Implementation of CSAC's 2003 Policy
Following adoption by CSAC of its 2003 Policy, the Indian Gaming
Working Group members met on three occasions with a three-member team
appointed by Governor Davis to renegotiate existing Compacts and to
negotiate with tribes who were seeking a compact for the first time. As
a result of these meetings, three new State-Tribe Compacts were
approved for new gaming tribes. These new Compacts differed from the
1999 Compacts in that the 2003 Compacts gave a meaningful voice to the
affected counties and other local governments to assist them in seeking
tribal cooperation and commitment to addressing the off-reservation
environmental impacts of the Indian casinos that would be built
pursuant to those Compacts.
Illustrations of Successful County/Tribal Cooperation
There are many examples of California counties working
cooperatively with tribes on a government-to-government basis on all
issues of common concern to both governments, not just gaming-related
issues. Yolo County has a history of working with Rumsey Band of Wintun
Indians to ensure adequate services in the area where the casino is
operating. In addition, Yolo County has entered into agreements with
the tribe to address the impacts created by tribal projects in the
county.
In Southern California, San Diego County has a history of tribes
working with the San Diego County Sheriff to ensure adequate law
enforcement services in areas where casinos are operating. In addition,
San Diego County has entered into agreements with four tribes to
address the road impacts created by casino projects. Further, a
comprehensive agreement was reached with the Santa Ysabel Tribe
pursuant to the 2003 Compact with the State of California.
Humboldt, Placer, and Colusa Counties and tribal governments have
agreed similarly on law enforcement-related issues. Humboldt County
also has reached agreements with tribes on a court facility/sub
station, a library, road improvements, and on a cooperative approach to
seeking federal assistance to increase water levels in nearby rivers.
In central California, Madera and Placer Counties have reached more
comprehensive agreements with the tribes operating casinos in their
communities. These comprehensive agreements provide differing
approaches to the mitigation of off-reservation impacts of Indian
casinos, but each is effective in its own way to address the unique
concerns of each gaming facility and community.
After a tribe in Santa Barbara County completed a significant
expansion of its existing casino, it realized the need to address
ingress and egress, and flood control issues. Consequently, Santa
Barbara County and the tribe negotiated an enforceable agreement
addressing these limited issues in the context of a road widening and
maintenance agreement. Presently, there is no authority that requires
the County of Santa Barbara or its local tribe to reach agreements.
However, both continue to address the impacts caused by the tribe's
acquisition of trust land and development on a case-by-case basis,
reaching intergovernmental agreements where possible.
The agreements in each of the above counties were achieved only
through positive and constructive discussions between tribal and county
leaders. It was through these discussions that each government gained a
better appreciation of the needs and concerns of the other government.
Not only did these discussions result in enforceable agreements for
addressing specific impacts, but enhanced respect and a renewed
partnership also emerged, to the betterment of both governments, and
tribal and local community members.
Illustrations of Continued Problems Addressing Casino Impacts
On the other hand, there are examples of Indian casinos and
supporting facilities where a tribal government did not comply with the
requirements of IGRA or the 1999 Compacts. In Mendocino County, a tribe
built and operated a Class III gaming casino for years without the
requisite compact between it and the California Governor. In Sonoma
County, a tribe decimated a beautiful hilltop to build and operate a
tent casino that the local Fire Marshal determined lacked the necessary
ingress and egress for fire safety.
In other California counties, tribes circumvented or ignored
requirements of IGRA or the 1999 Compacts prior to construction of
buildings directly related to Indian gaming. In San Diego County there
have been impacts to neighboring water wells that appear to be directly
related to a tribe's construction and use of its water well to irrigate
a newly constructed golf course adjoining its casino, and several other
tribal casino projects have never provided mitigation for the
significant traffic impacts caused by those projects.
In 2004, the focus of CSAC on seeking mechanisms for working with
gaming tribes to address off-reservation impacts continued. Since that
time, Governor Schwarzenegger and several tribes negotiated amendments
to the 1999 Compacts, which lifted limits on the number of slot
machines, required tribes to make substantial payments to the State,
and incorporated most of the provisions of CSAC's 2003 Policy. Of
utmost importance to counties was the requirement in each of these
newly amended Compacts that each tribe be required to negotiate with
the appropriate county government to develop local agreements for the
mitigation of the impacts of casino projects, and that these agreements
are judicially enforceable. Where a tribe and county cannot reach a
mutually beneficial binding agreement, ``baseball style'' arbitration
will be employed to determine the most appropriate method for
mitigating the impacts.
D. The Advent of ``Reservation Shopping'' in California
The problems with the original 1999 Compacts remain largely
unresolved, as most prior Compacts were not renegotiated. These
Compacts allow tribes to develop two casinos and do not restrict casino
development to areas within a tribe's current trust land or historical
ancestral territory. For example, in the Fall of 2002 a Lake County
band of Indians was encouraged by East Coast developers to pursue
taking into a trust land in Yolo County for use as a site of an Indian
casino. The chosen site was across the Sacramento River from downtown
Sacramento and was conveniently located near a freeway exit. The actual
promoters of this effort were not Native Americans and had no intention
of involving tribal Band members in the operation and management of the
casino. In fact, one promoter purportedly bragged that no Indian would
ever be seen on the premises.
In rural Amador County, starting in 2002 and continuing to the
present, a tribe being urged on by another out-of-State promoter is
seeking to have land near the small town of Plymouth taken into trust
for a casino. The tribe has no historical ties to the Plymouth
community. The effort by this tribe and its non-Native American
promoter has created a divisive atmosphere in the local community. That
new casino is not the only one being proposed in the County; a second,
very controversial new casino is being promoted by a New York developer
for a three-member tribe in a farming and ranching valley not served
with any water or sewer services, and with access only by narrow County
roads. The development of these casinos would be an environmental and
financial disaster for their neighbors and the County, which already
has one major Indian casino.
In the past two years in Contra Costa County, there have been
varying efforts by three tribes to engage in Indian gaming in this
highly urbanized Bay Area county. The possibility of significant
economic rewards from operating urban casinos has eclipsed any
meaningful exploration of whether these tribes have any historical
connection to the area in which they seek to establish gaming
facilities.
In addition, in 2004, California counties faced a new issue
involving tribes as a result of non-gaming tribal development projects.
In some counties land developers were seeking partnerships with tribes
in order to avoid local land use controls and to build projects that
would not otherwise be allowed under local land use regulation. In
addition, some tribes were seeking to acquire land outside their
current trust land or their legally recognized aboriginal territory and
to have that land placed into federal trust, beyond the reach of a
county's land use jurisdiction.
CSAC's 2004 Policy Regarding Development of Tribal Lands
To address these issues, the CSAC Board of Directors adopted a
Revised Policy Regarding Development on Tribal Lands on November 18,
2004 (attached as Attachment B). The Revised Policy reaffirms that:
CSAC supports cooperative and respectful government-to-
government relations that recognize the interdependent role of tribes,
counties and other local governments to be responsive to the needs and
concerns of all members of their respective communities.
With respect to the issues specifically now before the Committee
the following new Revised Policies apply:
CSAC supports federal legislation to provide that lands
are not to be placed in trust and removed from the land use
jurisdiction of local governments without the consent of the State and
affected County.
CSAC opposes the practice commonly referred to as
``reservation shopping'' where a tribe seeks to place lands in trust
outside its proven aboriginal territory over the objection of the
affected County.
Importance of County Involvement in Developing Mitigation:
The history and examples provided above illustrate the need for
counties to be involved in developing appropriate off-reservation
mitigations related to Indian casino activities. There is not yet a
definitive study on the impacts of gaming on local communities.
However, in those counties that are faced with large gaming projects,
it is clear that the impacts on traffic, water/wastewater, the criminal
justice system and social services are significant. For non-Indian
casinos it is estimated that for every dollar a community collects from
gambling-related taxes, it must spend three dollars to cover new
expenses, including police, infrastructure, social welfare and
counseling services. 1 As local communities cannot tax
Indian operations, or the related hotel and other services that would
ordinarily be a source of local government income, the negative impact
of such facilities can even be greater. This is one reason that CSAC
sought amendments to California Tribal-State Compacts to ensure that
the off-reservation environmental and social impacts of gaming were
fully mitigated and that gaming tribes paid their fair share for county
services.
---------------------------------------------------------------------------
\1\ Cabazon, The Indian Gaming Regulatory Act, and the
Socioeconomic Consequences of American Indian Governmental Gaming--A
Ten Year Review by Jonathon Taylor and Joseph Kalt of the Harvard
Project on American Indian Economic Development (2005) at p. 9 (citing
Sen. Frank Padavan, Rolling the Dice: Why Casino Gambling is a Bad Bet
for New York State at ii (1994).
---------------------------------------------------------------------------
In 2003 CSAC took a ``snapshot'' of local impacts by examining
information provided by eight of the then twenty-six counties (the only
counties that had conducted an analysis of local government fiscal
impacts) where Indian gaming facilities operated. 2 The
total fiscal impact to those eight counties was approximately $200
million, including roughly $182 million in one-time costs and $17
million in annual costs. If these figures were extrapolated to the rest
of the state, the local government fiscal costs could well exceed $600
million in one-time and on-going costs for road improvements, health
services, law enforcement, emergency services, infrastructure
modifications, and social services.
---------------------------------------------------------------------------
\2\ CSAC Fact Sheet on Indian Gaming in California (11/5/03)
(attached as Attachment C.)
---------------------------------------------------------------------------
Even when a particular gaming facility is within a City's
jurisdictional limits, the impacts on County government and services
may be profound. Counties are the largest political subdivision of the
state having corporate authority and are vested by the Legislature with
the powers necessary to provide for the health and welfare of the
people within their borders. Counties are responsible for a countywide
justice system, social welfare, health and other services. The
California experience has also made clear that particularly large
casino facilities have impacts beyond the immediate jurisdiction in
which they operate. Attracting many thousands of car trips per day,
larger facilities cause traffic impacts throughout a local
transportation system. Similarly, traffic accidents, crime and other
problems sometimes associated with gaming are not isolated to a casino
site but may increase in surrounding communities.
As often the key political entity and service provider in the area,
with a larger geographic perspective and land use responsibility,
county involvement is critical to ensure that the needs of the
community are met and that any legitimate tribal gaming proposal is
ultimately successful and accepted. Local approval and mechanisms that
create opportunities for negotiation are necessary to help insure a
collaborative approach with tribes in gaming proposals and to support
the long-range success of the policies underlying IGRA.
Comments on H.R. 4893:
CSAC fully understands that addressing the impacts of Indian
casinos has been a contentious subject in some California communities.
In an attempt to minimize this contentiousness, CSAC has focused on
resolutions that show proper respect for all governments with roles in
Indian gaming. Ultimately, as described in previous pages, the two most
involved governments are tribal governments and county governments.
The overwhelming majority of Indian casinos are in rural areas.
Accordingly, county governments are those local governments in
California who find themselves most often in the position of needing to
address off-reservation impacts from Indian casinos. Current federal
law does not provide counties an effective role in working with tribes
to address off-reservation impacts from Indian gaming.
In California, through the most recent State-Tribal Compacts
negotiated by the Schwarzenegger Administration, counties and other
local governments have been provided an appropriate opportunity to work
with gaming tribes to address off-reservation impacts. The result has
been improved government-to-government relationships between tribes and
county governments and the smooth incorporation of major gaming
facilities into counties and communities.
Also in the vein of improved relationships, CSAC recently worked
with several tribes to stage a day-long forum on ``Government-to-
Government Relationships: A Forum on Indian Gaming,'' which was very
well attended and featured topics such as negotiating memorandums of
understanding, implementing public safety protocols, and additional
opportunities for tribes and local governments to work collaboratively.
This and other recent events demonstrate that, contrary to possible
fears of tribal leaders, local governments have not acted arbitrarily
or capriciously in their dealings with tribes. In fact, the improved
relationships are the result of each government gaining a better
understanding of the responsibilities and needs of the other.
Because we in California have several positive examples of counties
and tribes working together for the betterment of their respective
communities, CSAC supports Chairman Pombo's efforts to address the
practice of ``reservation shopping.'' Below are specific comments on
key provisions of H.R. 4893.
Judicially Enforceable Agreements
As stated in CSAC's most recent Policy on Tribal Lands (adopted
February 23, 2006), ``the overriding principle supported by CSAC is
that when tribes are permitted to engage in gaming activities under
federal legislation, then judicially enforceable agreements between
counties and tribal governments must be required in the legislation.
These agreements would fully mitigate local impacts from a tribal
government's business activities and fully identify the governmental
services to be provided by the county to that tribe.''
CSAC is pleased that H.R. 4893 would require tribes seeking to
acquire trust land for purposes of gaming to negotiate judicially
enforceable mitigation agreements with counties as a condition of
having trust land acquisitions approved by the Department of Interior.
CSAC recommends, however, that the language of H.R. 4893 be modified to
further clarify the legislation's meaning of ``direct effects of the
tribal gaming activities on the affected county or parish
infrastructure and services.'' We recommend that the definition of
infrastructure and services include but not be limited to
infrastructure maintenance and improvements, health and welfare
services, law enforcement and emergency services, and environmental
services such as air quality, watershed management, and erosion
control. Enumerating the specific costs and services impacts would help
to ensure that sound mitigation agreements are developed between county
and tribal governments.
Increased Oversight of Gaming Proposals
In addition to the mitigation agreement requirements of H.R. 4893,
CSAC is supportive of provisions of H.R. 4893 that would require more
extensive oversight with respect to casino proposals for newly-
recognized or landless tribes. While we support giving local
communities a seat at the table to decide whether or not a casino
should be located in a particular area, CSAC supports giving county
boards of supervisors the right to consent to gaming-related trust
acquisitions.
A county-wide advisory referendum--as called for in the bill--
represents a prudent step in gauging a community's support or
opposition to a particular gaming proposal. However, CSAC believes that
a vote by elected county boards of supervisors represents an equally
critical component in the process of determining the viability and
suitability of a casino proposal. Because counties would ultimately be
responsible for negotiating mitigation agreements with tribes under
H.R. 4893, CSAC urges you to consider modifying the legislation to
allow county or parish elected bodies to have the right to concur with
the Department of Interior's prescribed determinations.
Consolidation of Gaming Among Tribes
CSAC does not oppose the concept of gaming consolidation among
tribes, and supports the bill's language reaffirming the fact that all
Indian gaming operations must take place only on lands deemed suitable
for such operations in accordance with IGRA. CSAC also believes that
there is an opportunity to clarify H.R. 4893 to ensure that tribes that
are allowed to consolidate gaming operations are required to negotiate
judicially enforceable agreements with the affected county for the
mitigation of all off-reservation impacts, and that such agreements
must be reached each time tribes agree to consolidate gaming
operations.
Primary Geographic, Social and Historical Nexus
When the phrase ``primary geographic, social and historical nexus''
is used in the bill, CSAC recommends that it be based on objective
facts that are generally acceptable to practicing historians,
archeologists, and anthropologists. If there is a question by a tribal,
state or local government as to whether the nexus has been established,
the bill should provide for a judicial determination in either federal
or state court on the issue, where the tribe would have the burden of
showing the requisite nexus by a preponderance of evidence. This would
provide a credible mechanism for determining a tribe's primary
geographic, social and historical nexus and allow for judicial review
of the facts in cases of doubt.
Conclusion:
CSAC presents this written testimony in support of H.R. 4893, and
we stand ready to assist Chairman Pombo and Committee Members in their
efforts to modify IGRA to address the increasing practice of
``reservation shopping.'' In California, the Chairman's bill--with the
aforementioned necessary and appropriate revisions--would allow
counties a voice in matters that create impacts that the county will
ultimately be called upon by its constituents to address. This voice is
critical if California counties are to protect the health and safety of
their citizens. Otherwise, counties find themselves in a position where
their ability to effectively address the off-reservation impacts from
Indian gaming is extremely limited and dependent on the willingness of
individual tribes to mitigate such impacts.
In those instances in California where tribal governments and
counties have met to work together to resolve issues of concern to each
government, responsible decisions have been made by both governments to
the benefit of both tribal members and local communities. Enactment of
this legislation would create a mechanism and increased opportunities
for these governments to work together. Such a mechanism would further
the original goals of IGRA while also helping to minimize the abuses of
IGRA that have proven to be detrimental to those tribes in full
compliance with all applicable federal laws.
We wish to thank Chairman Pombo and members of the Committee for
their consideration and acknowledgment of the impact of this important
issue on the counties of California. We look forward to continue
working together to ensure the best possible outcome for all tribes,
local governments, and communities.
______
ATTACHMENT A:
csac policy document regarding compact negotiations for indian gaming
Adopted by the CSAC Board of Directors
February 6, 2003
In the spirit of developing and continuing government-to-government
relationships between federal, tribal, state, and local governments,
CSAC specifically requests that the State request negotiations with
tribal governments pursuant to section 10.8.3, subsection (b) of the
Tribal-State Compact, and that it pursue all other available options
for improving existing and future Compact language.
CSAC recognizes that Indian Gaming in California is governed by a
unique structure that combines federal, state, and tribal law. While
the impacts of Indian gaming fall primarily on local communities and
governments, Indian policy is largely directed and controlled at the
federal level by Congress. The Indian Gaming Regulatory Act of 1988 is
the federal statute that governs Indian gaming. The Act requires
compacts between states and tribes to govern the conduct and scope of
casino-style gambling by tribes. Those compacts may allocate
jurisdiction between tribes and the state. The Governor of the State of
California entered into the first Compacts with California tribes
desiring or already conducting casino-style gambling in September 1999.
Since that time tribal gaming has rapidly expanded and created a myriad
of significant economic, social, environmental, health, safety, and
other impacts.
CSAC believes the current Compact fails to adequately address these
impacts and/or to provide meaningful and enforceable mechanisms to
prevent or mitigate impacts. The overriding purpose of the principles
presented below is to harmonize existing policies that promote tribal
self-reliance with policies that promote fairness and equity and that
protect the health, safety, environment, and general welfare of all
residents of the State of California and the United States. Towards
that end, CSAC urges the State to consider the following principles
when it renegotiates the Tribal-State Compact:
1. A Tribal Government constructing or expanding a casino or other
related businesses that impact off-reservation 3 land will
seek review and approval of the local jurisdiction to construct off-
reservation improvements consistent with state law and local ordinances
including the California Environmental Quality Act with the tribal
government acting as the lead agency and with judicial review in the
California courts.
---------------------------------------------------------------------------
\3\ As used here the term ``reservation'' means Indian Country
generally as defined under federal law, and includes all tribal land
held in trust by the federal government. 18 U.S.C. Sec. 1151.
---------------------------------------------------------------------------
2. A Tribal Government operating a casino or other related
businesses would mitigate all off-reservation impacts caused by that
business. In order to ensure consistent regulation, public
participation, and maximum environmental protection, Tribes will
promulgate and publish environmental protection laws that are at least
as stringent as those of the surrounding local community and comply
with the California Environmental Quality Act with the tribal
government acting as the lead agency and with judicial review in the
California courts.
3. A Tribal Government operating a casino or other related
businesses will be subject to the authority of a local jurisdiction
over health and safety issues including, but not limited to, water
service, sewer service, fire inspection and protection, rescue/
ambulance service, food inspection, and law enforcement, and reach
written agreement on such points.
4. A Tribal Government operating a casino or other related
businesses would pay to the local jurisdiction the Tribe's fair share
of appropriate costs for local government services. These services
include, but are not limited to, water, sewer, fire inspection and
protection, rescue/ambulance, food inspection, health and social
services, law enforcement, roads, transit, flood control, and other
public infrastructure. Means of reimbursement for these services
include, but are not limited to, payments equivalent to property tax,
sales tax, transient occupancy tax, benefit assessments, appropriate
fees for services, development fees, and other similar types of costs
typically paid by non-Indian businesses.
5. The Indian Gaming Special Distribution Fund, created by section
5 of the Tribal-State Compact will not be the exclusive source of
mitigation, but will ensure that counties are guaranteed funds to
mitigate off-reservation impacts caused by tribal gaming.
6. To fully implement the principles announced in this document
and other existing principles in the Tribal-State compact, Tribes would
meet and reach a judicially enforceable agreement with local
jurisdictions on these issues before a new compact or an extended
compact becomes effective.
7. The Governor should establish and follow appropriate criteria
to guide the discretion of the Governor and the Legislature when
considering whether to consent to tribal gaming on lands acquired in
trust after October 17, 1988 and governed by the Indian Gaming
Regulatory Act. 25 U.S.C. Sec. 2719. The Governor should also establish
and follow appropriate criteria/guidelines to guide his participation
in future compact negotiations.
______
ATTACHMENT B:
CSAC REVISED POLICY DOCUMENT REGARDING DEVELOPMENT ON TRIBAL LANDS
Adopted by CSAC Board of Directors
November 18, 2004
Background
On February 6, 2003, CSAC adopted a policy, which urged the State
of California to renegotiate the 1999 Tribal-State Compacts, which
govern casino-style gambling for approximately 65 tribes. CSAC
expressed concern that the rapid expansion of Indian gaming since 1999
created a number of impacts beyond the boundaries of tribal lands, and
that the 1999 compacts failed to adequately address these impacts. The
adopted CSAC policy specifically recommended that the compacts be
amended to require environmental review and mitigation of the impacts
of casino projects, clear guidelines for county jurisdiction over
health and safety issues, payment by tribes of their fair share of the
cost of local government services, and the reaching of enforceable
agreements between tribes and counties on these matters.
In late February, 2003, Governor Davis invoked the environmental
issues re-opener clause of the 1999 compacts and appointed a three-
member team, led by former California Supreme Court Justice Cruz
Reynoso, to renegotiate existing compacts and to negotiate with tribes
who were seeking a compact for the first time. CSAC representatives had
several meetings with the Governor's negotiating team and were pleased
to support the ratification by the Legislature in 2003 of two new
compacts that contained most of the provisions recommended by CSAC.
During the last days of his administration, however, Governor Davis
terminated the renegotiation process for amendments to the 1999
compacts.
Soon after taking office, Governor Schwarzenegger appointed former
Court of Appeal Justice Daniel Kolkey to be his negotiator with tribes
and to seek amendments to the 1999 compacts that would address issues
of concern to the State, tribes, and local governments. Even though
tribes with existing compacts were under no obligation to renegotiate,
several tribes reached agreement with the Governor on amendments to the
1999 compacts. These agreements lift limits on the number of slot
machines, require tribes to make substantial payments to the State, and
incorporate most of the provisions sought by CSAC. Significantly, these
new compacts require each tribe to negotiate with the appropriate
county government on the impacts of casino projects, and impose binding
``baseball style'' arbitration on the tribe and county if they cannot
agree on the terms of a mutually beneficial binding agreement. Again,
CSAC was pleased to support ratification of these compacts by the
Legislature.
The problems with the 1999 compacts remain largely unresolved,
however, since most existing compacts have not been renegotiated. These
compacts allow tribes to develop two casinos, expand existing casinos
within certain limits, and do not restrict casino development to areas
within a tribe's current trust land or legally recognized aboriginal
territory. In addition, issues are beginning to emerge with non-gaming
tribal development projects. In some counties, land developers are
seeking partnerships with tribes in order to avoid local land use
controls and to build projects, which would not otherwise be allowed
under the local land use regulations. Some tribes are seeking to
acquire land outside their current trust land or their legally
recognized aboriginal territory and to have that land placed into
federal trust and beyond the reach of a county's land use jurisdiction.
CSAC believes that existing law fails to address the off-
reservation impacts of tribal land development, particularly in those
instances when local land use and health and safety regulations are not
being fully observed by tribes in their commercial endeavors. The
purpose of the following Policy provisions is to supplement CSAC's
February 2003 adopted policy through an emphasis for counties and
tribal governments to each carry out their governmental
responsibilities in a manner that respects the governmental
responsibilities of the other.
Policy
1. CSAC supports cooperative and respectful government-to-
government relations that recognize the interdependent role of tribes,
counties and other local governments to be responsive to the needs and
concerns of all members of their respective communities.
2. CSAC recognizes and respects the tribal right of self-
governance to provide for the welfare of its tribal members and to
preserve traditional tribal culture and heritage. In similar fashion,
CSAC recognizes and respects the counties' legal responsibility to
provide for the health, safety, environment, infrastructure, and
general welfare of all members of their communities.
3. CSAC also supports Governor Schwarzenegger's efforts to
continue to negotiate amendments to the 1999 Tribal-State Compacts to
add provisions that address issues of concern to the State, tribes, and
local governments. CSAC reaffirms its support for the local government
protections in those Compact amendments that have been agreed to by the
State and tribes in 2004.
4. CSAC reiterates its support of the need for enforceable
agreements between tribes and local governments concerning the
mitigation of off-reservation impacts of development on tribal land
4. CSAC opposes any federal or state limitation on the
ability of tribes, counties and other local governments to reach
mutually acceptable and enforceable agreements.
---------------------------------------------------------------------------
\4\ As used here the term ``tribal land'' means trust land,
reservation land, Rancheria land, and Indian Country as defined under
federal law.
---------------------------------------------------------------------------
5. CSAC supports legislation and regulations that preserve--and
not impair--the abilities of counties to effectively meet their
governmental responsibilities, including the provision of public
safety, health, environmental, infrastructure, and general welfare
services throughout their communities.
6. CSAC supports federal legislation to provide that lands are not
to be placed into trust and removed from the land use jurisdiction of
local governments without the consent of the State and the affected
county.
7. CSAC opposes the practice commonly referred to as ``reservation
shopping'' where a tribe seeks to place land into trust outside its
aboriginal territory over the objection of the affected county.
8. CSAC does not oppose the use by a tribe of non-tribal land for
development provided the tribe fully complies with state and local
government laws and regulations applicable to all other development,
including full compliance with environmental laws, health and safety
laws, and mitigation of all impacts of that development on the affected
county.
[GRAPHIC] [TIFF OMITTED] T7014.002
______
The Chairman. Thank you.
Mr. King.
STATEMENT OF RANDY KING, CHAIRMAN, BOARD OF TRUSTEES,
SHINNECOCK INDIAN NATION
Mr. King. Chairman Pombo, Ranking Member Rahall, and
Members of the House Resources Committee, thank you for giving
me the opportunity to speak today.
My name is Randy King, and I am the immediate past Chairman
of the Tribal Trustees of the Shinnecock Indian Nation.
Last night we held our tribal elections, the latest in an
unbroken chain of annual elections that dates back to 1792.
Although I chose not to run this year, let the record state
after six years in tribal office this will be the year that I
finish that screen room for my wife.
[Laughter.]
Mr. King. I know that our nation is in good hands and I
speak today on behalf of our nation, and with the support of
our new board of trustees.
The heritage of the Shinnecock people dates back thousands
of years. Although we once occupied a vast region of Long
Island, our property has dwindled over the years to less than
1,000 acres. Today, almost half of our enrolled members live on
this land, on a reservation set aside under New York law. The
State of New York and its predecessors have formally recognized
the Shinnecock Nation for more than 340 years, but even though
we have been seeking Federal acknowledgment from the Bureau of
Indian Affairs since 1978, the Federal bureaucracy has yet to
formally recognize our nation. After 28 years, we are still
waiting for a decision.
Despite nearly three decades of delay, the Shinnecock
people are optimistic. Last year a Federal court issued a
decision holding that we are what we have always known
ourselves to be, a sovereign Indian tribe. We remain hopeful
that the Department of Interior will add us to the list of
federally recognized tribes. In the meantime, we continue to
seek justice in the courts without waiting for help from the
executive branch of the Federal government.
Unfortunately, while we have remained stuck in the Federal
recognition process, we have watched many other tribes achieve
Federal recognition, construct casinos, and abuse the BIA
process to try to build even more casinos. Given our history
with the BIA, we are encouraged by your willingness to shake up
the status quo.
As you can imagine, we are particularly pleased that you
have taken up the cause of examining the Federal recognition
process. We also deeply appreciate the thought and care taken
in developing H.R. 4893. This bill can do much to level the
playing field and stop outlandish casino proposals that
threaten to backlash against legitimate tribes such as the
Shinnecock.
While we support the intent of the bill to reform a flawed
BIA process, we do hope that the Committee will consider some
suggestions for minor amendments to the bill. We hope that the
final bill will protect those tribal nations that, like the
Shinnecock, have played by the rules and have been met with
years of bureaucratic inaction.
First, let us remember that H.R. 4893 is aimed to restrict
the practice of reservation shopping, a goal all should share.
The Indian Gaming Regulation Act is meant to allow an Indian
nation to game on its own lands. The Shinnecock Indian Nation
occupies land that was ours before the first European settlers
arrived on our shores. Our land is our home and always has
been.
We believe that H.R. 4893 should clarify that Indian land
actually occupied continuously for all of recorded history
should receive the same treatment as Federal reservations
created much more recently. The Shinnecock people have occupied
our lands for centuries, and we should be able to have economic
activity on our own lands.
Even though IGRA is meant to allow tribes to use land that
has been theirs throughout the centuries, we do recognize
political realities. One reality is that in some communities
powerful groups use political power to try to deny a tribe its
right.
Given this reality, we believe that H.R. 4893 should
preserve the ability in narrow and limited circumstances for a
tribe to agree to alternate locations for economic activity. We
believe that land claim settlements when limited to the state
in which the tribe is located will allow tribes facing serious
local opposition to achieve economic progress.
At the same time, we recognize that there are legitimate
concerns about tribes claiming reservations through arguments
that are tenuous at best. We believe that the bill should close
the door on any inappropriate manipulations of the system. We
encourage the Committee to further strengthen proposed
provisions against interstate moves by limiting gaming to the
state in which a majority of the tribe's members reside.
In conclusion, I would like once again to thank you for
your courage in tacking these difficult issues when so many
others stand silent. As you move forward, I hope that your
reforms are a success and that they protect the ability of
tribes to use their own lands.
Thank you.
[The prepared statement of Mr. King follows:]
Statement of Randy King, Chairman, Board of Trustees,
Shinnecock Indian Nation
Chairman Pombo, Ranking Member Rahall and Members of the House
Resources Committee, my name is Randy King, and I am the Chairman of
the Tribal Trustees of the Shinnecock Indian Nation--one of the oldest
continually self-governing tribes in the country. I would like to
personally thank you for allowing me the opportunity to address this
Committee.
The heritage of the Shinnecock people dates back thousands of
years. We live now on a remnant of the lands where we lived long before
the first European settlers arrived in North America. Although we once
occupied a vast region of land on Long Island, spanning from Montauk
Point to Manhattan, our property has dwindled over the years to less
than 1,000 acres, all in the Town of Southampton, New York. Beginning
with the illegal seizure of our land by the first settlers, the
Shinnecock people have endured a continual encroachment on our property
rights for over 360 years.
The State of New York and its predecessors have formally recognized
the Shinnecock Indian Nation for more than 340 years, and almost half
of our enrolled members currently live on a reservation set aside under
state law. Despite this fact, the Federal bureaucracy has yet to
formally recognize our Nation, even though our existence and our needs
have been known to the federal government.
In 1978, we asked the federal government for assistance in filing a
lawsuit to obtain justice for the theft of our lands. The Bureau of
Indian Affairs decided we first should be federally recognized and
treated our litigation request as our petition for federal
acknowledgment. We then created the ``Shinnecock Federal Recognition
Committee'' to manage our petition for federal recognition with the
Department of Interior. That was 28 years ago--and we are still waiting
for a decision.
Despite nearly three decades of delay, the Shinnecock people are
optimistic. On November 7, 2005, a federal court, in a case in which
our tribal status was at issue, and after receiving our petition to the
Department of the Interior and thousands of pages of legal briefs and
documents, issued a decision holding that the Shinnecock Indian Nation
is what we have always known ourselves to be, a sovereign Indian tribe
as a matter of federal law. We have had a dialogue about this court
decision with the Department of Interior, and we remain hopeful that
the Department may add us to the list of federally recognized tribes.
In the meantime, we continue to seek to vindicate our rights without
waiting for help from the executive branch of the federal government,
as we press forward to have the courts further confirm our sovereignty
and provide us with justice for the wrongs that have been done to us.
While we have remained stuck in the federal recognition process for
some 28 years, forced to defend our rights without the federal
assistance enjoyed by other tribes, the Shinnecock people have watched
many other tribes achieve federal recognition, construct casinos, and
exploit federal law to attempt to build even more casinos.
Against the backdrop of bureaucratic delay and opportunistic
actions by others, the Shinnecock Nation is encouraged by the
Chairman's and the Committee's willingness to ``shake up'' the status
quo. As you can imagine, we are particularly pleased that you have
taken up the cause of examining the federal recognition process. We
also deeply appreciate the thought and care taken in developing H.R.
4893. This bill can do much to level the playing field and stop
outlandish proposals that threaten a backlash against legitimate tribes
such as the Shinnecock. It is from this perspective that I respectfully
ask the Committee to consider some minor refinements to the bill to
protect those tribal nations which, like the Shinnecock, have played by
the rules and been met with years of bureaucratic inaction.
First, let us remember that H.R. 4893 is aimed to restrict the
practice of ``reservation shopping'', a goal all should share. Section
20(a) of the Indian Gaming Regulatory Act (``IGRA'') is intended to
allow an Indian Nation to game on its own lands. Yet some would
interpret Section 20 as limiting tribes to lands that were part of a
federal reservation. The Shinnecock Indian Nation, however, occupies
land in the heart of its aboriginal territory, land that was ours
before the first European settlers arrived on our shores--and land that
remains within our aboriginal territory today. Our land is our home,
and always has been. Its status as Indian land does not stem from
action of the federal government, but precedes the existence of the
federal government. We should not be denied the ability to have
economic activity on our own tribal lands, held for hundreds of years.
Consequently, we propose that H.R. 4893 add affirmative language that
clarifies that Indian land actually occupied continuously for all of
recorded history be given the same treatment as federal reservations
created much more recently. The Shinnecock people have occupied our
lands for centuries, and we do not believe that we should be penalized
for the Department of Interior's prolonged inaction in response to our
application to acknowledge our unquestionable status as an Indian
tribe.
Despite the fact that IGRA intends to allow tribes to game on land
that has been theirs through the centuries, we do recognize political
realities. One reality is that in some communities, powerful local
groups and people may marshal political power to attempt to deny a
tribe its rights. Given this reality, we believe that H.R. 4893 should
preserve the ability, in closely circumscribed circumstances, for a
tribe to agree upon alternate locations for economic activity. We
believe that land claim settlements, when limited to the state in which
the tribe is located, would allow tribes facing serious or
insurmountable opposition to achieve economic stability, while still
preventing inappropriate manipulations of the system.
At the same time, we recognize that there are legitimate concerns
about tribes claiming reservations through arguments that are tenuous
at best. We believe that the amendments we seek can fulfill the intent
of IGRA without opening the door to such spurious claims. We appreciate
the effort in H.R. 4893 to tighten the rules against such claims, and
would encourage the Committee to further strengthen proposed provisions
against interstate moves by limiting gaming to the state in which a
majority of a tribe's members reside.
In conclusion, I would like once again to thank the Chairman and
the Committee for allowing me to testify and for your courage in
tackling these difficult issues when so many others stand silent. My
people have lived on our land for centuries, and I am but one person in
a long line of individuals fighting for justice for our Nation. It has
been a long and difficult journey to get where we are today. I simply
ask that the Committee keep the Shinnecock Indian Nation in mind, and
take our suggestions as what they are--comments from a tribe that is
only trying to avoid being penalized for the actions of others. Thank
you.
______
The Chairman. Thank you. I thank the entire panel for your
testimony.
Mr. King, Chairman King, I will start with you and the
questions. Do you believe that there is a difference between
land that is already in trust and land that tribes are seeking
to bring into trust for gaming purposes?
Mr. King. Well, we are still in the struggle. We recently
had our tribal status determined by a Federal judge in
November, so this is all new ground to the Shinnecock. We are
still in the struggle so I cannot have the conversations with
the degree of specificity of some of the other members of the
previous panel.
But I do know this, the Shinnecock Tribe has endured for
400 years on land that has dwindled through the years, and
because of the way this bill is written it should not preclude
the tribe from gaming on lands that may be more appropriate to
the local community.
We are a tribe that is sensitive to the communities' ears,
and we are open to dialog to those communities and to those
concerns, but we should not feel after 400 years of trying to
prove our tribal status that we would be shut out of any
opportunities that other tribes are able to enjoy at this
point.
The Chairman. If your land were taken into trust and a
decision was made to have gaming on your land, on your historic
land, and 10 years in the future another tribe came up and took
advantage of the current process and had land taken into trust
that was near you, do you believe that you should have anything
to say about that?
Mr. King. Well, I do believe that the determination of the
Shinnecock Tribe is made by its members, and by its people by
consensus, and I do not believe that any other tribe should be
able to object to us moving forward with our sovereign rights.
The Chairman. Should you have the ability to object to
someone else moving into your historic area?
Mr. King. Well, at this point here we have endured for 400
years, and if you are talking about the State of New York,
there are tribes that are asserting land claims in the State of
New York that reside out of New York, and we believe that the
resources within New York are tenuous and limited at best, and
because we are in this struggle, and that 28 years in the BIA
process, Federal acknowledgment process, could shut the door on
us, and that is why we are here today.
The Chairman. I can tell you that in regards to other
legislation that I have introduced dealing with the recognition
process and our efforts on this Committee in dealing with that,
obviously your tribe was one of those that came to the
forefront. I think 28 years is too long to wait. Regardless of
what the answer is 28 years is too long to wait for an answer.
Mr. King. It is.
The Chairman. And that is one of the reasons why this
Committee has moved forward on that issue.
Mr. King. And we respect your analysis of the deficiencies
in that process.
[Laughter.]
The Chairman. I am sorry. Twenty-eight years is too long to
wait for an answer on anything.
Mr. Worthley, in terms of the counties seeking a greater
input into what happens, I believe there is a difference
between existing land that is in trust and what role the county
can play in that particular instance, and land that is being
petitioned to be brought into trust, or maybe they don't, but
does the CSAC have a policy or do they differentiate between
land that is currently in trust and land that is being
petitioned to be brought into trust?
Mr. Worthley. Thank you, Mr. Chairman. They do recognize
that there is a distinction and there is a concern for that
because that sort of shopping for additional real estate
outside of traditional tribal boundaries, while it may be
appropriate in some circumstances, other times it represents a
lot of problems.
I think that is why the proposal is to allow for counties
to have greater input into that decisionmaking process as
opposed to lands that are already in trust, understanding that
the sovereign powers of the tribes already exist in those
situations. As they seek to promote those sovereign powers
elsewhere, it is appropriate for counties to have more input in
that process.
The Chairman. Mr. Sheen, Representative Sheen, you suggest
in your testimony a moratorium, and I am sure you are aware
that there have been efforts in numerous discussions in
Congress dealing with a moratorium on new gaming. There have
been even suggestions that we should completely withdraw the
ability of tribes to game. I think the people, depending on
what their own districts or their own personal beliefs are,
have come up with a number of different scenarios that this
committee has had to deal with.
But in suggesting a moratorium, would you rather we have a
two-year moratorium or a moratorium of some period or would you
prefer that we come up with a long-term fix to the generic
legislation?
Mr. Sheen. Well, I would say that you would probably need
some time to do that. However, a long-term fix is something
that we do need, and I believe that is why we need to take a
look at IGRA, and we need to take a look at what has it done in
the last 20 years.
So a long-term fix definitely needs to happen, and I, of
course, favor that as opposed to a short-term fix, but how long
would it take to put that forward? I guess that is the
question.
The Chairman. Well, we have been doing this for two years
now, so I don't know. Thank you.
I am going to recognize Mr. Kildee for his questions.
Mr. Kildee. Thank you very much.
First of all, I would like to welcome Mr. Sheen, a member
of the body I served in for 10 years, and appreciate your
presence here with your rich background being the county
treasurer of Allegan before you joined the Michigan House of
Representatives.
I think you and I are not in agreement on these things, but
that is the greatness of a democracy, and the greatness of the
process that Mr. Pombo has started here. We have to start out
by recognizing that we, all of us up here, and you as a member
of the state legislature take an oath to uphold the
Constitution of the United States, and the Constitution is very
clear. It says the Congress shall have power to regulate
commerce with foreign nations and among the several states and
with the Indian tribes. They list the three sovereignties very,
very clearly, Article I, Section 8.
Congress takes that very seriously as I am sure you do. I
have read the Treaty of Detroit. It says, ``This constitution
and the laws of the United States, which shall be made in
pursuance thereof and all treaties made or shall be made under
the authority of the United States shall be the supreme law of
the land, and the judges in every state shall be bound thereby.
Anything in the constitutional laws of any state to the
contrary notwithstanding.''
Every two years I take an oath to uphold this, and it is
very important. This sovereignty is not just a get well card or
some little gesture toward the Indians. It is a reality. It is
the law of the land, and that is exactly what the Cabazon
decision was based upon.
Basically, and I am not an attorney, I am a Latin teacher,
but they basically said if you outlaw gaming or certain form of
gaming, then you could outlaw gaming all over the state,
including on sovereign land, sovereign Indian land, which is
sovereign. But if you only regulate that gaming, then state
regulations do not apply on the sovereign land. Sovereign land
is different than the rest of Allegan County. It has a
sovereignty. And as the other tribes in Michigan have their
real sovereignty.
So we have to recognize that we have to follow the Supreme
Court decision. We have to follow the Constitution. IGRA
actually in a sense really puts some restrictions, limited
Cabazon because without Cabazon we would have had probably a
lot of confusion out there, but Indians sovereign nations could
have tried various and sundry way of gaming, but we finally
said no, let us get some order here.
I almost didn't vote for it because I thought it was
putting too many restrictions on Cabazon decision, but we did
say OK, we will compact with the state and we thought we had a
Seminole fix before the Seminole problem arose, but we did do
that. So it is the law of the land upheld by the Supreme Court,
and codified in law by the Congress.
So I am sure that, knowing Allegan County, I know it quite
well. I know it is a county where probably a lot of people are
just opposed to gaming. Has your organization taken any
position against the gaming which takes place in Michigan,
which has really proliferated, probably proliferating more
quickly as far as locations than Indian gaming? You can hardly
go into a place where one could get a libation without finding
electronic Keno where people are just rolling the dollars back
and forth.
Has your organization taken any position on repealing that
1972 amendment which permitted gaming in Michigan, or have you
taken any position of trying to limit this new gambling which
takes place in almost every tavern in Michigan? Have you taken
any position on that?
Mr. Sheen. Well, at this point in time if you are asking me
how do I feel about repealing the lottery.
Mr. Kildee. Yes.
Mr. Sheen. I would be happy to put that bill forward.
Mr. Kildee. OK.
Mr. Sheen. As far as I am concerned, at this point I think
the main concern of 23 is Enough! is just that. It is 23
casinos is enough. Do they support or are they against the
lottery? That, you know, they really haven't discussed, they
have focused on the issue at hand.
Earlier you said our Constitution upholds rights, and I am
a firm believer in the Constitution, but this idea of casinos,
Native American casinos is not written in our Constitution
anywhere.
Mr. Kildee. Sovereignty is though.
Mr. Sheen. Sovereignty is written in there, but this whole
concept of what we are doing here, I guess I am a firm
supporter of civil rights, but I have a difficulty with special
rights, and you know, here you have a group that for all
practical purposes secedes from the nation, secedes from the
state, wants all the rights and privilege of citizenship, but
seemingly without the responsibilities that go with it. Doesn't
that concern you?
Mr. Kildee. Well, John Marshall in his famous decision
talks about the sovereignty as a retained sovereignty. It is
not something that we gave to them in the Constitution. It is
not something that Michigan gave to them or Congress gave to
them even. John Marshall makes it very, very clear that this a
retained sovereignty, and that treaties entered into even
before the Constitution still had to be recognized. I think we
have to really consider that this is a real sovereignty. It is
not just a pious saying or something to make Indians feel good.
It is a real sovereignty.
So we have an obligation. When we read this, we don't grant
France its sovereignty. We recognize its sovereignty. We don't
grant the Chickasaw Tribe, which Mr. Cole belongs to, we don't
grant them their sovereignty. We recognize their sovereignty.
So we can't just willy nilly pass legislation that doesn't
recognize the fact that this is a genuine sovereignty, a real
sovereignty, and not just a pious thought.
So, I know you recognize it. I know you personally. I know
that you are a man of good will, but I think we just have a
different approach to this and different ideas on it. But I
thank you for your testimony.
Mr. Sheen. Thank you.
The Chairman. Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman, and I want to
thank the members of our panel for their testimony.
For the record, Mr. Chairman, I just want to associate
myself with the gentleman from Michigan and his comments
concerning the issue that we are discussing with the members of
the panel.
I certainly have the utmost respect for Representative
Sheen and his opinions and sentiments expressed in our hearing
this afternoon concerning this relationship that we have with
the Indian tribes. I don't know of Representative Sheen is
aware of the fact that our country and our government
negotiated and had 389 treaties with the Indian tribes, and
guess what? We broke everyone of those treaties.
I also would like to note for the record that when we have
a treaty relationship with other foreign countries, it has the
same standing as that of the U.S. Constitution. The treaty and
the constitution are equal in par in terms of our relationship.
I note also you mentioned, Representative Sheen, that I got
the impression that you feel that the State of Michigan has not
benefited with these gaming operations in the State of
Michigan. I am curious who the Governor was that negotiated
these compacts because as I understand it the Pequot Indians
and their compact relationship with the State of Connecticut,
hundreds of millions of dollars have benefited the State of
Connecticut, Connecticut has benefited for their educational
needs and so many other things that have gone on, and very
successful relationship.
I might also add that when the Pequot Indian Nation first
went out to seek assistance or funding, trying to get this
enterprise going, not one U.S. bank, whether it be from the
county, the city, or state, was willing, was willing to finance
their offered enterprise. They had to go to a foreign
businessman to get some capitalization to allow them, and now
doing a very successful enterprise in the State of Connecticut.
But I am surprised that the State of Michigan and your
opinion, Mr. Sheen, has not benefited from this. I would kind
of like to think that every compact that I am aware of, and any
negotiations that have taken place with our Indian tribes, that
there has been a mutual benefit gained for both the state as
well as the tribes, and I wanted to ask Mr. Sheen if I got the
right based on your testimony.
You are saying that the State of Michigan has not benefited
from these gaming enterprises?
Mr. Sheen. What happens is initially there is a benefit
when it is getting built and when it started, but the fact of
the matter is--this is a record of Michigan Treasury--is that
we no longer are receiving any dollars on the Native American
casinos that are there. They have ceased paying the agreed
amount in the compact initially to the State of Michigan. We
have 17, three are still paying. Those three are now suing the
state and soon we will most likely have none.
Now, that is a fact whether we like that fact or we don't
like that fact, and I agree with you, treaties are important,
and treaties should not have been broken. But again, in the
treaty I saw nothing talking about casinos in that treaty, and
you know, that is kind of what I have read into the situation.
Mr. Faleomavaega. Well, I am sure that there were no
anticipation of having casinos even built among the states even
before our country was founded. My understanding that we had
lotteries at the time of the Revolution. A lottery was
initiated by the Colonies to get funding to support the
revolution against the British Empire, and I don't know if that
is a form of gaming, but as I read it lottery is a form of
gaming that states throughout the country are benefiting. It is
a multibillion dollar industry, and the uniqueness about this
IGRA that I want to share with my colleagues and the members of
the panel is that Congress controls this, and again it is
because of a government-to-government relationship that we have
with the Indian tribes.
For good or for bad, the point here is that we don't
regulate state lotteries and the horse racing or any of the
gaming that goes on among the states. My good friend from
Nevada would be the first one to object as a matter of state
constitutional rights, I suppose, that the Federal government
is not to regulate gaming among the states, but they sure will
do it for the tribes as we are doing it now through IGRA, and
this notion that there is syndicate involvement among the
Indian gaming operation is nonsense.
How can it be when the Congress is the one that is putting
controls and making sure that it is a clean operation, and that
it is done properly?
I kind of like to think that when these compact agreements
are made between the states and the tribes that the government
or whoever is representing the Governor, these negotiators will
be doing it on a fair and equitable basis so that both the
states as well as the tribes benefit.
I wanted to ask Representative Osmond when you mentioned
that certainly the State of Illinois is not benefiting with the
gaming operations that take place in Wisconsin. Am I correct,
the lotteries, it seems like all the money is going to
Wisconsin and not to Illinois because of the location of these?
Ms. Osmond. It is six miles from my district, and the way
that it is projected is that all the revenue, 70 some percent
is going to come out of Illinois, and they are going to come
through my district, and Illinois has a lottery.
Mr. Faleomavaega. Well, the State of California is also
complaining because it is about a 10 to 15 billion dollar loss
to the State of California who all go to Las Vegas to gamble,
and I don't know if California officials are complaining
because it is what democracy, we are free to go wherever we
want to go to participate in the gaming process.
Ms. Osmond. I think one of my main concerns is the sizes of
this particular casino. It is going to be the largest in the
Midwest, and if the regulations are set up that they need to
look at a 10-mile radius, they have violated those regulations
that you have so kindly set forth. They are not looking at the
impact that will come into my district.
Mr. Faleomavaega. That is certainly something that we need
to look into. I want to note to Mr. King that your tribe has
been waiting for 28 years. There is a tribe in North Carolina
called the Lumbees, one of the largest. They have been waiting
over 100 years to be federally recognized, and I want to
commend the Chairman that we are making every effort to pass
legislation to provide a much more equitable method of Federal
recognition for our Indian tribes.
I just wanted to note that, and I am afraid--I do not agree
with the proposed bill and to the fact that the counties have
to be involved in this, my good friend representing the
counties. I think if we do it what is to prevent the city or
how many other groupings that we have to get approval from. It
will make it almost impossible for these tribes to conduct
their business.
I think just having the Governors of the various states to
be the chief negotiator ought to be sufficient.
With that, Mr. Chairman, I know my time is up, thank you.
Mr. Worthley. Mr. Chairman, if I could just quickly respond
to that. From the county's perspective, we are the ones that
are impacted by the effects of the casinos when they are built.
They affect the counties. They don't affect the State of
California as a whole.
And as Mr. Costa noted, with changing administrations we
get different policies. Under the current administration,
counties feel rather secure about their positions in terms of
knowing that our needs will be met if there is going to be an
approved compact with a tribe. Under the previous
administration we did not have that protection, and yet we are
stuck with the problems, the air quality problems, the
transportation problems, the social problems. They affect the
counties and the state is free to walk away from those issues
if they choose to.
So it is very important to the counties. We are just asking
to say you need to mitigate these things and as a condition
to--again, increasing the size, going outside of their tribal
boundaries into new lands.
Mr. Faleomavaega. I also want to mention that
administrations also change here in Washington, and with a
change of policies and priorities. We go through the same
problems that the counties and the cities and the states go
through. Thank you, Mr. Chairman.
The Chairman. Mr. Dent?
Mr. Dent. Thank you, Mr. Chairman, and thank you for your
courtesy in allowing me to participate in this hearing, and I
do appreciate your leadership on this off-reservation gambling
issue.
I come from the State of Pennsylvania, and I represent a
district where a land claim has been filed by the Delaware
Tribes of Oklahoma based on a 1737 land conveyance, basically
going back nearly to the time of the Wakeen purchase, which
occurred in my state, and the fact is 25 homeowners, a crayon
factory, Crayola, and other commercial owners of property are
under the situation where there is a land claim for these few
hundred acres for the purpose of establishing a casino in the
Commonwealth of Pennsylvania, as I said, in my district.
So I am deeply concerned about this issue of offsite
gambling. And again, the Delawares have not really been in my
state for a few centuries.
What I am trying to understand with this bill and this may
be a rhetorical question but feel free to answer if you think
you can, that if a tribe is recognized in another state, say
Oklahoma, and they are seeking a title to lands in my state for
the purpose of placing a casino on that land, and you assume
further that the tribe were to prevail in a Federal court and
be awarded title to the land in question in my state, how would
this bill impact the tribe's ability to place a casino on that
land, especially in light of this one section of the bill, I
guess it is Section 1[f], subsection [f], that basically an
Indian tribe shall not conduct gaming regulated by this act on
any lands outside of the state in which the Indian tribe has a
reservation on the date or the enactment of this subsection
unless such Indian lands are contiguous to such a reservation
on that Indian tribe in that state.
The bottom line is how would this legislation impact a
state like mine where there is litigation currently ongoing? I
throw out that question to any of the panelists. If you can't
answer that question, I am not expecting you to. I was a state
legislator and so that is how I became familiar with this
issue. This is a complex and arcane area of the law for many,
and so that is question I have. Maybe, Mr. Worthley, if you
have any thoughts on this.
Mr. Worthley. If the litigation is to regain fee title to
the property, I think that is a separate issue from whether or
not the land would be in trust.
In other words, they can hold title to the property but
that doesn't necessarily make it trust land. The issue is once
it is in trust then the sovereignty takes place, which would
give them the power and authority then to extend their gaming
abilities or whatever else they want to do with that property.
So I think it is a very good question, but it needs further
definition. Are they looking to put this land into trust or are
they------
Mr. Dent. Yes.
Mr. Worthley.--looking to just gain title to the property?
Mr. Dent. Trust.
Mr. Worthley. In which case that is why we would support
the legislation because if it is going to be going into trust,
then you are looking at extending the sovereignty of this
nation into potentially a new area with impacts. And so how do
we negotiate with those impacts? That is why it is so important
for us to be able to have the ability to do that. Otherwise
they could just step in there and circumvent all the local
rules as far as transportation, air quality, all the types of
mitigation that we would look to try to gain from tribes as a
result of the impacts that will come off the reservation or
offsite.
Mr. Dent. So you believe the language in the legislation
that would protect the community like mine from a tribe out of
state, trying to put land in trust for the purpose of
establishing a casino that may currently be involved in some
kind of litigation?
Mr. Worthley. As I understand the current language of the
bill, a condition to the land being put into trust would be
they would have to meet with the local government and enter
into a binding enforceable agreement to deal with offsite
impacts.
Mr. Dent. The local government or the state government?
Mr. Worthley. The bill says local government. I think they
already have the power through the state government.
The Chairman. I can answer it. As the bill is written right
now, it would preclude them from coming into your state as you
describe. In particular, in the provision that Mr. Worthley is
discussing, when it comes to local impacts and mitigation, they
would have to negotiate with the local government to mitigate
their impact just as any other development would.
Mr. Dent. OK. Thank you.
My second question is if the same tribe in my case, the
Delawares, and again they are federally recognized, but they
don't have a reservation in Oklahoma even though that is where
they happen to be residing, would that change the outcome in
the same situation? The Delawares do not have reservations so
to speak in Oklahoma. They are trying to establish this land
claim or putting this land in trust in Pennsylvania. How would
that be impacted by this legislation?
The Chairman. If the gentleman would yield, it would not
change it. They would not have the ability to do that under the
way the legislation is currently drafted.
Mr. Dent. OK. And then the final question, there is an
offshoot of the Delawares that is not federally recognized.
Would they be able to make a similar land claim under this
bill? They are not federally recognized but again with a
presence in my state.
The Chairman. They would have to go through the recognition
process.
Mr. Dent. They would? OK, thank you very much for your
courtesy, Mr. Chairman. Thank you.
The Chairman. Mr. Kildee.
Mr. Kildee. Thank you again, Mr. Chairman.
Representative Sheen, we have had a good discussion here,
and your personal integrity and your ethical conduct are well
known back in Michigan, so that is not a question here. I know
you feel very sincerely on this, and sincere people can have
differences.
But you did point out that casinos are not mentioned in
this sovereignty clause in the Constitution, and that is true,
but neither are police, tribal police departments or fire
departments or schools or medical facilities. I mean, the
Constitution gives a broad general outline of government. So
none of these things are mentioned. Yet we know we have tribal
police department, tribal fire departments in many tribes. We
have schools, not just BIA schools but schools run by the
sovereign tribe. We have medical facilities. These are all
prerogatives of sovereignty. They flow from sovereignty. They
are not mentioned.
The Constitution is a very short document. I never leave
home without it. I can carry it in my inside pocket here. So it
is a very short document. But these are all prerogatives of
sovereignty, so certainly casinos are not mentioned but neither
are the other prerogatives of government mentioned there.
But I do appreciate you taking your time to come down here
and your efforts and hope to see you back in Michigan. Thank
you very much. Thank you, Mr. Chairman.
The Chairman. I want to thank the witnesses for their
testimony and for their questions. The members of the Committee
may have some additional questions for the witnesses, and we
will ask that you respond to those in writing so that they can
be included as part of the official hearing record.
Again, I want to thank both of our panels of witnesses.
Obviously this is an issue that is complex, it is difficult,
and the Committee will continue to work on this in an effort to
get it right, so I do appreciate your input into the
legislation.
If there is no further business before the Committee, then
the Committee stands adjourned.
[Whereupon, at 1:27 p.m., the Committee was adjourned.]
[Additional information submitted for the record follows:]
[A letter submitted for the record by Connie Conway, CSAC
President, California State Association of Counties, follows:]
[GRAPHIC] [TIFF OMITTED] T7014.003
[A statement submitted for the record by The Cowlitz Indian
Tribe of Washington follows:]
Statement submitted for the record by The Cowlitz Indian Tribe
of Washington
Mr. Chairman, Vice Chairman, and members of the Committee, the
Cowlitz Indian Tribe of Washington (``Cowlitz Tribe'') respectfully
submits the following statement for the Committee's consideration in
conjunction with its recent and upcoming hearings concerning H.R. 4893,
``a bill to amend IGRA Section 20 to restrict off-reservation gaming.''
Introduction
When Congress enacted the Indian Gaming Regulatory Act (IGRA) in
1988, it recognized the important role gaming played in Indian
communities. Likening gaming on reservations to state-supported
lotteries, the Senate Select Committee on Indian Affairs acknowledged
that ``the income [from gaming operations] often means the difference
between an adequate [tribal] governmental program and a skeletal
program that is totally dependent on Federal funding'' (P.L. 100-497,
1988 U.S.C.C.A.N. at 3072). The truth of this simple assertion has not
changed in the nearly two decades since IGRA was enacted. Many tribes
have been able to use gaming proceeds to fund better schools, improved
healthcare, various social programs, and employment for tribal members.
As a result, gaming proceeds have provided tribes with a means to
achieve financial independence and exercise true self-government.
Tribes like ours, stripped of federal recognition and a land base
for many years (in our case 150 years before we were restored to
recognition in 2002), have been unable to participate in federal
programs tied to a reservation land base and have been unable to engage
in any meaningful economic development. As a result, our tribes have
the most limited economic resources and are in the greatest need of
non-federal economic development. Our tribes are the very tribes
Congress was trying to assist in 1988 when it included the initial
reservation and restored lands exceptions in Section 20.
We are concerned that H.R. 4893 as currently drafted effectively
will prevent landless tribes from being able to participate in the one
economic development activity that has improved the lives and
livelihoods of so many other tribes and their members. For this reason,
as described in more detail below, the Cowlitz Tribe strongly urges the
Committee not to adopt H.R. 4893 as currently written.
Summary of Existing IGRA Provisions/Underlying Intent
In 1988, Congress enacted IGRA to protect and regulate Indian
gaming as an appropriate exercise of tribal sovereignty. However, with
certain exceptions, Congress intended to limit Indian gaming to Indian
lands that existed on the date of enactment (October 17, 1988). Hence,
Section 20 of IGRA contains a general prohibition against gaming on
lands acquired in trust after October 17, 1988.
The problem was and still is that not all tribes held tribal lands
in 1988, nor in fact did they all even benefit from federal recognition
in 1988. We believe that Congress very specifically intended to assist
such disadvantaged tribes by providing that when they finally obtained
recognition and land, their land would be treated as if it effectively
had been in trust since before October 17, 1988. In other words,
Congress included the initial reservation and restored lands exceptions
in Section 20 so that eligible tribes could be placed on a more level
playing field with the tribes that were lucky enough to have been
recognized and to have had a land base on the date of IGRA's enactment.
We believe that Congress knew that blocking newly recognized and
restored tribes from access to the economic development opportunities
made available by IGRA would be wildly unjust.
Our understanding of the purpose and intent of IGRA's restored
lands and initial reservation provisions is informed by the opinions of
the federal courts that have considered this issue. In 2003, in a case
involving a California tribe, the D.C. Circuit (in an opinion joined in
by now Chief Justice Roberts) explained that the restored lands and
initial reservation exceptions ``serve purposes of their own, ensuring
that tribes lacking reservations when IGRA was enacted are not
disadvantaged relative to more established ones.'' City of Roseville v.
Norton, 348 F.3d 1020, 1030 (D.C. Cir. 2003). In 2002, in an opinion
involving a Michigan tribe that was later affirmed by the Sixth
Circuit, the District Court said nearly the same thing, saying that the
term ``restoration may be read in numerous ways to place belatedly
restored tribes in a comparable position to earlier recognized tribes
while simultaneously limiting after-acquired property in some
fashion.'' Grand Traverse Band of Ottawa and Chippewa Indians v. U.S.
Attorney for the Western District of Michigan, 198 F. Supp. 2d, 920,
935 (W.D. Mich. 2002), aff'd 369 F.3d 960 (6th Cir. 2004) (referring to
the factual circumstances, location, and temporal connection
requirements that courts have imposed for restored lands
determinations). The restored lands provision ``compensates the Tribe
not only for what it lost by the act of termination, but also for
opportunities lost in the interim.'' City of Roseville, at 1029.
From a public policy standpoint, the need for special assistance
for newly acknowledged and restored tribes is clear. Newly recognized
and restored tribes have had to function without a land base and/or
without federal recognition for very long periods of time. Almost by
definition, these tribes--tribes like the Cowlitz--have been more
disadvantaged and have suffered greater hardships than those that have
had trust lands and access to federal assistance for many years.
Denying the Cowlitz and other newly recognized and restored landless
tribes access to the one economic development opportunity that has
allowed so many other tribes to find financial independence and self-
determination would work yet another grave injustice on these tribes at
the hands of the federal government.
Legal and Policy Concerns with H.R. 4893
While H.R. 4893 on its face appears simply to provide a new group
of standards which must be met before newly recognized and restored
landless tribes could acquire land in trust on which to game, we are
concerned that as a practical matter the new standards are so onerous
and impractical that no landless tribe will ever be able to meet them.
We believe that, if left unmodified, enactment of H.R. 4893 will ensure
that these tribes, which already are the poorest and most deprived of
any in the United States, will never be allowed access to the same
economic development opportunity afforded to tribes lucky enough to
have a land base when IGRA was first enacted in 1988. With all due
respect, rather than acknowledging the federal government's fiduciary
responsibility to assist the most vulnerable Indian tribes in obtaining
some modest land base from which these tribes can exercise their right
to self-determination and self-government, H.R. 4893's main effect will
be to ensure that state and local governments have the greatest
possible leverage to exact percentages of revenue shares and to create
monopolies for established Indian gaming facilities.
Specifically, H.R. 4893 would impose the following new requirements
on newly recognized and restored landless tribes, in addition to
geographic, social, historical and temporal nexus requirements:
the Secretary of the Interior must determine that the
proposed gaming is not detrimental to the surrounding community and
nearby Indian tribes, and
the Governor and State legislature of the state where the
gaming will be conducted must concur, and
other Indian tribes within a 75 mile radius must concur,
and
the applicant tribe must:
pay for a local ``advisory'' referendum, and
enter into a memorandum of understanding with the county
or parish where the land is located by which it agrees to make
``impact'' payments to the county or parish.
Such onerous requirements never have been and never will be imposed
on tribes with reservations in existence in 1988. This disparity of
treatment between newly recognized and existing tribes raises a number
of significant legal and policy concerns.
The requirement that the Secretary make a determination that the
proposed gaming would not be detrimental to the surrounding community
and nearby Indian tribes is fundamentally unfair to newly recognized
and restored landless tribes like Cowlitz. These tribes have been
without land and the benefits of federal recognition for significant
periods of time, often as a result of government wrongdoing, so they
are forced to carve out lands for themselves from existing
jurisdictions. The non-Indian governments of those existing
jurisdictions rarely support the loss of land from their tax rolls and
or the loss of any regulatory authority. To prohibit the Secretary from
acquiring trust land for a landless tribe absent a finding of ``no
detriment'' to the surrounding community effectively gives local
governments an absolute veto and so is almost tantamount to an outright
ban on acquiring land for landless tribes. Therefore, rather than
serving to level the playing field for tribes like Cowlitz, this
provision would actually result in greater inequities for newly
recognized and restored landless tribes attempting to acquire land for
gaming.
The requirement of gubernatorial and state legislature approval is
particularly disturbing. Governors frequently run for office on anti-
gambling political platforms, and as a consequence, historically much
more often than not have refused to concur in two-part determinations
made by the Secretary under the existing Section 20 provision (even in
states where both Indian and non-Indian gaming establishments already
exist). Requiring landless restored and newly acknowledged tribes
obtain gubernatorial and legislative concurrence gives governors and
state legislatures unlimited veto power over landless tribes' efforts
to acquire a parcel of federally protected trust land. Moreover, joint
approval by the State legislative body and the governor will leave
Indian tribes little choice but to engage in tribal lobbying of the
state legislature, further driving up the cost of land acquisition for
tribes that have no means of generating revenue and that already are
struggling with the costs associated with buying land and funding the
BIA's NEPA compliance. Perversely, this makes it even more likely that
tribes will have to rely on developer funding.
The requirement that tribes within 75 miles of the proposed gaming
concur is equally unfair. Many tribes already engaged in gaming would
not support a new gaming tribe within 75 miles--and for competitive
reasons one cannot expect them to do so. This requirement provides
competing tribes with veto authority, without regard to whether they
have any ties to the area and regardless of the applicant tribe's ties
to the area. For this reason, the bill does not fairly balance the
needs and rights of landless tribes against those of established tribes
with existing gaming operations. Instead, it serves as market
protection for established tribes and is likely to create monopolies--a
result entirely unjustified by the already existing huge disparities
between rich and poor tribes.
Requiring the county or parish with authority over contiguous lands
to hold an advisory referendum funded by the applicant tribe also is
not fair to either the local governments or applicant tribes. Whether a
local referendum should be required before local elected officials act
should be a matter left to local voters, not the federal government.
This provision suggests that Congress does not trust local elected
officials to make the decisions that they are elected to make. Even
more disconcerting from the Cowlitz Tribe's standpoint, this provision
suggests a lack of appreciation for the fact that non-gaming landless
tribes attempting to acquire their first parcel of land in trust do not
have the funds to pay for such a referendum. In fact, such a
requirement just heightens the concern that ``reservation shopping''
may attract unscrupulous developers to unduly influence the process--
newly recognized and restored landless tribes forced to pay for such a
referendum will again be forced to turn to investors for financial
support.
The requirement that the tribe and the county or parish must sign a
memorandum of understanding within a year of the referendum is equally
problematic. This mandates a relationship between the tribal applicant
and a government entity that may not be responsible for providing any
services to a facility. The county or parish with jurisdiction over the
contiguous property may not even have jurisdiction over the parcel that
is to be taken in trust, or over the services needed by the tribe. We
do support, however, the Committee's efforts to provide some mechanism
to break a stalemate should the tribe and the city reach an impasse in
those negotiations. The Cowlitz Tribe, despite repeated good faith
efforts to engage in meaningful negotiations with a local municipality,
has been unable to secure an agreement from that municipality. Clearly,
that municipality views its intransigence as a mechanism that can be
used to protect local non-Indian card room operations.
In sum, while each of these requirements raises concerns when
examined separately, the Cowlitz Tribe's greatest concern is the
cumulative effect and the burden the proposed requirements create for
newly recognized and restored landless tribes. These requirements are
so onerous that they will effectively prevent most or all such tribes
from acquiring land in trust for gaming, even though these tribes are
not engaging in ``off-reservation gaming'' or ``reservation shopping''
as those terms are commonly used. As described above, we are hard
pressed to find a justification for imposing this kind of sanction on
those tribes that are already the poorest and most disadvantaged in the
country.
For the above reasons, the Tribe does not support the proposed
amendments to Section 20 of IGRA. If the Committee decides to amend
Section 20 of IGRA, however, we respectfully request that the
legislation include a provision that allows tribes already in the
process to proceed under the current rules. Like the tribes that
testified before the Committee, our Tribe has invested many years and
significant resources to fully comply with the present law.
After we were restored to federal recognition, we requested that
Interior place our proposed site into trust and requested that the site
be proclaimed our initial reservation. Our trust application was
submitted to Interior over four years ago and our request for an
initial reservation proclamation was submitted over two years ago. In
November 2004, the Bureau of Indian Affairs (BIA) notified the public
that it would prepare an Environmental Impact Statement (EIS). The BIA
selected a contractor to prepare the EIS and a draft EIS was recently
provided to the public for review and comment. The Tribe is required to
pay all expenses of the BIA's contractor--expenses that have been
significant to date, and that will exceed $1,000,000 before we have
completed the process. In addition, last year the National Indian
Gaming Commission (NIGC) determined that our proposed site qualifies as
restored lands under IGRA if the Department of the Interior takes the
site into trust. Because we are so far along in the existing process,
changing the rules at this late date would impose a significant
hardship on our Tribe. We respectfully request that this Committee, at
a minimum, include a provision to allow the NIGC's eligibility
determination and our pending requests to Interior to be judged under
the existing rules.
Conclusion
Chairman Pombo, the Cowlitz Tribe fervently requests that you
remember that newly recognized and restored landless tribes like
Cowlitz are poor tribes in desperate need of the United States' active
assistance. We face daunting obstacles to self-governance and self-
sufficiency precisely because we have no trust land. Congress must
continue to insist that there be a fair and equitable mechanism to put
newly recognized and newly restored tribes on a level playing field
with tribes that were lucky enough to have had a reservation on October
17, 1988. This bill does not accomplish that objective, and will, in
fact, have severe consequences for the very tribes who most need your
help. And while we appreciate that there have been some abuses of the
existing processes in connection with off-reservation gaming, we would
ask that you tailor any legislative response to those concerns to take
into account the real hardships suffered by newly recognized and
restored landless tribes, and give those deserving tribes the same
opportunity to realize self-determination and economic independence
that established tribes had when IGRA was originally enacted.
______
[A statement submitted for the record by the Legislature of
the Ho-Chunk Nation, follows:
Statement submitted for the record by the
Legislature of the Ho-Chunk Nation
Thank you for the opportunity to submit written testimony for the
record on behalf of the Ho-Chunk Nation on the subject of off-
reservation gaming, and House Resolution 4893, which seeks to restrict
off-reservation gaming.
Fundamentally, the Ho-Chunk Nation supports the concept of ``off-
reservation'' gaming, including gaming in more than one state. The
Nation recognizes the importance of regulating off-reservation gaming
and is therefore sympathetic to many of the purposes of this
legislation. The Ho-Chunk Nation believes that restrictions on off-
reservation gaming should be based on the concept that tribal gaming
should only be conducted in areas to which an Indian tribe has a
specific historic connection, with a stipulation that tribes should not
be permitted to interfere with the established gaming markets of other
tribes without their express consent.
The Ho-Chunk Nation is concerned that, as introduced, H.R. 4893 may
undermine already existing government-to-government agreements
regarding gaming authorities. The Ho-Chunk Nation and the State of
Wisconsin negotiated in good faith a compact in 1991 that establishes
parameters for Ho-Chunk gaming operations in Wisconsin. H.R. 4893 would
affect our ability to fulfill the plans and intent of that compact--
imposing significant financial hardship on the Nation for costs already
assumed under the compact and disrupting carefully balanced Nation and
state interests. This compact complies with current Indian Gaming
Regulatory (IGRA) rules and regulations. The Ho-Chunk Nation believes
that existing compacts between tribes and states that are consistent
with IGRA should remain as they are. New legislation should respect any
existing compacts between tribes and states, allowing them to remain in
place, unaffected by new restrictions.
The Ho-Chunk Nation is further concerned that H.R. 4893 seeks to
limit Indian gaming facilities to one state per tribe. This concept is
problematic, as aboriginal territories do not fall along state lines.
For the Ho-Chunk, our historic territory includes lands across the
Midwest including large areas of Wisconsin, Illinois, Iowa, and
Minnesota. In addition to cultural and historic ties, we have
maintained tribal representation in each of those states, including
formal government and social offices, as well as significant
populations. H.R. 4893 limits our ability to seek lands in welcoming
communities in states other than Wisconsin for economic development.
On behalf of the Ho-Chunk Nation, thank you for the opportunity to
express our views and concerns regarding H.R. 4893. We hope that this
will serve as a springboard for increasing communication on these
important issues. The Ho-Chunk recognize the importance of this
legislation for restricting off-reservation gaming, however we hope to
work with the Committee to ensure that these restrictions are fair and
respectful of tribal sovereignty.
______
[The response to questions submitted for the record by the
Scotts Valley Band of Pomo Indians follows:]
Response to questions submitted for the record by the Scotts Valley
Band of Pomo Indians
Thank you very much for allowing the Scotts Valley Band of Pomo
Indians (the ``Tribe'') to testify before the House Natural Resources
Committee on H.R. 4893 on April 5, 2006.
During the Committee's questions to our panel, there were a number
of questions raised that Scotts Valley wishes to provide the Committee
with additional information.
1. Congressman Kildee asked the Gun Lake Band to explain to the
Committee the Tribe's present economic situation?
As you know, the IGRA was enacted primarily to enable tribes to
conduct gaming on Indian Lands of the tribe to ``promote tribal
economic development, tribal self-sufficiency, and strong tribal
government.''
The Scotts Valley Band of Pomo Indian Tribe is truly landless. The
Tribe lacks the trust land base needed to support its infrastructure
and the economic development programs necessary for the promotion of
tribal economic self-sufficiency and a strong Tribal Government capable
of providing badly needed governmental services to tribal members.
Currently, sixty-three percent (63%) of all adult tribal members are
classified as unemployed, and only thirty-seven (37%) of all adult
tribal members are employed full-time. Overall, 95.5% of adult tribal
members are classified as low income, and almost fifty percent (50%) of
tribal members receive some form of public assistance.
[GRAPHIC] [TIFF OMITTED] T7014.004
2. Congressman Gibbons (NV) asked whether Scotts Valley supports a
``50 mile radius'' provision.
During the Hearing, Congressman Gibbons (NV) asked whether the
Tribe would support a ``50 mile radius provision.'' All of the
panelists replied that their Tribes would support such a provision in
any amendment to H.R. 4893 which provided the present NIGC/BIA
regulatory process continue to apply to tribes already pursuing trust
acquisitions under the IGRA. Our Tribe has spent considerable tribal
resources, both in terms of time and money, pursuing the restoration of
a trust land base under the NIGC/BIA regulatory process which has been
in place since the IGRA was enacted almost 18 years ago (which is 4
years earlier than our Tribe was even restored to Federal Recognition
pursuant to an Order of a Federal District Court). Our Tribe has always
played by the established rules, and it seems unfair and inequitable
for Congress to change the rules on us now.
While our Tribe certainly believes that a ``50 mile radius
provision'' is fair, Congressman Gibbons did not elaborate on the
details of such a provision. Would the limitation be within 50 miles
of:
a Tribe's documented historic territory;
a Tribe's service population area;
where a significant percentage of the Tribe's population
resides; or
a Tribe's illegally terminated former Rancheria (a
limitation applicable only in California)?
The Tribe supports a geographic limitation of within 50 miles of a
tribe's: (i) documented historic territory, (ii) service population
area, and/or (iii) the location of a significant percentage of the
tribal population. As explained below, given the Federal policies of
Termination and Relocation during the 1950s and 1960s, Scotts Valley
strongly opposes any geographic limitation based solely upon the
location of a Tribe's former Rancheria which the United States
illegally terminated. How can the Committee even consider enacting
legislation which is based upon illegal conduct of the United States?
In addition to a Tribe's (i) documented historic territory, (ii)
service population area, and (iii) the location of a significant
percentage of the tribal population, Scotts Valley would support
geographic limitations based on additional standards, provided that
such standards acknowledge and reflect the results of Federal Indian
policy over last several decades. During the 1950s and 1960s, the dual
Federal policies of Termination and Relocation resulted in a complete
dismantling of many tribal communities. This is especially true in
California, and the Scotts Valley Band of Pomo Indians is a perfect
example of how the Federal policies of Termination and Relocation
nearly drove many California tribes to extinction.
The California Rancheria Termination Act of 1958 provided for the
``voluntary'' termination of 41 California Rancherias, including Scotts
Valley. As a condition to termination, the United States was required
to bring water and waste management systems of those Rancherias to
habitable standards. In most case, and certainly in the case of Scotts
Valley, this was not done.
When the Tribe was finally terminated in 1965 in violation of the
California Rancheria Termination Act, approximately fifty (50) tribal
members continued to reside on the Rancheria. The BIA's failure to
upgrade the Rancheria's water and sewage systems rendered the Rancheria
uninhabitable, thereby creating an incentive for tribal members to
leave the Rancheria. Additionally, the educational and employment
programs the BIA instituted pursuant to Section 9 of the Rancheria Act
focused on placement of tribal members in programs and jobs in the San
Francisco Bay Area, further expediting the whole scale abandonment of
the Rancheria and relocation of the Tribe to the Bay Area. The
uninhabitable conditions on the Rancheria, coupled with the BIA's
relocation policies, resulted in the vast majority of tribal members
abandoning the Rancheria in favor of the urban centers of the San
Francisco Bay. By 1972, just five (5) years after termination, only
three (3) tribal members of the 56 tribal members listed on the
Distribution List the BIA prepared under the Termination Act, continued
residing on the Rancheria.
Today, twenty-nine (29) tribal members, or slightly over fifteen
percent (15%) of the tribal population reside within Contra Costa, and
ninety-four (94) tribal members, or almost fifty percent (50%) of the
Tribe, reside within a fifty (50) mile radius of the Tribe's proposed
restored trust land base. In 2002, the BIA designated Contra Costa
County and neighboring Sonoma County as the Tribe's service population
area, recognizing the very significant tribal population residing in
the Bay Area counties.
The Bay Area is also historic Pomo Territory. Ancestors of current
tribal members have used and periodically resided in territory that
includes the northern and eastern shores of the San Francisco Bay,
including the coastal lands of Contra Costa County where the proposed
restored trust land base is located. Historically, several Pomo
villages existed on the southern Marin Peninsula close to the coastal
lands of the Marin Peninsula, directly across the Bay from the proposed
restored trust land base. Pomo from these villages, including ancestors
of present tribal members, along with members of other tribal groups,
fished the waters of Bay and gathered material essential for
subsistence on the coastal lands of the Bay.
The official records of the BIA and the Indian Claims Commission
recognized the shores of the Bay as historic Pomo territory. Pomo
tribes which included ancestors of present tribal members signed a
treaty with the United State, ceding what became known as Royce Area
296, extending from the area immediately north of Clear Lake to the
northeastern shore of the San Francisco Bay, to the United States. The
southern boundary of the lands ceded to the United States (Royce Area
296) is located just five (5) miles from the Tribe's proposed trust
land base. The ICC ``adopted Royce as the official legal source for
recognized title,'' clearly establishing the shores of the Bay as
traditional Pomo territory. 6
---------------------------------------------------------------------------
\6\ The claims assert by the signatory tribes to the eighteen (18)
treaties submitted for Senate confirmation in 1852 were combined into a
single case before the ICC. Clyde F. Thompson et. al (Indians of
California) v. United States, Ind. Cl. Comm. Docket Nos. 31 and 37. In
this case, the ICC relied upon the Royce Areas depicted in Royce
California Map 1 for determining the acreage set aside for all of the
reservations provided for in the eighteen (18) un-ratified treaties.
McClurken, Ethnohistorical Report at 35. The Royce Areas included Royce
Areas 295, 296 and 297.
---------------------------------------------------------------------------
The case of Scotts Valley is representative of the historic and
modern day reality for many tribes. Indians are proud people, and any
geographic limitation incorporated into H.R. 4893 must recognize the
long history of our Nation's Indian tribes. Many tribes, such as Scotts
Valley, somehow avoided extinction under the Federal Policies of
Termination and Relocation, and any geographic limitations incorporated
into H.R. 4893 must also recognize the modern day situation of many
tribes resulting from those Federal Policies.
Again, I thank the Committee for allowing the Scotts Valley Band of
Pomo Indians to testify before the Committee on April 5th, and to
submit this Supplemental testimony addressing some of the issues raised
during the hearing.