[Senate Hearing 109-92]
[From the U.S. Government Publishing Office]
S. Hrg. 109-92
TRUST LANDS
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
OVERSIGHT HEARING ON TAKING LANDS INTO TRUST
----------
MAY 18, 2005
WASHINGTON, DC
S. Hrg. 109-92
TRUST LANDS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
OVERSIGHT HEARING ON TAKING LANDS INTO TRUST
__________
MAY 18, 2005
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2005
21-427 PDF
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON INDIAN AFFAIRS
JOHN McCAIN, Arizona, Chairman
BYRON L. DORGAN, North Dakota, Vice Chairman
PETE V. DOMENICI, New Mexico DANIEL K. INOUYE, Hawaii
CRAIG THOMAS, Wyoming KENT CONRAD, North Dakota
GORDON SMITH, Oregon DANIEL K. AKAKA, Hawaii
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
MICHAEL D. CRAPO, Idaho MARIA CANTWELL, Washington
RICHARD BURR, North Carolina
TOM COBURN, M.D., Oklahoma
Jeanne Bumpus, Majority Staff Director
Sara G. Garland, Minority Staff Director
(ii)
C O N T E N T S
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Page
Statements:
Crosby, David, Santa Ynez, CA................................ 18
Dorgan, Hon. Byron, U.S. Senator from North Dakota, vice
chairman, Committee on Indian Affairs...................... 2
Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 2
Jandernoa, Mike, 23 Is Enough................................ 16
Martin, James T., executive director, United South and
Eastern Tribes, Inc........................................ 14
McCain, Hon. John, U.S. Senator from Arizona, chairman,
Committee on Indian Affairs................................ 1
Skibine, George T., acting deputy assistant secretary for
policy and economic development, Office of Indian Affairs,
Department of the Interior................................. 4
Sprague, David K., chairman, Gun Lake Tribe.................. 12
Shagonaby, John, tribal council treasurer, Gun Lake Tribal... 12
Appendix
Prepared statements:
Cowlitz Indian Tribe......................................... 33
Crosby, David (with attachment).............................. 41
Friedman, Robert H., general counsel, Empire Resorts (with
attachment)................................................ 121
Jandernoa, Mike (with attachment)............................ 51
Jandreau, Michael B., chairman, Lower Brule Sioux Tribe (with
attachment)................................................ 367
Kildee, Hon. Dale E., U.S. Representative from Michigan...... 27
Martin, James T. (with attachment)........................... 185
Santa Ynez Valley Concerned Citizens, Preservation of Los
Olivos, and Preservation of Santa Ynez..................... 368
Skibine, George T............................................ 28
Sprague, David K. (with attachment).......................... 218
Toledo, Jr., Michael, Governor, Pueblo of Jemez, New Mexico.. 30
TRUST LANDS
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WEDNESDAY, MAY 18, 2005
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
216, Senate Hart Building, Hon. John McCain (chairman of the
committee) presiding.
Present: Senators McCain, Dorgan, and Inouye.
The Chairman. Good morning.
STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
In 1934, the Indian Reorganization Act provided broad
discretionary authority to the Secretary of the Interior to
take land into trust for Indian tribes. This authority was
given the Secretary to counter the devastating effects of the
General Allotment Act under which Indian tribes lost over 90
million acres of land between 1887 and 1934. Once held in trust
by the United States, the property is considered Indian
country, subject to Federal and tribal law, and in most
circumstances State and local laws and regulations do not
apply, including zoning and tax laws.
One particular application of the authority to take land
into trust that is unclear to many is how the process is
applied to land that is outside reservation boundaries. When
the purpose of that off-reservation trust land will be the
establishment of a gaming facility, the impacts on surrounding
communities are even greater and the need for clarity is at its
highest.
Under the Indian Gaming Regulatory Act, trust lands outside
of a reservation are generally not eligible for gaming if
acquired after October 17, 1988, the date IGRA was enacted.
However, IGRA provides four exceptions to the ban on gaming on
post-1988 lands. In recent years, this committee has been
informed of numerous attempts to use these exceptions,
including the exceptions for settlement of land claims and for
initial reservations, to obtain casinos far from Indian
reservations, sometimes in other States.
Many Indian tribes are finding that concerns about whether
lands should be taken into trust for gaming purposes is
impacting all land decisions of the BIA, with many applications
for non-gaming purposes taking years to be approved.
I believe it is time this committee reviewed these
exceptions to determine if they are being used as we originally
intended in 1988. Today, the committee will hear from a variety
of witnesses to inform us on how the land-into-trust process
works and how IGRA impacts that process.
Vice Chairman Dorgan.
STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH
DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Dorgan. Mr. Chairman, thank you very much.
Often when people are unfamiliar with these issues, think
of land-into-trust, they think immediately of gaming. That is
the case in some circumstances, but not in most circumstances.
In most circumstances, gaming has almost nothing to do with
land-in-trust, and I think the Chairman described accurately
that we ought to be interested and concerned with respect to
land-into-trust for gaming and make sure we understand what the
circumstances are in that situation. But we also need to
understand there are legitimate reasons for tribes to take land
into trust for economic development and other reasons, and the
interminable delay that often exists now is very troublesome.
During a 15-year period, 46,000 acres of land were taken
out of trust in the Aberdeen area, which is our area, and
18,000 acres placed in trust. So the fact is, more land is
taken out of trust than in trust in our region for many
reasons: interstate landowners with non-Indian heirs and
members selling lands to pay unexpected medical bills. The list
goes on and on. But the fact is, many of the fee-to-trust
applications are for essential government services these days,
for housing, for education issues, and other purposes.
I just think when we look at reservations in my State and
others, we see conditions that exist in Third World countries.
Whether it is housing, health care or education, we need to
provide the tribes the tools with which to address these
issues. In some cases, those tools represent the ability to
take land into trust, that is exclusive of gaming.
When gaming is involved, there is another set of issues,
but I really hope that with this hearing we will understand
that much of this issue deals not with gaming, but with
opportunities and needs of tribes for economic development and
for other things that would address the circumstances of their
daily living and the circumstances of the economies that their
citizens face.
I think this is an important hearing being held at an
important time. I hope that we will be able to glean some very
good information from some excellent witnesses today, Mr.
Chairman.
The Chairman. Thank you.
Senator Inouye.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII
Senator Inouye. I thank you very much, Mr. Chairman. I
commend you for holding this hearing because this hearing is
about more than trust applications. It is about the Federal
Government's obligation to Native America.
The Secretary of the Interior was purposely vested with the
authority to take land into trust to reverse the negative
consequences of the Allotment Act and other Federal and State
actions which stripped Indian tribes and individuals, as noted
by the chairman, of over 90 million acres of land.
Unfortunately, the stripping of Indian lands has not
stopped. According to the Department's own documents, more land
is being taken out of trust for individuals than is being
placed in trust for tribes. It is sad to note that there is no
opposition to this movement.
Indian tribes, as we have noted, must go through a very
lengthy, rigorous process to place lands into trust, including
the granting of an opportunity to State and local governments
to insist upon the application of strenuous environmental
regulations. This can and has taken years, requiring the tribes
to pay taxes on government-owned lands. Sometimes tribes are
required to repeatedly update environmental reports because of
our government's delay in processing the application.
But no such process exists for taking land out of trust.
Critics argue that a more stringent process is necessary
because State and local regulations will not apply to the land
being taken out of trust. But those same critics ignore that
generally applicable Federal land regulations apply to those
lands, as do the laws and regulations of the tribe.
History has shown that tribes are and want to be good
neighbors. They want to provide governmental services to their
members and neighbors, while ensuring that their land will be
there for future generations. Although I do not personally
support gaming, I served as the primary sponsor of the Indian
Gaming Regulatory Act because of the matter of sovereignty.
Congress anticipated the taking of lands into trust for gaming
purposes and imposed even more stringent requirements. But I
also would like to note that there are those tribes who are
still waiting for a decision and those applications were
submitted long before Cabazon.
A most recent example of this process is the Gun Lake
Tribe, which is testifying here this morning. The tribe has
complied with a lengthy and exhaustive Federal administrative
process for placing lands within the tribe's long-time
aboriginal homeland into trust for gaming purposes. After four
years, the Department indicated its intent to place the land
into trust for the tribe, and now there is a 30-day public
comment period.
I hope that as this issue is addressed, the committee also
addresses the continued loss of trust lands, and considers the
potential cost to tribes because of the delay in processing
applications. I believe the native peoples of this land have
given enough.
I thank you, Mr. Chairman, for scheduling this hearing. I
appreciate it.
The Chairman. Our first witness is George Skibine, an old
friend of the committee's, who is the acting deputy assistant
secretary for policy and economic development in the office of
Indian affairs in the Department of the Interior. Welcome back,
sir.
STATEMENT OF GEORGE T. SKIBINE, ACTING DEPUTY ASSISTANT
SECRETARY FOR POLICY AND ECONOMIC DEVELOPMENT, OFFICE OF INDIAN
AFFAIRS, DEPARTMENT OF THE INTERIOR
Mr. Skibine. Good morning, Mr. Chairman, Mr. Vice Chairman,
Senator Inouye. I am George Skibine. I am the acting deputy
assistant secretary for policy and economic development for
Indian affairs in the Department of the Interior.
I am also the director of the office of Indian gaming. I am
pleased to be here today to discuss the role of the Department
in taking land into trust and the procedures used when the land
is for gaming purposes.
My testimony will be part of the record. I will essentially
summarize a few points in a few minutes that we make in the
testimony.
I think, Mr. Chairman, you gave a good background on the
IRA, so I am going to skip over that. The IRA, the Indian
Reorganization Act, is essentially the fundamental authority
that we use to take land into trust for Indians. We have
promulgated regulations in 25 CFR Part 151 that implement the
Indian Reorganization Act, Section 5.
Essentially, let me quote from Justice Ginsburg, who stated
in a recent opinion in City of Sherrill v. Oneida Indian Nation
regarding the regulations, who said:
The regulations implemented, 25 U.S.C. 465, are sensitive
to the complex inter-jurisdictional concerns that arise when a
tribe seeks to regain sovereign control over territory. Before
approving an acquisition, the Secretary must consider, among
other things, the tribe's need for additional land, the
purposes for which the land will be used, the impact on the
State and its political subdivisions resulting from the removal
of the land from the tax rolls, jurisdictional problems, and
potential conflicts of land use which may arise.
That is a good summary that the court made of our process
for taking land into trust under the 151 regulations.
In addition, let me point out that the BIA must also
determine whether it is equipped to discharge its additional
responsibilities resulting from the acquisition of land into
trust. We must also comply with the requirements of the
National Environmental Policy Act.
The authority to approve land into trust on reservations
for non-gaming purposes is delegated to regional directors of
the BIA. When a tribe seeks to have, or an individual Indian
seeks to have land taken into trust under the Indian
Reorganization Act, it will submit an application to the BIA
and that application will be processed by the regional office
or the agency that is responsible for this process, and
appropriate State and local officials will be consulted
regarding their views on the potential effects of this
acquisition. So there is a consultation process.
We try to encourage the process to be very transparent so
that the affected communities will be given ample opportunity
to comment. If the application is for gaming, then the
authority has been reserved since 1990 when Secretary Lujan
issued an order saying that the central office, essentially the
assistant secretary for Indian affairs, would have the
authority to approve gaming-related acquisitions. In 2001, we
extended that to not only gaming acquisitions, but gaming-
related acquisitions.
What happens then is when an application is submitted, it
is still processed by the regional office. They will do
compliance with NEPA. They will do the consultation required,
but if gaming is a stated purpose of the acquisition, then they
will eventually have to consider whether section 20 of the
Indian Gaming Regulatory Act has been complied with.
As you know, section 20 is a prohibition on gaming on lands
acquired in trust after October 17, 1988, but it contains
several exceptions. The major exception is if the land is on or
contiguous to the reservation. But it contains other exceptions
that essentially include whether the land is acquired for the
settlement of a land claim; whether the land is a restored land
for a restored tribe; or whether the land selected is the
initial reservation of an Indian tribe pursuant to the Federal
acknowledgment process.
When that happens, we will make a determination as to
whether the land that is sought to be acquired that is off-
reservation qualifies under one of these exceptions. Depending
on whether it qualifies or not, then we will advise the
regional office on how to proceed. If none of the specific
exceptions apply, then there is an exception that authorizes
gaming on the land that is acquired in trust after October 17,
1988 if the secretary after consultation with appropriate State
and local officials and tribes, makes a determination that the
gaming establishment is in the best interest of the tribe and
its members and is not detrimental to the surrounding
community.
We have in this Administration approved I think nine gaming
applications altogether under all of these exceptions,
including on-reservation. I think they are listed in my
testimony. And then we have, I think, about 10 applications
pending for off-reservation acquisitions under gaming that do
not qualify under any of the specific exceptions, but have to
go through two-part determination.
I think this Administration has approved two such two-part
determinations. In both cases, the Governor must concur in the
determination and has refused to do so, so in fact that has not
happened in this Administration. Overall, since 1988 only three
tribes have qualified under that section of IGRA, the section
20(B)(1)(a) exception.
To help the regional office implement gaming acquisition,
we have issued a checklist for gaming acquisition back in 1994.
We updated this checklist in 1997. We updated it again in 2001.
We did a recent update in 2005 in March. That essentially is
informal guidance to our regional offices on how to implement
the regulations in part 151 and the two-part determination
process when the acquisition is for gaming.
Let me briefly mention that there has been an issue that we
have when a tribe submits an application for non-gaming
purposes and changes the use to gaming. We are aware that when
a tribe submits an application for, let's say, a truck stop,
then essentially the acquisition will be considered by the
regional office. If it is not for gaming, it will not be sent
to our office in Washington and it will not be approved by the
assistant secretary.
Under the law, the tribe subsequently, and this is 2 years
down the road, because there are no title restrictions on the
deed, the tribe can change the use of the property. We have
been advised by the Department of Justice that the title
requirements prohibit us from imposing deed restrictions on the
title. That has sometimes been an issue when the local public
has a proven application, let's say if it was for Indian
housing, and down the road has been made aware that the use has
been changed to gaming. I think that is an issue that we are
looking at.
We have not found yet a solution on how to deal with that
particular problem. We certainly do not want to hamstring the
tribes, especially if they have an economic venture that does
not remain profitable, they should be able to change the use of
the property. So we are tackling that issue because we are
unhappy with the fact that when there is a change to gaming
that the local population has not contemplated, it is creating
a lot of tension within the community. I think some of the
local communities feel that they have been duped into buying
into a process when the ultimate aim was different. So we are
looking at that issue.
Now, I mentioned that we have about 10 applications for
off-reservation gaming pending. There are many, many more that
are rumored. I receive delegations every week from mostly non-
Indian communities that essentially come and talk about the
fact that there is a potential Indian casino that is going to
pop up in their community, even though there is no application.
What I tell them is that under our regulations and under
IGRA, there is nothing that prohibits a tribe from getting
involved with someone and essentially trying to move off-
reservation. They have to go through the process, and the
process is lengthy and very seldom successful, but they have
the right to do that under the IRA, under our regulations and
under IGRA. We just implement the law at this point. I think
they feel that there is a question of cost if they are opposed
to the application on the local community, and that is
certainly an issue.
And then also we get communities who are all in favor of
tribes moving into their communities because it will revitalize
the economy and they think it is going to happen tomorrow. Then
when they come to talk to us, they realize that it is a very
lengthy process. We take very seriously our obligation to take
land into trust, but we are really concerned about the effect
on local communities.
Finally, I want to point out that in terms of delays, it is
true that our regulations do not include time lines. So that
once an application is submitted, there is no time line for the
BIA to act on the requests. I think with respect to gaming, it
is very long. It is processed at the regional office and
usually takes about 6 months to 1 year, especially to comply
with the environmental documentation that is required. Then it
comes to our office where it will take at least a couple of
other months before it is ready for approval.
So overall, gaming acquisitions take well over 1 year, and
that can impose some hardship on tribes that rely on financing
and on options to buy land on which they are interested. Plus,
final comment, once we make a positive determination to take
land into trust for any purpose, we have to publish, especially
for gaming, we publish a notice in the Federal Register that
gives tribes, that gives the public 30 days to challenge the
decision of the secretary.
With respect to gaming, in the last 5 years, maybe even
before, I think we have been ending up in court in almost all
instances except for a couple of ones. And that essentially
will really delay the process.
This concludes my comments. I am here to answer any
questions you may have. Thank you very much.
[Prepared statement of Mr. Skibine appears in appendix.]
The Chairman. Thank you very much.
Maybe for the record you could describe to us how and why
land is going out of trust.
Mr. Skibine. I think that land is going out of trust, that
land that is owned by individual Indians. I think it goes out
of trust through probate; if there is a debt that results in
foreclosure and for a variety of other issues. I am not aware
that land is going out of trust that is in trust by the United
States for the benefit of a tribe. My understanding was
The Chairman. These are individuals who own land in trust.
Mr. Skibine. Yes.
The Chairman. So there is a difference here when we say all
this land is going out of trust. It is not as if tribes are
giving up land. It is individuals who are for one reason for
another, including wills.
Mr. Skibine. That is correct. Right.
The Chairman. That give land to non-Indians, which is their
right to do, to give their land to whoever they want to. So I
think that is an important item here because, in all due
respect to my colleagues, the impression was created that
somehow we are depriving Indian tribes of their land by taking
land out of trust and I do not think that is the case, at least
that is the information that I have.
Would you agree, Mr. Skibine, that there are significant
problems today with perception, to a large degree, and to some
degree reality, with this process? People hear that an Indian
tribe is willing to give up its claim to most of a State in
return for a small couple of acres in a downtown metropolitan
area that they can engage in gaming. Is that really what we
think of Native Americans trying to obtain land, to return to
their tribal ways and their tribal customs?
Now we see, and one of the reasons why we are having this
hearing today is I keep hearing bitter complaints from people
who live near Indian tribes or live near land that they hear is
being taken into trust solely for the purpose of gaming. Do you
agree that there is a perception out there that this is a
serious problem, at least in some communities?
Mr. Skibine. Yes; I agree with that. I think that the one
instance I can think of was not too long ago I testified at a
hearing in Colorado at the Western Governors Association, where
essentially there is a tribe in Oklahoma that was seeking to
settle its alleged land claim in Colorado, on millions of acres
in Colorado, with a casino at the airport. The Governor was
very much opposed to that.
I think we advised the tribe that we did not think the
claim was valid in this particular instance. So there was no
application submitted, but it certainly has created an uproar
in the State of Colorado.
The Chairman. I know you do not follow closely the workings
of this committee, but I am sure you saw the entire Connecticut
delegation show up in the last hearing we had over their
concern and the Attorney General's concern about this whole
issue of additional recognition of tribes for gaming purposes.
But also on the other hand, isn't it true that in most of
these cases if there is land taken into trust that it requires
the approval of the Governor of the State under IGRA?
Mr. Skibine. For land that is off-reservation and subject
to the two-party determination, then it requires the Governor.
If it is for the settlement of a land claim, then it is one of
the exceptions that essentially goes around the Governor's
concurrence. I think that is one of the issues.
The Chairman. How many of those are exceptions, roughly?
Mr. Skibine. On the settlement of a land claim, we have
approved one acquisition under that exception.
The Chairman. Out of 10?
Mr. Skibine. No; since the beginning.
The Chairman. Since the beginning?
Mr. Skibine. Right, since 1988.
The Chairman. So generally speaking, then we would expect
disgruntled citizenry to contact their Governor and their State
government to ``protect'' them if they feel they need it.
Mr. Skibine. Yes; that is right, under the two-part
determination or under the settlement of the land claim.
Settlement of a land claim, we have determined it will require
a judicial settlement. Usually, it will require the legislature
of the State to pass legislation regarding the settlement. And
then it will require congressional legislation, so that this
body will have to pass a law and the President will have to
sign it.
So by the time one of the settlement legislations is
enacted, I think it has gone through an incredibly rigorous
process. For instance, I met with a delegation from a town in
Ohio not too long ago regarding a potential Oklahoma tribe
moving into Ohio. They were very much in favor of this, and
they thought it would happen this year because when the tribal
developer of this project wanted to generate
The Chairman. Could I interrupt?
Mr. Skibine. Yes.
The Chairman. This movement would be based on the concept
of aboriginal lands, is that right?
Mr. Skibine. No; I think it would have been based on a land
claim of that tribe in the State of Ohio. If that happens
The Chairman. Because the tribe was moved from Ohio to
Oklahoma?
Mr. Skibine. Yes, right; essentially, what I told them is
that because it would require congressional settlement
legislation, the chance of this happening is essentially down
the road a year or two at the very best, if that is the
exception that they seek to qualify on. They can always use a
two-part determination for that because neither IGRA nor our
regulations, nor the IRA, imposes a test that is based on
whether there are state lines in between the tribe and the
proposed acquisition.
Although we have never approved at Interior a proposed
gaming establishment for a tribe that seeks to have gaming in a
State in which it is not currently located.
The Chairman. If a tribe commits not to acquire land for
purposes of Indian gaming, it is free after acquiring that land
to change its mind. Is that correct?
Mr. Skibine. Yes; that is what I said.
The Chairman. How often has that happened?
Mr. Skibine. That apparently has happened a number of
times. I do not know exactly, but I think the Inspector General
found at least 10 instances when he testified here, where this
has happened. We are aware that this has happened in the State
of Oklahoma, for instance. But the change of the use of the
land to gaming cannot occur unless there is compliance with the
requirements of the Indian Gaming Regulatory Act.
So for instance, if a tribe acquires land in trust off-
reservation, say in the State of Oklahoma. That will not work
too well in Oklahoma. Let's say the State of Texas. Well, that
is not good either. [Laughter.]
The Chairman. How about Arizona?
Mr. Skibine. Arizona, yes. That is a good one. [Laughter.]
Then essentially the tribe will not be able to game on the
land unless it meets the requirements of IGRA. In this
particular case, it will have to submit a request for a two-
part determination under section 20(B)(1)(a). So we will have
to go through the process of consulting with appropriate State
and local officials, and of doing environmental documentation.
If we make a positive two-party determination for this tribe,
then it will be subject to the Governor's veto.
The Chairman. So State governments in general, and
Governors in particular are seduced by the prospect of sharing
in Indian gaming revenues, and the concerns of the local
citizenry are therefore overridden?
Mr. Skibine. Well, I think that for the two-part
determination process, we in the Department, we have to find
where there is a detrimental impact to the surrounding
community. To do that, we do extensive consultation with the
appropriate State and local officials. In our checklist, I
think we say it is a flexible standard, in more or less 10
miles.
The Chairman. But we keep hearing from local officials who
say they were not consulted. Do you have any recommendations at
this time for amendments to IGRA or legislation that may help
in reducing this problem?
Mr. Skibine. I did not come prepared with legislative
solutions, but we certainly recognize that there is certainly a
perception issue, and that we are working on this issue, and we
will contact the tribes and Congress if we have any solutions
to offer to some of these issues.
The Chairman. We would be very eager to hear.
Senator Dorgan.
Senator Dorgan. Mr. Skibine, thank you very much.
How many land-into-trust applications are now pending?
Mr. Skibine. Land-into-trust for all purposes?
Senator Dorgan. Yes; for all purposes.
Mr. Skibine. I do not have that figure at my fingertips.
However, I think we are in the process or we are trying to
essentially do a data-call to find this information right now.
Senator Dorgan. Dozens, thousands, millions?
Mr. Skibine. I think it would probably be hundreds.
Senator Dorgan. Hundreds?
Mr. Skibine. Hundreds throughout the country. That is for
all purposes?
Senator Dorgan. Yes.
Mr. Skibine. Okay.
Senator Dorgan. The trust applications, the land-into-trust
applications you have been discussing with the chairman center
on gaming. I think in my opening statement, I acknowledged, Mr.
Chairman, that the land that is taken out of trust is often as
a result of wills and someone selling the land. We are hearing
cases of people selling the land to pay medical bills, and so
on and so forth. I acknowledge that that is not the tribal
land, the trust that belongs to the tribe. This is land that
inures to the individual.
But is it the case that a majority of the applications of
land-into-trust are non-gaming issues?
Mr. Skibine. Absolutely, yes.
Senator Dorgan. So you are describing in your discussion
with the chairman the circumstances for those that deal with
gaming, which is a separate and serious and significant set of
issues. I agree with the chairman that they should be dealt
with in a different way.
Let me ask about, in 2001 the Department issued proposed
revisions to the regulations. As you know, there was an
extended comment period following that, and then the proposed
regulations were withdrawn. Is there intention by the
Department to attempt to propose new regulations? What are you
thinking about in that area?
Mr. Skibine. We have been pondering this question for some
time. I think this is something that we are discussing
internally. No decision has been made yet on whether to reissue
proposed regulations or to go another route, but we are looking
at what was done back in the previous Administration and what
we can do to essentially facilitate the process.
Senator Dorgan. Would you provide us, then, an update on
the number of pending applications, the timing, and proposed
use status, so that we can get a sense of what that inventory
would show?
Mr. Skibine. Yes; absolutely.
Senator Dorgan. That would be helpful.
What is the process the Department uses to take lands out
of trust?
Mr. Skibine. If it is tribal land, it cannot be taken out
of trust.
Senator Dorgan. Non-tribal.
Mr. Skibine. Which is non-tribal, I am not sure there is a
process that I am aware of. It just goes naturally out of
trust.
Senator Dorgan. So there are no impediments to the movement
on that side?
Mr. Skibine. I do not think so, but I stand to be corrected
because I am not really involved in these individual
acquisitions. That is my impression.
Senator Dorgan. I think if you can give us the inventory of
applications and the status, that will be very helpful. Again,
I acknowledge, as the chairman indicated, I think that there is
no question in my mind that if I were an Indian tribe, I would
try to see if I could find the most desirable parcel of
property in the biggest city available to me, and see if I
could take that land into trust and see if I could do some
gaming on it.
I understand that. That is an urge that tribes that are
located in very remote areas would likely have. Perhaps some
North Dakota tribes would like to have a piece of ground in
downtown Phoenix. In fact, they would probably serve most of
our North Dakota customers in the winter. [Laughter.]
Mr. Skibine. I want to point out that I think that the
Department does have serious concerns about the acquisition of
far-flung lands for tribes for essentially reservation
shopping. I think our discretion is to constrain under section
20(B)(1)(a), but we have serious concerns.
One of these concerns essentially is the fact that in some
States it tends to de-stabilize what is the status quo, where
tribes are gaming on their reservation. But if one decides to
leave and is authorized to do that and come close to a very
proper urban area, well, then the other ones that have for
years been gaming on their reservation with the support of the
State community, that may change. Essentially, we are not sure
that this is in the best interest of Indian gaming overall.
Senator Dorgan. And I think those are serious issues. The
backdrop of all of that is an understanding that we have taken
a lot of land from Indian tribes, Native Americans over many,
many years. Many of those tribes would like to have some of
that land back for jurisdictional and sovereignty purposes, and
it has nothing to do with gaming at all. So that is a separate
set of issues that we also have to be concerned about and be
knowledgeable.
Mr. Chairman, on the third floor of the building behind us,
Senator Domenici is marking up the energy bill. I am a member
of that committee and they are turning to an amendment of mine.
So I will be gone for about 15 minutes to discuss my amendment,
and then I will rejoin you.
The Chairman. Thank you very much, Senator Dorgan.
Mr. Skibine, one of the things that we did in Arizona and
it was approved by the voters, a compact, was a revenue-sharing
proposal, as you know, so remote tribes would be able to at
least have some share of the gaming revenues. That seems to me
one of the attractive aspects of the compact that was
overwhelmingly approved by the voters of Arizona. Do you think
that there should be more referenda of that type?
Mr. Skibine. Yes; we think that the Arizona compacts are
very successful, and we approve those and we feel that it was
very productive. I think that the compacts or the law that
provides for revenue-sharing between wealthy tribes and tribes
that may elect not to game, I think are something that should
be encouraged.
The Chairman. Thank you very much. It is good to have you
back before the committee. We look forward to some
recommendations that you might have that we can use. This
problem is perception and reality both. We cannot legislate
perception, but there may be something we can do to correct
some of the realities.
I thank you, sir.
Mr. Skibine. Thank you very much.
The Chairman. Our next panel is David K. Sprague, chairman,
Gun Lake Tribe, Dorr, MI; James T. Martin, executive director,
United South and Eastern Tribes, Nashville, TN; Mike Jandernoa,
23 Is Enough, Grand Rapids, MI; and David Crosby, Santa Ynez,
CA and other spots around the Earth. Please come forward.
Chairman Sprague, we will begin with your testimony. We
would like to try to keep opening statements to 5 minutes if
possible. Your complete statements will all be made part of the
record without objection.
Chairman Sprague, welcome.
STATEMENT OF DAVID K. SPRAGUE, CHAIRMAN, GUN LAKE TRIBE,
ACCOMPANIED BY JOHN SHAGONABY, TRIBAL COUNCIL TREASURER
Mr. Sprague. Good morning, Chairman McCain, Vice Chairman
Dorgan and members of the committee. My name is David K.
Sprague, and since 1992 I have had the honor of serving as
chairman of the Match-E-Be-Nash-She-Wish Band of the
Pottawatomi Indians, also known as the Gun Lake Tribe. With me
is John Shagonaby, our tribal treasurer.
Chairman McCain, we have provided the committee with
supplemental materials that I ask be submitted to the record.
The Chairman. Without objection.
[Referenced documents appear in appendix.]
Mr. Sprague. These are primarily charts that I will quickly
explain as I move through my testimony this morning. There is
also a statement from Congressman Dale Kildee.
Today, we come before the committee as a federally
recognized tribe, but we are also a landless tribe, in the
final stages of the administrative land-into-trust process
where ultimately the United States will accept title to
approximately 147 acres of industrial land in Allegan County,
MI on behalf of our tribe.
The Gun Lake Tribe was federally acknowledged in 1999 after
petitioning through the Bureau of Indian Affairs [BIA] branch
of acknowledgment and research. Our tribe has a long history
with the United States, and our tribe also had treaties with
the United States. As a result of our playing by the rules, the
restoration of a homeland for our tribe has been delayed longer
than any other federally recognized Indian tribe in Michigan.
We voted to investigate the economic development option
that Indian gaming provides under the Indian Gaming Regulatory
Act to help us exercise self-reliance. We negotiated agreements
with our business partners and moved forward through the
process governed under the IGRA to establish a casino.
If I may return to the map showing the location of local
groups who publicly support our tribe. The red star in the map
shows where our site is located, halfway between Kalamazoo and
Grand Rapids in rural Michigan. I am sure you are familiar with
West Michigan, Chairman McCain, and easily recognize that this
location is not in an urban or suburban area. In fact, the site
we selected is about three miles from our ancient burial
grounds and is within our aboriginal lands.
Now, the area is zoned industrial. The existing structure
is a vacant factory building that sits between a highway and
railroad tracks. You will notice that as shown on this map, the
tribe is completely surrounded by supportive local governments
and community groups.
Here are a few of those key groups: the city of Wayland,
the city of Allegan and the Allegan County Board of
Commissioners, Wayland township, Dorr township, Kalamazoo
Chamber of Commerce, Kalamazoo County Convention and Visitors
Bureau, Wayland Area Chamber of Commerce, Plainwell Chamber of
Commerce, Barry County Area Chamber of Commerce.
My other chart, the bar chart, shows the long process and
significant amount of time between the submission of the fee-
to-trust application to the publication of BIA's final notice
of determination to place the land in trust. It has been over 4
years, from August 12, 2001 until last Friday, May 13, 2005.
As part of the fee-to-trust application, the tribe and the
BIA conducted an environmental assessment as required by the
National Environmental Policy Act. Over a 3-year period
beginning in early 2002, the tribe worked closely with the
regional office of the BIA environmental resources experts to
produce a final EA.
Chairman McCain, we are highly sensitive to our
environment. That is why we made every effort to be
extraordinarily cooperative and responsive to the BIA during
the agency's determination of whether our casino project might
pose a significant impact on the environment of West Michigan.
In fact, the tribe prepared several revisions of the EA
following comments from both the BIA and the public.
The fourth bar shows the extensive and unusually long 75-
day public comment period as compared to the normal 30-day
comment period. During this period, Michigan citizens and local
government officials submitted many letters to the BIA.
In addition, since such great scrutiny is placed on casino
projects, the EA examined the affects of secondary development
over a period of time resulting from the casino and its
operations, and examined whether the tribe should explore
alternatives to this project. After an exhaustive review of the
evidence and the extensive public comment, the BIA concluded
that a finding of no significant impact or FONSI was
appropriate.
As the second-to-last bar shows, the BIA issued the FONSI
on February 27, 2004, over 14 months ago. From February 2004 to
May 2005, the tribe has been waiting for the BIA to issue a
notice of final determination to take the land into trust; 14
months from the FONSI until the notice to take our land in
trust is a very long delay.
We believed our notice to take our land in trust would be
signed in July 2004. We were provided no reason for the delay
of the signing. Finally, last Friday, May 13, 2005, the BIA
finally published in the Federal Register its intent to place
the land in trust.
As I mentioned earlier, there is great support from the
neighboring communities. We have worked hard to meet with the
local governmental bodies, Chamber of Commerce and other
community leaders. This last chart shows that we do have a lot
of supporters. We also have over 6,000 West Michigan residents
supporting the project. These kind of numbers in favor of our
self-determination is surely gratifying and greatly welcomed.
It also shows our MOUs with the local fire and law
enforcement departments. The BIA received letters supporting
the tribe's proposed land acquisition and development from the
groups and individuals noted on this last chart. This comes as
no surprise since the Gun Lake casino will 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 a very economically depressed
area.
As a final note, we have looked at the success of casinos
in Arizona and in other places around the country. We simply
want to replicate that success for our tribe.
Chairman McCain, this has been a long road and many of our
elders who worked hard to obtain acknowledgment and tribal
self-sufficiency are beginning to walk on. They may not live to
see the results of all of the hard and dedicated work. I
sincerely want those who are still with us to see the day when
this long process is completed.
I wish to express my appreciation for the honor and
privilege of having been invited to present testimony today. I
am happy to answer any questions.
Thank you, sir.
[Prepared statement of Mr. Sprague appears in appendix.]
The Chairman. Thank you very much.
Mr. Martin.
STATEMENT OF JAMES T. MARTIN, EXECUTIVE DIRECTOR, UNITED SOUTH
AND EASTERN TRIBES, INC.
Mr. Martin. Good morning, Chairman McCain and members of
the committee. My name is James T. Martin. I am the executive
director of the United South and Eastern Tribes. I am a member
of the Poarch Band of Creek Indians.
Thank you for inviting USET to participate in this
important oversight hearing regarding taking lands into trust.
My testimony will focus on the most controversial aspects of
the land-into-trust activities, which involves off-reservation
land-into-trust applications for gaming.
As I will explain, gaming considerations are driving much
of today's off-reservation land-into-trust activities. Non-
Indian casino developers are responsible for much of what is
currently wrong with these pursuits.
Congress enacted IGRA to promote tribal economic
development, tribal self-sufficiency, and strong tribal
governments. The act, for the most part, has accomplished those
goals. USET, however, has become increasingly concerned with
the small number of Indian tribes and wealthy non-Indian
developers that are seeking to establish Indian casinos far
away from their existing reservation in different States from
where the tribes are currently located.
In at least 12 States, most recently in New York, Ohio,
Illinois, and Colorado, Indian tribes are seeking to move
across State lines and often across multiple States to take
advantage of lucrative gaming markets. In most cases, these
efforts are being funded by shadowy developers who underwrite
the litigation expense, the lobbyist fees and even the cost of
land in exchange for a cut of the profits.
This kind of reservation shopping runs contrary to the
intent of IGRA and well-established Federal-Indian policies.
Indian gaming is not being used as a tool for tribes for
economic opportunity on their lands. Rather, it is being used
as a tool by developers who simply need Indian tribes as window
dressing to make their casino deals work.
We recognize that this is a controversial and complex
issue. My organization has spent several years studying,
deliberating all aspects of this debate. We have been
criticized from some corners that we should not open this can
of worms.
However, after several years of thoughtful, respectful and
often pointed deliberation, we thought that this issue demands
action. Over the last 2 years, we have taken the following
measures. In February 2003, USET was the first American Indian
organization to adopt a resolution voicing its opposition to
reservation shopping. The resolution called for the United
States Department of the Interior to clarify its policy against
this activity.
Later that same year, October 2003, USET passed a second
resolution that called upon Congress to oppose the efforts of
out-of-State tribes to govern land or establish casinos in
different States. This year, USET adopted a third resolution
opposing reservation shopping. The resolution includes a call
to Congress to prohibit an Indian nation from acquiring trust
land and exercising governmental jurisdiction in a State other
than the State where they are located, or remote locations to
which they have no aboriginal connection. Copies of these
resolutions have been submitted to the committee. In addition,
we have submitted a summary of tribal migration proposals we
know are taking place around the country.
The committee should also understand that much, if not all,
of the reservation shopping activities are developer-driven,
sometimes with little or no direct involvement of the tribe on
whose behalf the developer is purported working.
Let me give you a typical scenario for how developers work.
First, the developer will extend a carrot to the State and
local governments, arguing that an Indian casino will benefit
the State by creating jobs and economic activities. The
developer will offer the State a cut of the proceeds of Indian
casinos in exchange for State support. In most cases, these
offers violate IGRA's clear prohibition against taxing Indian
casinos.
Developers also are willing to agree that the out-of-State
tribe will waive most aspects of sovereignty. The out-of-State
tribes are willing to make these concessions as a price for
obtaining the casino because they do not impact the tribe's
current reservation. Unfortunately, when there are other tribes
located in those same States, where out-of-State tribes are
seeking the casino, the offer to submit to State jurisdiction
and pay hefty taxes on their gaming facility severely
undermines the in-State tribe's continued effort to defend
their sovereignty.
If the carrot approach does not work, the developer
typically raises the prospect of claims of litigation or a
stick to compel the State to negotiate with the tribe. In fact,
there seems to be a handful of developers who have created this
new business model that relies on tribes with existing or
potential land claims as a means to establish lucrative casinos
in geographically attractive locations.
Attached to my testimony is a report from one of our USET
tribes, the Oneida Nation of New York, which underscores the
need for Congress to provide greater scrutiny to these
developer-driven deals. It appears from this report that in
some cases the developers purportedly construct their
arrangements with the tribes to circumvent the profit-sharing
limitations in IGRA.
In addition, it also appears that some of the developers
would not be able to survive a Federal background check if they
were required to submit one. We have received information from
Indian nations, Governors and other groups around the country
who report similar experiences with these non-Indian
developers.
USET believes that the political activities and financial
interests of these non-Indian developers need to be fully
disclosed to the public. USET also supports the enactment of
legislation which bars out-of-State tribes from exercising
governmental jurisdiction in more than one State. This would
likely require an amendment to section 20 of IGRA prohibiting
approval of land-to-trust applications for land in States other
than the States where the tribe is currently located or in
remote locations to which the tribe has no aboriginal
connection.
We appreciate the opportunity to testify today before this
Committee on this most important issue, and we will be happy to
answer your questions.
[Prepared statement of Mr. Martin appears in appendix.]
The Chairman. Thank you very much.
Mr. Jandernoa.
STATEMENT OF MIKE JANDERNOA, 23 IS ENOUGH
Mr. Jandernoa. Thank you, Senator, and good morning. I am
Mike Jandernoa, former chairman and CEO of the Perrigo Company,
and also chairman of a grassroots group called 23 Is Enough.
I commend your leadership and your interest in addressing
this issue. I think it has been long ignored. It is an issue
that has affected in terms of Indian gaming the productivity
and the manufacturing productivity of many companies,
especially in our State.
IGRA has not been amended since its passage in 1988. That
is 17 years ago. It is one of the few things that has not
really changed in that timeline. Since 1988, the Native
American casino business has exploded in the United States from
$100 million to $18.5 billion, and controls 25 percent of
gambling in this country. My message is that IGRA is outdated
and it is broken, and it is open to manipulation by special
interests, as just described, and is in desperate need for
reform as it relates to gaming.
The NGIC is underfunded and understaffed. My plea is that
your committee take time to study in depth and impose an
immediate moratorium on any Indian gaming activities until the
expansion and the understanding related to its impact is
concluded; 23 casinos in Michigan is enough. We are among one
of the States with the top number of Native American casinos.
The tribal casinos are booming. They are doing very well,
but our State economy is among the worst. It is due to the
impact of globalization, the China impact, India outsourcing.
We have skyrocketing legacy costs and health care costs.
Michigan is in a job crisis.
Also, we are tops in the Nation unfortunately for the
unemployment rate. Our manufacturing job losses account for 25
percent of all the job losses in manufacturing across the
country in just our State of Michigan. If this trend continues,
we cannot handle more casinos at this time with the job losses
we are incurring.
Also in Michigan, discretionary spending, that is down.
Bankruptcies are up and we are financially strained in many of
our cities. The Government has been blinded by bright lights,
big numbers, big promises that have not been able to be kept.
If you look at the Detroit example, we brought three casinos
in. They promised new hotels. They promised new restaurants,
new entertainment, new jobs and more tourists from outside the
area. It has not happened. The vast majority of dollars that
come into the casinos are from a 50-mile radius around Detroit.
Many of these people cannot afford it.
Bankruptcies have more than doubled. Crime has risen
substantially. The Detroit police force and Mayor have
indicated that the budget is exceeding their allocation by $1.2
million just for the crimes related to bankruptcy and crimes in
the immediate area. The Michigan experience has been one of
empty promises or broken promises.
Further, we have noted that research has demonstrated the
negative impact on manufacturing. This is at a time that our
country needs productivity. Absenteeism, tardiness, and
bankruptcies have accelerated the job loss in our State and
across the country. Our personal journey here in the State
shows that we need urgent and swift and decisive action to stop
this proliferation.
In 2001, as has been pointed out, the Gun Lake Tribe filed
for land-in-trust application. The Chamber in Grand Rapids
commissioned the Andersen Economic Group to conduct an
independent economic study of the impact to assess what it
would mean to our West Michigan community.
The study was surprising. It indicated that for every job
that would be created, two jobs would be lost. There would be
an $880 million economic hemorrhaging to the surrounding
counties. Gun Lake will siphon off jobs and money from the
economy and vitality in the surrounding areas, and bring it to
the local area here.
In February 2003, the Chamber objected to the finding of
the Gun Lake environmental assessment and urged the BIA to
complete a full-scale EIS. The BIA refused the EIS, and as just
noted, it was put into the Federal Register.
The Gun Lake Tribe's environmental assessment was an
incomplete and inaccurate reflection of the regional impact. We
talked about and the Administration focused on only a 10-mile
radius. The impact is significantly greater than the 10 miles.
Now what Congress has in mind as adopted in terms of IGRA is
almost 20 years old, and the rules do not a require
comprehensive regional impact study. Instead, it only has this
small pinpoint study which is not far-reaching enough to see
the impact on all the families and the jobs in the area.
In addition, IGRA ignores all the voter sentiments and the
elected officials' sentiments and the State legislature's
action. First, the State and Federal officials oppose this new
facility. Second, Proposal 1 passed in Michigan with 58 percent
of the voters suggesting that we limit casino expansion and
require votes. Third, the State Senate rescinded the support.
And fourth, polling results show that 85 percent say that 23
casinos is enough, and 64 percent oppose the expansion of the
casino.
This is important meaningful information that should bear
on the decisions made here in Washington, but don't. There is
something wrong when wealthy out-of-State special interests
like Stations Casino from Vegas can come in and override the
will of our people.
In summary, again IGRA is broken and outdated and after 17
years needs to be reviewed and updated. A few recommendations:
No. 1, mandatory regional economic environmental and social
impact statements; mandatory casino management disclosures;
local and State government approval; voter support;
clarification of class II gaming to eliminate the abuses and
loopholes, especially related to electronic bingo games.
In closing, I reiterate my plea and urge you to make
immediate action to impose a moratorium to save jobs in
Michigan and to not put more families at risk.
Thank you.
[Prepared statement of Mr. Jandernoa appears in appendix.]
The Chairman. Mr. Crosby, welcome.
STATEMENT OF DAVID CROSBY, SANTA YNEZ, CA
Mr. Crosby. Mr. Chairman, Senator Dorgan, and members of
the committee, I am honored to be here today to speak with you.
The issue that brings me here today is one of fairness, of
justice, and of unintended consequences. In an effort to
correct injustices done to the Native American tribes in the
early days of our country, the Government gave tribes the right
to have gaming. Smart lawyers saw the opportunity to get around
State laws against gaming and found financing to build Indian
casinos.
Whether you think gambling is an addiction or just a minor
vice, casinos are not good neighbors. They say they put money
into local economies, but the truth is that almost all of it
goes out of town, out of State and offshore. They use our
schools, roads, hospitals, firemen and police and they are not
subject to our tax laws.
They inevitably bring crime to a community. A 20-year
veteran in law enforcement where I live estimated that 75 to 80
percent of all the crime in our valley was casino-related. I
believe him.
As disturbing as all this is, it is not my main issue here.
The reason I come before your committee is the question of
taking land into trust, particularly large tracts of land that
are not contiguous to the reservation. We are now in a
situation where the laws intended to give Indians a break are
doing unfair and unjust harm to communities all over the
country.
At the center of this is zoning. I expect you can guess how
completely alien a subject like zoning was to a singer-
songwriter, but circumstances forced me to learn. At the core
of it, zoning is a compact between all the people in a town or
a county to agree on what kind of place it will be to live and
especially what kind of place it will be to raise our children.
We in the Santa Ynez Valley through our elected officials voted
to keep the agricultural and rural character of our valley, and
that is the main reason we live there.
Now, there are about 10,000 of us in the Santa Ynez Valley.
The current laws make it possible for about 180 tribal members
to circumvent this zoning agreement as well as the building
codes and the taxes completely, for profit. We have a developer
named Fess Parker who sees this as a wonderful opportunity to
partner with the tribe and thereby evade land-use restrictions
and build a very large and completely inappropriate resort
destination, a giant hotel and golf course complex, and
although they deny it, we believe another casino.
I believe the tribes have every right to buy any property
they want with their money, just like any American. But if they
are allowed to take these lands into the reservations, into
trust, then developers will be speed-dialing casino operators
all over the country to take advantage of this loophole in the
laws.
How can this be fair? How can it be fair to give them
rights we do not have, to exempt them from laws that we must
obey? We ask you, please, to look at this nationwide problem
and try to find a fair and just way to let the tribes invest
and grow, but not destroy the surrounding communities in the
process as they are doing in Santa Ynez.
Thank you very much.
[Prepared statement of Mr. Crosby appears in appendix.]
The Chairman. Thank you very much, Mr. Crosby.
Chairman Sprague, did you decide where you wanted the land
taken into trust for your initial reservation, or did the
Department tell you that there was a certain area where it
would take land into trust for your reservation?
Mr. Sprague. No, sir; we as a council decided where we
would take land into trust. We were not dictated by the Bureau.
The Chairman. Under normal procedures, your tribe's
engaging in gaming would require the approval of the Governor,
is that correct? Under normal procedures, I am talking about
under IGRA.
Mr. Sprague. We are a newly federally acknowledged tribe
and we are going to use
The Chairman. So this is an exception?
Mr. Sprague. This is an exception.
The Chairman. This does not require the approval of the
Governor.
Mr. Sprague. Right.
The Chairman. Would you care to respond to Mr. Jandernoa's
comments that actually gaming is not helpful economically to
the region? Would you identify yourself again, sir, for the
record?
Mr. Shagonaby. My name is John Shagonaby. I am the tribal
council treasurer.
The Chairman. Okay, thank you. Please proceed.
Mr. Shagonaby. Yes; I would like to respond to that. We are
the 12th recognized tribe in the State. There are 11 tribes
with compacts. They are operating casinos. We took a page from
tribes on what their economies were in the State.
It is demonstrated that their economies were gaming-
related, so naturally we saw what they have done with their
proceeds and what they have done for their communities. So that
was a natural fit. After we polled our membership, they voted
overwhelmingly to support it. I feel that we have worked as
demonstrated by the board with the local communities and they
are very supportive of our project.
The Chairman. My question was that Mr. Jandernoa asserts
that there has been an actual decline in the economy, increase
in crime, increase in bankruptcies, et cetera. Would you care
to address that?
Mr. Shagonaby. We did a study for the record and it showed
that it will have a positive economic impact in the area. I
think the Bureau agreed with us.
The Chairman. Would you submit that for the record?
Mr. Shagonaby. Yes.
The Chairman. Thank you.
Mr. Martin, your testimony is critical of so-called
``reservation shopping'' through assertion of land claims. Yet
several tribes that are members of your organization were able
to successfully negotiate land claims that resulted in lands
that were subsequently used for casinos. How do you distinguish
between these situations?
Mr. Martin. In those instances, Mr. Chairman, those were
related to land claims and to land taken into trust were in
their aboriginal lands in the State into which they were
currently occupying.
The Chairman. So you feel there is a significant difference
in some of the practices you see going on between that that you
see ongoing today, as opposed to the way that tribal members of
your organization, tribes that are members of your organization
were able to take land into trust and engage in gaming?
Mr. Martin. Yes, sir.
The Chairman. And repeat to me again how that is different?
Mr. Martin. The individual tribes of our organization had
land claims and they took land into trust associated with those
land claims in the State into which they were occupied at that
given time. They did not jump across State lines or even across
multiple States to take this land into trust. It was associated
with their aboriginal lands.
The Chairman. What about if a tribe has aboriginal land in
another State?
Mr. Martin. In those areas, it would have to be judged on a
case-by-case basis. Our point in those particular areas is that
many times, and as you talked earlier with Mr. Skibine, it is
also perception as much as reality. We are trying to assist the
committee and offer suggestions on areas to curtail the
perception.
A few tribes, and I am not saying it is just running
rampant all over, but you come to a few tribes that are being I
believe misused by developers that create false expectations to
those tribes, and try to look for loopholes and the stick of
potential litigation. And then they are being encouraged even
by Governors in States to want to look for revenue sharing and
those types of things.
We believe that it should be judged on a case-by-case
basis, but there should be some clarity brought to the
regulations, and if not enough clarity to those regulations,
then legislation that would bring a systematic and much more
thorough review of these land-into-trust applications,
particularly just for gaming.
The Chairman. Mr. Jandernoa, Chairman Sprague showed a
pretty impressive display of local support for his tribe and
their entering into gaming activities. How do you respond to
that?
Mr. Jandernoa. I think, Senator, the big issue comes around
what you call the local community or the regional area. In the
slide that was shown there, and it will, and we acknowledge,
and the economic study clearly states there will be jobs added
in that small area, within that 10-mile radius, that will
affect and add jobs.
But the economic studies show and the facts show those jobs
are going to come from surrounding areas. It will come into
Allegan. We have 2,500 employees in Allegan at Perrigo Company,
my company. And the jobs will come from Kalamazoo and Holland
and Allegan itself and Grand Rapids into the Wayland area. We
do not dispute that there will be jobs added, but they are not
new incremental jobs to the entire area.
The other study shows and the impact shows in Detroit
particularly, which is where they did a lot of the analysis,
that the expectation and the profits
The Chairman. Those were non-Indian casinos.
Mr. Jandernoa. Two were non-Indian and one was an Indian,
but again it is a casino. Again, we do not have anything
against the tribal casinos themselves, or the tribes. It is the
issue of a casino and its impact, unfortunately, on many
people.
The Chairman. Look, I do not pretend to be an expert on the
Michigan economy, and I know to at least some degree you are,
but everybody I talk to says that the reason why the State's
economy is in trouble is because they are experiencing the most
wrenching transition from a manufacturing-based economy to
trying to grapple with a world global manufacturing situation
which is putting many of them out of business or in serious
difficulty. I had never heard that Indian gaming impacted the
State's economy either way.
Go ahead.
Mr. Jandernoa. Yes; I think you are absolutely right. We
are suffering a crisis in Michigan in jobs in our area, both
from the automotive industry and particularly in our area, the
furniture industry. China has had an incredible affect on us,
and Japan is making more of the auto parts. So if you look at
the United States big three share of cars, our jobs, which have
been in Michigan, are going to Japan for the most part making
those parts.
So we are affected, but it is our productivity. Our
company, Perrigo, has grown from 200 to 2,500 right in Allegan,
and we have done that because we are the most productive and we
have the best quality. We cannot afford to have our employees
tardy or absent in keeping up that quality because we are
competing with China and India now. We need the jobs we have.
We cannot afford to put those employees at risk of doing a
great job for us. We want to create opportunities for them to
be successful, not to be distracted.
The Chairman. Mr. Crosby, the BIA testified that local
communities are able to participate in the land-into-trust
process. Did you or any of your neighbors participate, have the
opportunity to participate and have your comments considered?
Mr. Crosby. We participated in town meetings.
The Chairman. With the BIA?
Mr. Crosby. Well, BIA has been present at some of them.
These were called by members of our board of supervisors, and
representatives from the BIA came. We have unanimously
expressed our disapproval and pretty clearly. The impact on
towns is an interesting subject and you will hear testimony on
both sides of it.
I think it would help a great deal if you called to witness
here some of the law enforcement people from towns where
casinos are and asked them what the truth is. I think they will
tell you. Casinos are not good neighbors.
The Chairman. Did the BIA indicate that lands recently
taken into trust would be eligible for gaming?
Mr. Crosby. Yes; the lands that we were talking about were
specifically for that.
The Chairman. You state that, and I quote from your
statement, ``land should be taken into trust only when truly
needed to promote tribal self-sufficiency.'' I think I agree
with that statement. Would you consider the need for additional
housing or a health clinic needed to promote tribal self-
sufficiency?
Mr. Crosby. Yes; I think those are legitimate. I even think
that their wanting to have a casino is legitimate. What
disturbs us is the idea that they can take large tracts, in
particular in this case the center of our valley, into trust,
off of the tax rolls, and out of zoning. Zoning is critical to
this. Zoning is a compact between all of us who live there as
to what kind of place it will be and how we can raise our kids.
If they can absent themselves from these rules and laws, it
is unfair to all of the other people who live there. I think
that is blatantly obvious.
The Chairman. I am sure that some of our tribal leaders
would respond to that by saying if they were subject to local
zoning, it would be an infringement on tribal sovereignty, but
also because of local situations, they might not do too well
under it. This gets into the issue of tribal sovereignty, which
is of course one which remains fraught with controversy.
Finally, let me just say that the problem and dilemma that
we face here on the committee as regards to Indian gaming, we
can have our personal opinions as to the morality or
immorality, as you mentioned, whether it is addictive or not. I
leave that up to experts. I do not in any way feel that I am a
judge of that.
But we do know that Native Americans have been deprived for
400 years of their rights. They have been discriminated
against. They have been underfunded. We have never complied
with our treaty obligations.
Finally, at least some tribes, through engaging in Indian
gaming, have been able to profit and be able to take care of
their tribal members. So this is a dilemma that we face, but I
also agree with Mr. Martin, in particular, and other witnesses
that it is time we reviewed a 17-year old piece of legislation
and profited from the experiences that we have undergone, and
make whatever necessary changes in order to deal with an $18.5-
billion and continuing to grow industry that, as I have
repeatedly said, none of us ever anticipated would reach this
size when we passed the act in 1988.
It is going to be a delicate proposition, but for us not to
go back and review and revise the legislation in light of how
it has evolved I think would be an abrogation of our
responsibilities. I agree with you, Mr. Crosby and Mr.
Jandernoa, that there is some way that we have to try to get
more local participation in the decisionmaking process because
I have seen the impact on local communities. Some of it is
good, job creation. Some of it is bad, as we have seen in other
aspects of social impact.
So I thank the witnesses today and I thank you for being
here. This is a very tough issue.
Senator Dorgan.
Senator Dorgan. Mr. Chairman, thank you.
Again, I regret I missed several of your presentations. I
have read them, but I am going to get called away again for the
markup that we are doing just downstairs on energy.
I am with all my might trying not to respond to the
question of competition with China and India. It is considered
old-fashioned and somehow out of favor for us to provide
benefits to workers and that sort of thing. I will save that
for another hearing, Mr. Chairman.
Let me talk just for 1 moment, or let me just ask a couple
of questions about this issue. First of all, I think I have
said, and I think we acknowledge there is a very big difference
in taking land into trust for beneficial use of tribes who
live, in many cases, in third world conditions in this country.
I know the names of people who have died in bed because
they froze to death on Indian reservations. I know the names of
kids who have been severely beaten because there were not
enough social workers to put them in a foster home where they
were going to be cared for safely. I can go through the whole
litany of education, health care, housing, and the crisis that
exists on reservations in this country.
So the ability to take land into trust for beneficial use
of tribes is very important. It is a very different issue than
the question of a tribe wishing to find a parcel of land on
which to build a casino.
Now, the issue of Indian gaming is also an issue of
sovereignty. That was dealt with by the courts and then we
passed legislation dealing with it. We are continuing to
discuss the conditions of all of that. Of course, at this table
now we have examples of local disputes about the subject. Let
me ask Chairman Sprague, why did the tribe when you decided to
engage in gaming and build a casino, decide to choose an
outside investor?
Mr. Sprague. Sir, we chose an outside investor because the
tribe has no money.
Senator Dorgan. Short answer, isn't it? [Laughter.]
And, Mr. Jandernoa, so we know a bit about the financial
capabilities of what you are trying to do based on the outside
investor you chose, Mr. Jandernoa, who are the people who have
contributed to your effort to attempt to stop this casino?
Mr. Jandernoa. It is a grassroots effort, mainly people in
West Michigan, Allegan, Grand Rapids, Ottawa County. Mainly in
that area, and Kalamazoo County.
Senator Dorgan. Mr. Crosby, you talked about the 6.9 acres
of land, and then apparently there is another 5.8 acres. So 6.9
acres is in trust now; another 5.8 acres is being requested to
be taken into trust. Yet in your testimony, you also talk about
Fess Parker. Is that the Fess Parker that I remember?
Mr. Crosby. Yes.
Senator Dorgan. Fess Parker wanting to develop 745 acres of
land by transferring it to an Indian tribe. Is that your
biggest concern, the potential development of the 745 acres if
that land is taken into trust?
Mr. Crosby. Yes, sir; it is. The other two serve as
precursors, though, and would set a precedent, and we are
appealing them, and we are trying to slow them up if we
possibly can. We feel helpless, and I think you will find this
in communities all around the country that are trying to deal
with this. We feel helpless. We feel powerless. We feel that
they have in the case of the people that we are up against,
they have $200 million a year. For a citizen to stand up
against that is a really difficult thing.
Senator Dorgan. I am not a big fan of gaming because I have
never been a big fan of doing something at which you are
destined to lose. The odds are always against you, not those
who run the gaming, but against those who show up on a Saturday
afternoon for the purpose of the sport of gaming. The odds are
against them.
Having said that, I am not somebody who believes that we
ought to stop it or believes it is immoral to have a gaming
facility somewhere. So the question is not whether it should be
conducted, the question is where and how, and especially with
respect to Native Americans, I believe there are problems with
respect to addiction and there are problems with people gaming
who should not be gaming.
But I know that there are revenues that are now coming from
Indian gaming facilities that are going into the social service
structure of tribes and that are being helpful to invest in the
lives of tribal members, many of whom are living in third world
conditions.
So as the chairman indicated in his conclusion, this is a
difficult issue. You heard the opening testimony today by the
official from the Department of the Interior. These are
difficult questions. We would all like to see expeditious
judgments by governmental bodies on questions that are
presented to it, and yet somehow in not just this hearing, but
in previous hearings, we always see that these things stretch
out and take forever. But in many cases, they take a long time
because they are just enormously complicated.
This committee is paying attention to this because we think
it is important. Mr. Chairman, I appreciate the opportunity
today, even though I have had to bifurcate my presence here a
bit.
Thank you very much for coming and presenting your
testimony today as witnesses. It will give us an opportunity to
further consider many of these issues as we proceed with our
agenda this year.
The Chairman. Thank you, Senator Dorgan.
Would the witnesses care to make any final comments?
Chairman Sprague?
Mr. Sprague. No final comments, Chairman McCain.
The Chairman. Mr. Martin?
Mr. Martin. Yes, sir; Senator McCain and Senator Dorgan,
USET stands ready to work with this committee to try to assist
in bringing about some recommendations that could bring some
clarity to this issue, that strikes a balance between
protecting individual Indian rights of self-determination while
protecting those same individuals from some shady and
unscrupulous types of individuals.
The Chairman. Thank you very much.
Mr. Jandernoa?
Mr. Jandernoa. Senator McCain, I appreciate your giving us
the opportunity to talk with you. I know this jobs issue is one
you are hearing about a lot, but it has got to be important to
all of us in our country, and particularly in saving
manufacturing jobs. That has been my life in the manufacturing
segment, and I just want to save more manufacturing jobs.
So I think we have to continue to look at that. That is why
I would ask that if you could, as a committee, take a look at
this information; take the time to study it; and put a
moratorium on expanding Indian gaming until you understand it.
Because if we go along a few more years, that is more jobs that
are lost and you cannot get them back.
One other aspect that has the job and economics is another
issue that I think needs to be investigated before you go
further and allow more land in trust for gaming is the
environmental issue. You have a Clean Air Act. We are in West
Michigan. We have 14 counties in violation of the Clean Air
Act, and none of it is because of what we do in West Michigan.
Unfortunately, we are just a little bit east of Chicago and
Gary, Indiana, and the clean air gets spoiled here. You have a
Clean Air Act and a sovereign nation, and the 1988 act did not
include that; when IGRA was passed, you did not consider how
that would affect businesses and local communities. I really
think it is imperative that, and it is another reason that for
communities that needs to be re-looked at now.
The Chairman. Thank you.
Mr. Crosby?
Mr. Crosby. I believe you said at the outset that our
written testimony was going to be taken into the record.
The Chairman. Yes.
Mr. Crosby. I have an ad here, the Silk Group:
We are a substantial organization, an investment group with
casino and real estate interests, and are actively seeking
opportunities in the Native American casino area. We have
immediate availability of funds for investment in casino resort
development in the California area. If you are qualified with a
tribal compact and/or land in trust, please contact us for
confidential discussion of your development plans.
This was in the Desert Sun newspaper. So we are talking
about a pretty rampant situation in terms of trying to get this
money.
I would like to include it in the record if it is all
right. We have also maps and other supportive data. There are
three very, very strong articles that were in the L.A. Times
that make many of these points for us.
The Chairman. That will be included in the record. Thank
you.
Mr. Crosby. I thank you, Senator, very much for allowing me
to come. Thank you, sir.
The Chairman. Without objection, I thank the witnesses.
The hearing is adjourned.
[Whereupon, at 11 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Hon. Dale E. Kildee, U.S. Representative from
Michigan
Mr. Chairman, I want to thank you for giving me the opportunity to
submit a statement to the Senate Committee on Indian Affairs for
today's hearing on taking land into trust. I want to acknowledge one of
your witnesses from the great State of Michigan: Chairman D.K. Sprague
of the Gun Lake Tribe, an honorable man who served in our country's
combat military in Vietnam.
Mr. Chairman, like you, I am an ardent supporter of furthering the
policy of Indian self determination, providing justice to our country's
first Americans, and against the past policies of the United States
designed to terminate tribal nations and their culture.
Like so many tribes before them, the Gun Lake Tribe was a victim of
those deplorable policies. For several years the tribe fought to
reclaim their Federal status as an Indian tribe. Having petitioned the
Bureau of Indian Affairs for Federal acknowledgment in 1992, the tribe
was finally recognized through the very difficult administrative
process of the Bureau of Indian Affairs in 1999.
Even though the tribe administers Federal programs and provides
services to its citizens, the tribe still does not have a land base
over which to exercise governmental authority.
Congress passed the Indian Reorganization Act of 1934 to, among
other things, help tribes rebuild a land base on which they can build
houses for their citizens, provide employment opportunities, maintain a
justice system, and support an educational system for their children.
The Department of the Interior implements that law through its
regulations at 25 CFR Part 151.
The Gun Lake Tribe has complied with the Federal requirements for
taking land in trust. Just last week, the Department of the Interior
published a notice in the Federal Register of its intent to take 147
acres of land into trust for the tribe. The land, located in western
Michigan, is part of the tribe's aboriginal lands. In addition, the
Department of the Interior determined that the tribe meets the
requirements of the Indian Gaming Regulatory Act exception at 25 USC
2791 (b)(1)(13)(ii) that allows gaming on land acquired after October
17, 1988.
Mr. Chairman, the tribe has painstakingly complied with every
Federal law and requirement in order to achieve Federal
Acknowledgement, Land into Trust, and the opportunity to operate a
gaming facility.
I Also point out that the tribe has worked diligently at building
strong local community and governmental support.
I commend the tribe for playing by the rules we established.
Thank You
______
Prepared Statement of George T. Skibine, Acting Deputy Assistant
Secretary--Indian Affairs for Policy and Economic Development,
Department of the Interior
Good morning, Mr. Chairman and members of the committee. My name is
George Skibine, and I am the Acting Deputy Assistant Secretary for
Policy and Economic Development for Indian Affairs at the Department of
the Interior. I am pleased to be here today to discuss the role of the
Department in taking land into trust and the procedures used when the
land is for gaming purposes.
The Department manages approximately 46 million acres of land held
in trust for Indian tribes. The basis for the administrative decision
to place land into trust for the benefit of an Indian tribe is
established either by a specific statute applying to a tribe, or by
section 5 of the Indian Reorganization Act of 1934 [IRA], which
authorizes the Secretary to acquire land in trust for Indians ``within
or without existing reservations.'' Under these authorities, the
Secretary applies her discretion after consideration of the criteria
for trust acquisitions in our ``151'' regulations [25 CFR Part 151],
unless the acquisition is legislatively mandated.
The regulations, first published in 1980, provide that upon receipt
of an application to acquire land in trust the Bureau of Indian Affairs
[BIA] will notify state and local governments having regulatory
jurisdiction over the land of the application and request their
comments concerning potential impacts on regulatory jurisdiction, real
property taxes, and special assessments. In reviewing a tribe's
application to acquire land in trust, the Secretary considers the:
need; purposes; statutory authority; jurisdictional and land use
concerns; the impact of removing the land from the tax rolls; the BIA's
ability to manage the land; and compliance with all necessary
environmental laws.
The regulations impose additional requirements for approval of
tribal off-reservation acquisitions. The Secretary is required to
consider the: location of the land relative to state boundaries;
distance of the land from the tribe's reservation; business plan; and
state and local government impact comments. In doing so, the Secretary
``shall give greater scrutiny to the tribe's justification of
anticipated benefits from the acquisition . . . [and] greater weight to
the concerns raised'' by the local community the farther the proposed
acquisition is from the tribe's reservation.
When the acquisition is intended for gaining, consideration of the
requirements of the Indian Gaming Regulatory Act of 1988 [IGRA] are
simultaneously applied to the decision whether to take the land into
trust. Section 20 of IGRA does not provide authority to take land into
trust for Indian tribes. Rather, it is a separate and independent
requirement to be considered before gaming activities can be conducted
on land taken into trust after October 17, 1988, the date IGRA was
enacted into law. Specifically, Section 20 provides that if lands are
acquired in trust after October 17, 1988, the lands may not be used for
gaming, unless one of the following statutory exceptions applies:
(1) The lands are located within or contiguous to the boundaries of
the tribe's reservation as it existed on October 17, 1988;
(2) The Indian tribe has no reservation on October 17, 1988 and the
trust lands are located in Oklahoma and (i) are within the boundaries
of the Indian tribe's former reservation, as defined by the Secretary,
or (ii) are contiguous to other land held in trust ort restricted fee
status for the Indian tribe in Oklahoma;
(3) The tribe has no reservation on October 17, 1988, and ``the
lands are located . . . within the Indian tribe's last recognized
reservation within the state or states where the tribe is presently
located;''
(4) The ``lands are taken into trust as part of: (i) the settlement
of a land claim; (ii) the initial reservation of an Indian tribe
acknowledged by the Secretary under the Federal acknowledgment process;
or (iii) the restoration of lands for an Indian tribe that is restored
to Federal recognition.''
During this Administration, the Secretary has approved eight
applications to take land into trust that have qualified under these
various exceptions to the gaining prohibition contained in section 20
of IGRA. Of these eight, three were on-reservation acquisitions
(Suquamish, Picayune, and Skokomish), three were acquisition of
restored lands for restored tribes (Little Traverse Bay Band, Ponca
Tribe of Nebraska, and United Auburn of California), one was for a
newly federally acknowledged tribe under the acknowledgment process
(Nottawaseppi Huron Potawatomi), and one was for lands acquired in
trust as part of the settlement of a land claim (Seneca Nation of New
York).
Finally, an Indian tribe may also conduct gaming activities on
after-acquired trust land if it meets the requirements of section
20(b)(1)(A) of IGRA, the so-called ``two-part determination''
exception. Under section 20(b)(1)(A):
(1) Gaming can occur on the land if the Secretary, after
consultation with appropriate state and local officials, and officials
of nearby tribes, determines that a gaming establishment on newly
acquired land will be in the best interest of the tribe and its
members, and would not be detrimental to the surrounding community,
but:
(2) Only if the Governor of the State in which the gaining
activities are to occur concurs in the Secretary's determination.
Since 1988, State Governors have concurred in only three positive
two-part determinations for off-reservation gaming on trust lands: The
Forest County Potawatomi gaining establishment in Milwaukee, WI; the
Kalispel Tribe gaming establishment in Airway Heights, WA; and the
Keweenaw Bay Indian Community gaining establishment near Marquette, MI.
During this Administration, the Secretary has made two such affirmative
determinations: One for three Wisconsin tribes seeking a gaining
establishment in Hudson, WI, and the other for the Jena Band of Choctaw
seeking a gaining establishment in Logansport, LA. In both cases, the
Governors of the affected States have refused to concur in the
Secretary's determinations.
Currently, there are 11 applications for two-part determinations
under section 20(b)(1)(A) pending with the BIA for sites in New York,
Wisconsin, Michigan, California, and Oregon. Of these, only one
concerns the proposed acquisition of land in a State other than where
the tribe is currently located. However, more applications are rumored
to be in development for cross-State acquisitions, including potential
applications in Ohio, Colorado, Illinois, and New York. It is within
the context of this emerging trend that Secretary Norton has raised the
question of whether Section 20(b)(1)(A) provides her with sufficient
discretion to approve or disapprove gaming on off-reservation trust
lands that are great distances from their reservations, so-called
``far-flung lands.'' We have spent substantial effort examining the
overall statutory scheme that Congress has formulated in the area of
Indian self-determination and economic development. This includes a
careful examination of what Congress intended when it enacted Section
20 (b)(1)(A). Our review suggests that Congress sought to establish a
unique balance of interests. The statute plainly delineates the
discretion of the Secretary, limiting her focus to two statutory
prongs. Also, by requiring that the Governor of the affected state
concur in the Secretary's determination, the statute acknowledges that
in a difference of opinion between a sovereign tribe and an affected
State, the State prevails. Further, at least on its face, Section
20(b)(1)(A) does not contain any express limitation on the distance
between the proposed gaming establishment and the tribe's reservation,
nor is the presence of state boundaries between the proposed gaining
establishment and the tribe's reservation a factor.
Our review indicates that the role of the Secretary under section
20(b)(1)(A) is limited to making objective findings of fact regarding
the best interests of the tribe and its members, and any detriment to
the surrounding community. Therefore, while the trust acquisition
regulations provide broader discretion, Section 20(b)(1)(A) does not
authorize the Secretary to consider other criteria in making her two-
part determination, thus limiting her decisionmaking discretion to 3
that degree. It should be noted that neither this Administration, nor
previous ones, have ever approved a two-part determination under
Section 20(b)(1)(A) of IGRA that would authorize a tribe to engage in
gaming activities on land located in a State other than where the tribe
is presently located. Although off-reservation acquisitions for gaining
under Section 20(b)(1)(A) are subjected to a very lengthy approval
process, potential ventures between tribes and their financial partners
keep emerging because neither IGRA nor the main land acquisition
authority in the Indian Reorganization Act, or regulations promulgated
thereunder, close the door on these projects. In our view, Section 20
of IGRA reflects Congressional intent to impose a prohibition on gaming
on lands acquired in trust after enactment of the statute. Section 20
does contain a series of exceptions discussed above, but we do not
believe that it was the intent of Congress that the exceptions swallow
the rule.
In addition, there have been instances where an Indian tribe
submitted an application to take land into trust for a non-gaming
purpose, and subsequently attempted to change the use of the property
to gaming. While this practice is discouraged, it is possible because
the United States does not permit deed restrictions to be attached to
land owned by the Government, and trust lands are lands owned in fee by
the United States for the benefit of an Indian tribe. It should be
stressed that Section 20 prohibits all Indian gaining on land acquired
after October 1988, and this prohibition applies regardless of the
original purpose for which the land was acquired. Absent an exception
under Section 20(b), a tribe would still be required to secure a
favorable two-part determination including concurrence by the State
Governor in order to legally engage in Indian gaming on that land. It
is also important to emphasize that before trust land can be used for
gaming, even if acquired for another purpose, it must meet other
requirements of IGRA, which include a determination that the land in
question is ``Indian land'' over which the tribe exercises jurisdiction
and over which it exercises governmental power; receive approval of a
gaming ordinance by the Chairman of the National Indian Gaming
Commission; and receive approval of a tribal/state gaming compact by
the Secretary if the tribe is seeking to engage in class III gaining
activities on the land.
Taking land into trust is an important decision not only for the
tribe seeking the determination but for the local community the land is
located in. The regulations seek to ensure that the local community is
kept informed and allowed to participate in the process. Any community
comments received are considered before a determination is made whether
to take the land into trust. The tribe and the public are also given an
opportunity to appeal to Federal court.
In addition, the Department recognizes the growing concerns about
land venue shopping by tribes, especially for gaining purposes, and the
concerns some have expressed about efforts to take developed (or land
with development potential) land into trust. We are evaluating closely
the expansion of tribal interests in filing fee-into-trust applications
for sites ever more distant from current geographic locations or for
sites with significant implications for State and local jurisdictions.
Under 25 C.F.R. parts 151.10 and 151.11 the Department is required
to consider, when determining whether to take land into trust, whether
the BIA is equipped to discharge the additional responsibilities
resulting from the acquisition of land in trust status. The Department
is also evaluating the implications of taking land into trust on other
issues such as land fractionation. For example, the Department and
Congress have been actively engaged in efforts designed to reverse the
negative effects of fractionation on individual Indian allotments. As
such, it may be prudent to consider whether steps should be taken to
limit, or eliminate, efforts to take land into trust for individual
Indians as one additional means of preventing future fractionation.
While the Department has not made any decisions to alter the status
quo, we recognize serious concerns exist. The Department will, of
course, communicate and work with Congress and other affected parties
if significant changes are proposed for the fee-into-trust program.
This concludes my remarks. I will be happy to answer any questions
the committee may have. Thank you.
______
Prepared Statement of Michael Toledo, Jr., Governor, Pueblo of Jemez,
New Mexico
Mr. Chairman and members of the committee:
I am Michael Toledo, Jr., Governor of the Pueblo of Jemez in New
Mexico. Thank you for the opportunity to submit testimony for the
record.
The Pueblo of Jemez is located 45 miles northwest of Albuquerque in
rural northern New Mexico with a resident tribal population of
approximately 3,200 members. The Pueblo is 90,000 acres located in a
remote area near no major population centers. The Pueblo's current
reservation lands are not conducive to establishing a gaming facility
for several reasons. There are no major interstate highways traversing
the Pueblo lands and the markets for gaining by seven neighboring
Pueblos who already have gaming facilities in operation have saturated
the potential market. The other Pueblos are building hotels, golf
courses, and other amenities that would make it impossible for us to
entice people to drive by these facilities to come to remote Jemez.
Their locations are on the Interstate and much closer to Albuquerque
and Santa Fe. Our reservation is on a two-lane road. There are only
6,000 people within a 20-mile radius of the Jemez Pueblo.
We first explored whether we could open a casino on our current
lands. We were told that any type of casino would be a financial
failure. We were essentially told, ``Don't waste your time.'' To quote
the GVA Marquette Economic Feasibility Study on Gaming at the Pueblo of
Jemez, New Mexico dated August 2004: ``. . . we suggest that you seek
an alternative location.'' We also received several letters from
potential Wall Street firms who specialize in financing casino. They
confirmed that trying to open a casino on our tribal lands was an
impossibility.
In December 2004, our Pueblo filed its section 20 application for
land into trust so that we could have a casino and a revenue stream to
make possible some very basic human needs for our Pueblo. We have spent
countless hours in the development of the application. The filing of
our application was a milestone for us which represented our hope for
the future. For the first time, we have an opportunity of achieving
economic self-sufficiency.
Having recently filed our trust application, we've learned that the
existing section 20 process isn't easy. It has several, very high
thresholds. Consequently, only four applications have been approved by
the Department of the Interior and only three casinos have been built
under the process. We think the process could be improved, however. We
would welcome any steps to make the process more transparent. We would
also welcome changes to the section 20 process that make it more
deadline-driven. The BIA, the Office of Indian Gaming and other offices
involved should be given adequate time to review applications, but it
would be immensely helpful if hard deadlines for completing internal
reviews and for making decisions were part of the process.
Mr. Chairman, we are in the middle of the application process, and
even without a change in IGRA, we see the process getting harder. The
EIS requirement is one example. Since the beginning of last year, it
has been the Department of Justice's recommendation that every casino
application include an EIS regardless of the environmental impact. This
requirement imposes cost and delay not contemplated when IGRA was
enacted. It was a cost and delay that we did not fully expect when we
started our project. The EIS process is long and is an open invitation
for the opposition to abuse the process.
To our Pueblo, the off-reservation gaming provisions of the Indian
Gaming Regulatory Gaming Act [IGRA] are the ``Equal Opportunity
Provisions'' of the law. IGRA was designed to encourage better,
stronger tribal governments, self-determination and economic
opportunity. These provisions are also our best hope to meet our tribal
needs-needs that have gone unmet for decades--needs that have not been
provided funding by the Federal Government because of budget cuts. The
provisions of section 20, gives a tribe like the Pueblo of Jemez with a
remote location an opportunity to be part of the process. There is no
equal opportunity under IGRA if consideration is being given to
changing section 20.
We are a poor tribe with a remote location and with little economic
development on our reservation. Our economic development is a
convenience store with eight gas pumps on a two-lane road. Our Pueblo
is 3,200 member strong and continuously growing. The growth of the
Pueblo creates a heavy burden and puts a real strain on the Pueblo's
infrastructure such that we are unable to provide adequate governmental
services. With the recent trend in Federal budget cuts resulting in
less money being available for the tribe we have no place else to turn
but to look for opportunities like developing a casino outside our
reservation. We do not have a casino.
In designing our project, we gave careful thought to not encroach
upon the primary market of other federally recognized tribe's who are
eligible to game. We have selected a location in our home State, as
close to our reservation as possible, taking into account economic
viability for the casino. We want to game in our state, but do not want
to encroach on other gaming tribes' primary market. In order to
accommodate this objective, our proposed site is in Anthony, NM, 293
miles from our reservation. Dona Ana County is the closest population
center sufficiently large enough to support a successful casino. The
Pueblo believes that partners with similar needs and goals are the best
partners. Anthony, NM is an unincorporated area with strikingly similar
demographics, infrastructure and community needs as the Pueblo of
Jemez.
The 293 miles between the Pueblo's reservation and Anthony, NM, our
proposed site, may sound like a long distance, but the geography and
demographics should be more important than the odometer. Between the
Pueblo of Jemez and our proposed site, there is a lot of open space, a
lot of Federal land, some great ranches and farms, some oil and gas
fields, some potash mines, and very few people. It is a sparsely and
scattered population. Most of the towns are as small as the Pueblo of
Jemez, and few are larger than 20,000. Anthony is the closest location
to our Pueblo that would support a viable a casino based on our GVA
Marquette Advisers Study.
Our project enjoys tremendous local support. Our casino project
enjoys 76 percent strong support based on an objective poll conducted
in December 2004. The support for our casino is evidenced by 11,000
signatures on a petition circulated in Anthony. We found our local
community very reasonable, but not every tribe may have the same
experience. We were asked about giving a percentage of the casino
business equal to the State's share to one faction of a local group. We
were also asked to fund some unrelated pet economic development
projects of some of the people with which we met. We did neither
because we did not believe IGRA allowed it, or that the Secretary of
the Interior would approve it. We did however enter into an
Intergovernmental Agreement with Dona Ana County to pay for
governmental services that would be impacted by our proposed casino.
Coming into a community like Anthony we know that the casino would
create additional burdens for the community. Given the growing pains
that we are experiencing at our Pueblo, we felt that it was only fair
and reasonable to pay for some of these services such as police, fire
and emergency medical services. We want to be a good neighbor, and a
welcome addition to the community.
In selecting our site, we insisted upon a county that already had
gaming. Dona Ana County, New Mexico has a racetrack and slot machines.
The slot machines are often three-deep with people waiting for a turn
to play. We did not want to introduce gaming into a county that had not
already allowed it. There are 2.2 million people and 700 slot machines
in our projected market area. This compares to 786,000 people near
Albuquerque, 7 casino/resorts and 7,250 slot machines. Our market study
concluded that the Anthony, NM area was underserved for gaming.
As I am sure you remember, when Congress passed IGRA the
``cooperative federalism'' of the Equal Opportunity provisions of
section 20 were carefully crafted and designed to allow off-reservation
gaming under circumstances, if and only if, all levels of government
were consulted. Local governments are consulted to make sure there is
no local detriment. The Secretary of the Interior also has to carefully
evaluate the best economic interests of the tribe applying for the land
and the gaining. The State legislatures were given the authority to set
the general rules for entering into compacts and for gaming in the
State. Congress wisely did not give them a role in micromanaging every
application, second guessing the experts or overly politicizing the
process. This past legislative session in New Mexico a bill was
introduced to require a case-by-case approval of off-reservation
applications, second guessing the Secretary of the Interior and tying
the hands of the Governor. Your committee might consider clarifying
State legislatures' roles. Under current law the States' interests and
power to approve or not approve an application was vested with the
Governor because he represents the entire state and stands for election
among all the people not just certain special interests.
Several weeks ago the CBS affiliate in El Paso aired a special
edition on our project. I would like to make the transcript of that
video part of the record. The video link, should you like to see it, it
is available at AnthonyCasinoFacts.Com. Click on ``Latest Press
Information'' Click on ``Who are the Jemez? A Tale of Two Communities
and Two Cultures.'' There is a little video camera icon. Click on it to
watch the video.
Off-reservation gaming is an important option for Jemez Pueblo. The
Pueblo struggles with the need to bring in revenues to provide basic
governmental services ranging from health care, law enforcement, water
and sewer, housing, emergency medical services, education and others.
The tribal administration has relied heavily on Federal grants and
State and Federal appropriations to try to meet the needs of the Pueblo
in providing the essential governmental services. Even with the funds
received the Pueblo still has shortfalls. The grants and appropriations
the Pueblo receives is always decreasing sometimes not available. The
Pueblo itself has very limited financial resources.
We very carefully began this journey to open a casino and to be
able to use the revenue to help our people. Our project is justified
under current law. If there is to be any changes to IGRA as a result of
the committee's oversight hearings, we hope that you will take steps to
make sure that the processing of applications does not stop while
Congress considers legislation. We hope that you will consider an
amendment which provides that applications started under the section 20
process can be completed under that process.
Thank you for providing an opportunity for us to comment and to
tell you about our application.
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Prepared Statement Michael B. Jandreau, Chairman, Lower Brule Sioux
Tribe
I respectfully submit the following statement to the Senate
Committee on Indian Affairs with regard to the Oversight Hearing on
Taking Land into Trust. I request that my statement be made a part of
the written record.
I am Michael Jandreau, chairman of the Lower Brule Sioux Tribe. I
have been chairman for over 25 years. During my tenure I have overseen
countless land transactions and dealings involving every kind of land
possible from private non-Indian owned property within the boundaries
of our reservation to land held in trust by the Federal Government. Of
all the types of transactions, taking land into trust is by far the
most burdensome and cumbersome of all; indeed I believe that it is a
flawed process. Let me illustrate with an example that has been
plaguing our tribe for 15 years.
The reservations of South Dakota are among the poorest in the
Nation. Lower Brule, which has an unemployment rate of 30 percent is
actually considered to be one of the most prosperous in South Dakota.
One of the main reasons for the severe poverty is the Pick-Sloan water
development project, authorized by Congress in 1944 through the Flood
Control Act. As a result of this act, over 22,000 acres, approximately
10 percent of the entire reservation and our best bottom-land was
flooded. In addition, it required resettlement of nearly 70 percent of
the resident population. To date, we have still not received fair
monetary compensation from the Federal Government for the loss of this
land. Even worse are the deep spiritual and cultural losses, which can
never be repaid. Since the flooding we have struggled to spur economic
development. However, several of our attempts have proved quite
successful, including our tribal farm, which is among the most
successful of its kind.
In 1990 the Lower Brule Sioux Tribe acquired 91.7 acres of land in
Oacoma, SD. The land is where the original Lower Brule Agency was
located, is within the territorial boundaries of the original Lower
Brule Sioux Reservation, and is within the territorial boundaries of
the Great Sioux Reservation as defined by the Ft. Laramie Treaty of
1868. There is a clear and undeniable aboriginal connection to the
land. The land is also on Interstate 90, which is the main east-west
highway through South Dakota.
The tract of land is an ideal location for economic development
projects utilizing our unique culture and can serve not only our tribe,
but the entire Sioux Nation as well. The tribe is currently using the
land as the Southern Gateway to the Native American Scenic Byway, a
cultural tourism enhancement project. The Byway not only benefits the
tribes of South Dakota, but many non-Indian communities as well,
including Oacoma, Chamberlain, Ft. Pierre, and Pierre.
The tribe applied for trust status on 1990 and we are still in
limbo. Governor Janklow (R) supported our efforts to take the land into
trust as he saw it as a beneficial to all of South Dakota (see attached
letter). It is placing the land in trust, and maintaining full
jurisdiction over that land that is most important to our tribe.
In 1991 the Bureau of Indian Affairs issued a notice of intent to
take the land into trust. An appeal was filed by the city of Oacoma,
but dismissed. In July 1992 the land was taken into trust for the Lower
Brule Sioux Tribe. The city of Oacoma continued legal action, joining
with the Attorney General of South Dakota (notwithstanding the
Governor's position) in filing suite against the Department of the
Interior, citing that the Man Reorganization Act was unconstitutional,
and hence, the taking the land into trust for the tribe was
unconstitutional. In 1995 the State and Oacoma won their case. It was
vacated and remanded by the Supreme Court, and the Secretary of the
Interior was directed to reconsider his decision to put the land into
trust. On May 14, 1997 the Department published notice in the Federal
Register that the land was no longer in trust. As a result of the
decision, the rules for taking land into trust were altered. The new
rules made it easier for city, county, and State governments to delay
decisions by the Federal Government to take land into trust.
In 2000 Lower Brule reapplied for the land to be taken back into
trust and the process was repeated, with the State of South Dakota and
the city of Oacoma filing suit yet again. Currently, we are awaiting
another decision from the Eight Circuit. We intend to take whatever
steps are necessary to see that this land once again becomes part of
the Lower Brule Sioux Reservation. The process has dragged on for 15
years, through multiple Administrations and Congresses. Something must
be done.
The entire land into trust process must be scrutinized and changes
made accordingly. I would propose the following changes, which would
serve to expedite the process and make relations between various
parties more amicable.
\\\\\\Procedural Timelines: Currently, there are no
timelines for the Department to issue decisions concerning land
into trust applications. Reasonable timelines should be set by
Congress so that the process does not go on indefinitely.
\\\\\\Report to Congress: The Congress should require the
Department to send to Congress an annual report on the status
of all pending trust applications. Perhaps this attention would
serve to expedite the process.
\\\\\\Arbitration: When a land into trust application is
challenged the Department should be required to bring together
all parties for arbitration consistent with treaty rights,
principles of sovereignty and the unique Federal-tribal
government-to-government relationship.
I applaud the committee's leadership and hard work in taking on
this very important issue, and I hope that it becomes more of a
priority. I am confident that with your leadership Mr. Chairman and
Ranking Member Senator Dorgan that land into trust issues will be
addressed in a thoughtful and meaningful manner and that will be fair
to all parties involved. I stand ready to assist the committee in any
way possible.
Thank you for the opportunity to share my thoughts with the
committee.
______
State of South Dakota,
December 15, 1998.
Hon. Bruce Babbitt,
Secretary, Department of the Interior,
Washington, DC.
Dear Mr. Secretary: The Lower Brule Sioux Tribe currently owns 92
acres of land in Oacoma, SD. The tribe has asked you to take this land
into trust.
Based upon their new business plan and assurance that the tribe
will not conduct gaming at this location, we are pleased to support the
tribe's application for trust status.
Sincerely,
William J. Janklow, Governor
______
Prepared Statement of Santa Ynez Valley Concerned Citizens,
Preservation of Los Olivos, and Preservation of Santa Ynez
Mr. Chairman and members of the committee, thank you for the
opportunity to submit this testimony on the important subject of the
legal requirements and procedures for decisions by the Bureau of Indian
Affairs [BIA] on taking land into trust for Indian tribes. This is an
issue that has generated considerable controversy throughout the Nation
for many years, and it recently has become a significant issue in our
local area. The problems with the trust land acquisition process are
being brought home to the Santa Ynez Valley as a result of the actions
of the Santa Ynez Band of Chumash Indians. As discussed in our
testimony, the problems we are currently confronting in the Valley are
the direct outgrowth of the lack of adequate legal controls over the
procedures used to consider trust land acquisition requests and the
criteria that govern BIA decisions. We are grateful for this
Committee's timely consideration of the trust land acquisition issue,
and we pledge our support and cooperation to your efforts to bring
reform to the tribal trust land process.
The three organizations submitting this testimony, Santa Ynez
Valley Concerned Citizens, Preservation of Los Olivos, and Preservation
of Santa Ynez, have been established in recent years in response to
concerns regarding the manner in which tribal activities could affect
the environment and quality-of-life in the Santa Ynez Valley. In 2004,
our organizations became focused on the way that the tribe was seeking
to use the trust land acquisition process to develop land in Santa Ynez
Valley in contravention of the local land use plans. Our organizations
are comprised of residents, businesses and environmental interests
united in the goal to protect the Santa Ynez Valley from unfettered
tribal development.
The tribe has already engaged in considerable development activity
in Santa Ynez Valley. It currently possesses approximately 111 acres of
designated reservation land on which is constructed a highly successful
190,000 square-foot casino. The casino houses 2,000 slot and video
machines, 40 table games, 14 poker rooms, a bingo room seating 1,000
patrons, four restaurants, and a gift shop. In 2002, the Chumash
Indians financed a $150-million expansion of its casino and hotel,
which was completed 1 year ago and is open for operation. The tribe
also operates an oversized, expandable wastewater treatment plant
capable of handling significant additional development.
As the tribe itself has acknowledged, in the very short period of
time the Chumash Casino has been open, it has become economically self-
sufficient. In fact, each tribal member reportedly receives $360,000
annually from casino revenues. The tribe has been able to use casino
revenues to support the Chumash tribal government, an education program
paying for a portion of members' education beyond high school, a health
clinic, and numerous other tribal purposes.
Despite this high degree of success, the tribe continues to request
to have more land placed in trust for development. In January of this
year, BIA announced its intent to accept 6.9 acres of land in trust.
This land is located outside of the reservation boundaries, and it is
supposed to be used for a commercial retail facility, parking lot,
offices, and museum/cultural center. Our organizations decided to
appeal the BIA decision because of numerous factors, including the
other development plans which the tribe appears to be submitting to the
BIA in a piecemeal manner. The BIA ignored the concerns expressed by
our organizations and others regarding the tribe's plans for
development, including our request that the BIA facilitate the
development of a cooperative agreement between the county and the Tribe
to protect local interests.
Within a few months of the BIA's decision on the 6.9-acre parcel,
the tribe filed another request to have an additional 5.8-acre parcel
of land placed in trust immediately adjacent to the 6.9-acre parcel.
The reason for this trust acquisition is not clear, since the tribe
indicated on its application that it does not intend to change the use
of the land in any way. A look at a map suggests that the tribe is
attempting to connect all of these and possibly other parcels to
establish a contiguous stretch of trust land free from local control.
It also may be trying to connect its current reservation to a large
tract of property it seeks to develop with a local landowner, Mr. Fess
Parker.
Over the last year, the tribe has engaged in negotiations with Mr.
Parker to acquire an additional 745-acre parcel located about 1.5 miles
from the 6.9-acre parcel and almost 2 miles from the tribe's
reservation. In those negotiations, the tribe planned to develop this
large, and exceptionally beautiful, tract of land cooperatively with
its current owner, Mr. Parker, has a luxury housing development, two
golf courses, and other commercial development. Mr. Parker proposed the
plan to the tribe because he had for years been unable to develop the
land commercially himself due to existing and accepted county land use
restrictions. By having the land placed in trust, Mr. Parker and the
tribe can evade local land use restrictions, which currently designate
the land for rural uses only. In addition, there also may have been a
plan under consideration to build a casino on this property. If that is
the case, having the land connect to its reservation could possibly
allow the tribe to evade other review requirements under the Indian
Gaming Regulatory Act [IGRA]. The current status of their plans for the
Parker parcel is unclear.
Regardless of whether the tribe intends to develop another casino
on Mr. Parker's land, its efforts to acquire additional land in trust
are undermining the land use plans in the Valley and will adversely
impact the environment and quality of life in the region. We do not
believe that Congress ever intended for the trust land process to
become an evasion of community land use or environmental rules that
would otherwise be applicable. In particular, we are concerned with the
tribe's apparent desire to add parcels together that it argues are
``contiguous'' to each other to gain the benefit of more permissive BIA
trust acquisition standards for such properties. Rather than reveal its
overall plans, the tribe appears to be following a pattern of simply
adding one parcel to another, piece-by-piece, in a gradual effort to
expand its trust lands without ever undergoing full disclosure or
review. Further, the Chumash request to have land placed in trust for
no apparent reason would establish dangerous precedent to allow a
successful tribe to take advantage of a process intended to help
economically disadvantaged tribes attain self-sufficiency and effective
self-governance.
The factual situation described above demonstrates the problems
with the BIA's approach to trust land acquisition. The procedures and
standards for making decisions on trust land requests are weak and
ineffective, and they do not provide an adequate role for public
participation. The combined effect of these deficiencies is to make it
possible for tribes to have land removed from State and local control
and taxation to the detriment of local communities without adequate
justification or public interest review. Each of the principal problems
with the trust land process is discussed below.
Need for Clear Standards. The current BIA trust land acquisition
regulations are set forth in 25 C.F.R. Part 151. These standards
predate the Indian gaming era that came into effect in 1988 with the
enactment of the Indian Gaming Regulatory Act [IGRA]. With the
establishment of Indian casinos and the generation of incredible wealth
for some Indian tribes, the potential for abuse of the trust land
process has grown significantly. When the regulations were first
promulgated, it was generally the case that tribes would seek to have
land taken into trust for the purpose envisioned under section 5 of the
Indian Reorganization Act of 1934 [IRA], where the statutory authority
comes from. These were circumstances where additional land was truly
needed by a tribe to achieve governmental and economic self-
sufficiency. The regulations appear to have been generally adequate for
evaluating most trust land requests in that context. Indian gaming has
changed all that, however, because not only do many tribes now have the
financial wherewithal to buy virtually any land in any place for any
purpose, there is strong incentive to add to the wealth generated by
Indian casinos by taking more land into trust, escaping the
requirements of local land use planning which may prohibit casino-
related development, and avoiding the need to pay any taxes or other
government fees on the use of that land. This is a virtual bonanza for
casino interests and developers. The problems presented by a procedure
that allows sovereign tribal governments and their developer partners
to escape all state and local regulation become even more apparent when
real world situations are considered, as demonstrated by the situation
we now confront in the Santa Ynez Valley.
The problem with the current regulations is that they are far too
general and vague. There are seven criteria under the BIA regulations
in 25 C.F.R. Part 151 for taking land into trust, and only three of
these--purpose of trust land request, tribal need for putting land into
the status, and impact on local governments--are of any real
significance. Unfortunately, the regulations do not spell out in any
way what these standards mean, and the BIA has developed no useful
guidance over the years on how to apply them.
It has been over 70 years since Congress addressed the
circumstances under which land should be taken into trust as a general
proposition through the IRA. It is now time to revisit that question by
providing specific standards as to the acceptable purposes for taking
land into trust, the circumstances under which tribal need can be
demonstrated, and how the concerns of local governments, and the
represented public, would be taken into account.
In this regard, we believe it is particularly important to return
to the basic purposes of land in trust. The purpose of the IRA was ``to
rehabilitate the Indian's economic life and to give him a chance to
develop the initiative destroyed by a century of oppression and
paternalism.'' H.R. Rep. No. 1804, 73d Cong. 2d Sess., 1 (1934). The
act encouraged ``tribes to revitalize their self-government through the
adoption of constitutions and bylaws and through the creation of
chartered corporations, with power to conduct the business and economic
affairs of the tribe'' so that ``a tribe taking advantage of the act
might generate substantial revenues for the education and the social
and economic welfare of its people.'' Mescalero Apache Tribe v. Jones,
411 U.S. 145, 151 (1973).
These principles should continue to apply. In circumstances such as
those we are confronting in the Santa Ynez Valley, wealthy tribes that
have achieved an extraordinary level of success and economic self-
sufficiency should not be able to apply to have land taken into trust
for vague and generalized purposes such as self-determination and
consolidation of land holdings. At the very least, when such
circumstances exist, Federal law should prohibit land from going into
trust unless the tribe involved has entered into an inter-governmental
agreement with the affected local government that provides for
consistency with local standards and ensures that compensation is
provided to cover the impacts associated with the development that is
likely to occur on such lands. Most importantly, such agreements must
be required to include a waiver of sovereign immunity and an agreement
on judicial enforcement. They also should be subjected to public
review. Unless standards such as this are developed, there will be no
limit on placing land into trust; tribes will always be able to meet
the test, and local community interests will be lost.
Limitation on Development to Proposed Uses. Another major problem
with the trust land acquisition process is that it does not impose
limitations on the use that can be made of such land once it is taken
into trust. As a result, there is strong concern that tribes will
identify one purpose, or claim only a very general intent for the use
of such land, until the trust land decision is made. Then, once the
land is in trust, the tribe will change its use to something entirely
different that is objectionable to the local community, violates local
standards, and should have been the subject of far more detailed
Federal environmental review.
The Federal Government takes the position that it cannot impose
deed restrictions on land titles held by the United States. While we do
not necessarily agree with this concern, such a problem can be readily
addressed by Congress in the context of trust land acquisition. We
believe it is critically important that tribes be held to their
intended uses of the land that serve as the basis for BIA and public
review.
Improved Public Review. The current trust land process does not
provide for adequate public review. As demonstrated by the strong
public controversy over many trust land requests, the effect of such
action by the BIA has a very strong impact on local communities. Yet,
BIA regulations have no provision that provides for public comment,
they only provide for local governments with jurisdiction over the
subject lands to submit information on tax loss and jurisdictional
conflicts. The only way public comment occurs is through related legal
requirements, such as the National Environmental Policy Act [NEPA].
When tribes develop proposals that are not addressed through a NEPA
process involving public comment, such as an EIS, then there is no
opportunity for such input at all.
We currently are confronting such a situation in the Santa Ynez
Valley, where the Chumash Band is seeking to have the 5.8-acre parcel
taken into trust on the theory that there will be no change in land
use. Obviously, a parcel of land in this location, in a prime
commercial location, will not go undeveloped. Yet, by arguing for no
change in use the tribe could make an effort to avoid NEPA review
entailing public comment. The California Environmental Quality Act does
not apply because there is no State action. Obviously, any Federal
decisionmaking process is improved by public input, especially one that
has such a significant impact on local communities. The BIA trust
acquisition process must be reformed to provide expressly for such
public comment.
BIA Trust Land Checklist. The practice of BIA to avoid public
review is amply illustrated by the recently released ``Trust Land
Acquisition Checklist.'' This checklist contains numerous provisions
that are of concern to the public. It is focused primarily on trust
land acquisitions in the gaming context, and includes things such as
geographic limitations on the applicability of the critically important
section 20 of IGRA, which prohibits gaming on post-1988 trust land
except in narrow circumstances. The checklist also covers issues such
as procedural limitations on how consultation under section 20 would
occur, definitions of what constitutes gaming on contiguous lands, and
other very important provisions. Many of these provisions are of
considerable concern to us, yet BIA unilaterally issued this checklist
as internal guidance to govern its actions and public involvement in
trust land reviews without even seeking outside comment. Indeed, many
of these provisions were included in proposed regulations issued in the
past. This demonstrates that the provisions of a checklist qualify as
rulemaking, yet the BIA has simply forged ahead in issuing this
guidance on trust land issues of great importance to the public without
any notice or comment.
The Need for Intergovernmental Agreements. Experience has
demonstrated that many of the concerns associated with trust land
acquisition can be addressed through the development of inter-
governmental agreements between tribes and local communities. There is
a strong record in this regard, and the possibility of such an
agreement being developed in the Santa Ynez Valley for the 6.9-acre
parcel is now under consideration. Our organizations strongly support
the use of such agreements, provided they are developed with adequate
public input, fully address local concerns, and are made enforceable in
the appropriate court through waivers of sovereign immunity. We
understand that the BIA generally supports the use of this approach,
but far more needs to be done to develop these agreements and support
their use. The BIA should be playing a more active role and encouraging
parties to trust land disputes to pursue such agreement, and it should
be developing prototype agreements that contain the provisions which
are typically necessary for things such as sovereign immunity waivers.
Successful use of intergovernmental agreements can help avoid trust
land conflicts, and BIA should play a leading role in promoting their
use.
It is clear that the trust land acquisition process is broken. The
situation that is now emerging in the Santa Ynez Valley is a perfect
example of this problem. Unfortunately, we do not believe that the BIA
is doing enough to solve these problem areas. We encourage the
committee to become actively involved in this issue and to use
circumstances such as those occurring in the Santa Ynez Valley as the
basis for oversight and reform. Thank you for considering these
comments, and please let our organizations know what they can do to
assist in your review and reform efforts.