[Senate Hearing 109-92]
[From the U.S. Government Publishing Office]




                                                         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











                                                         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
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                      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

                              ----------                              
                                                                   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

                              ----------                              


                        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.

                                 
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