    [Senate Hearing 109-50]
    [From the U.S. Government Publishing Office]

                                                      S. Hrg. 109-50, Pt. 3

                                     GAMING

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

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                       ON

     OVERSIGHT HEARING ON LAND ELIGIBLE FOR GAMING PURSUANT TO THE INDIAN
                             GAMING REGULATORY ACT

                                   __________

                                 JULY 27, 2005
                                 WASHINGTON, DC

                                   __________

                                     PART 3

                                   __________

                        U.S. GOVERNMENT PRINTING OFFICE
    22-848                      WASHINGTON : 2006
    _____________________________________________________________________________
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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:
        Barnett, John, chairman, Cowlitz Indian Tribe................    28
        Coleman, Penny, acting general counsel, National Indian
          Gaming Commission..........................................    13
        Dorgan, Hon. Byron L. U.S. Senator from North Dakota, Vice
          Chairman, Committee on Indian Affairs......................     2
        Enyart, Charles D., chief, Eastern Shawnee Tribe of Oklahoma.    30
        Gray, Walter, tribal administrator, Guidiville Band of Pomo
          Indians....................................................    24
        McCain, Hon. John, U.S. Senator from Arizona, chairman,
          Committee on Indian Affairs................................     1
        Norris, Christine, principal chief, Jena Band of Choctaw
          Indians....................................................    26
        Skibine, George, acting deputy assistant secretary, Policy
          and Economic Development for Indian Affairs, Department of
          the Interior...............................................     9
        Vitter, Hon. David, U.S. Senator from Louisiana..............     3
        Voinovich, Hon. George V., U.S. Senator from Ohio............     6

                                    Appendix

    Prepared statements:
        Barnett, John................................................    44
        Coleman, Penny...............................................    42
        Enick, Jerry Kanim, tribal chief, Snoqualmie Tribe...........    50
        Enyart, Charles D. (with attachment).........................    53
        Gray, Walter (with attachment)...............................    71
        Hillaire, Darrell, chairman, Lummi Indian Nation (with
          attachment)................................................   124
        Inouye, Hon. Daniel K., U.S. Senator from Hawaii.............    41
        McGowan, Mike, chairman, Indian Gaming Working Group,
          California State Association of Counties (with attachment).   187
        Norris, Christine (with attachment)..........................   204
        Skibine, George (with attachment)............................   225
        Vitter, Hon. David, U.S. Senator from Louisiana..............   234
        Voinovich, Hon. George V., U.S. Senator from Ohio (with
          attachment)................................................   241
    Additional material submitted for the record:
        Lindsay, Barbara M., national director and spokesperson, One
          Nation United, (letter)....................................   248
        Schmit, Cheryl A., director, Stand Up For California (letter
          with attachment)...........................................   254

                                     GAMING

                                  ----------

                            WEDNESDAY, JULY 27, 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 Smith.

       STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
                 CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

        The Chairman. Good morning. This hearing is the third
    oversight hearing held by the committee into the implementation
    of the Indian Gaming Regulatory Act. That act has been very
    successful for many tribes, yet it has not been without
    controversy or challenge, as our hearings have shown.
        Among the issues that have been both controversial and
    challenging are the determinations of what Indian lands are
    eligible for gaming. 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 exceptions to that ban if the
    Secretary and Governor agree after making certain findings;
    also for three specific situations: Settlement of land claims,
    tribes that are newly acknowledged by the Department of the
    Interior, and tribes that are registered to recognition.
        When IGRA was drafted, notions of fairness led to
    considerations for those tribes who, through no fault of their
    own, lost lands or were not recognized by the Federal
    Government prior to 1988. However, in recent years this
    committee has been made aware of attempts by some tribes and by
    some non-Indian developers to expand the use of these
    exceptions in ways not contemplated when IGRA was enacted.
        Recognition of tribes and the creation, restoration or
    recovery of reservation lands are significant events to Indian
    and non-Indian communities. When coupled with the establishment
    of a gaming facility, the impacts to the affected communities
    are even greater and the need for clarity in the law is
    especially important. It is time this committee reviewed the
    uses of these exceptions to determine if they are meeting their
    intended purpose.
        Senator 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.
        I think we all agree that Indian gaming has grown very
    substantially. It has become a very big success for many Indian
    tribes. They have generated over $18 billion of revenue from
    gaming, employed over 200,000 people. There are Indian
    reservations in this country that have substantially reduced
    their unemployment as a result of gaming activities. I will not
    go through the list, but I think there is no question but that
    there are substantial benefits.
        The opportunities for Indian tribes to locate gaming
    activities near large population centers is certainly something
    that tribe aspire to do to the extent they can. We know that
    the success in many cases of Indian gaming is primarily
    determined by location. We know that there are some very large,
    extraordinarily successful operations, Foxwoods and Mohegan Sun
    come to mind, and then many other smaller gaming facilities. In
    my State there are I believe five, all located in generally
    rural areas, but nonetheless still providing significant jobs
    for members of the tribes.
        The exceptions in IGRA, the three exceptions that we will
    primarily talk about today are expressly for tribes whose lands
    were illegally taken, whose governments were wrongfully
    terminated, or who are just establishing their government-to-
    government relationship with the our country. The exceptions
    are intended to correct some of the many injustices that have
    been bestowed upon Native people. I believe there is a need for
    these exceptions. I support these exceptions and the need to
    correct these injustices.
        But I do not believe that tribes should use the IGRA
    exceptions to place itself in a better position than had the
    injustices not occurred. By that, I mean a tribe historically
    located in the Adirondack Mountains, for example, should not
    now be able to use an exception to acquire land and open a
    casino in downtown Manhattan. I wonder about some of the
    stories you hear about some tribes willing to settle very large
    land claims for mere acres in a metropolitan acre or resort
    area. So that is the issue I raise with respect to the use of
    the exceptions.
        Once again, IGRA provides a mechanism for those tribes
    seeking to obtain more economically viable lands, but this
    mechanism is burdensome. It requires local input, gubernatorial
    support. It is still the proper mechanism to be used in certain
    cases, and I think this particular hearing will give us the
    opportunity to learn about the use of the IGRA exceptions and
    about whether any changes need to be made.
        I think this hearing is an important discussion about a
    significant piece of Indian gaming because we see these
    pressures all around the country now to find ways to locate
    gaming facilities in the middle of major population centers.
        Mr. Chairman, thank you very much. I am anxious to hear
    from the witnesses.
        The Chairman. Thank you very much.
        We are pleased to have with us Senator David Vitter, our
    colleague from Louisiana. Please proceed.

      STATEMENT OF HON. DAVID VITTER, U.S. SENATOR FROM LOUISIANA

        Senator Vitter. Thank you, Mr. Chairman and Mr. Vice
    Chairman. Thank you for holding this hearing.
        I am really pleased to be here today to express my concerns
    about the proliferation of, in particular, off-reservation
    Indian casino gambling. It is an issue that directly affects my
    home State of Louisiana, but it is also clearly a national
    issue as well, as both of you have pointed out. Thank you for
    inviting me to testify.
        In 1988 when Congress passed IGRA, gambling on Indian
    reservations was a very small industry. At the time, virtually
    no one could foresee the future growth of class III casino-
    style gambling or that it would become an $18 billion a year
    industry, with 400 casinos in 30 States. Now, that in and of
    itself does not mean there are problems with the law, but I do
    think there are problems with the law that are being unfairly
    exploited, and you all have alluded to some of those
    possibilities.
        My testimony will mention several problems that my
    legislation addresses: But the biggest concern is the need to
    discourage the recent trend known as ``forum shopping'' or
    ``reservation shopping'' by Indian tribes. That is the
    troubling practice, on the part of a growing number of tribes,
    of selecting land to which the tribes have little or no
    connection for the sole purpose of building casinos at the most
    economically advantageous location.
        As widely reported in the press, various tribes are now
    attempting to claim rights that would allow them to engage in
    gambling operations in States where they have no reservation or
    trust land status. Tribes making such claims include landless
    tribes, as well as tribes with an existing reservation.
    Affected States include many, including California, Illinois,
    Ohio, Colorado, Oregon, New York, New Mexico, and Louisiana.
        Allow me to quickly summarize of some of these
    developments. In California, by one account as many as 40
    tribes are pursuing off-reservation gambling proposals there
    alone. California is a State which is already home to
    approximately 55 Indian casinos. I commend the members of this
    committee for recently approving, by a bipartisan 10 to 3 vote,
    a measure authored by our colleague, Senator Dianne Feinstein,
    which would make it more difficult for one California tribe to
    proceed with an off-reservation casino.
        In Ohio, where there are no federally recognized Indian
    tribes, the Eastern Shawnee Tribe of Oklahoma is trying to open
    casinos in multiple Ohio locations. The tribe is pushing its
    casino proposals with help from non-Indian investors--against
    the wishes of many folks in Ohio. The tribe has sued the State
    to seek reparations for tribal lands in Ohio that were taken
    170 years ago.
        New York offers another example of possible forum shopping.
    There, several out-of-State tribes and additional in-State
    tribes have attempted to negotiate for casinos in the Catskill
    area to settle land claims. And of course, Louisiana, my home
    State, provides yet another possible example of where a tribe
    has engaged in forum shopping, that is the Jena Band of
    Choctaws, who you will hear directly from later today. The Jena
    Band attempted to take land into trust for gambling purposes in
    an area of my State that is outside of its traditional service
    area.
        I think the history of the Jena Band's action is
    instructive. I just use it as an example. There are plenty of
    examples, but this is an example with which I am very familiar.
    The Jena Band has been rejected in its pursuit of land for
    casinos in two counties in Mississippi. It made a number of
    applications for land across Louisiana. It may have considered
    land in Texas as well, I understand.
        I am concerned about this forum shopping. The Jena Band
    first received Federal recognition in 1995; and after receiving
    that recognition, the tribe courted the Rapides Parish Police
    Jury which is basically the county government, in July 1996,
    with promises to pay them up to 6 percent of the net profits
    made off the proposed casino.
        However, then-Louisiana Governor Mike Foster opposed these
    attempts and refused to negotiate a compact. The Jena Band
    actually filed a lawsuit in an attempt to force the Governor to
    negotiate, but the judge threw out the lawsuit in December
    1996.
        The Band then courted the Natchitoches Parish Police Jury
    in 1998, offering them 50 percent of its ``planned local
    monetary contributions.'' That was unsuccessful. Then they
    reached out to Mississippi, actually, and were rejected by two
    counties there in 2001, Greene and Tishomingo. Mississippi's
    Governor stated he would refuse another Indian casino in
    Mississippi. So the Jena looked back to Louisiana; and, in
    October 2001, on hearing that the Jena might be looking to
    their parish, the Sabine Parish Police Jury passed a resolution
    declaring their opposition to a casino.
        After that, the Jena Band and former Governor Foster then
    quietly negotiated a compact centered on the town of Vinton in
    Southwest Louisiana and sent it to the Bureau of Indian Affairs
    [BIA] for approval in January 2002. There was a real outcry
    about that, particularly in the local area. Several leaders
    joined in that outcry, including myself, Congressman Jim
    McCrery, Congressman Chris John, and Senator Mary Landrieu, as
    well as 30 other members of the U.S. Congress. The BIA rejected
    that proposed compact on March 7, 2002.
        The Jena Band has argued that it has the ability to force a
    State into agreeing to a gambling compact, circumventing the
    State process designed by Federal law and instead working
    directly with the U.S. Department of the Interior. The current
    Governor of Louisiana opposes the expansion of casino gambling
    in our State, and even the suggestion that the Federal
    Government would ever force States to accept casinos they
    oppose is very troubling. That is another distinct issue I
    address in my bill.
        In June, I joined my colleague, Senator George Voinovich,
    who is here as well, and other members of the Senate in
    offering a floor amendment to ensure that Governors of affected
    States will have input when decisions are being made to take
    land into trust on behalf of Indian tribes for gambling
    purposes. This amendment was endorsed by the National Governors
    Association, but we did not call for a vote on the Voinovich
    amendment due to jurisdictional concerns of this committee.
        That amendment actually complements a bill I introduced in
    June, and I want to spend just a few minutes outlining that
    bill. It is titled the Common Sense Indian Gambling Reform Act
    of 2005, S. 1260. It is a nearly identical companion to a House
    measure introduced by Congressman Mike Rogers of Michigan, H.R.
    2353. Our legislation does not specifically target any
    particular tribes. Rather, it proposes seven reasonable
    reforms, which I have alluded to, to current Federal law
    related to Indian gambling.
        First, the bill we introduced would require that an
    economic impact study be conducted in an area within a 60-mile
    radius of a proposed new Indian casino. The rationale for
    requiring such a study is to ensure that we fully understand
    the effect of a proposed new casino on all surrounding
    communities.
        Second, the bill we introduced calls for more local input.
    The bill we introduced will eliminate several existing
    exceptions to the existing ban on Indian casino gambling under
    IGRA, thereby ensuring that Federal officials must consult with
    officials of all potentially affected State or local
    governments, or other Indian tribes, before making what is
    known as their two-part determination with respect to a
    proposed Indian casino. Striking these exceptions would simply
    ensure that State and local input is garnered and honored.
        Third, the bill we introduced would ensure an enhanced role
    for State legislatures. The measure requires State
    legislatures, as well as each Governor, to concur in the two-
    part determination. I mentioned just now. The bill would
    enhance the role of State lawmakers in conjunction with the
    Governor.
        Fourth, under this bill, off-reservation casinos would be
    virtually rendered impossible. Our bill effectively precludes
    Indian tribes from proposing new casinos on land to which the
    tribes have little or no connection. It does so by imposing
    these conditions. First, an Indian casino must be on a single
    contiguous parcel of Indian lands for a casino; and second, the
    casino must be within the State in which the tribe is primarily
    located and on land to which the tribe has its primary
    ``geographical, social and historical nexus.''
        Fifth, the bill we introduced calls for additional
    background checks. The bill would clarify that any financial
    top-10 interest involved in opening an Indian casino operation
    will be subject to normal background checks and that the
    National Indian Gaming Commission would approve all top-10
    financial arrangements and would perform the background checks.
        Sixth, the bill we introduced would require that tribes
    declare an intent to gamble when initially making an
    application for land, and that declaration would be binding in
    the future.
        Seventh, the bill would require that a tribe submit a new
    environmental impact statement to the Secretary of the Interior
    if the tribe changes the use of its land from non-gambling or
    general purpose to a gambling purpose.
        As I said, this I think is a widespread and growing set of
    concerns in the Nation and in the Congress. I thank so many
    others of my colleagues, including Senator Voinovich here, and
    Senator Feinstein for joining in this national effort. I look
    forward to working with you, Mr. Chairman, you, Mr. Vice
    Chairman and this entire committee in developing and refining
    legislation in this area. I would urge my colleagues to join us
    in enacting these sensible reforms.
        Thank you very much.
        [Prepared statement of Senator Vitter appears in appendix.]
        The Chairman. Thank you very much.
        Senator Voinovich, welcome.

     STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR FROM OHIO

        Senator Voinovich. Thank you, Mr. Chairman. I want to thank
    you and Senator Dorgan for having this hearing. Mr. Chairman, I
    appreciate your keeping your word to me when I wanted to amend
    the Interior Appropriations bill that if I backed off from it
    that you would hold a hearing. You are a man of your word.
    Thank you very much.
        Senator Vitter has done a good job of defining the problem,
    and that it is not just a problem in Ohio or in Louisiana, but
    it is a problem that we have throughout the United States of
    America. I can tell you, it is becoming a real problem in my
    home State of Ohio. Currently, there are over 400 tribal
    casinos in 30 States. The tribes who run these casinos have
    seen a substantial financial benefit to their tribes. Last
    year, the annual revenue of Indian casinos had grown to almost
    $19.5 billion. With the continued expansion of Indian casinos,
    that annual revenue will continue to grow.
        To build on this financial success of tribal casinos, some
    Native American tribes are aggressively seeking to take
    gambling off reservations and into local communities all across
    the United States. In this practice, commonly referred to as
    reservation shopping, tribes are looking to acquire new non-
    contiguous land to open casinos near large communities or next
    to major roads with easy access.
        A loophole in the law that regulates Indian gaming, the
    Indian Gaming Regulatory Act, allows the Department of the
    Interior to take land into trust for a tribal casino, even at
    great distances from their home reservation. While some casinos
    on tribal reservations have been very successful, many
    reservations are located in rural areas at great distances from
    population centers. These tribes are looking at lands hundreds
    of miles away from their reservations and near population
    centers like Cleveland, Chicago, Miami, and the Bay Area of
    California.
        In early 2003, a tribe secretly began courting communities
    in Ohio with the lure of financial gain from casinos. Since
    then, agreements have been reached between the tribe and four
    separate mayors in our State to site casinos in their
    communities under the pledge that a casino complex would bring
    new jobs and increase their tax base. All of this has been done
    without any land claims filed or any determination in terms
    that the claims would be successful.
        The Eastern Shawnee and the developers behind their casino
    plans are so confident that they can pull off their land claim
    that they are garnering political support for casinos. Last
    month, the Eastern Shawnee Tribe of Oklahoma filed a land claim
    in Federal court for the rights to 146 square miles of land and
    hunting rights to 4 million acres of land throughout the State.
    To put this in perspective, Mr. Chairman, 146 square miles is
    almost the size of Cleveland and Cincinnati combined. This
    claim is filed against the State of Ohio, 36 counties in the
    State and a number of cities and private landowners.
        As indicated in this article from the Columbus Dispatch,
    the Eastern Shawnee's lawyer has stated that the tribe will
    drop the land claim in exchange for the right to put casinos in
    these communities throughout the State. Mr. Chairman, I ask
    unanimous consent that this article be made part of the record.
        The Chairman. Without objection.
        [Article appears in appendix.]
        Senator Voinovich. The Eastern Shawnee and the groups
    financing their efforts in Ohio are clearly blackmailing the
    State and they are not even being subtle about it. The reality
    here is that they were looking at location and then looking at
    the legality of bringing a casino into my State after that. By
    filing this claim, the Eastern Shawnee Tribe is exploiting
    loopholes in existing Federal law.
        The Indian Claims Commission Act of 1946, which was created
    expressly to resolve land claims against the Federal
    Government, required that any claims be filed within 5 years of
    enactment. Because the tribe is now precluded from suing the
    Federal Government, they are now suing the State.
        The Eastern Shawnee was successful in pursuing a claim
    against the Federal Government in the Indian Claims Commission.
    In the 1970's, the commission concluded that claims against the
    Government were valid and Congress appropriated funds to pay
    these claims.
        Mr. Chairman, I respectfully request that as you develop
    legislation in your committee, you consider that tribes are now
    using land claims against State and local governments, as well
    as private landowners as leverage for casinos. The real goal
    behind this land claim is to site casinos, not to seek
    financial restitution.
        As you consider this, also consider the need to strengthen
    IGRA to specifically prohibit tribes from moving across State
    lines, hundreds of miles from their reservations. Clear
    language such as this would prevent frivolous lawsuits such as
    the one that we are experiencing now in the State of Ohio.
        Another loophole the Eastern Shawnee is taking advantage of
    is the ambiguity of how the provision in the Indian Gaming
    Regulatory Act which determines which gambling activities are
    permitted. As you know, IGRA defines casino-style gambling as
    class III, which includes slot machines, blackjack, craps,
    roulette, some lotteries, and parimutuel racing. This class of
    gambling activity on Indian lands can only be ``located in a
    State that permits such gaming for any purpose by any person,
    organization or entity.'' It is unclear whether this means that
    the statutory language should be read and applied in a class-
    wide or categorical sense, or whether it should be read and
    applied on an activity-by-activity basis.
        District and Circuit Federal Courts have both considered
    this question. In 1991, a district court in Wisconsin ruled
    that if a State permits one type of class III gaming, then all
    other types of class III gaming can be conducted in that State
    under IGRA. On the other hand, in 1993 and 1994, the Eighth and
    Ninth Circuit Courts of Appeal construed the language of IGRA
    to mean that class III gaming in a particular State is limited
    under Federal law to the specific activities that are permitted
    under the State's laws.
        Earlier this month, the 10th circuit revealed that these
    uncertainties continue by finding in favor of the Northern
    Arapaho Tribe who want to build a casino in Wyoming. Gambling
    is illegal in the State of Wyoming except for social and
    charitable gambling. In this instance, the tribe contended that
    it is entitled to offer full casino-style gambling on its
    reservation because the State allows casino-style activities
    for social and nonprofit purposes.
        In Ohio, gambling for commercial purposes is prohibited by
    the State Constitution. However, parimutuel racing and lottery
    are both permitted, as well as charitable gambling on a very
    limited and controlled basis. The Eastern Shawnee and the
    developers they have partnered with recognize this ambiguity in
    existing Federal law. In order to address this loophole, I will
    be introducing legislation today that clarifies congressional
    intent that the provisions of IGRA which permit class III
    gambling only apply on an activity-by-activity basis and do not
    permit the full gamut of gaming.
        Mr. Chairman, I respectfully request that you hold a
    hearing on the questions that are raised by the ambiguity in
    the law and that you consider my bill as you develop
    legislation to address the unintended consequences of the
    Indian Gaming Regulatory Act. The Eastern Shawnee already
    operate a casino on the reservation at the border of Oklahoma
    and Missouri. Chief Enyart testified before the House Resources
    Committee earlier this year that their economic potential is
    limited by the rural character of where the casino and
    reservation are located.
        This tribe has been courted by investors with the
    attraction that they can find dollar signs out of State, dollar
    signs they will make at the detriment of my constituents. Ohio
    is a much larger and more populated State. In fact, the
    population of Ohio is more than three times the size of the
    population of Oklahoma. The Eastern Shawnee and the financial
    backers of their proposals are promising local communities in
    Ohio that casinos and gambling will address the economic
    problems Ohio is facing right now.
        Mr. Chairman, that is another issue that I encourage you to
    consider as your committee continues to investigate this issue.
    Who is actually funding the efforts to bring Indian casinos
    off-reservation and across State lines? Who are these people?
    In Ohio, it is well recognized that the Eastern Shawnee efforts
    are being paid for by a number of ``unnamed private
    investors.'' Think about that. Is this the tribe or are these
    unnamed private investors promoting casinos so that they can
    benefit substantially from the proceeds that the Indians would
    garner from locating one of these casinos in a State like Ohio?
        With private investors such as these, Indian gaming and its
    consequences have gone far beyond what was originally intended
    by Congress when IGRA was passed. This has become a gigantic
    shell game instead of righting earlier wrongs against tribes.
    We are no longer looking at giving tribes the self-sufficiency
    needed for economic gain, but rather lining the pockets of
    investors with large sums of money.
        Mr. Chairman, this issue is ultimately a public policy
    question. I oppose gambling in all forms, whether commercial or
    Indian. To me, this is ultimately a question of States rights,
    one that our founding fathers addressed in the 10th Amendment.
    I believe that States should have the authority over whether or
    not to allow for gambling within their borders. However, in
    Ohio we are facing blackmail by Indian tribes and the financial
    backers who are funding these efforts.
        I just want to thank you very much for doing this. I think
    that this proliferation of Indian casinos around the country is
    something that we all ought to be very, very concerned about.
    It goes far beyond anything that was anticipated in terms of
    rightfully reimbursing these tribes for what was done to them
    or to fulfill the treaties that they signed that the Federal
    Government did not fulfill.
        I thank you very much.
        [Prepared statement of Senator Voinovich appears in
    appendix.]
        The Chairman. I thank you both for being here. It has been
    very helpful. Obviously, there is some passion associated with
    this issue. I thank you for your input and we look forward to
    working with you.
        Byron.
        Senator Dorgan. Mr. Chairman, let me thank both of the
    witnesses. I do not have any questions because they have well
    and very clearly expressed their interest in this, and as you
    said, with great passion as well.
        Let me ask consent to have Senator Inouye's opening
    statement put in the record at this point.
        The Chairman. Without objection.
        [Prepared statement of Senator Inouye appears in appendix.]
        Senator Dorgan. Your comments are very helpful to this
    Committee and we appreciate very much your being here.
        The Chairman. I would just like to add again, as one of the
    authors of the Indian Gaming Regulatory Act, we never
    anticipated that gaming would turn into as large and widespread
    involvement as it has.
        As you mentioned, Senator Voinovich, one of the decisions
    of the courts that basically said that full-blown gaming can
    take place if there is charitable gaming taking place. In other
    words, one Las Vegas night a year then equates to a full-blown
    24-7 gaming. It was a court decision and that certainly had a
    great affect on the proliferation of gaming throughout America.
        I thank you both very much.
        Senator Vitter. Thank you.
        Senator Voinovich. Thank you.
        The Chairman. Our other panel is George Skibine, who is the
    acting deputy assistant secretary for Policy and Economic
    Development for Indian Affairs; and Penny Coleman, who is the
    acting general counsel of the National Indian Gaming
    Commission.
        Welcome to both of you. George, we will begin with you.
    Welcome back.

    STATEMENT OF GEORGE SKIBINE, ACTING DEPUTY ASSISTANT SECRETARY,
    POLICY AND ECONOMIC DEVELOPMENT FOR INDIAN AFFAIRS, DEPARTMENT
                            OF THE INTERIOR

        Mr. Skibine. Thank you, Mr. Chairman and Mr. Vice Chairman.
    I am pleased to be here today to present testimony on the
    section 20 exceptions to the gaming prohibition on after-
    acquired land.
        My written testimony will be part of the record.
        The Chairman. Without objection.
        Mr. Skibine. What I want to discuss today is how we have
    implemented section 20 since 1988; what is currently pending
    before the department; and what we hope to accomplish, what we
    are facing in the future.
        For that purpose, we have produced in my testimony a number
    of charts. Here we have a visual aid that will help with
    showing what we have. We will start first to discuss briefly
    the approved gaming acquisition that are on-reservation or
    contiguous with the boundaries of a reservation. Since 1988, we
    have had essentially eight of these. You can point to what they
    are. That is the first chart. That is where they are. Of these,
    four were on-reservation and three were contiguous to the
    reservation, or sort of both on and off the boundaries of the
    reservation. So this exception has not really been used very
    much. And I think what that shows is that by far the majority
    of tribes are operating gaming establishments on their
    reservations on lands that have been part of the trust before
    October 17, 1988.
        Of course, our position is that the definition of Indian
    lands would authorize gaming by the tribe on the reservation if
    the land is not in trust as long as it is owned in fee by the
    tribe. But there are some advantages to taking the land into
    trust, and essentially that is what has happened for these.
        The next exception that I wanted to talk briefly about is
    the initial reservation of an Indian tribe acknowledged by the
    Secretary under the Federal acknowledgment process. Here, we
    have approved three of these acquisitions. The first one was
    for the Mohegan Tribe back in 1995, and the next two were for
    tribes in Michigan. I want to point out that under this
    exception, only one has actually gone in to trust. The other
    two are the subject of a lawsuit, so the land has not been
    taken into trust. The fact on our chart, we show that those
    that were approved does not mean that the land itself has been
    taken into trust because a number of them can be challenged for
    various purposes.
        For instance, even under number one, I think that for White
    Earth in Minnesota, that land has still not been taken in to
    trust because there are encumbrances of other issues.
        Now, with the initial reservation of Indian tribes
    acknowledged by the Secretary under the acknowledgment process
    our position has been that in order to qualify for this
    exception, the tribe has to show substantial historical,
    cultural and geographical ties to the land. What we do when we
    look at the application is we look at the record that is
    compiled by the Federal acknowledgment process, which are
    thousands and thousands of pages that essentially follow the
    history of the tribe and where it has been, and it essentially
    will tell us in a fairly objective way whether that tribe will
    qualify under that exception.
        The Chairman. How does that work if a tribe, as testified
    by the two previous witnesses, want to acquire lands in another
    State for purposes of a gaming operation?
        Mr. Skibine. They cannot take advantage of that exception.
    If they try to take advantage of that exception, it will be
    disapproved. I think that, for instance, for the Jena Band of
    Choctaws who will testify later, I know that as Senator Vitter
    mentioned, we disapproved the compact for that tribe for land
    that was off-reservation. I think the reason for the
    disapproval was that, well, the reason for the disapproval was
    not really because there was all this congressional objection.
    Hopefully, we followed the law, and essentially we found that
    the payment that the tribe was agreeing to make to the State
    was in exchange for the Governor's support of the tribe's
    initial reservation at that location. We felt that that
    designation is not the Governor's to make, but the Secretary's.
    Secretary Norton indicated in her letter of disapproval that
    she, although that was not an issue in the compact, that she
    would not be willing to approve an initial reservation under
    this exception, several hundred miles from the tribe's
    traditional area.
        That is why it is a fairly difficult process. We look at
    the historical record. I know there are tribes where there are
    pending initial reservations. That is what we do. I know that I
    have talked to some groups who have challenged whether the
    tribe actually is from the area where they claim to be. I think
    we will look very carefully at all the records, not only the
    one that is submitted by the tribe, but the one that is
    submitted by the local community or anyone who has an issue
    with that because I think the Secretary definitely does not
    want to place a tribe in a community for an initial reservation
    where they do not belong, in other words, where they are not
    from.
        So the test that we have, we have devised on a case-by-case
    basis. It has not been applied many times, but that is the one
    we have.
        And that is why, for this exception, to call that
    reservation shopping is misguided. These tribes are not
    shopping, the ones that will be approved are not shopping for a
    reservation far from their homeland. They are tribes that
    essentially have nothing. They have no land. A lot of them have
    no money. They have been denied recognition for years, and
    after a very arduous process, sometimes it takes 20 or 25
    years, they are finally recognized. They are seeking to take
    advantage of that exception for gaming, but really what they
    want is land for economic development. Because we insist that
    they have strong geographical and cultural ties to the land, I
    am not sure that the reservation shopping tag can be applied to
    that exception.
        Let me move on to the next one. That is the approved gaming
    acquisition for the restoration of lands for an Indian tribe
    restored to Federal recognition. In that case, we have had 12.
    In the chart that we have, the chart only concerns those lands
    where the tribe needed to acquire land in trust, and then the
    way it works is if the land is not in trust, when the tribe
    applies and we have to make a determination on whether it fits
    within the exception. My colleague, general counsel of the
    NIGC, will delve into this issue in much more detail, so I
    think I am going to skip over it except to mention that if you
    look at the list that we have of the 12 tribes that have
    qualified under this exception, I think all of these have been
    qualified because they were restored by Federal statute. The
    land that was the subject of the exception was land that was
    specifically mentioned in that statute, the restoration
    statute, as being land that the Secretary could or had to take
    in trust for the tribe.
        Some of these that are listed in our chart are mandatory
    acquisitions and some of those were discretionary. For
    instance, I see here that at number eight, we have the Lytton
    Band that was the subject of the previous hearing before this
    committee. This was a mandatory acquisition for that tribe.
    When that happens, of course, we have no discretion at all to
    say yea or nay, but some of them are discretionary.
        Finally, let me briefly mention the approved gaming
    acquisition for settlement of a land claim. Here, we have had
    essentially since 1988, it has been applied once, and that is
    for the Seneca Nation of New York. It is listed four times in
    our charts, but they are all for the one tribe. Three of these
    acquisitions, in fact, are gaming related, but not for gaming.
        So this was under the 1990 Seneca Settlement Act. I do not
    think that it was enacted with IGRA in mind, but it just so
    happened that it would have qualified.
        So the bottomline is that if we look at past practices, we
    really do not see the problem that has been mentioned by the
    Senator in the previous panel. Essentially, we have had not
    that many applications. They have been carefully considered. As
    you can see from the record, it has not been a runaway problem
    of Indian tribes seeking lands off-reservation.
        Now, there may be a problem in the future. We are not
    discounting that. We share the committee's concern in this
    regard. For the department, for instance with the Eastern
    Shawnee Tribe that Senator Voinovich mentioned, we do not have
    an application. We have not talked to the tribe about that. We
    have had essentially no communication at all. We are aware of
    what is going on basically because of clips in the newspapers.
    That is true in some of these other instances.
        I have seen a list, for instance, that a group in
    California, Stand Up For California, puts together of pending
    and rumored acquisitions. It is true that, as the Senator
    mentioned, that there may be close to 40 in there, but in fact
    what we have pending, and that is the second chart we have. As
    to the pending Indian acquisitions, we only have about 11
    pending right now, certainly not 40. The reason there are 40 is
    because there is a lot of money to be made in gaming and this
    is the land of free enterprise and people are looking for
    opportunities. So these deals are talked about and they are
    raised by the newspapers, but in fact we have not seen many
    coming to actual fruition. The reason is that it is a very
    difficult process.
        Briefly, let me mention the two-party termination is not
    part of this meeting. I have said on many instances, we have
    only approved three since 1988, and we have about eight pending
    right now. This is for the two-party termination exception. I
    think some call it the true reservation shopping exception
    because it allows a tribe to submit an application when none of
    these other exceptions apply, for land that could be
    potentially out of state, and where the tribe has no
    significant cultural and historical connection. But in effect,
    it is a very difficult process. It goes through a rigorous test
    and we have to make a determination that the gaming
    establishment is in the best interest of the tribe and its
    members; and it is not detrimental to the surrounding
    community. We have to consult with local and government
    officials, and finally the Governor of the State has
    essentially veto power over that acquisition.
        For practical purposes, in all three cases where we have
    approved these applications, the local community and the
    Governor have in fact supported it. Even though the local
    community's support is not mandated under the act, in fact I
    think that if you take that in connection with the land
    acquisition regulations that we have in section 25 CFR part
    151, it is extremely unlikely that the Secretary here would
    ever make a positive two-part determination if the local
    community in fact is opposed to this. When I go around, I
    stress to tribes who are thinking about this that local
    community support is absolutely crucial to have this process go
    forward.
        Now this is what we have done, let me just mention briefly
    what we are doing. As you may know, we published regulations in
    25 CFR part 292 back in 2000 or maybe a little earlier that
    would have implemented the two-part determination. I think the
    Bush administration when it came over was not really interested
    in pushing those regulations. We are now trying to revive them,
    and we are thinking about moving forward again on those. We
    would essentially put in the regulations not only the
    implementation of section 20(b)(1)(a), the two party
    determination, but also the definitions and a test that we have
    for these other exceptions, like initial reservation,
    settlement of a land claim, and other things of this nature.
        We will see essentially where that goes. We want to work
    with the committee on addressing the problems that have been
    identified for the future, to make sure that we understand what
    was the intent of Congress in 1988 in enacting these
    exceptions. We definitely would be interested in looking at
    some of these issues that we think can be nailed down.
        With that, I will end my comments and I will be available
    for questions. Thank you very much.
        [Prepared statement of Mr. Skibine appears in appendix.]
        The Chairman. Thank you very much.
        Ms. Coleman, welcome.

     STATEMENT OF PENNY COLEMAN, ACTING GENERAL COUNSEL, NATIONAL
                        INDIAN GAMING COMMISSION

        Ms. Coleman. Thank you. Good morning.
        Chairman McCain, Vice Chairman Dorgan, Senator Smith, my
    name is Penny Coleman. I am the acting general counsel for the
    National Indian Gaming Commission. I really appreciate the
    chance to come and speak to you. A lot of people do not realize
    that the National Indian Gaming Commission has an important
    role in these Indian land decisions. So I wanted to come here
    to tell you that we do; that it is a very important process to
    us. These decisions are difficult and we struggle with them. So
    I wanted to tell you a little bit about that.
        Indian lands, that is the foundation on which you have
    Indian gaming. Indian gaming can only be conducted on Indian
    lands. IGRA defines Indian lands, requires gaming to be on the
    Indian lands, and limits the commission's authority to Indian
    lands. It establishes the general prohibition against gaming on
    lands after October 1988.
        And then of course we have all of the exceptions we have
    been talking about so far. Those Indian lands are central to
    our functions because we have to determine whether the gaming
    facility is on Indian lands and is central to our function
    because we can only regulate on Indian lands. So we have to
    know whether or not there are Indian lands there. If there
    aren't any Indian lands, for instance we took a position in
    Oklahoma, fee lands, no reservation, and we said, these are not
    Indian lands. We cannot regulate it. We sent that information
    to the State, and so now the State has moved to close down that
    particular facility based on the theory that it is within its
    jurisdiction.
        The Chairman. When you say ``Indian lands,'' that means
    Indian-owned lands as well as trust lands?
        Ms. Coleman. There is so much more to it, because first
    Indian lands is defined as reservation lands. So if it is
    within a reservation, no problem.
        The Chairman. That is trust status, yes.
        Ms. Coleman. But if it is off-reservation, then it has to
    be either held in trust or restricted status, and the tribe has
    to exercise governmental authority over it. And to exercise
    governmental authorities over it, they have to do both present-
    day exercise. So in other words, they have to have law
    enforcement, maybe have tribal offices. They have to do actual
    right-now exercise of governmental powers over it.
        But they also have to have that theoretical right to
    exercise that power. So for instance if you have fee lands off-
    reservation, as a general matter a tribe is not going to have
    that theoretical right.
        The Chairman. What about tribally owned lands, not fee, but
    they buy some land in downtown Denver.
        Ms. Coleman. Those are fee lands.
        The Chairman. Those are fee lands.
        Ms. Coleman. Right; those are still fee lands.
        The Chairman. So they set up a police force and a
    government entity; they own the land. They bought it. Now, is
    that under your jurisdiction?
        Ms. Coleman. No; generally not, because the tribe owns
    those lands in fee and cannot just by buying the lands take
    them outside of the jurisdiction of the State.
        Senator Dorgan. When you say ``generally not,'' are there
    conditions under which it is under your jurisdiction?
        Ms. Coleman. I am aware of in Alaska there are fee lands
    that are held as restricted against alienation. It is a very
    unusual situation. I have not actually run into it in any other
    place. It was a result of the unusual history of Alaska where
    the lands were fee lands that were restricted against
    alienation.
        The Chairman. So these lands, they have to not only acquire
    some way, but they have to have it be in trust status.
        Ms. Coleman. Yes.
        So we get into it. We, the commission, both trying to
    determine whether or not we can regulate this, but also because
    we have management contracts that are subject to our approval.
        The Chairman. Management contracts are subject to your
    approval, but consulting contracts are not.
        Ms. Coleman. That is correct, Senator.
        The Chairman. We have very few management contracts
    anymore, and we have lots of consulting contracts.
        Ms. Coleman. We do not have all that many consulting
    contracts anymore because we have taken a rather broad view as
    to what consulting contracts mean. So we have taken the view
    that just because they call it a consulting contract does not
    make it a consulting contract. It has to actually be one. Where
    they are providing just very specific deliverables for a
    specific sum of money, if it looks like a management contract,
    then we have concluded it is a management contract.
        The Chairman. So have you taken action that has reduced the
    amount of money that a so-called ``consulting'' contract, but
    is actually a management contract?
        Ms. Coleman. To do that, we issue advisory opinions. Tribes
    and contractors submit their contracts to us, to the Office of
    General Counsel. We review them and we look at them primarily
    for two reasons. One to see if they are management and the
    other to see if they violate the requirement that the tribe has
    the sole proprietary interest in the gaming.
        The Chairman. Do you know of any tribe that has had to void
    a contract because of your determination?
        Ms. Coleman. Yes.
        The Chairman. Go ahead, please.
        Ms. Coleman. So besides management contracts, on occasion
    we do have site-specific tribal ordinances that we have to
    approve or disapprove. So if the ordinance is site-specific, we
    will also have to make a decision on those.
        The Chairman. How large is your staff?
        Ms. Coleman. There are approximately 10 attorneys.
        The Chairman. And there are how many Indian gaming
    operations?
        Ms. Coleman. There are approximately 404.
        The Chairman. We have 10 attorneys monitoring the
    activities of 404?
        Ms. Coleman. Yes, sir.
        The Chairman. Please proceed.
        Ms. Coleman. Thank you.
        Now, we offer advisory opinions also on these Indian lands,
    the Office of General Counsel does. The reason why we do that
    is for a couple of reasons. One is that if the tribe wants to
    go ahead and game, it is in their best interest and everyone's
    best interest to find out beforehand whether or not they are
    going to be able to game on that particular piece of property.
    So we will review those for them.
        Also, though, we will review Indian lands when the tribe
    has already opened a facility and we have a reason to believe
    that the property may not be Indian lands. So we need to do
    that in order to make sure that they are gaming in accordance
    with IGRA. There have been occasions where they have not and we
    have had to tell tribes to shut down. That, of course, is not
    the way to go, to have a facility already in place before you
    have that kind of determination made.
        The Chairman. Have they fought you in the courts?
        Ms. Coleman. Pardon?
        The Chairman. When you tell them they have to shut down,
    have they fought you in court?
        Ms. Coleman. Absolutely.
        The Chairman. Have they won or lost?
        Ms. Coleman. Well, there is one that is still pending. In
    Miami, we won. What other ones have we had?
        The Chairman. Don't look at him. [Laughter.]
        Ms. Coleman. George is my memory.
        Senator Dorgan. You would remember your losses, wouldn't
    you? Wouldn't you remember your losses?
        Ms. Coleman. Yes; so we must not have had any. [Laughter.]
        The Chairman. Submit that for the record, would you please?
        Ms. Coleman. Absolutely.
        The Chairman. Thank you. Go ahead.
        Ms. Coleman. The reason why I am looking at George is
    because we share this responsibility with the department.
    Obviously, the department has a really important role in this.
    So we entered into a memorandum of understanding with the
    Office of the Solicitor to share our work and to work together
    on these issues. The Division of Indian Affairs has a few
    people who work on these issues. George, of course, does, and
    then our office. And we provide drafts and we share
    information. The Bureau of Indian Affairs obviously has the
    copies of the deeds and a lot of the relevant information we
    need to make these decisions. So we try to work very closely
    together.
        For many years, the department assumed the primary role for
    making these decisions, but a gaming has expanded, as there has
    gotten to be more and more facilities, as we have needed more
    and more to make these decisions, the Office of General Counsel
    started writing more of the opinions. It was rather a natural
    transition. I worked in the Office of the Solicitor before I
    worked in the Office of General Counsel. So we know and
    understand what the department's issues are. We try to work
    really closely with them.
        Nonetheless, we wanted to let you know that this is not a
    small undertaking; that this is difficult; that we have
    altogether in the last 10 years have probably only issued about
    50 full-blown opinions, and that is with the department, too.
    We have about 50 pending right now, somebody counted them for
    me. And some of these are really simple. If it is trust land
    and it is on the reservation, no problem. It is Indian lands.
    We do not have to spend a lot of time looking into this issue.
    We do not have to write a full-blown opinion. All we have to do
    is determine it is.
        But there are other ones that are very complex and
    difficult. The one that was alluded to by George, the restored
    lands, that exception to the general prohibition for gaming on
    after October 1988 when lands are taken into trust as part of
    the restoration of a tribe when it has been restored to Federal
    recognition.
        To fall within the restored land exception, a tribe must
    establish that it is restored and then it must establish that
    the parcel has been restored. So to be restored to Federal
    recognition, you must have been recognized at one point; you
    must have been terminated; and then you must be re-recognized.
    Being recognized right now is usually pretty easy. We can look
    to the Secretary's list of recognized tribes or we can look to
    recent enactment of Congress where the tribe has been restored
    to recognition.
        But to determine whether somebody has been previously
    recognized is a lot more complex. There are tribes that are
    recognized through the BIA's BAR process that were not
    necessarily previously recognized, but they are now recognized.
    So we have to look at their relationship back in the 18th and
    19th century. We have to look to their political history, their
    ethnographic history. We work with the tribe. We work with the
    department. We work with the State. We work with historians and
    archivists, and just pull all of that information together.
        And then we have to go even further when we are trying to
    determine whether lands are restored. Just because you
    reacquire lands does not mean that they are restored lands.
    Every time a tribe acquires land into trust does not mean that
    just because they are a restored tribe that the lands are
    restored. We have had several court cases on this, so we have
    some real guidance on what restored lands means now.
        What we do is we look to the factual circumstances of the
    acquisition. We look to the location of the acquisition. For
    instance, the location of the acquisition, if the tribe is
    located in California, are they seeking to acquire the land a
    mile away from where their population base is? Or are they
    looking to get it in Nevada? Well, we would say that if they
    are trying to acquire it in the next State, that is way too far
    afield. We are looking to where the population base is.
        And we are looking to whether or not this land is important
    to the tribe, whether they still have some relationship with
    that land; whether it was important to them throughout history;
    if that was the place where they had village settlements; where
    they did their hunting and fishing; whether they have burial
    grounds; whether they have this really important historical
    nexus besides the present day nexus to the land.
        And we look to the temporal relationship to the
    acquisition. So a tribe that was restored to recognition 40
    years ago and acquired land 2 years later, that is going to be
    its restored lands. The fact that it has been restored to
    recognition and wants to acquire land now, that does not make
    it restored lands because that is just too far after the fact.
    So it has to be close in time.
        So for instance in the litigation that we are in in
    Wyandotte, Ok, the tribe had acquired land into trust in the
    State of Kansas. We said, population base is in the State of
    Oklahoma. This land was not important to the tribe as a general
    matter. They were only located on that property for 11 years.
    It was transitioning through, essentially, through Kansas. It
    was 18 years after their restoration that they actually
    acquired this land into trust, so we concluded that these were
    not restored lands.
        So we are looking very closely at all of this. To do that,
    the tribe has to provide voluminous historical documents,
    archaeological evidence. It takes tribes time and money to
    submit this information. It takes time for us to review it.
        Does it mean that we have a really broad exception to the
    general prohibition? Absolutely not. It is a very narrow
    exception and there have only been a few that have come within
    these guidelines.
        As George mentioned, most of the restored tribes are
    actually congressional actions. It is not an action based on
    looking at IGRA and trying to determine what the terms mean. It
    is statutory construction instead.
        Now, with respect to your notation that there is only 10 of
    us, we have been criticized by the Office of Inspector General
    because we are not making these decisions on Indian lands
    before a tribe opens the gaming facilities, and because we do
    not really have a systematic approach to making these
    decisions. We are making the decisions as we determine that
    they are important, and when we find out that there might be a
    big problem. That is not necessarily great government.
        So we have do share the Inspector General's concern on
    this. What we are moving to do is to fix that within our
    office. So just a couple of weeks ago, a team from the Office
    of General Counsel went down to Oklahoma. We started pulling
    deeds for the Oklahoma facilities. Our regional director in
    California hired a title search company to do some title
    searches. We are developing files with the goal that at some
    point we will have a file on all 404 and we will be able to
    pull a file at any point and be able to tell you whether or not
    it is on Indian lands. We will now whether or not we should be
    regulating and know whether we should be attempting to close it
    down.
        If we do not make these decisions before the tribe opens,
    well then we will have litigation. It is just going to be
    guaranteed. A tribe is going to have to fight us if they have
    already opened their facility and we say you cannot have a
    facility. And so consequently one of the things that we are
    looking at is developing regulations that ties the licensing of
    the facility to an Indian lands determination. So that we can
    ask tribes to notify us ahead of time that they are planning on
    opening. And I don't mean the day before. I mean enough time so
    we can actually determine this and get all of the information
    we need to make sure that they are gaming on Indian lands.
        So that is our involvement in Indian lands determinations.
    I thank you very much. If you have any questions, please ask.
        [Prepared statement of Ms. Coleman appears in appendix.]
        The Chairman. Thank you very much.
        Mr. Skibine and Ms. Coleman, I get the impression from your
    statements that you think that perhaps the danger here has been
    somewhat exaggerated, or the problems have been somewhat
    exaggerated. Is that accurate?
        Mr. Skibine. Well, I do not think that there has been the
    problems in the past. As my testimony indicates, we have
    followed IGRA very carefully and it has not resulted in that
    many casinos proliferating everywhere. I think potentially we
    are concerned about what is in the future because of the
    potential for abuse that is there under the Act currently, but
    we have not seen that. As I said, with some of these they are
    to us just rumors and we have no involvement so we do not know
    for a fact that that is an issue.
        The Chairman. Which means that perhaps some legislation may
    be necessary in order to prevent some of these things from
    happening. Do you agree with that?
        Mr. Skibine. It may be. As I stated, we would be willing to
    discuss with you what would be the appropriate mechanism and
    where it needs to change to tighten things up.
        The Chairman. We need to do that, but let me give you
    examples of why there seems to be concern. Stories about a
    member of the Bureau of Indian Affairs literally signing
    recognition papers on his way out the door in his car. I mean,
    that is a fact. Those were rescinded because of those
    circumstances of his last day in office. Rumors or stories that
    are carried that a tribe is willing to trade their claims for
    half of the State of Colorado, as Byron Dorgan mentioned, so
    they could establish a casino in downtown Denver.
        When these stories start circulating like that, people area
    asking, what is this all about? You see my point?
        Mr. Skibine. Yes; and that is an issue. I was in Colorado.
    The Governor of Colorado had a conference regarding that. I
    think it is a real issue. With respect to the Colorado issue, I
    think the department has determined that the claim that is
    asserted by the tribe is not genuine and lacks merit. So for
    purposes of the settlement of a land claim, the reason we have
    only had one so far is that our view is that the settlement of
    a land claim has to be a settlement that is ratified by
    Congress, as the Seneca claim was. As a result, there is a
    phenomenal check on an abuse of that exception. If it has to
    come before this body, it will be scrutinized to the nth degree
    so that the settlement legislation is not enacted willy-nilly
    here.
        The Chairman. So Senator Voinovich's concern about a casino
    in downtown Cleveland is not, his concern is not as compelling
    as perhaps we might think?
        Mr. Skibine. Perhaps. That is right. In our view, there
    would have to be settlement legislation introduced in Congress.
    That is our view, and we have a Solicitor's opinion that states
    that. Now, potentially some tribes may disagree with the view
    of the department on that and challenge it in court if they
    apply for settlement of a land claim, and we say you do not
    have congressional legislation, goodbye. And they may sue us
    because of that.
        So I do not know where that would go. Maybe the act could
    be tightened on that score to make sure that we are talking
    about settlement legislation that is ratified here.
        The Chairman. Let me go back with you to one of the
    fundamentals. When IGRA was passed, as we all know, it was as a
    result of the Cabazon decision, which said that if a State
    allows a certain level of gaming, then Indian tribes that
    reside within that State would certainly have the right to
    engage in gaming at that level. Isn't that a proper
    interpretation of the Cabazon decision in your view?
        Mr. Skibine. Yes; that is correct.
        The Chairman. But then there was a decision that was made
    that if a charitable organization has a Las Vegas night once a
    year where gaming is conducted, therefore you can have a 24-7,
    12-month a year gaming operation on an Indian reservation. That
    changed things rather dramatically, didn't it?
        Mr. Skibine. Well, yes. The view of the department is
    really to follow the decision of the Ninth Circuit in the
    Rumsey decision that was appealed to the Supreme Court and the
    cert was denied, but I think the Solicitor General filed a
    brief in support of that decision. Under the Ninth Circuit
    reasoning, I think that the scope of gaming has to be by
    activity, so that for instance the issue there was, let's say
    the State of California authorizes horse racing, which is class
    III gaming activity. Well, that would mean that all class III
    gaming activities are open, like slot machines. The court said,
    no, that gaming activity has to be authorized, and that is our
    view right now.
        Senator Dorgan. But that is not responsive to the question
    that the Senator asked. He asked the question about a State
    that allows a Las Vegas night once a year.
        The Chairman. For charitable purposes.
        Senator Dorgan. For charitable purposes.
        Mr. Skibine. Right.
        Senator Dorgan. And the consequences of that of triggering
    an opportunity in a State for something broader.
        Mr. Skibine. That is correct, because charitable gaming
    nevertheless is gaming, and if that gaming activity is
    authorized by charities, then it will be authorized for Indian
    tribes under IGRA. I think that is our view and certainly would
    have been the view of the courts right now.
        The Chairman. Is it the department's view that the land
    claim exception authorizes a tribe to open a casino in
    geographic locations it has not been possibly more than 100
    years? In other words, Ms. Coleman mentioned that one of the
    reasons why they did not approve of a Kansas acquisition is
    because they had passed through. In other words, what is the
    criteria here? Many of these tribes tragically moved all the
    way from our east coast out to the west, not of their own
    volition, by the way, but they had various stops along the way.
        Mr. Skibine. Right. The settlement of a land claim, which
    as I said we have applied once, I think the way that would work
    is that the settlement legislation that is introduced in
    Congress, and if it is eventually passed, will in all
    likelihood specifically say we settled this land claim, and as
    part of the claim the Secretary of the Interior is mandated to
    take land in trust, and it will probably say specifically where
    it is, by county or even by lot. So that in the Seneca Land
    Settlement Act, for instance, it was specifically stated in the
    Act where the land could be taken into trust. That is what we
    would be looking for.
        So what we think is really not important because we would
    be following what Congress tells us to do in the settlement
    legislation.
        With respect to the Eastern Shawnee, if there is
    legislation that says that Congress sells the claim, and in
    exchange for whatever reason, but the Secretary has to take
    land in trust in Ohio in a specific community, then we will
    have to do that. But we will look to you to tell us how to
    interpret that in the law.
        The Chairman. Ms. Coleman, it sounds to me like you could
    use some more help.
        Ms. Coleman. Absolutely.
        The Chairman. Thank you very much.
        Senator Dorgan.
        Senator Dorgan. Ms. Coleman, let me ask a question about
    licensing. If I am a tribe and there aren't any of these land
    issues and I just want to open a casino and our State has
    gaming, so I want to develop a compact. I have to get a license
    from whom?
        Ms. Coleman. From the tribe's regulatory authority.
        Senator Dorgan. So that license, based on your testimony,
    that license may be granted in other circumstances before land
    claims are settled?
        Ms. Coleman. Well, as Mr. Skibine testified, the settlement
    of a land claim exception is so rare, it has only happened
    once, that it really has not come up. The one time it did come
    up is the same Wyandotte, KS situation where the land was
    already acquired into trust and the tribe argued that that
    acquisition was a settlement of a land claim. We determined
    that it was not because there was an ICC case and we concluded
    that ICC cases are not settlement of land claims; that they are
    settlement of money damages against the Federal Government, but
    not actually for settlement of a land claim.
        Senator Dorgan. But with the size and the growth of Indian
    gaming, my expectation and I assume yours would be that these
    things will come up more and more often because the stakes are
    so high.
        Let me just mention, Mr. Chairman, last evening or
    yesterday late afternoon we finished in the Interior
    Appropriations Subcommittee, I am the ranking member on that,
    we finished that piece of legislation. My colleagues from
    Oklahoma were trying to, and we were not able to do this, I
    wish we had been, but we were not able to put this in an
    appropriations bill, but there is an issue which you are
    probably familiar with in Oklahoma dealing with the Shawnee
    Tribe Status Act.
        That act was passed and somehow it gives the Shawnees, and
    this is according to the Senators from Oklahoma, it gives the
    Shawnees the ability to take land into trust so long as it does
    not interfere with other tribal jurisdictions, and requires the
    Secretary to approve the land in trust, ``shall'' versus
    ``may,'' and they say this loophole would allow the Shawnees to
    take land into trust within Oklahoma County, in the middle of a
    major city, and the Secretary would have to approve it.
        They say that circumvents existing law and regulation and
    normal land and trust application. And they feel that is a
    self-executing circumstance currently in law and they are
    trying very hard to change it.
        The Chairman. Which I might add was put in an
    appropriations bill.
        Senator Dorgan. Right.
        The Chairman. An omnibus appropriations bill.
        Senator Dorgan. Right. But my point about is, there is a
    powerful reason for tribes to try to find ways through these
    exceptions to locate a casino in the middle of a major
    population area. I understand that. If we were able to and our
    purpose was to be able to run a casino, we would want to be in
    the middle of a population center. That is a natural market.
        And yet we have certain guidelines and restrictions and we
    rely on our regulatory agencies to deal with them
    appropriately. We also rely on the Congress to make the right
    decisions on these things. Occasionally, we do not make the
    right decisions.
        I think one of the things that I have learned from your
    testimony, Ms. Coleman, is that this issue of the resources
    that are available to respond to the needs to effectively
    regulate a very growing industry is an important consideration
    for this Congress. I think we need to get additional
    information from you. You indicated that you have not really
    had a system by which you move things out the door, make
    judgments and move things, but you are now developing that
    system. I would say hurry because I think there are going to be
    enormous pressures from many different directions to find ways
    through the exceptions.
        Mr. Chairman, I have to leave at 11 o'clock, but I know
    that we have another panel coming and I will be able to hear
    part of that panel. I thank the two witnesses. Mr. Skibine,
    thank you again for being with us, and Ms. Coleman, thank you.
        Ms. Coleman. Thank you.
        The Chairman. Senator Smith.
        Senator Smith. Thank you, Mr. Chairman and Senator Dorgan.
        Mr. Skibine, in May you testified that IGRA's two-part
    determination suggests that Congress sought to establish a
    unique balance in determining exceptions. Only three tribes, as
    I understand it, have acquired exceptions under that provision
    since 1988. But those are in-State, and yet a lot of concerns
    remain.
        My question is, would restricting the two-part
    determination exception only to in-State lands remedy most of
    the concerns that remain?
        Mr. Skibine. I think it will help remedy some of the
    concerns. I do not think it will certainly address the issue
    with the settlement of a land claim that was raised by Senator
    Voinovich here. That tribe would be taking exception of another
    exception, the land claim exception where there is no
    restriction on State boundaries under that exception either.
        The fact is, we of course have only approved three two-part
    determinations for tribes since 1988, all within the State
    where they are located. We currently have eight that are
    pending, and of those I think all are within the State where
    they are located except for one, which is the Stockbridge-
    Munsee community of Wisconsin. At this point, that application
    is for land in the Catskills and it is submitted as a two-part
    determination for land in New York, but in fact I think if this
    goes through, it probably would go through as a settlement of
    land claim rather.
        So in fact, if you discount this one, we really do not have
    any that are pending under the two-part determination for out-
    of-State tribes.
        Senator Smith. A question for both of you. I think one of
    the most unseemly things that has happened on Capitol Hill in a
    long, long time, frankly seems to grow out of IGRA and the
    number of developers apparently seeking Indian tribes to pursue
    gaming interests.
        Frankly, that has led to some very shameful things
    happening. These developers often are looking for a tribe. They
    pay for the lawyers. They pay for the up-front lobbyist costs.
    I wonder if this is just perceptional on my part, or are you
    seeing more applications that are driven by these kinds of non-
    Indian interests on behalf of tribes to pursue their gaming
    interests?
        Mr. Skibine. I am not sure if there is an increase in that.
    I think if you look back to some of the earliest applications,
    also the tribes were supported by outside developers. Let's
    take for instance the Mohegan Tribe of Connecticut was
    supported by a large gaming corporation out of South Africa. I
    think that part of the reason for that is that some of the
    tribes, new tribes especially, have very little means and they
    essentially are pretty much penniless on their own. I think it
    is not necessarily what they want to do to come into a
    partnership with an outside group, but it is certainly
    something that is, when it is offered, they can see it as an
    easy way to access capital and to essentially move their
    applications along and move their plans along.
        Whether there is an increase, it could be, based on the
    rumors that are out there, but we do not really have a handle
    on that specifically at the BIA. I am not sure, maybe the
    commission can address that.
        Ms. Coleman. I don't know as there is an increase. We do
    know that the harder we make it for tribes that are landless to
    get land into trust, the more dependent they have to be on the
    outside resources because tribes that do not have money and
    have to go through the process, who have to go through the
    department, go through the NIGC, to acquire land into trust, to
    get it to be designated Indian lands, that takes time and that
    takes money. And so they need to look to the outside interests.
        In some of these, as I said earlier, they are very
    difficult. They do take a lot of money. If you have to hire an
    ethno-historian, if you have to hire an environmentalist to do
    all of the NEPA work and prove it is restored lands, it is
    going to require somebody to put up the money.
        Senator Smith. I assume, though, that there is a concern in
    the Department of the Interior about it. Is there any effort
    made to identify the tribal interest from the developer's
    interest and to provide some level of direction that gets in
    the way of some abuse of tribes?
        Ms. Coleman. We definitely are aware of that issue all of
    the time. We want to make sure that tribes do not end up in a
    situation where it is not really the tribe's gaming anymore. It
    is one of the driving forces behind our sole proprietary
    interest advisory opinions, that we have kind of tried to draw
    a line, saying to a tribe if you give this much of your gaming
    to this company, well then you are no longer the sole
    proprietor of this. You have to retain the bulk of it. IGRA is
    intended for the tribes. They are to be the sole beneficiaries.
        So we have taken a pretty hard line on this sole
    proprietary interest issue. I think it has really helped. We
    have also been talking to Senator McCain about more background
    investigations for a larger number of people who are involved
    in gaming. I think that makes a lot of sense. You want to make
    sure you have good guys in gaming. A lot of tribes do really
    good background investigations. Not all tribes have access,
    though, to like the FBI criminal history checks and the
    fingerprint checks and all of those kinds of things that the
    Federal Government has access to.
        The Chairman. Thank you very much. We will look forward to
    continuing to work with you as we contemplate some legislation
    to address some of the issues that continue to come before the
    committee.
        Thank you both for coming.
        Mr. Skibine. Thank you, Mr. Chairman.
        Ms. Coleman. Thank you.
        The Chairman. Our next panel is Walter Gray, who is the
    tribal administrator of the Guidiville Band of Pomo Indians;
    Christine Norris, principal chief, Jena Band of Choctaw
    Indians; John Barnett, chairman, Cowlitz Indian Tribe; and
    Charles D. Enyart, chief, Eastern Shawnee Tribe of Oklahoma.
        As you take your seats, I would like to say, Chief Norris,
    I have read your testimony and let me make a couple of points
    for the record. First, this hearing is not about Jack Abramoff
    or the investigation this committee is conducting into his
    activities. Second, I am particularly concerned about the
    possibility that this hearing may be used to cast aspersions on
    the integrity of, in particular, the Senator from Louisiana.
        To assure that there will be no further discussion of this
    issue, I will say the following: Incidental to its reviews of
    matters within its jurisdiction, the Committee has seen
    absolutely no evidence whatsoever that Senator Vitter's
    opposition to the Jena Band's attempt to obtain a gaming
    facility in Louisiana had to do with anything other than his
    longstanding principled opposition to the expansion of gaming
    in that State. I would like to make that very clear.
        We will begin with you, Mr. Gray, and thank you and the
    witnesses for coming. All four of your written statements will
    be made part of the record.

    STATEMENT OF WALTER GRAY, TRIBAL ADMINISTRATOR, GUIDIVILLE BAND
                            OF POMO INDIANS

        Mr. Gray. Good morning, Mr. Chairman. I am Walter Gray. I
    serve as the tribal administrator for the Guidiville Band of
    Pomo Indians of California. I would like to thank you for the
    opportunity to testify this morning.
        The Guidiville Band was illegally terminated and is now
    seeking to restore its land base. We believe that the restored
    lands provisions of IGRA work and we are here to explain why.
        Historically, the Pomos used and occupied land that extends
    from the San Francisco Bay Area north to what is now Mendocino
    County. In 1851, the Pomos entered into a treaty with the
    United States ceding over two million acres of land in exchange
    for a reservation of 254,000 acres. Unfortunately, at the
    request of the State of California, these treaties were never
    ratified and the Pomos, as well as the majority of other
    California Indian tribes were left landless and without means
    of support.
        The California Indian population was decimated by the
    deliberate policies of the State of California. As a result,
    the California Indian population, estimated to be 200,000 at
    the time of statehood in 1850, was reduced to a mere 15,000 by
    the year 1900.
        In 1915, the Guidiville Rancheria was established by the
    Federal Government. However, in 1962, the Rancheria was
    illegally terminated. In 1987, before passage of the IGRA, the
    tribe filed its lawsuit challenging the Federal Government's
    actions. In 1991, a Federal court reversed the wrongful
    termination, but to date no significant funds have been
    appropriated for the tribe to reestablish the lands which were
    wrongfully taken.
        When Congress enacted IGRA in 1988, it understood that
    there were tribes like Guidiville who were terminated and
    landless at the time of its passage. We believe the exceptions
    in IGRA demonstrate Congress' commitment to treat tribes
    equally. As a restored tribe struggling to reestablish a land
    base and achieve economic self-sufficiency, we applaud
    Congress' concern about equity when enacting IGRA and we urge
    this committee not to lose sight of this concern.
        As the Federal courts have held, the exceptions in IGRA
    serve purposes of their own, ensuring that tribes lacking
    reservations when IGRA was enacted are not disadvantaged
    relative to more established ones. The tribe is now faced with
    the daunting task of restoring its land base. Guidiville has
    looked hard for nearly a decade to find lands in what may be
    the most expensive market to purchase lands in the continental
    United States.
        Recently, the tribe has found land which it can purchase,
    the now-closed naval fuel depot in Richmond, California. The
    site is several hundred acres and will allow for open spaces
    and parks, gaming, hotel, and retail facilities, and land for
    tribal administrative and cultural uses.
        Guidiville has worked with the city of Richmond in a
    transparent process. The city of Richmond held five public
    hearings with regard to our purchase of the land. This land
    acquisition will restore the tribe's terminated lands,
    remediate the environmental contamination on the land resulting
    from the Navy's use of the property, and produce over 6,000
    jobs to help revitalize the local community.
        We think that the Congress may be interested in how we have
    structured our contractual agreement with the city of Richmond.
    This agreement affords other tribes, local governments, and
    California citizens the same level of legal protections as non-
    tribal developments in California. Most importantly, we have
    accomplished this without infringing upon the sovereignty of
    the tribe or the city of Richmond.
        Though there may be a number of gaming projects that have
    been proposed, few will meet the high standards required by the
    Federal agencies. We believe that the current regulatory
    process is rigorous and will safeguard against ill-conceived
    projects. Interior and the National Indian Gaming Commission
    require that a restored tribe show historic and contemporary
    ties to the land in order for the land to qualify as restored.
    To our knowledge, there are no gaming projects that have been
    built after restored lands approval that are causing any
    significant public policy problem.
        In short, the restored lands provisions of IGRA work. They
    are not broken, nor will they result in the proliferation of
    tribal gaming facilities. Illegally terminated tribes like
    Guidiville did not choose to be terminated, nor did they choose
    to lose their lands. Left to find a solution for ourselves, the
    Guidiville Tribe has decided to use tribal governmental gaming
    as a tool to acquire a land base.
        We are not here today to ask that the law be changed to
    benefit the Guidiville Band of Pomo Indians. We are here to let
    you know that the current law can and does work and that the
    Guidiville Band should in all fairness be allowed to complete
    the restoration of its lands.
        It would simply be unfair to change the rules when the
    tribe is so close to correcting the wrong that was perpetrated
    40 years ago when the tribe was illegally terminated.
        Thank you.
        [Prepared statement of Mr. Gray appears in appendix.]
        The Chairman. Thank you very much.
        Christine Norris. Welcome.

     STATEMENT OF CHRISTINE NORRIS, PRINCIPAL CHIEF, JENA BAND OF
                            CHOCTAW INDIANS

        Ms. Norris. Mr. Chairman, thank you for giving me this
    opportunity to come before you. My name is Christine Norris. I
    am tribal chief of the Jena Band of Choctaw Indians.
        I have been privileged to serve for the past 30 years in
    the tribal government of my tribe. I thank you for letting me
    share with you briefly our experience with the fee-to-trust
    process and IGRA's section 20 process. The Jena Band was
    recognized through Interior's Federal acknowledgment process in
    1995. Because we were a landless tribe, all of our lands that
    were sought were considered off-reservation. The majority of
    our tribal members live within the three parishes designated by
    the Bureau of Indian Affairs as the Jena Band Service Area.
        The Jena Band needs a reservation land base where we can
    provide health, housing, education benefits, social services,
    as well as land to develop a gaming facility for my tribe
    because my tribe has almost no other means to generate revenue
    to fund our government. After recognition, we began to work to
    identify lands within our service area that could be proclaimed
    our reservation.
        However, the three parishes that compose our service area
    lie within a very conservative, a very religious part of our
    State. All three of these parishes voted out gaming in a
    referendum.
        Because of this referendum, former Governor Mike Foster
    refused to negotiate a gaming compact for a facility located
    within this three parish service area. He threatened to
    actively oppose our efforts to acquire trust land for non-
    gaming purposes within our service area if we persisted in
    locating a gaming facility. He insisted that we find an
    alternative parcel in a parish that supported gaming.
        In order to cooperate with the government, with our
    Governor, we worked to identify an alternative site for our
    gaming facility outside the service area. This was not an
    effort to forum shop that we have been accused of. To even
    address Senator Vitter's comments about the Jena Band looking
    to Texas, looking to Mississippi, we did accept an invitation
    from Chief Philip Martin of the Mississippi Band of Choctaw to
    come to his State in a collaborative effort to look at gaming
    with his tribe. This did not work out.
        We did look at areas in Texas. We do say that this was a
    mistake on our part. We were beginning to worry that we would
    never find a place to establish a gaming facility. We are
    pleased that Interior is drafting regulations to govern section
    20 exceptions. This will give newly recognized tribes much
    better guidance as to what is deemed acceptable. There was not
    a clear guidance 10 year ago when we started this process.
        To work with the Governor, we satisfied three criteria that
    he had. He said the land had to be not too distant from our
    service area; the land had to be within a parish that supported
    gaming; and in our project in particular, the land had to be
    within an area with which we could demonstrate a historical
    Choctaw connection. We did this in Logansport, LA.
        Logansport is located approximately 64 miles from our
    service area. Our land there was located in an area with strong
    Choctaw historical connections. The local municipal and parish
    government supported us with our facility there. We applied to
    the Department of the Interior asking that the Logansport land,
    along with several other non-gaming parcels located within our
    service area, be taken into trust and proclaimed to be our
    reservation. In addition, we submitted extensive documentation
    demonstrating that the Logansport parcel also met the
    requirements for the restored lands exception in IGRA.
        However, the department declined to accept the Logansport
    parcel into trust as part of our initial reservation. It also
    declined to issue an opinion as to whether the Logansport
    parcel qualified for the restored lands exception. Rather,
    Interior suggested that it would consider our Logansport
    request under IGRA's two-part determination exception.
        At great expense to the tribe, we submitted such an
    application to the department. Governor Foster repeatedly
    expressed his support for our two-part application to the
    tribe, to Interior, throughout the media in Louisiana. With
    that support, Interior issued a positive two-part determination
    in December 2003. To our disappointment and surprise, Governor
    Foster left office a few weeks later without concurring with
    the Secretary's determination.
        Immediately after Governor Kathleen Blanco took office, I
    asked to meet with her about the two-part determination and
    about a gaming compact; 15 months later, Governor Blanco sent
    the tribe a letter stating that she would not support the
    establishment of another gambling casino. A few weeks before we
    received the Governor's letter, Senator Vitter had come out in
    the media warning her not to sign a compact with the Jena Band,
    whether for Logansport or any other area, even located in our
    service area.
        It appears, or I feel like the Governor's response was
    influenced by Senator Vitter. He further urged the Governor not
    to negotiate with the tribe in good faith pursuant to IGRA.
    Senator Vitter has been a constant and vocal opponent of our
    efforts in establishing a gaming facility. He put language to
    be included in Interior's appropriation report that would have
    prevented Interior from acquiring land for us. He has
    introduced legislation designed to ensure that we will never
    have the opportunity to engage in the same economic endeavor
    that has been allowed the other three federally recognized
    tribes in Louisiana, and 16 non-Indian gaming facilities in
    Louisiana.
        His bill eliminates the initial reservation exception
    altogether. In its place, he inserts a provision that would
    require the Jena Band and other newly recognized Federal
    acknowledgment process tribes to satisfy a modified version of
    the two-part determination. It would require showing that the
    proposed gaming facility would have no impact whatsoever on the
    surrounding local, tribal or State government.
        This bill also requires the preparation of a costly
    environmental impact statement regardless of whether the impact
    of the proposed casino is expected to be significant or not.
    This requirement is contrary to NEPA's general approach of
    first preparing an environmental assessment to determine
    whether preparation of an EIS is necessary.
        Finally, Senator Vitter's proposed legislation attempts to
    rewrite State law for Louisiana and all the other States by
    mandating that the tribal State gaming compact be approved by
    both the Governor and the State legislature. Every existing
    tribal-State compact in Louisiana was executed by the Governor
    without approval of the State legislature. We respectfully ask
    that Congress reject these proposed amendments to section 20's
    initial reservation exception and instead please consider some
    small amendments that would make it more fair and efficient.
        First, Congress we ask impose hard deadlines on the
    Department of the Interior for taking land into trust for
    landless tribes. No tribe in the United States is more needy or
    is more worthy of the department's focus and prioritization
    than a landless tribe which has survived decades in the Federal
    acknowledgment process. Congressional direction requiring early
    designation of a service area and strict time deadlines for
    initial land acquisition would also go a long way to taking out
    some of the politics that is fostered by letting fee-to-trust
    and reservation proclamations linger for extended periods of
    time.
        My second request is that Congress amend the initial
    reservation exception to clarify that the first parcel or
    parcels of land taken into trust by the Secretary shall be
    automatically deemed the newly recognized FAP tribe's initial
    reservation. This would spare tribes like ours the great
    expense and the frustration of being made to jump through the
    hoops that serves no purpose other than to further delay the
    day when we are put on a level playing field with other tribes.
        With these constructive changes, Congress can help, not
    hinder, newly federally recognized tribes.
        Thank you so much for the opportunity to come before you
    this morning.
        [Prepared statement of Ms. Norris appears in appendix.]
        The Chairman. Thank you very much.
        John Barnett. Welcome.

       STATEMENT OF JOHN BARNETT, CHAIRMAN, COWLITZ INDIAN TRIBE

        Mr. Barnett. Thank you, Mr. Chairman.
        Chairman McCain, Vice Chairman Dorgan and respected members
    of this committee, I thank you for the opportunity to testify
    this morning.
        Mr. Chairman, as you have spent your whole life serving our
    country, I have spent my whole life serving my tribe. I devoted
    almost one-third of my life to the fight to regain recognition
    for the Cowlitz Tribe through Interior's Federal acknowledgment
    process. I traveled to Washington, DC more than 50 times over
    the last quarter-century to represent my people before the
    Federal Government. I have paid for those trips out of my own
    pocket.
        Now, I have one last goal, one last promise to my people,
    to regain a homeland so that we may live and prosper on our own
    lands as our ancestors did before our land was taken from us.
    Maybe then they will let me retire.
        For this reason, I greatly appreciate the opportunity to
    share our views about the crucial importance of IGRA's initial
    reservation exception. When Congress passed IGRA in 1988, it
    understood that newly recognized tribes would be unfairly
    disadvantaged and thus carved our a limited exception that
    allows these newly acknowledged tribes to conduct gaming on
    their initial reservations, just as if that reservation had
    been in existence in 1988.
        By doing so, Congress tried to put newly acknowledged
    tribes on a level playing field with previously recognized
    tribes. However, newly acknowledged tribes are significantly
    disadvantaged in the current fee-to-trust process. The Cowlitz
    emerged penniless from decades of struggling through the
    bureau's administrative recognition process only to find that
    they have no reservation from which to generate revenue to run
    social, health, and governmental services for our people, or on
    which to conduct the only form of economic development which
    almost universally has been proven to be successful, Indian
    gaming.
        As a result, the Cowlitz and other newly acknowledged
    tribes are immediately thrust into the political controversy
    surrounding off-reservation land acquisition and Indian gaming.
    Consider this: Interior's off-reservation fee-to-trust
    regulations simply were not drafted with landless newly
    recognized tribes in mind.
        Among other things, those off-reservation regulations
    specifically give greater weight to the views of the local
    jurisdictions in which the land is located. Consider further
    that either the community is generally opposed to gaming and so
    will fight the tribe's fee-to-trust acquisition, or the
    community may support gaming in which case there likely are
    established competing gaming interests that will devote
    significant financial and political resources to fighting the
    newly recognized tribe's proposed land acquisition.
        This presents a terrible no-win situation for the newly
    recognized tribes. The Cowlitz Tribe has worked hard navigating
    the fee-to-trust process in an honorable way. We chose a parcel
    of land located within the service area designated exclusive
    Cowlitz by both HUD and IHS so it is well placed to serve the
    modern-day needs of tribal members who live in the surrounding
    area.
        We chose a parcel squarely located within an area where we
    have strong historical ties, ties that are documented in the
    Bureau of Indian Affairs' recognition documents and in our
    Indian Claims Commission land claim litigation. We chose a
    parcel in a local community that has demonstrated its tolerance
    for gaming by allowing four non-Indian card rooms to operate
    there. By choosing a parcel of land with which we have
    demonstrated modern and historical connections and which is
    located in a community tolerant of gaming cannot fairly be
    called reservation shopping.
        Congress needs to reject proposed amendments to section 20
    that would eviscerate the initial reservation exception. I
    would respectfully suggest a few improvements to the current
    initial reservation provision.
        First, newly acknowledged tribes currently must apply for a
    reservation proclamation pursuant to section 7 of the Indian
    Reorganization Act before we may game on that trust land. Did
    Congress really intend to impose this additional administrative
    hurdle on newly recognized tribes? We ask that Congress clarify
    that the first land taken into trust under the exception
    automatically becomes the tribe's initial reservation so that
    the tribe is not subjected to yet another expensive time-
    consuming process.
        Second, Congress should impose time deadlines on Interior's
    processing of fee-to-trust and section 20 applications. The
    process now takes years to complete and costs millions of
    dollars. We think the only way to protect the integrity of the
    system is to require Interior to make decisions within 2 years
    of receiving the application.
        In closing, I would like to recognize the Snoqualmie Tribe
    from Washington State, whose Chief Jerry Kanim is sitting
    behind me today. The Snoqualmie, too, are a landless newly
    recognized tribe struggling with many of the same land
    acquisition issues as do we.
        In addition, I would like to recognize Mark Brown, chairman
    of the Mohegan Tribe and Tribal Councilman Bruce Two Dogs
    Bozsum. The Mohegan Tribe completed the Federal acknowledgment
    process 10 years before we did, and today they are working with
    us to reinvest in Indian country. We hope that our partnership
    will show that Indian tribes can and will reach out to help
    each other. I would hope that the Mohegan's example will
    encourage other successful tribes to help those who are less
    fortunate.
        All my life, I have served my tribe in the pursuit of what
    is right and what is just. I have grown old, but my purpose is
    not complete. That day will come when the Cowlitz have a
    federally protected homeland that will ensure a brighter day
    for our future generations.
        The Cowlitz Tribe thanks you for the opportunity to provide
    this testimony and we offer our continuing assistance to the
    committee as it considers whether and/or how to amend section
    20 of IGRA.
        Thank you.
        [Prepared statement of Mr. Barnett appears in appendix.]
        The Chairman. Thank you very much.
        Charles Enyart. Welcome.

    STATEMENT OF CHARLES D. ENYART, CHIEF, EASTERN SHAWNEE TRIBE OF
                                OKLAHOMA

        Mr. Enyart. Thank you.
        Mr. Chairman, I have oral testimony here, but with your
    permission I would like to address a couple of comments that
    the Senator from Ohio made at the end of this, if I may.
        Good morning, Chairman McCain. My name is Charles Enyart. I
    am the chief of the Eastern Shawnee Tribe of Oklahoma, a
    federally recognized tribe whose aboriginal homeland was in
    what is now the State of Ohio. I appreciate the opportunity to
    be here today to explain the importance of our land claims in
    Ohio for our people.
        I am here for three reasons: No. 1, to ensure that we have
    the opportunity to return to our aboriginal homeland in
    present-day Ohio; No. 2, to ensure that we have the same rights
    as other Indian tribes to conduct Indian gaming on our lands
    under current laws; and No. 3, to advocate for the rights of
    tribes, States and local communities to work together for their
    mutual benefit.
        The Shawnee want to return to Ohio. Our historic cultural
    ties to Ohio are undeniable. It was 150 years ago that the
    tribe was driven out of its homeland in the State of Ohio.
    Violence against our people, disruptive raids, and the burning
    of Shawnee Indian villages by the U.S. Army was methodical.
        The unauthorized taking of the Shawnee lands by encroaching
    occurred. Our people were forcibly removed from their villages
    and sent to reservations first in Ohio, then in Missouri, and
    ultimately Oklahoma. It was an ugly and shameful time in
    American history in which our people endured unspeakable fear,
    intimidation and military violence by the United States and the
    early Ohioans.
        When we return to Ohio, we wish to do so on the same legal
    basis as other federally recognized tribes. That is, we want
    the right to conduct activities on our land that would be
    permissible for any other recognized tribe anywhere in the
    United States. We do not want to return as a second-class
    citizen by only being allowed to conduct certain activities.
    Thus, we would strongly oppose any legislation that would bar a
    federally recognized tribe with legitimate claims from
    regaining land in its historical area and using that land for
    any permissible tribal activities, including gaming.
        I am sure you would agree that to bar a tribe such as the
    Shawnee from using any land it may gain in its aboriginal
    homeland for federally recognized purposes would create a group
    of second-class Indians who are only allowed to do limited
    things on that land. It is clear the people of Ohio are
    receptive to the establishment of Indian lands and Indian
    gaming. They desire the introduction of gaming for the
    unquestioned economic benefits that it produces. There are many
    reasons for them to prefer Indian gaming over alternatives.
        First, there are numerous controls on the scope of tribal
    gaming which diminish the potential for uncontrolled expansion.
    Only so many tribes have a historical or cultural connection to
    any given State. Second, tribal gaming revenues as a matter of
    law may only be expended for social benefit purposes approved
    by Congress. Commercial gaming only benefits private interests.
        In historic contrast, tribal gaming lifts entire
    communities out of poverty, educates children who once had
    little hope for higher education, builds schools, roads,
    bridges, funds law enforcement and emergency services,
    preserves languages and cultures, builds clinics and hospitals,
    and provides dialysis and diabetic centers, and funds
    charitable activities of every kind.
        Gaming has yielded economic benefits to our tribe. Until
    very recently, our historic legacy was one of poverty and
    isolation. Left virtually landless for over 1\1/2\ centuries,
    our people had very little realistic hope that things would
    ever improve. Like other tribes in similar circumstances, we
    had no economy and no tax base.
        Indian gaming has changed our bleak outlook as to our
    future. The revenues from our modest gaming operation,
    Bordertown Casino, located in West Seneca, OK, has provided us
    the means to make improvements in the lives of our people and
    to rekindle the hope for a better life for our children and
    grandchildren.
        However, the rural character of the land we now occupy,
    combined with the economic conditions in the surrounding area,
    severely restrict our economic potential. The lot of the
    Eastern Shawnee people has improved, but we have a long way to
    go to achieve the level of prosperity that once was ours.
        Our interest in returning to Ohio is to establish a mutual
    benefit political and economic relationship with the State of
    Ohio and the communities that have reached out to us with a
    vision of what is possible. We do wish to fully resolve our
    outstanding land claims, but not in a manner that will be
    detrimental to the people of Ohio. Those with whom we have
    established a relationship understand our intentions and have
    welcomed us into their communities to discuss the potential for
    tribal gaming.
        In fact, local communities in the State of Ohio have
    recently sought out the tribe and asked us if they could help
    bring the Shawnee back to our homeland. We are committed to
    working through appropriate governmental channels in Ohio to
    ensure that we are welcomed back to our homeland.
        On June 27, 2005, we filed a valid land claim in Federal
    court in Ohio. The tribe brought the action to vindicate our
    aboriginal land rights. We further seek damages for wrongful
    possession and trespass on our former reservation lands in
    Ohio. These violations continue today. The tribe has sought
    redress for these wrongs from the State of Ohio. The State of
    Ohio has refused to take any action to redress these wrongs or
    even discuss the matter with us. We had no choice but to take
    our valid claims to the court for redress.
        The full explanation of these claims is contained in
    material from our attorneys which I have submitted with my
    written remarks for the record. Tribes with legitimate claims
    should be allowed to regain portions of their homeland and
    should be allowed to enter into agreements including gaming
    agreements that promote economic development and benefit
    tribal, State and local economies.
        Thank you, Mr. Chairman, for this chance to testify to the
    committee.
        Again with your permission, if I may address a couple of
    comments. The Senator made a comment about secret negotiations.
    Senator, there have been no secret negotiations. It has been in
    the newspaper. It is all over TV in Ohio. He talked about the
    agreements we have with certain communities. That is true. We
    have four. Only one of the agreements did we pursue ourselves.
    The other three pursued us, these communities.
        He also talked about economic blackmail. Senator, our land
    claim has never been intended to be blackmail. We have been up
    front with the State of Ohio. In fact, I have mailed, I think
    it was in April, a letter to the Governor, Governor Taft, and
    to Attorney General Petro explaining that we would like to meet
    with him and discuss our land claim to see if there is
    something we can work out. At no time was this blackmail.
        [Prepared statement of Mr. Enyart appears in appendix.]
        The Chairman. Thank you very much, sir.
        Mr. Gray, prior to termination, where was your Band
    located?
        Mr. Gray. When you ask prior to termination, do you mean
    when the original lands were ceded? Which territory are you
    searching for?
        The Chairman. No; the termination that took place in the
    1950's, I guess it was.
        Mr. Gray. Okay. The original rancheria is located in what
    is now Ukiah, CA.
        The Chairman. Which is near?
        Mr. Gray. Mendocino County.
        The Chairman. Do any of the tribe still reside in that
    area, or do they live in the Bay Area?
        Mr. Gray. When you ask ``any of the tribe,'' are you asking
    specifically about Guidiville? There are several tribes in the
    area.
        The Chairman. The Department has testified that it applies
    a rigorous historical nexus test for restored lands. How do you
    think you are going to be able to meet that historical nexus
    test?
        Mr. Gray. Well, it is very difficult, as they testified,
    and very expensive and time-consuming. The tribe would not
    pursue this particular piece of land if it did not believe that
    it had a strong historical tie to the property. So what we
    would like to see happen is that the exception under which we
    fall would be left alone as it is and that we be allowed to go
    through that rigorous process. The tribe is willing to live
    with the end result.
        The Chairman. How do you answer the charge that your
    interest in the off-reservation sites is only in conducting
    gaming?
        Mr. Gray. Well, off-reservation, just the term alone
    presupposes that the tribe has a reservation.
        The Chairman. But you are interested in off-reservation
    sites, are you not?
        Mr. Gray. We do not have a reservation. I understand your
    question. This is within our historical area, and we firmly
    believe that. But in California where we are from, it is simple
    economics. In an area where lands at our northern boundary of
    our territory and lands that are at our southern boundary of
    our territory are approximately the same, well in excess of
    $200,000 an acre. It will take us over $100 million just to do
    the land purchase.
        So you have to be able to draw enough people to the casino
    to make enough money to be able to pay just for the land. That
    is not infrastructure or any of the other things that need to
    occur.
        The Chairman. Chief Norris, you indicate that the
    Department declined to consider your request to have land in
    Logansport declared restored lands. What was the basis for
    their decision?
        Ms. Norris. On Logansport?
        The Chairman. Yes; was it due to a lack of sufficient
    historical nexus?
        Ms. Norris. We proved that there were ties to the port in
    Logansport. We were not saying it was the Jena Band that were
    originally there, but we were saying that it was the Choctaw
    Nation. We proved through documentation that there were Choctaw
    people there during the removal period from the east to
    Oklahoma.
        With the Logansport package, they did give us a two-part
    determination in that, with the support of our Governor from
    Louisiana at the time. Unfortunately, all indications were that
    we were going there for the two-part determination which
    Interior did issue that proclamation, but the former Governor
    Foster did not carry through with his decision before leaving
    office.
        The Chairman. You state in your testimony that you have a
    three parish or county service area. How was that service area
    determined?
        Ms. Norris. It was determined by the Bureau of Indian
    Affairs when we began our process for the Federal
    acknowledgment process. The people in my tribe resided in
    Grant, Rapides and La Salle Parishes. This is where we would
    have a delivery service area for health services for our tribe.
        The Chairman. Did the Department indicate that this was the
    area in which you could have an initial reservation? Or did the
    Department tell you that there was a certain area where it
    would take land into trust for your initial reservation?
        Ms. Norris. No, sir; it did not. It only deemed this area
    for delivery of services to my people for health care,
    education, and social services.
        The Chairman. Obviously, you have had a very difficult
    time.
        Ms. Norris. Yes.
        The Chairman. If you had to do it over again, what would
    you have done differently? Anything?
        Ms. Norris. I think that my tribe I feel during the
    relationship that I have had in Government for the 30 years, we
    worked with our State, we worked with our Governor. Perhaps
    there lies the reason that we have been criticized most in the
    media because we went to the areas where our Governor, he very
    adamantly came out and said, I will not give you a compact in
    those service areas of the three parishes in which you reside
    because those areas voted out gaming. If you will go where they
    want you, where the people will accept you, where they already
    have a form of gaming, I will support you.
        Because of that statement that was issued, we sought to
    seek these places. The three parish area that voted out gaming
    is where we reside, where we live and go to church. We go to
    school with these people. We wanted to be good neighbors. I
    would have not chosen any other course than what we
    participated in. I believe it was right. I believe we worked
    with our local government to get to these areas, to get to
    where we are today.
        The Chairman. You must feel a little betrayed.
        Ms. Norris. Of course I do. I feel betrayed by the
    administration in my own State, because of the other three
    federally recognized tribes. As a leader, as you have heard
    from the testimony of these other tribal leaders, it is up to
    me to give my people a better way of living, to improve their
    quality of life.
        That is what I am here for and that is my journey and that
    is what my mission is to my people. My story has been an open
    book. It has been published in the media around the country. We
    have everybody looking at the decisions that are made today
    based on the Jena Band of Choctaw. It is before you to see and
    everyone else to see. We have tried to work with governments
    and with local bodies to do what is right, to do the right
    thing.
        The Chairman. Chairman Barnett, welcome back.
        Mr. Barnett. Thank you, sir.
        The Chairman. You state that the site you are proposing is
    14 miles from the territory identified by the Indian Claims
    Commission as the traditional territory of the Cowlitz. Why did
    the tribe not seek a site within the traditional territory as
    identified by the Indian Claims Commission?
        Mr. Barnett. In 1973, we went through the process, a
    hearing with the Indian Claims Commission. We were awarded $1.5
    million for 1,716,000 acres of land. We were not allowed to
    include Clark County because we could not at that point in time
    prove exclusive use and occupancy. There is a reason for that
    and I think it is a very important reason. The Cowlitz Tribe
    has always been since time immemorial the resident tribe all
    the way down to the Columbia River.
        When the Hudson's Bay Company built Fort Vancouver, which
    is just north of Portland, OR, across the river, it changed
    things, because other tribes, for instance the Umatilla, the
    Nez Perce, Grand Ronde, those tribes came to Fort Vancouver for
    the benefits of trade or to get supplies or whatever it
    happened to be. The Cowlitz were already there. These tribes
    came, did their business and went back home. We did our
    business and we stayed there because that is where we were
    from.
        The Chairman. But the Indian Claims Commission does not
    acknowledge that.
        Mr. Barnett. That is right. They did not acknowledge that
    fact that we were there and we have proven all along. And that
    is one of the problems that we have had with Clark County is
    that these four card rooms there are throwing tons of money to
    try and say we do not belong in Clark County, when we have
    documented proof that we do.
        I think that is a very valid point that has to be
    considered here is that we are different. We are within our
    aboriginal area, even though the difference between exclusive
    use and occupancy and just being there, use and occupancy in
    the area because of the other tribes coming in, makes it a
    little bit different ball game.
        The Chairman. Does the local community support your efforts
    to get land and a casino?
        Mr. Barnett. Some do, some don't. I think we are making
    some progress. There has been a lot of misinformation that is
    coming out. We have always tried to take the high road and not
    get into defensive battle with Clark County. I think we are
    going to have to go on the offensive a little bit here to
    explain truthfully to the people of Clark County just exactly
    why we are there. There are some people that say you belong up
    in Toledo, way up in the middle of Washington, things like
    that. We find that hard to swallow, but it is something we just
    have to deal with, and we will be coming out with documentation
    before this fee-to-trust issue is done that will conclusively
    prove that this is our aboriginal area, even though we were not
    paid for it.
        I might mention that approximately 500,000 acres of land we
    are talking about here that were not included by the Indian
    Claims Commission as a result of this distinction between use
    and occupancy.
        The Chairman. Chief Enyart, you filed your land claim on
    June 27 of this year. Isn't that a long time to have waited
    after you were removed from Ohio?
        Mr. Enyart. Yes; it is, Senator, but let me give you a
    little history of our tribe. We were removed from Ohio in 1832.
    We eventually wound up in Oklahoma. We were awarded
    approximately, not quite 59 acres. That is what we had for our
    tribal headquarters. The only income that the tribe had was
    moneys that farmers would pay to farm that 59 acres. We had no
    income. The tribal leaders had to meet in churches, in
    courthouses, and their budget in the 1940's and 1950's was $50,
    and that was to get stamps.
        So then in the 1980's, we were able to get grants to build
    some buildings where have a tribal headquarters down there now.
    And then also the 1980's, we went into gaming. To go on, we did
    not have the resources to do it. It is only through the gaming
    that we have been able to have some monies that we can be doing
    things that we were not able to do at that time.
        Gaming has been very good to the Eastern Shawnee. We put
    our money right back into the tribe. We have all kinds of
    social programs for our tribal members such as children having
    clothing allowances, scholarships for people going to college,
    a trade school. So this money goes right back in.
        Yes, it was a long time, Senator, but we did not have the
    resources then.
        The Chairman. How would you answer people who say you are
    just looking to leverage a better, more lucrative gaming
    location?
        Mr. Enyart. I would say this, let me tell you my vision for
    the Indian tribes. I foresee the day, and part of it is now,
    the Federal dollar is getting harder to get, drying up. In my
    opinion, the tribes that want to make it in the future need to
    be self-sufficient. There is only one way that we can do this
    and that is to use our profits from gaming to get into other
    businesses so that down the line we can become self-sufficient.
    We would no longer be dependent upon the Federal Government to
    take care of us.
        It is our homeland. We do want to go back. Is it lucrative?
    Sure it is, but we are also willing to share in this with the
    State, with the community. We are not just trying to take all
    of this for ourselves. We have been very open about this in the
    press and on TV coverage, too.
        The Chairman. So people are correct when they say you are
    looking to leverage a better, more lucrative gaming location?
        Mr. Enyart. The terminology gets me, Senator. Are we
    looking for a better economic place to build, yes, but again
    the funds are going to be used in the State and also in the
    community and the tribe, so this would not only benefit us, but
    the State and the community as well. So to put that in, is it
    100 percent, I could not say that, no.
        The Chairman. Assuming you obtain the land, are you
    confident the Ohio Governor would sign a compact with your
    tribe?
        Mr. Enyart. The present Governor? No, if Governor Taft is
    in there. I am sure you are familiar with a famous Oklahoman,
    Will Rogers. Well, Will Rogers used to say, all I know is what
    I read in the paper. Well, that is all I know about the
    Governor and the Attorney General because we made an effort to
    meet with them. They didn't even respond to my letter.
        So the only thing I know is what I see in the paper and
    what I read and what is forwarded to me. He has made comments
    that he would not sign that. Again, I understand that he made
    the same comments when the lottery was coming in. He made the
    same comments, but lottery was approved.
        The Chairman. Are there any limits to where a tribe should
    be able to return to exercise sovereignty either in geography
    or in the amount of time that has elapsed?
        Mr. Enyart. I think if you have a legitimate land claim,
    you have historical data that proves that you were there, I
    don't think there should be any limits on it.
        The Chairman. Shouldn't that be a decision of the Indian
    Claims Commission?
        Mr. Enyart. Well, I am sure that they would like to have
    part of that, but also it is a legal question. If we have legal
    reasons to go and file land claims, why can't we pursue those
    legal reasons? Now, it would be determined in court anyway.
        The Chairman. Do you want to respond to that question also,
    Chief Barnett? Are there any limits to where a tribe should be
    able to return to exercise sovereignty?
        Mr. Barnett. Sovereignty is an issue I think that all
    tribes, whether we are federally recognized at one time,
    restored through the acknowledgment process. Senator Inouye
    told me at a fundraiser for Maria Cantwell, I sat next to him
    for dinner. He was the keynote speaker and he said two things
    and they really impressed me. He said, always protect your
    sovereignty and always protect your traditions. Those words I
    think are true and I think all Indian tribes adhere to those
    words, that if we are going to survive as tribes, we have to do
    that.
        But in this day and age, we do have to make certain
    adjustments to the way we do things. Indian gaming is one of
    the things. As a landless tribe, you might say, well, are we
    reservation shopping? Well, how can you be reservation shopping
    when you do not have a reservation to begin with? That is our
    problem and it is the problem of having to say that we are in
    our own aboriginal area, and I think that ``aboriginal'' word
    is important because that means that we have been there since
    time immemorial.
        The Chairman. I was speaking because of the odious
    practices of the Federal Government tribes were moved from east
    to west and resided in certain areas for long periods of time
    before they were finally relocated, if that is the right word.
    Do you see my point?
        Mr. Barnett. Yes; I do. In our situation, for instance, we
    did not sign a treaty. The reason we did not sign a treaty was
    because we were asked to move by Governor Isaac Stevens, 200
    miles away over to the coast of Washington, to be on the
    Quinault Reservation with eight other tribes. At that point in
    time in our history, there was slave-taking between the Cowlitz
    and the Quinaults. You know, it was a situation where we would
    not even consider those types of things. We stayed on our
    aboriginal lands because that is where we wanted to be, and
    that is where we want to make our living and that is where we
    want our children to come.
        I agree with you on reservation shopping, if there are
    valid reasons, this gentleman here, I do not know that much
    about his situation, if there are valid reasons and if the
    legal situation is there to take it to court, I think that is
    certainly their prerogative to do.
        I think the big issue here on reservation shopping is the
    opportunists that get involved. They are there for one reason,
    to convince tribes that may not have as much smarts that this
    is the way you are going to make yourselves lots of money. And
    oh, incidentally, we might make some at the same time. And
    there is a lot of that going on. I do not know how you people
    are going to handle it, but I know that you will handle it in
    an equitable way. I am confident of that.
        The Chairman. We have seen ample evidence of what you just
    stated.
        What is your next step, Chairwoman Norris?
        Ms. Norris. Our next step is to pursue gaming in one of our
    home parishes of Grant Parish. We went the route, as I
    explained earlier, with the Governor and the movement of the
    State. We are back home in our parish area. How can they deny
    us a gaming facility, Federal land to be taken into trust?
        We are waiting for it to be declared initial reservation.
    With the three other tribes who are federally recognized that
    have gaming facilities in Louisiana, we will be the next. I do
    not look at it as a form of expansion of gaming. I look at it
    as this is our right to be there to pursue this economic
    development.
        Unfortunately, gaming is the most lucrative in economic
    development. I wish it wasn't. I wish there was something else.
    I feel like we are put in a box.
        The Chairman. I think that is their view in New Orleans.
        Ms. Norris. Yes; I feel we are put in a box by these gaming
    developers with the money. Unfortunately, as everyone has
    stated here before, landless tribes, we do not have any money
    to pursue economic development. We do have to depend on, but we
    still maintain our Indian sovereignty by making these decisions
    to accept or not to accept.
        So my next move will be to establish a facility in the
    Grant Parish area.
        The Chairman. Thank you.
        Again, since you mentioned Senator Vitter, I would repeat
    the committee has seen absolutely no evidence that Senator
    Vitter's opposition to your attempt to obtain a gaming facility
    has had to do with anything other than his longstanding
    principled opposition to the expansion of gaming.
        Mr. Gray, what is your next move?
        Mr. Gray. Hopefully with the assistance of the committee,
    we will continue to pursue the project that we have proposed
    under the existing rules. We hope that they are not changed. We
    have made extreme investments of money and time into the
    process and we feel we are halfway there. We do not feel that
    the rules are broken and we hopefully will be able to continue
    to pursue the project under those rules.
        The Chairman. Thank you.
        I thank the witnesses. It has been very helpful.
        This hearing is adjourned.
        [Whereupon, at 11:50 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. Daniel K. Inouye, U.S. Senator from Hawaii

        Senator Inouye. Thank you Mr. Chairman.
        Today is the sixth hearing of the 109th Congress in which the
    committee will receive testimony about off-reservation gaming, with
    today's hearing focusing on the exceptions specified in the Indian
    Gaming Regulatory Act.
        As the original sponsor of the Indian Gaming Regulatory Act, I want
    to assure everyone that the exceptions for conducting off-reservation
    gaming were thoughtfully considered and deliberately included. At the
    time the act was drafted, the committee was well aware of the United
    States' responsibilities to, and past actions toward, the Indian
    tribes.
        I am sure that most of those present today know that history but it
    is important that it be restated. For the Federal Government's past
    treatment of Indian tribes was a shameful period in our history and is
    part of the reason that the exceptions were included in the Indian
    Gaming Regulatory Act.
        Indian tribes were forced to sell millions of acres of land to the
    U.S. Government through treaties that were never honored. Some treaties
    were not even signed without providing any notice to the signatory
    tribes, thus leading them to believe that they had a valid agreement
    with the United States.
        Lands reserved by the Indians were usually the lands that the
    United States felt were the least undesirable as were the lands upon
    which the United States forced other Indian tribes. Even then we did
    not stop our dishonorable treatment. Many of the lands reserved by
    Indian tribes were divided up and provided to the individual Indians in
    an attempt to break tribal ties. So-called excess lands were sold to
    non-Indians.
        But we did not stop there.
        We went through an era of terminating our government-to-government
    relationship with some tribes and continued to ignore our obligations
    to others. Although we restored our relationship with some tribes,
    others were and are still forced to go through an administrative
    process at the Department of the Interior in order to gain Federal
    recognition.
        But gaining Federal recognition does not ensure that the United
    States will honor its responsibilities and obligations to tribes. It
    does not guarantee that a tribe has the land or the tools necessary to
    fully exercise its sovereignty or to provide for its members.
        And that is why we purposefully included a mechanism for off-
    reservation gaming. The exceptions were intended to acknowledge the
    Federal Government's dishonorable treatment of Indian tribes. They were
    intended to be a mechanism for Indian tribes to gain a measure of
    economic self-sufficiency and to further tribal self-governance and
    self-determination.
        I am confident that the exceptions have not been abused. It is
    estimated that since 1988, approximately 27 applications have been
    approved pursuant to the exceptions. A few months ago, the Department
    of the Interior testified that only eight land into trust applications
    under the section 20 exceptions have been approved since 2000, and
    three of those applications were on-reservation. Under the two-part
    determination exception, State Governors have only concurred in three
    of the decisions by the Secretary of the Interior. While the Department
    testified that there are 11 pending applications, the Department also
    testified that it is a lengthy, time-consuming process.
        Some tribes have been criticized for attempting to conduct gaming
    off-reservation while others have been accused of abusing the
    exceptions. I am confident that the exacting processes established by
    the Department of the Interior will prevent any such abuse.
        It saddens me that there are those who ignore the purpose of the
    exceptions included in the Indian Gaming Regulatory Act. For doing so
    seems to also ignore Congress' continuing responsibilities, the Federal
    Government's past actions, the sovereign status of Indian tribes, and
    the benefits that gaining provides to Indian tribes.
        I have repeatedly made it clear--I do not support gaining. But
    Indian gaming is about tribal sovereignty and the Federal Government
    needs to start living up to its responsibilities. While it must be
    well-regulated, I am confident that the regulatory mechanism included
    in the Indian Gaming Regulatory Act does that.
        Indian gaming has provided the resources necessary for Indian
    tribes to strengthen their governments. It provides jobs in Indian
    country. It has helped to alleviate the deplorable conditions that
    exist in Indian country. Most of all, it has helped tribes meet the
    needs of its members for which the Federal Government is responsible
    but has failed to do. Yet there is still so much more that needs to be
    done.
        Thank you.
                                     ______

       Prepared Statement of Penny J. Coleman, General Counsel [Acting],
                       National Indian Gaming Commission

        Chairman McCain, Vice Chairman Dorgan and members of the committee:
    My name is Penny Coleman. I serve as the acting general counsel for the
    National Indian Gaming Commission. Thank you for allowing us to speak
    with you today. We appreciate the opportunity to testify today about
    the Commission's involvement in Indian lands questions.
        Indian land is the foundation upon which Indian gaining is built.
    The Indian Gaming Regulatory Act [IGRA] defines Indian lands; it
    requires that gaming take place on Indian lands; it limits the National
    Indian Gaming Commission's regulatory authority to gaming that takes
    place on Indian Lands; it establishes a prohibition against gaming on
    trust lands acquired after October 1988; and it exempts many lands from
    that general prohibition.
        Thus, Indian lands are central to many of the Commission's
    functions. The Commission must determine whether gaming facilities are
    located on Indian lands in order to determine whether the IGRA permits
    gaming on those lands and permits the Commission to regulate it. If a
    facility is not located on Indian lands, the NIGC has no authority
    whatsoever over any gaming occurring there or any jurisdiction to stop
    the activity. The Commission is also required to decide whether a
    specific parcel is Indian lands when a management contract or a site-
    specific tribal ordinance has been submitted to the Commission for
    approval; such determinations are part of our final agency actions on
    management contracts and tribal ordinances.
        The Office of General Counsel also issues advisory opinions on
    Indian lands. These opinions are often intended to advise tribes
    whether they should attempt to proceed with gaming on a given site.
    Sometimes our opinions confirm that a specific parcel is Indian lands.
    Sometimes they warn a tribe that we do not consider the gaming to be
    legal.
        We share the responsibility for deciding Indian lands questions
    with the Department of the Interior. The Department makes decisions on
    lands when a tribe seeks to acquire land I
        into trust, seeks a trust-to-trust transfer for gaining, or seeks
    approval of a land lease or a tribal-State compact.
        For many years, the Department of the Interior assumed the primary
    responsibility for making Indian lands determinations. However, as
    gaming expanded in recent years, the Commission's need to make such
    decisions became more and more pressing. The Commission thus began
    making these decisions on its own. Because of the shared responsibility
    with the Department, we entered in a Memorandum of Understanding that
    requires each agency to notify the other when Indian lands questions
    are pending and to provide advice and assistance on the Indian lands
    determinations.
        This is not a small undertaking. Altogether, the Department's
    Office of the Solicitor and the Office of General Counsel have issued
    over 50 written opinions and the Commission has made decisions on over
    40 management contracts.
        Right now, the Commission has approximately 50 Indian lands
    determinations pending. Some of these will be simple decisions. The
    land will be held in trust and within the tribe's reservations
    boundaries, and no lengthy analysis will be required.
        Many Indian lands determinations, however, are complex and
    difficult. For example, IGRA exempts from the general prohibition of
    gaming on lands acquired after the date of its enactment when ``lands
    are taken into trust as part of...the restoration of lands for an
    Indian tribe that is restored to Federal recognition.'' To establish
    that a tribe's lands fall within the restored land exception, a tribe
    must establish that it is a tribe restored to Federal recognition and
    that the parcel on which the gaming is being conducted is restored
    land.
        For a tribe to be restored to Federal recognition under the IGRA,
    it must have been previously recognized; it must have lost its
    recognized status; and it must be returned to a recognized status. This
    last can be straightforward, for, in most instances, it will or will
    not have been included by the Secretary of the Interior on her list of
    federally recognized tribes. The first two elements, however, require
    much delving into our history. Beyond looking to 18th and 19th Century
    Treaties and laws, the specific political and ethnographic history of
    the tribe must be reviewed. Just gathering the relevant information
    requires a large, cooperative effort among the tribe, various divisions
    within the Department of the Interior, and perhaps historians and
    research archives.
        Beyond all of that, determining that lands are restored lands
    requires the casting of an even broader research net, for not all lands
    re-acquired by a tribe are ``restored'' lands within the meaning of
    IGRA. Whether lands are restored lands requires a case-by-case
    determination.
        We must look to the factual circumstances of the land acquisition.
    We must look at the location of the acquisition and consider such
    questions as whether it is close to the tribe's population base and
    important to the tribe throughout its history. We must look at the two
    temporal relationship of the acquisition to the tribal restoration (in
    other words, was this land acquired 1 year after the tribe was restored
    to recognition or 30 years later and after the tribe acquired 20 other
    parcels). All of this requires the tribe to hire historians and
    ethnographers and also to produce voluminous historical documents and
    archaeological evidence, which, of course, can take time to assemble
    and submit, not to mention time for the NIGC to digest.
        A number of our determinations have also resulted in litigation,
    which slows down our ability to make decisions even further, and to add
    to the complexity, Congress has the ability to, and occasionally does,
    legislate the status of lands belonging to individual tribes, and that
    can change the Indian lands analysis completely.
        The Commission and the Department have been criticized by the
    Department's Office of Inspector General for failing to decide the
    Indian lands questions before a facility opens and for failing to have
    a systematic approach to making such decisions. We share the Inspector
    General's concern on this. Good government requires that regulators
    know the extent of their jurisdiction. Furthermore, if we decide that a
    tribe should not have opened a facility because the lands did not
    qualify for gaming under the act, extensive litigation is guaranteed
    and, if the Commission is correct, the tribe will have incurred
    millions of dollars in debt with few options for repaying the debt.
        We are, therefore, developing a system which is designed to track
    Indian lands determinations and to identify new problems quickly.
    Recently, we sent a team to the State of Oklahoma to obtain copies of
    deeds, maps and other documentation on some of the gaming sites. In
    California, we also hired a title company to conduct title searches on
    some sites. This information as well as other information we obtain
    will be used in establishing the central file system for the Indian
    lands documentation. We hope to convert this file system into an
    electronic system in the near future. We are also considering
    regulations that would require a tribe to establish that a gaming
    operation is on Indian lands before it licenses the facility.
        We thank the committee members and staff and stand ready to assist
    you as you continue to review these Indian lands questions. If you have
    any questions, I would be happy to answer them.

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