[Senate Hearing 109-298]
[From the U.S. Government Publishing Office]



                                                 S. Hrg. 109-298, Pt. 1

                         OFF-RESERVATION GAMING

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

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON


 OVERSIGHT HEARING FOR THE PROCESS FOR CONSIDERING GAMING APPLICATIONS

                               __________

                            FEBRUARY 1, 2006
                             WASHINGTON, DC

                               __________

                                 PART 1

                               __________


                     U.S. GOVERNMENT PRINTING OFFICE
                             WASHINGTON: 2005
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                      COMMITTEE ON INDIAN AFFAIRS

                     JOHN McCAIN, Arizona, Chairman

              BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico         DANIEL K. INOUYE, Hawaii
CRAIG THOMAS, Wyoming                KENT CONRAD, North Dakota
GORDON SMITH, Oregon                 DANIEL K. AKAKA, Hawaii
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
MICHAEL D. CRAPO, Idaho              MARIA CANTWELL, Washington
RICHARD BURR, North Carolina
TOM COBURN, M.D., Oklahoma

                 Jeanne Bumpus, Majority Staff Director

                Sara G. Garland, Minority Staff Director

                                  (ii)




                            C O N T E N T S

                              ----------                              
                                                                   Page
Statements:
    Alexanderson, Alvin, on behalf of Citizens Against 
      Reservation Shopping, Stand Up For Clark County, and 
      American Land Rights Association...........................    18
    Coleman, Penny, acting general counsel, National Indian 
      Gaming Commission..........................................     6
    Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice 
      chairman, Committee on Indian Affairs......................     2
    Harju, Philip, councilman, Cowlitz Indian Tribe..............    20
    Kromm, Duane, supervisor, Solano County Board of Supervisors, 
      on behalf of the California State Association of Counties..    22
    McCain, Hon. John, U.S. Senator from Arizona, chairman, 
      Committee on Indian Affairs................................     1
    Skibine, George, acting deputy assistant secretary, Policy 
      and Economic Development for Indian Affairs, Department of 
      the Interior...............................................     3
    Thomas, Hon. Craig, U.S. Senator from Wyoming................     2
    Thomas, Liz, spokesperson, Tax Payers of Michigan Against 
      Casinos....................................................    25

                                Appendix

Prepared statements:
    Alexanderson, Alvin (with attachment)........................    41
    Coleman, Penny...............................................    37
    Confederated Tribes of the Warm Springs Reservation of Oregon    72
    Harju, Philip (with attachment)..............................    77
    Kromm, Duane (with attachment)...............................    89
    Little Coyote, Eugene, president, Northern Cheyenne Tribe of 
      Tongue River Reservation...................................   115
    Lynch, Edward L., chairman, Citizens Against Reservation 
      Shopping...................................................   117
    Miles, Rebecca A., chairman, Nez Perce Tribal Executive 
      Committee..................................................    38
    Skibine, George (with attachment)............................   131
    Thomas, Liz..................................................    38
Additional material submitted for the record:
    Montgomery, Marilee Taylor, Stop the Casino 101 Coalition, 
      letter.....................................................   150
    Testimony Questionnaire Reservation Shopping and Tribal 
      Casinos....................................................   155

Note: A number of Questionnaires regarding Reservation Shopping 
  and Tribal Casinos are retained in the committee file. A total 
  of 848 are against (agree) 62 are for (disagree) and 53 are 
  undecided.

 
                         OFF-RESERVATION GAMING

                              ----------                              


                      WEDNESDAY, FEBRUARY 1, 2006


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:32 a.m. in room 
106 Senate Dirksen Office Building, Hon. John McCain (chairman 
of the committee) presiding.
    Present: Senators McCain, Dorgan, Cantwell, Smith, and 
Thomas.

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

    The Chairman. This morning, the committee is holding its 
sixth oversight hearing on the Indian Gaming Regulatory Act. 
Since IGRA was enacted in 1988, Indian gaming has grown from a 
few bingo halls on scattered reservations to a $19-billion 
industry featuring Las Vegas-style casinos and entertainment 
offered by nearly 200 tribes.
    The previous hearings in this committee demonstrated 
several areas of the law that are in critical need of 
improvement. Last fall, we introduced a bill containing a 
comprehensive set of amendments, S. 2078. However, certain 
controversial activities continue to concern me, my colleagues, 
and many communities around the country. Therefore, I have 
determined, working with Senator Dorgan, to continue to look at 
these activities and whether additional changes to IGRA are 
needed.
    While the majority of tribes have built casinos on their 
reservations, a growing number have applied to use the 
exceptions in section 20 of IGRA to obtain casinos off their 
reservations in more economically viable locations. As might be 
expected, the success of off-reservation casinos leads others 
to seek similar success.
    State officials have a role in land-into-trust decisions 
under the two-part determination. I am concerned, however, that 
the process of taking land into trust under the restored lands 
and initial reservation exceptions may not be adequate to be 
fair to all the people impacted by the arrival of a casino.
    At the same time, we recognize that the restored lands and 
initial reservation exceptions were originally intended to 
provide a fair chance for newly recognized tribes to achieve an 
equal footing with their sister tribes. Having received a great 
deal of information about newly recognized tribes looking for 
the best place to place a casino, rather than a location that 
meets the cultural and social needs of their members when 
looking for an initial or restored reservation, we must now try 
to fairly balance the interests of tribes seeking reservations 
and the communities affected by new casinos.
    We will also hear from individuals who can testify to three 
locales' experiences with the land-into-trust process, as well 
as an Indian tribe that currently has its application for an 
initial reservation pending before the Bureau of Indian Affairs 
[BIA] and that has at the same time received an opinion from 
the National Indian Gaming Commission [NIGC] stating that if 
land is taken into trust, it should be considered restored 
lands. It is these two exceptions to IGRA's general ban on 
gaming on recently acquired land, the initial reservation and 
restored lands for restored tribes exceptions, that we are 
interested in today, along with many other aspects of IGRA.
    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 agree with what you have said in your opening statement. 
There is no question but that the application process for these 
exceptions is something that we should hold these hearings on 
to try to better understand.
    Today's hearing will focus on two exceptions to the general 
ban against gaming on lands that were acquired after 1988: No. 
1, those lands that are the initial reservations of tribes; and 
No. 2, those lands that are the restored lands of tribes. The 
exceptions, my understanding is, from the origin of IGRA, are 
intended for those tribes whose lands were illegally taken; 
whose governments were wrongfully terminated; or who are just 
establishing their government-to-government relationship with 
the United States.
    The two exceptions were are discussing today are intended 
to correct some of the many injustices bestowed upon native 
people. It is true, Mr. Chairman, as you indicated, that 
location for these facilities is critical. It is also true that 
there are many who would want to find the best locations 
possible and the largest possible centers possible. We 
understand all of that.
    As a result, we want to evaluate how these exceptions are 
working; how the applications for these exceptions are being 
considered; and understand the consequence of all of that. For 
that reason, I think these hearings are going to be very 
productive and very important as we move forward.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Thomas.

   STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM WYOMING

    Senator Thomas. Thank you, Mr. Chairman.
    I appreciate your having this hearing. I think this is an 
issue of increasing concern and interest to all of us. I have 
no particular statement. I look forward to the testimony. I 
believe this is a very important issue and I am glad we are 
dealing with it.
    The Chairman. I thank my colleagues. I would like to again 
state we will be having several more hearings on this entire 
issue of Indian gaming, and also the issue of political 
involvement and contributions. I intend to mark up legislation 
within 1 month or so that I hope can be passed by both Houses 
of Congress.
    I want to emphasize, as I said in my opening statement, 
this went from a very small revenue and small enterprise 
business, to now approaching $20 billion a year; 99 percent of 
the patrons of Indian gaming are not Indians, so we have an 
obligation not only to Native Americans to preserve their 
rights and their sovereignty, but also to protect the rights of 
those who patronize Indian gaming facilities as well.
    So I am very aware that there is a great deal of 
controversy out there in Indian country about addressing this 
issue. It needs to be addressed. Every law that is passed over 
time needs to be updated and reauthorized. IGRA was passed in 
1988 and it is time that law be reviewed and reauthorized in 
keeping with changing circumstances.
    I thank my colleagues. I would like to ask the first panel, 
George Skibine, an old friend of the committee, who is the 
acting deputy assistant secretary for Policy and Economic 
Development for Indian Affairs of the Department of the 
Interior; and Penny Coleman who is the acting general counsel 
of the National Indian Gaming Commission, as our first 
witnesses.
    Mr. Skibine, we will begin with you. Again, 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 very much, Mr. Chairman, Mr. Vice 
Chairman, Senator Thomas. I am pleased to be here to represent 
the Department of the Interior at this hearing.
    I submitted a statement for the record. In my testimony, I 
describe the process.
    The Chairman. Without objection, both statements will be 
made part of the record. Please proceed.
    Mr. Skibine. I describe the process that a tribe has to go 
through in submitting an application to take land into trust 
for gaming. I am not going to repeat what I said here; just 
outline it. Essentially, the way it works is that, first of all 
let me mention that before a tribe submits an application, 
there are often a lot of rumors going around, and articles in 
newspapers.
    We are not really involved in that at all. That creates a 
lot of controversy and gives the impression that something is 
already pending, when in fact when we receive these calls, for 
many, many of these applications, the BIA is not yet involved.
    The BIA's involvement is triggered when a request is 
submitted to the regional office under our regulations for 
taking land into trust, contained in 25 CFR part 151. That 
triggers the BIA to consider the application. What usually 
happens next is that the BIA will begin the environmental 
documentation processing under NEPA to decide whether an 
environmental assessment or an environmental impact statement 
is needed.
    That usually takes 6 months to 1 year, we are involved with 
that process. The process includes public input. There are 
scoping sessions that are held in the field, and then 
eventually, a draft environmental statement is submitted for 
comment. We get most of our information on environmental 
consequences from that process.
    The Chairman. What is the average length of that process?
    Mr. Skibine. For NEPA, I would say it is at least a year, 
sometimes much longer than that.
    As this is going on, the tribe will continue to submit its 
application and the local BIA will conduct consultation 
meetings if its off-reservation. We will do consultation with 
State and local communities that have jurisdiction over the 
land. We will examine the impact based on the comments that are 
received. Eventually, there will also be a determination that 
is going to be made in Washington, if the land is for gaming, 
on whether the land will qualify under one of these exceptions 
that you mentioned at the outset.
    We look at the information that the tribe has submitted and 
we decide whether one of the exceptions applies. In some cases, 
we do not have to make a determination because the tribe will 
say, we are applying under the two-part determination, which is 
off-reservation. In that case, the process moves forward under 
that two-part determination test that you talked about earlier.
    If not, then we will make a determination as to whether 
section 20(b)(1)(A), the two-part determination, applies or 
not. If it does not apply, it will be because it fits under one 
of these exceptions. Under these exceptions, we have approved 
since 1988 one under the restoration of land exception. We have 
approved three under the initial reservation exception, 
although we have not actually taken land into trust yet under 
the initial reservations exception because two of those cases 
are now in court. The third one was just approved a few days 
ago.
    We have approved 12 applications since 1988 under the 
restored tribe exception. A restored tribe can be either 
restored by Congress or restored by judicial decision. We have 
about 10 applications under the two-part determination 
currently pending before us and we also have about 10 under the 
restored tribe exception that are currently pending in the 
Bureau of Indian Affairs.
    As the process goes along, a determination will be made 
whether the tribe qualifies under the exceptions. Then the 
recommendation of the regional office will come to my office, 
where we will take a look anew at that application. We will 
decide whether to sign a finding of no significant impact under 
NEPA for an environmental assessment, or whether to sign a 
record of decision if an environmental impact statement is 
done.
    We will look at whether to recommend to the Secretary who 
has delegated authority, actually the Assistant Secretary for 
Indian Affairs, to take land into trust. Since 1990, when 
Manuel Lujan was Secretary, there was a policy made that 
applications to take land into trust for gaming would be made 
at the central office. We have continued that policy since 
then.
    Now, what I want to emphasize is that what we have sought 
to do here is to have a very transparent process from the 
beginning. We understand, and I have talked to many people out 
there who have sometimes had a problem with the regional office 
of the BIA in getting sufficient information. I have talked to 
Congressmen representing Districts who have had that issue. We 
are trying to fix that because I think that the philosophy that 
we have and that essentially follows Secretary Norton's 
position on communication and consultation, is that we want the 
process to be very transparent.
    We want to be able to do consultation and cooperation with 
local communities. At the central office, we often encourage 
the tribes to reach out to their local communities. We feel 
that agreements between local communities and tribes to reduce 
adverse impacts are extremely important. We emphasize that to 
the tribes and to the local communities when we go out there 
and talk about the process.
    We understand that it is a somewhat confusing process. It 
is long and arduous. There are a lot of pieces there. It is 
sometimes difficult to explain that to the local communities, 
especially to the people who are not lawyers or involved in the 
process. We are developing a draft regulation to implement 
section 20 of the Indian Gaming Act. We had a draft regulation 
published in 2000 under the previous Administration that 
implemented section 20(b)(1)(A), the two-part determination 
process, but we never went final with that regulation in the 
new Administration.
    Now we are reviving the process and broadening it to 
include dealing with the other parts of section 20. We are 
doing that in order to try to get clarity into the process so 
that a process can be followed and has to be followed in every 
case. The regulations have been developed.
    We will hopefully in the next couple of weeks send a 
working document to tribes and do tribal consultation. We will 
make it available to the committee and to anyone else who wants 
it. Eventually, we hope to have regulations implemented before 
the end of this year.
    With respect to the initial reservation, we have done that 
only a couple of times. I want to talk about that particular 
exception, finally, because our position is that to qualify 
under the initial reservation of a tribe recognized under the 
acknowledgment process, there has to be a reservation 
proclamation.
    The reservation proclamation is published in the Federal 
Register pursuant to the Secretary's authority to proclaim 
reservations in section 7 of the Indian Reorganization Act. 
That act authorizes the Secretary to proclaim reservations on 
land that is held in trust. It is fairly broad.
    We are also separately in the process of developing 
regulations that will implement section 7 of the IRA for 
reservation proclamations. Right now, there are no regulations. 
There are guidelines that were issued in the past that the BIA 
follows.
    The Chairman. When do you expect those regulations to be 
completed?
    Mr. Skibine. Hopefully we can do that in the next couple of 
months or so, in terms of producing a draft.
    The Chairman. Senator Dorgan just made a comment: Seventeen 
years of IGRA without regulations?
    Mr. Skibine. Without regulations on what?
    The Chairman. On section 20.
    Mr. Skibine. On section 20?
    The Chairman. Yes.
    Mr. Skibine. That is correct. We do not have regulations 
implementing section 20 of the Indian Gaming Regulatory Act. We 
tried to do that in the 1990's. Personally, I thought it would 
have been helpful. When we initially published our draft 
regulations for section 20, there were a lot of objections from 
tribes. I think the new Administration decided not to press the 
issue. I think that now the Administration feels that this is 
something that is going to be very worthwhile.
    With that, this will conclude my brief comments. I am 
available for questions if you have any. Thank you very much.
    [Prepared statement of Mr. Skibine appears in appendix.]
    The Chairman. Thank you very much.
    Ms. Coleman.

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

    Ms. Coleman. Thank you, Mr. Chairman, Mr. Vice Chairman, 
committee members.
    My name is Penny Coleman. I am the acting general counsel 
of the National Indian Gaming Commission. I appreciate that you 
took the time to let me speak to you today. I understand that 
you are concerned about off-reservation gaming and that you are 
concerned about gaming where there are tribes that are 
landless, and they are looking to find a place where they can 
establish their home base and establish a place where they can 
have economic development, and that includes gaming.
    Our office is somewhat involved in that, but not 
extensively. The Indian Gaming Regulatory Act defines Indian 
lands. It makes the NIGC the primary regulator for the Federal 
Government. Consequently, there are several times when we have 
to decide that they are Indian lands. In fact, all of the time 
we have to decide whether or not they are Indian lands. The 
primary one, of course, is that we only have jurisdiction over 
Indian lands. So we need to know whether we are supposed to be 
regulating, whether we are supposed to be making sure that a 
tribe follows the Indian Gaming Regulatory Act.
    There are a couple of other times when we look specifically 
to Indian lands and make Indian land determinations. That is 
when we have a pending management contract and if we are going 
to approve it, we obviously cannot approve a contract for 
gaming that is off of Indian lands. And then on very rare 
occasions, we have site-specific tribal ordinances. Those are 
ordinances where the tribal ordinance will say the Indian lands 
are all of the Indian lands of the tribe, and they include this 
specific site and it will list that site.
    We do not issue formal opinions that often. They take a lot 
of time. They are a lot of work. But as I mentioned to you the 
last time I spoke, we are working on an Indian lands database 
so that we will have all of the information necessary to make 
those determinations for all of the gaming facilities. That is 
a work in progress and we are moving along on it quite well.
    When we do write Indian lands opinions, we make every 
attempt to get the consensus of the Department of the Interior. 
That is important because we both have responsibilities on 
Indian lands, and it is necessary for us to agree with whether 
or not those are Indian lands. We do that through a memorandum 
of understanding that calls for us to provide the Department's 
Office of the Solicitor with drafts. We notify them when we are 
going to write one of these opinions so that they will be able 
to give us any information that they might have. We try to work 
together on that.
    We also notify the State Attorney General when we are going 
to do one of these because the State and its people may have 
information that might be helpful in our analysis, and the 
State sometimes has information or analysis that impacts how we 
approach these. So we send them a letter, and that is a process 
that started several years ago as a result of a request from 
the Conference of Western Attorneys General, and that seems to 
be working.
    Regarding public notice and participation, we try to 
respond openly to any requests. We meet with anyone who wants 
to meet to give us their views. We accept all comments. We 
respond to all FOIA requests. We have a wonderful FOIA officer 
who provides information very quickly. But generally, we 
consider these to be legal opinions, so we have not really 
developed anything beyond that.
    When we are doing these opinions, if in the rare instance 
that they are dealing with a trust acquisition, we do not make 
any recommendations on the merits of whether the land should be 
acquired into trust; whether or not there should be gaming 
there; whether there is an economic impact on the surrounding 
community; whether there is environmental impacts. That is not 
our call. That is something that the Department of the Interior 
does. So they are the ones that have the whole process for 
making those decisions.
    Right now, we have four pending that deal with trust 
acquisitions. Those are pending because we have management 
contracts. With respect to the environmental and economic 
impacts, we are a cooperating agency, or a lead agency under 
NEPA. So our NEPA compliance officer is right there 
participating with the Bureau of Indian Affairs NEPA officers.
    That concludes my statement. Thank you.
    [Prepared statement of Ms. Coleman appears in appendix.]
    The Chairman. Thank you.
    With both witnesses, let's go back to basics. A tribe is 
operating and they want to acquire additional lands to be taken 
into trust. That would be all of your responsibility. Right, 
Mr. Skibine?
    Mr. Skibine. That is correct, yes.
    The Chairman. What if their application was to take land 
into trust for purposes of gaming? Whose responsibility is 
that?
    Mr. Skibine. It is ours also.
    The Chairman. What about if it is non-contiguous land? Does 
that have any affect on your decision, whether it is contiguous 
or not contiguous? I am talking about somebody that wants to 
buy land in downtown Denver and take it into trust.
    Mr. Skibine. They would have to apply to the BIA to have 
the land taken into trust. It makes a big difference on what 
the final decision will be, but the responsibility to look at 
the application is with the Department of the Interior.
    The Chairman. If a tribe just buys land and it is not taken 
into trust, are they allowed to conduct gaming operations?
    Mr. Skibine. If it is off-reservation?
    The Chairman. Yes; they just bought some land.
    Mr. Skibine. No; not if it is off-reservation.
    The Chairman. What if it is contiguous to a reservation? 
They buy additional land. It is not taken into trust. They just 
purchase it. Can they start a gaming operation?
    Mr. Skibine. No; if it is contiguous to the reservation, 
the land has to be taken into trust also. It fits under the 
exception in section 20(a) of IGRA for gaming on land taken 
into trust.
    The Chairman. Okay. How many times have you seen a 
situation where a tribe bought land for taking into trust 
purposes, and then later on began gaming operations?
    Mr. Skibine. Began gaming operations later on?
    The Chairman. After they had received permission to take 
land into trust.
    Mr. Skibine. Okay, so the land is in trust and then they 
want to do gaming? I would have to double-check on the number 
of times that has happened.
    The Chairman. In other words, when there is a change in 
use.
    Mr. Skibine. Yes; it has happened in a few instances, and 
we would have to get back to you on that.
    [Information follows:]

    Lands Converted From Non-Gaming to Gaming Uses According to BIA 
                          Regional Offices\9\
---------------------------------------------------------------------------

    \9\ This list was not independently confirmed by the 01G. 
Additional information on each parcel was supplied, as available, from 
the NIGC. In addition, since the BIA did not maintain a central list of 
lands taken into trust after 10/17/88 that were converted from gaming 
to non-gaming, it is not known whether this list is complete.
---------------------------------------------------------------------------
    1. Keweenaw Bay Indian Community: 22.38 acres in Marquette 
County, MI, were brought into trust on 9/24/90 for housing 
purposes. According to BIA the land was converted to gaming use 
in September 1994. The tribe eventually received the 
Secretary's approval and the Governor's concurrence to an off-
reservation gaming application (two-part determination) on May 
9, 2000.
    2. Confederated Tribes of Coos, Lower Umpqua, and Siuslaw 
Indians: 98 acres in Florence, OR, were brought into trust on 
1/28/98 for future economic development. Converted to gaming in 
July 2003. According to NIGC officials, the tract was 
administratively determined to fall within the IGRA exception 
for restored lands.
    3. Confederated Tribes of Siletz Indians of Oregon: 10.99 
acres located in Lincoln City, OR, were brought into trust on 
12/5/94. According to NIGC, the parcel was brought into trust 
under a legislative amendment that revised the Tribe's 
Restoration Act and allowed gaming under the IGRA exception for 
restored lands. Gaming commenced in May 1995.
    4. Confederated Tribes of Grand Ronde, OR: 5.55 acres 
located in Willamina, OR brought into trust on 3/5/90 for 
administration and governmental uses. Land converted to gaining 
in October 1995. According to NIGC officials, the parcel is 
subject to the IGRA exception for restored lands.
    5. Kalispet Tribe: 40.06 acres located in Airway Heights, 
WA, were brought into trust on 6/26/98 for future economic 
development. Land converted to gaming in 2000. According to 
NIGC officials, tribe received a two-part determination from 
the Department and the Governor.
    6. Kickapoo Tribe: 769 acres in Lincoln County, OK, were 
brought into trust on 5/3/95 for housing and economic 
development BIA could not provide a date for when the land was 
converted to gaming. They did state that 3 acres were released 
for economic development on 6/1/02. They further stated that 
the business was named ``Kickapoo Casino.''
    7. Mooretown: 34.59 acres in Butte County, CA were brought 
into trust for HUD tribal housing units and community uses on 
7/26/94. Land converted to gaming on 6/11/96. NIGC officials 
were not aware of applicable IGRA exceptions or status.
    8. Smith River Rancheria: 6.45 acres in Del Norte County, 
CA, were brought into trust on 4/13/89 for HUD Grant for tribal 
housing. Land converted to gaming use in August 1996. NIGC 
officials were not aware of applicable IGRA exceptions or 
status.
    9. Wyandotte Tribe of Oklahoma. Unknown quantity of land 
(Shiner Tract) located in Kansas City, KS, was brought into 
trust for economic development, including gaming on July 15, 
1996. On 7/12/96, prior to taking the parcel into trust, the 
State and four Indian tribes in Kansas sought to enjoin the 
Department from taking the land into trust for non-compliance 
to NEPA and other reasons. The tribe appealed to the Tenth 
Circuit on 7/15/96 and the injunction was vacated by the Court. 
On 8/28/03, the tribe commenced gaming on the land. On 9/22/03, 
the tribe notified NIGC it had commenced gaining. Most 
recently, the State appealed the District Court's ruling to the 
Tenth Circuit. On July 27, 2005, the Tenth Circuit ruled that 
the Department's determination, in taking the land into trust 
status, that only Federal judgment funds ``were used to 
purchase the Shiner Tract was not supported by substantial 
evidence in the record:' The Department must review the new 
evidence and report back to the Tenth Circuit within 60 days.
    10. Porch Creek Band of Alabama. NIGC informed us that the 
tribe is conducting gaming on land brought into trust after 10/
17/88 for a non-gaming purpose. No other details were 
available.

    The Chairman. So where do you come in, Ms. Coleman? Where 
do you come into this equation? A tribe has acquired land, 
taken it into trust, and then they say they are going to start 
gaming operations, or want to start gaming operations. Is that 
where you come into it?
    Ms. Coleman. That is exactly where we come in. As a general 
matter, if the land is already in trust, then the Department of 
the Interior does not have as much interest in the issue 
because they do not regulate gaming. They do not decide whether 
or not it can be gamed on once it is already into trust. So 
then we are the ones who assume the responsibility for looking 
at that.
    The Chairman. Once it is has been established that they 
will begin gaming operations?
    Ms. Coleman. Yes.
    The Chairman. That is the only time you come into it?
    Ms. Coleman. Yes.
    The Chairman. What about November 2005, your organization 
reviewed a site-specific gaming ordinance and determined that 
lands sought to be taken into trust by the Cowlitz Tribe was 
``restored land'' and could therefore be used for gaming. The 
NIGC issued this opinion at the same time the BIA was 
considering a land-into-trust application for Cowlitz as a 
``initial reservation.''
    We are told that communities, local governments and other 
tribes affected by the Cowlitz proposal seem to have been 
caught completely off-guard by your decision, Ms. Coleman. What 
is going on here?
    Ms. Coleman. The Cowlitz ordinance decision is really an 
anomaly. It is the only time that we have been in a situation 
where it was trust acquisition that had not happened, and we 
had a site-specific ordinance. The ordinance was written in 
such a way that it said that if the lands are acquired into 
trust, then these lands would be Indian lands.
    The Department of the Interior and the State attorney 
general's office was notified of this issue. They knew that 
this was happening. In fact, when the tribe came to us and told 
us they were going to do it, we were not exactly thrilled with 
it because we knew that this was a very unusual situation. It 
is generally much better to let the processes go through. The 
Indian Gaming Regulatory Act requires that we make a decision 
on an ordinance in 90 days.
    So when push came to shove, on November 25, the chairman of 
the National Indian Gaming Commission had to make a decision as 
to whether to approve or disapprove this ordinance. So he 
needed to know whether or not the ordinance was illegal. So we, 
the office of the general counsel, gave him an opinion on it.
    The Chairman. What do you have to say, Mr. Skibine, about 
that situation? How can we avoid that in the future?
    Mr. Skibine. How can we avoid that situation?
    The Chairman. Yes.
    Mr. Skibine. Yes; I think that the Department is working 
with the chairman of the National Indian Gaming Commission at 
this point to see if we can find a solution so that situations 
like this do not continue to occur. Hopefully, we can come to 
an understanding between the secretary and the chairman on how 
these can be processed in light of the chairman's obligation 
under IGRA.
    The Chairman. If you do not know at the beginning of the 
process that land will be used for gaming, how can you engage 
in a NEPA that has any meaning?
    Mr. Skibine. If we do not know that the land will be used 
for gaming, then the tribe's application under 25 CFR part 151 
regulations, has to state what the purpose of the acquisition 
will be.
    The Chairman. But we already know that there are some 
tribes that have taken land into trust initially, in fact a few 
that stated there would be no gaming conducted, and then 
changed their minds with due tribal governments, which they are 
entitled to do. Shouldn't they at least be required to go 
through another NEPA?
    Mr. Skibine. If the land is off-reservation and is not 
Indian lands.
    The Chairman. No; I am talking about land taken into trust.
    Mr. Skibine. Yes; it could be. For instance, it could be 
land that is off-reservation that would still have to comply 
with the requirements of section 20. Potentially, the tribe 
would have to do a two-part determination to be able to game, 
if the land does not qualify under any of the other exceptions. 
In that case, NEPA will be required and the tribe cannot game 
unless it gets the determination.
    If the tribe thinks the land does qualify under one of the 
exceptions, it can commence gaming at its peril because if the 
National Indian Gaming Commission decides that it does not 
qualify under the exceptions, then the gaming establishment can 
be closed down.
    There is a potential issue if the tribe takes the land into 
trust, let's say for housing. It is off-reservation, but then 
it decides to change its mind and do gaming, and if the NIGC 
finds that the land qualifies under the exception for restored 
land, that would be the only one, I think, that would apply.
    The Chairman. Thereby, you could avoid NEPA, that would 
take into the calculation that it is a gaming operation?
    Mr. Skibine. That is correct. That is because as far as the 
Department is concerned, there would be no Federal action 
required. When we do take land into trust, we do not put title 
restrictions or encumbrances on the title, so that the tribe 
has the freedom down the road to change the use of the land. It 
would still have to comply with the requirements of IGRA, but 
potentially they can satisfy that.
    The Chairman. Finally, we will hear from the next panel, 
and we hear every hour of every day from local people who say 
that Indian gaming is established in their community, and they 
do not have sufficient input into the process. And that it has 
had significant effects on their communities, economically and 
in many other ways, and that they do not feel that they were 
involved in the process.
    What is my response to those concerns that are raised all 
the time to this committee?
    Mr. Skibine. I think with respect to the process of taking 
land into trust, there is a lot of involvement by the local 
community. The Department does consult with local communities. 
We are trying to be available to clarify the process. Right 
now, there are extensive consultations under NEPA.
    We have a checklist that we have had since 1994, internal 
guidance, but under that checklist we have revised it to 
require local agreements to be included as part of the 
recommendation of the regional office, if they exist. We have 
pretty much decided that if a gaming establishment is off-
reservation, and is going to be of a certain size, and if it is 
controversial, that we would require an environmental impact 
statement rather than an environmental assessment, which will 
include extensive public participation.
    In addition, I know the Department is in the process of 
revising its trust regulations, including the land acquisition 
regulations in 25 CFR Part 151. I think the process for 
consultation and input of the local communities in off-
reservation acquisitions will be enhanced as a result of that 
process.
    So even now, I think there is extensive participation by 
the local community. For off-reservation, what I do when I go 
out to talk to tribes and to local communities about off-
reservation is acquisitions make a point of stressing that the 
Secretary is very interested in consultation, in cooperation 
with local governments, and that to us the public input and 
having the local communities support the application is an 
extremely important factor in our consideration for off-
reservation acquisitions.
    The Chairman. Senator Dorgan.
    Senator Dorgan. Mr. Chairman, thank you.
    Mr. Skibine, I thought I had understood this last evening 
when I was reading about it, until I have heard your testimony. 
Now, I realize there is much I do not yet know. Let me ask you 
a couple of questions.
    You just described this consultation and the process, but I 
thought you also just prior to that described circumstances 
where that consultation would not exist. For example, land 
taken into trust perhaps after October 17, 1988, and taken into 
trust for the purpose of a housing tract, and then after it was 
taken into trust for the purpose of building a housing tract, 
they decide that they want to do gaming on that land.
    I thought you answered to a question that Senator McCain 
asked, that you would not then have to go through the process, 
the tribe would not have to go through the NEPA process and the 
consultation process. Is that correct?
    Mr. Skibine. Yes; that is correct.
    Senator Dorgan. And you said there was no Federal 
involvement there.
    Mr. Skibine. Right; I was addressing the chairman's 
question, if the application is to take land into trust for 
gaming.
    Senator Dorgan. All right. But there are circumstances 
where that is not the case.
    Mr. Skibine. That is correct, and we discussed that 
possibility before. That is an issue.
    Senator Dorgan. As I understand it, let me ask about this 
contiguous issue. The chairman asked the question about wanting 
to get a parcel of land in downtown Denver, off-reservation and 
so on. The question there deals with the four exceptions. You 
would have to judge whether there are any of these four 
exceptions that are met. You have to go through the whole 
process, right?
    Then he asked the question about contiguous lands, lands 
that are contiguous to the reservation. Section 20 provides 
that if lands are acquired in trust after the date in 1988, the 
lands may not be used for gaming unless one of the following 
statutory exceptions applies. These are different than the four 
exemptions or four conditions in IGRA. One of them is the lands 
are located within or contiguous to the boundaries of the 
tribe's reservation as it existed in 1988.
    So someone purchases a rather substantial piece of land 
that is contiguous to the reservation, and they want to provide 
gaming facilities there because that is closer to the 
population center. Do they then have to go through the process 
of taking that into trust?
    Mr. Skibine. That is correct.
    Senator Dorgan. And that process then triggers all of the 
rest of the things you have testified to this morning?
    Mr. Skibine. That is correct.
    Senator Dorgan. Now, you indicated that you are doing 
regulations. That makes a lot of sense to me, so that everybody 
can understand what is the template; what exactly do you 
confront when you deal with this. This law has been around 
about 17 years, and we have had different Administrations here 
and there. It makes sense at some point to have regulations.
    The question I have is, what are you doing in the construct 
of these regulations to reach out and consult with tribes, with 
communities? As you create regulations, tell me about the 
consultation process because it has been a long, long time and 
you are now saying that you think this year you are going to 
have a set of regulations.
    Mr. Skibine. Right. We are planning on doing consultation 
with tribes and we will make the draft document that we have 
available to anyone who wants it. And as we do the 
consultation, we have not at this point exactly figured out how 
we will proceed. It is a little premature. I think that 
internally we will get together and decide how we are going to 
conduct the consultation when that happens.
    Right now, the first thing that will happen is there will 
be a letter to all tribal leaders throughout the country that 
will go out with this draft document, advising them that we 
will produce this document for implementing section 20, and 
that we will consult, and together and that we will get 
together and make a decision. At this point, we have not come 
up with a plan yet, except that we will do it for sure.
    Senator Dorgan. Senator McCain pointed out that Indian 
gaming is $19 billion, perhaps $20 billion, at this point and 
growing, growing rather rapidly; producing in many cases a 
stream of income to address the real crisis that exists in some 
areas; crisis in health care, housing, education, for people 
that have in many cases not had the resources to address these 
things.
    In many areas, particularly on reservations, you have some 
people living in third world conditions; children not having 
any access to adequate health care; adults not having access to 
adequate housing. So there is much to be said about this income 
stream that can be beneficial to tribes to address these 
issues.
    On the other hand, the purpose of this hearing is there are 
competing interests here, very significant competing interests, 
an interest of a tribe that has the opportunity to game to very 
much wish to game in the middle of the largest population 
center they can possibly find. I understand that. I understand 
if we were on tribal councils and we were going to have a 
gaming operation to produce a stream of income, that is exactly 
what we would want to do, is put it in the largest population 
center possible.
    On the other hand, there are other competing interests, 
population centers and others who feel very strongly about 
that. So this is a controversial and difficult issue, and I 
think regulations are necessary; uniform interpretations are 
necessary. And we must understand that when Congress passed 
this legislation, we generally created prohibitions. The larger 
prohibition here is October 17, 1988, and then with that larger 
prohibition, created some exceptions that needed to be created 
just based on merit.
    So the method by which this is administered is very, very 
important to this committee. It is also important in the 
context of what the chairman indicated, the need from time to 
time to update these laws. That is the purpose of these 
hearings.
    I appreciate the testimony that both of you have given us. 
We are trying to better understand a very complicated area. 
Thank you for being here.
    The Chairman. Senator Thomas.
    Senator Thomas. Thank you, Mr. Chairman.
    I agree. It is very complicated. It seems to be.
    What do you think, Mr. Skibine? Is the law clear? It sounds 
like you have to go through a great deal of determinations? 
Doesn't the law pretty well prescribe what the conditions are? 
Isn't that a rather simple decision to be made, as to whether 
these lands qualify or not?
    Mr. Skibine. I am not sure it is that simple. I think that 
the opinions that have been issued by the NIGC General Counsel 
are often lengthy and complex decisions.
    Senator Thomas. So why is that?
    Mr. Skibine. Because I think that to decide whether a tribe 
qualifies as a restored tribe and whether the land they are 
seeking is restored land, the statute just says that it 
qualifies if it is restored land for a restored tribe.
    Senator Thomas. Well, isn't ``restored land'' defined?
    Mr. Skibine. No; it is not. There has been litigation on 
this issue. I think there are at least three or more decisions 
on the books that interpret that exception. Those were 
difficult decisions. The National Indian Gaming Commission 
tried to, in making their opinions, follow those court 
decisions, but I am not sure it is all that simple.
    I am not sure if my colleague wants to add something.
    Senator Thomas. Would you comment? It just seems like there 
ought to be a criteria for the acquisition of land, and it does 
not seem like it ought to be thrown up into the legal dispute 
each time that happens.
    Ms. Coleman. When we are looking at restored lands, it is 
not really the acquisition of the lands. The acquisition is 
under section 151, and to make the decision as to actually 
acquire the land into trust. But what we look to is based on 
what the court cases have said. The court cases have said that 
you look to the factual circumstances; you look to the 
historical relationship of the tribe to the lands; you look to 
the modern relationship; you look to the actual location. In 
other words, if a tribe is in Wyoming and wants to move to 
Denver, well then that would suggest those were not restored 
lands. And you also look at the timing. When was the tribe 
recognized? If they were recognized in 1979, and in 2006 they 
come and say, ``we have already acquired 2,000 acres of land 
into trust, but we want this piece because it is in a big 
population area.'' And 30 years later, we are going to say, 
your timing is off.
    All of those criteria come from the court cases, who have 
looked at these issues. We have been guided by those.
    Senator Thomas. Does there need to be a more clearly 
defined role in terms of the law?
    Ms. Coleman. I think that even to the extent that Mr. 
Skibine's regulations try to define it more clearly, it is 
playing off of those court cases. You can only go so far as far 
as establishing standards. There has to be some interpretation. 
I would expect that restored lands for a restored tribe is 
going to continue to be the most difficult analytically.
    Senator Thomas. I know. My question is, could it be 
described more clearly in the law?
    Ms. Coleman. It could be described more clearly in the law, 
but it probably could not be described any more clearly than 
the case law has already described it.
    Senator Thomas. Thank you, Mr. Chairman.
    The Chairman. Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman. Thank you for 
having this hearing.
    Obviously, much has changed since the Indian Gaming 
Regulatory Act was passed. I think there are many issues here 
to address, not just in how the legislation has been 
implemented and how it has been impacted, but how we move 
forward on transparency of the process as well.
    I wanted to ask you, Mr. Skibine, there have been three 
off-reservation land-into-trust transactions since the 
legislation was passed. One of those, I believe, was the 
Kalispel Tribe.
    Mr. Skibine. That is correct.
    Senator Cantwell. Can you talk about the Kalispel Tribe 
process from the oversight perspective, because it was one of 
the things that fell into an exemption. Is that correct, in the 
sense that everybody agreed? And so the way the oversight 
agency looked at it, everybody was in agreement, so it moved 
forward? Is that correct?
    Mr. Skibine. The Kalispel Tribe process goes back to 
something the chairman said earlier, in that the tribe acquired 
the land not for gaming, but for a tribal facility of another 
kind. It was operating as such for a few years. And then the 
tribe decided that it wanted to use the land for gaming.
    Right at the outset, it was determined that the only 
exception that the tribe could qualify on was the two-part 
determination exception, which is the true off-reservation 
exception, because where the Secretary, after consultation with 
nearby tribes and appropriate State and local officials, makes 
a determination that the gaming establishment will be in the 
best interests of the tribe and its members, and will not be 
detrimental to the surrounding community.
    Senator Cantwell. How did you determine that?
    Mr. Skibine. We tried to submit an application to the 
regional office, and the application would follow something we 
had in our checklist for gaming acquisitions and section 20 
determinations, where we cite a number of issues that we look 
at in making those two determinations.
    There also has to be compliance with the National 
Environmental Policy Act [NEPA], so in that case, an 
environmental assessment was done.
    To make the best interests determination, the Department 
looks at the anticipated benefits to the tribe from the gaming 
establishment to its members. We look at income projections; at 
employment; at what it will do for benefits on the reservation. 
We try to get as much information as possible from the tribe as 
to why they think this is going to work for them. That would 
include projections to show that the gaming establishment will 
be actually making money for the tribe, rather than losing 
money. We look at all of that for best interests.
    For not detrimental, we look at the environmental 
compliance, and we have to do consultation with nearby tribes 
and with the appropriate State and local officials. The way we 
do that is that in the Kalispel case, letters were sent to all 
communities around, it is actually in a suburb of a larger city 
whose name totally escapes me.
    Senator Cantwell. Spokane. Are you talking about in 
Spokane?
    Mr. Skibine. Spokane, right. Thank you very much.
    I think we consulted with the county where it is located, 
and with the city of Spokane, and with all the other suburbs 
that are within the surrounding community. In looking at those 
comments, we determined whether the local community supports 
the project, because the local community felt that there was no 
negative impacts on them.
    Senator Cantwell. What would be your criteria, though, for 
community input? Do you have a criteria for community input?
    Mr. Skibine. Yes; In the consultation letter, we ask the 
community to tell us about any adverse impacts that they think 
they will have, and we look at whether it will be traffic, 
increased crime, impacts on wastewater treatment, on almost any 
impacts on the human environment, and also whether there are 
any socio-economic reasons why the local community is opposed 
to it.
    Senator Cantwell. What would have happened in the Kalispel 
case is you would have had a division within the community? 
What do you think would have happened?
    Mr. Skibine. Well, we would have taken a very close look at 
that, to see exactly who was opposed, who was in favor, and for 
what reasons. It would have been essentially a decision based 
upon a very analysis of the facts.
    For the record, in the three applications that we have 
approved since 1988, and that have been signed off by the 
Governor of the State, the local communities have always 
supported the applications. So we have never sent in a two-part 
determination to a Governor unless the local community was in 
support.
    Senator Cantwell. Is that where you think we are today, Mr. 
Skibine? Do you think there are a lot of applications where 
everybody is unified on the support?
    Mr. Skibine. Do you mean of the ones that are pending?
    Senator Cantwell. Here is my question. I appreciate the 
chairman having this hearing, and the oversight, and his 
legislation because to me one issue is whether we really know 
what we are doing with the exemptions that were put into the 
original legislation, and whether the agency of oversight 
actually does know how they would interpret these various 
proposals, given that exemption language.
    I am not sure how transparent that process is to everyone 
else. So I do not know if you have any recommendations that you 
are making as far as the transparency of the process, because 
again the exemptions of the bill. Now, we have had some playout 
of those exemptions in these three cases, but now we are 
getting to a much more complex phase. I am just curious as to 
whether you believe there is enough transparency in the 
process.
    Mr. Skibine. I think there is enough transparency. As I 
mentioned in our proposed regulations that we have developed, 
we deal in great detail with what is required in the two-part 
determination process. I think the regulations will really 
help.
    Senator Cantwell. So you are not recommending anything else 
to clarify that process, as far as reform of legislation?
    Mr. Skibine. The Department may do that in time. Right now, 
I am not authorized to do that on behalf of the Administration, 
not at this hearing, anyway.
    Senator Cantwell. Okay. I am not sure how much time we 
have, Mr. Chairman, but thank you.
    The Chairman. Mr. Skibine, it has been 17 years since the 
passage of the law. As Senator Dorgan has pointed out, we need 
to have regulations. We are going to send you a letter today 
asking for the exact time in which we can expect regulations to 
be sent to the Federal Register and implemented. I am a little 
dispirited when you sort of as an aside said, well, we have not 
begun a consultation with the Indian tribes over proposed 
regulations. That means that we have a long way to go.
    I do not see how we can effectively regulate Indian gaming 
and certainly exercise congressional oversight unless there are 
regulations to implement the law we have passed. So I would 
like for you to take the message back to the Secretary that we 
expect the issuance of regulations implementing a law that was 
passed 17 years ago to be issued.
    That has covered various Administrations, but it really is 
unacceptable 17 years later not to have regulations written to 
implement a law which now applies to a $19 billion- or $20 
billion-a-year business. We should not be doing that. Okay?
    Mr. Skibine. I agree, Senator. I want to point out that 
when I came on board as the Director of the Indian Gaming 
Office in 1995, I immediately began to look at regulatory 
implementation. We did develop regulations for the distribution 
of per capita revenues. We have regulations for that at 25 CFR 
part 290. We also developed regulations for secretarial 
procedures. We have that at 25 CFR part 291.
    Those were developed shortly after I came on board under 
the Clinton administration, and they are 25 CFR part 292. With 
the change of Administrations, there was sort of a period of 
uncertainty, but now I think everybody is on board and agrees 
with that assessment.
    The Chairman. Ms. Coleman, we will probably see you again 
in this series of hearings that we are having to try to again 
ensure you have sufficient oversight authority, sufficient 
funding, and sufficient ability to oversee this very large 
enterprise that we call Indian gaming.
    Senator Dorgan.
    Senator Dorgan. Mr. Chairman, might I just observe I did 
not respond on the consultation issue, but consultation does 
not mean you seek permission from someone. Consultation is very 
important, however, when you construct these kinds of things 
because consultation develops a base of knowledge about what 
exists and how it exists from various perspectives.
    When you said to me that apparently no consultation had 
existed, but it will exist at some point after you send out the 
drafts, I really encourage you to consult as much as you can 
with all the parties as you think through these things, not to 
seek permission. That is not my point, but to better understand 
the circumstances that exist for all parties. Consultation is 
very important.
    Mr. Skibine. I totally agree. It is not permission. We are 
not going to be seeking permission from interested parties, but 
we are seeking their input.
    The Chairman. Thank you very much.
    Mr. Skibine. Thank you very much.
    Ms. Coleman. Thank you.
    The Chairman. Our next panel is Al Alexanderson, on behalf 
of the Citizens Against Reservation Shopping, Stand Up for 
Clark County, and American Land Rights Association; Philip 
Harju, councilman, Cowlitz Indian Tribe, Longview, WA; Duane 
Kromm, supervisor, Solano County Board of Supervisors, on 
behalf of the California State Association of Counties, of 
Fairfield, County; and Liz Thomas, spokesperson, Tax Payers of 
Michigan Against Casinos, Union Pier, MI.
    Mr. Alexanderson, we will begin with you. Welcome.

  STATEMENT OF AL ALEXANDERSON, ON BEHALF OF CITIZENS AGAINST 
 RESERVATION SHOPPING, STAND UP FOR CLARK COUNTY, AND AMERICAN 
                    LAND RIGHTS ASSOCIATION

    Mr. Alexanderson. Thank you, Mr. Chairman, Mr. Vice 
Chairman and members of the committee.
    I am here for myself. I am not representing any 
institutional interests. I am a landowner within about 2,000 
feet of the proposed Cowlitz casino. My trip was sponsored by 
three citizens organizations that have risen up and put up 
websites and attempted to intervene in this process over the 
last 4 years.
    I am here to tell you about my experience. Their 
experiences are written in letters that I have submitted with 
my prepared testimony. I recommend them to you for the long 
recitation of attempts to participate in the process, and the 
strong sense of betrayal that they feel with respect to the 
issuance of this NIGC opinion, after 7 months of secrecy, 
including the fact that it was not mentioned that this was 
pending at the hearings here before your committee in July of 
this year, when the NIGC was present, and the Cowlitz Tribe was 
present, and Mr. Skibine was present and listed all of the 
other pending applications for exemptions under section 20, but 
not the Cowlitz.
    For me, this started about 4 years ago. I got a notice, a 
neighborhood association notice that David Barnett, son of the 
tribal chairman would appear and talk about plans for the 
property that he and his wife had optioned, which was now a 
150-acre dairy farm and had been for 80 years, right next to my 
property.
    The land had been preserved as agricultural, because as you 
know, the local communities under State law go through a long 
and intensive land-use planning process to decide what kinds of 
uses go where. This land had been preserved as agricultural, 
with possible future use as a low-intensity industrial uses, 
but not the kind of intense traffic-creating commercial uses 
that, say, a large shopping center, a theater complex, or a 
casino would bring.
    At the meeting, Mr. Barnett told us that there were no 
plans for a casino, no plans to change the current agricultural 
use of the property. Later, or at the time, the tribe's 
application to the BIA said that there were no plans. As a 
result, the BIA issued internally, and not publicly, a 
categorical exclusion checklist, which had 9 or 12 questions 
that said, will there be any environmental consequences from 
this acquisition, and the answer was always checked no.
    So they tried to run it through as a complete exclusion to 
NEPA. This took about the first year. Fortunately, that was 
stopped. The national BIA office said if you do not admit that 
you are gaming on the property, then if you do succeed with the 
acquisition, you will not be able to game.
    I called the local BIA office to get the application. I was 
suspicious that this might not be the whole story. They said, 
well, you cannot have the application. I said, well, could I 
just come down and read it. No, you cannot get in the building. 
Well, are there any procedural rules for me to participate in 
this process? No, you are not a participant. They said the two 
participants are the State and the county, because those are 
the jurisdictional entities that they have to consult with, and 
that is it. They will accept comments, but we were unable to 
have access to the materials submitted by the tribe.
    Process is extremely important, and I think the committee 
knows that because people have their life savings tied up in 
homes and small businesses that are going to be displaced if 
the awesome Federal power of the Federal Government is used to 
effectively site a development like this. As we have gone 
through this process, the casino has grown faster than our 
fears.
    It is now going to be eight stories high. It is going to 
create traffic jams, 40,000 car trips a day, and completely 
change the character of our neighborhood. It was sited where it 
was in part to cut off the existing traffic to the competing 
card rooms, so it was intended to destroy the existing economy, 
is my point.
    What we are asking for is a thorough and open and fair 
process to determine the facts of the Cowlitz application. We 
want to see a stop to the backroom end-runs around the current 
law. We want our own government to put stuff out on the table 
where we can see what it is. If we have a factual dispute over 
what the project will do, or where the tribe was from, we want 
to have an opportunity to present those facts to an open-minded 
fact-finder.
    And there should be no exemption for the Cowlitz project 
because the Cowlitz project itself is seeking an exemption from 
all the protections in section 20. That is the most important 
issue a community faces up front, is whether this will be an 
exempt casino or an non-exempt one. If it is an exempt casino, 
it eliminates the consultation process. It eliminates the 
Governor's veto. It eliminates the consultation with other 
tribes. And it permits the Secretary to avoid finding that the 
project will not be detrimental to the surrounding communities.
    One major fact which has never come up in the discussions 
so far and was not considered by the NIGC is where is the 
tribe's other land. This tribe has 2,500 square miles, almost 
1.5 million acres, of acknowledged aboriginal territory lying 
north along the I-5 corridor.
    I have brought CD's with photographs of that are, aerial 
photographs, which I will leave for the committee and the 
staff. You can literally fly down and look at other undeveloped 
land in various quadrants of existing freeway interchanges, 
probably 10 of them; thousands and thousands of acres of 
undeveloped land in places where the casino would be closer to 
the tribe's population, its historical center.
    When we turn these maps over on the wall, you will see the 
only official U.S. Government 19th century depiction of where 
the various tribes were in Washington State. It shows where the 
tribe's homeland was, far north of where this site is. The site 
was chosen for its proximity to Portland and Vancouver gaming 
opportunities.
    The Chairman. You are going to have to summarize, Mr. 
Alexanderson.
    Mr. Alexanderson. Thank you. All right.
    We appreciate your efforts to put procedures in place. The 
procedures have to have rights for people like myself and my 
community to substantively participate and present evidence, 
and most important, know what is going on and meet the evidence 
being put forward by the tribe.
    Thank you for looking into this.
    [Prepared statement of Mr. Alexanderson appears in 
appendix.]
    The Chairman. Thank you, sir.
    Councilman Harju.

  STATEMENT OF PHILIP HARJU, COUNCILMAN, COWLITZ INDIAN TRIBE

    Mr. Harju. Chairman McCain, Vice Chairman Dorgan, and 
members of the committee, I want to thank the committee for 
this opportunity to testify. My name is Philip Harju. I am an 
elected member of the Cowlitz Tribal Council. Our chairman, 
John Barnett, recently suffered the loss of one of his sons, 
and I know you will understand why he cannot be here today. He 
has testified, as you know, numerous times here. He is a great 
leader and a great spokesman for our tribe.
    Again, I feel it is both an honor and a privilege to 
testify in front of this committee. It is also an honor and a 
privilege to represent the Cowlitz people here.
    Just a little background on myself. I was born and raised 
in Clark County, WA. I currently reside in Olympia, WA, where I 
am a deputy prosecuting attorney. I am a lawyer and I have been 
representing the people of the State of Washington, prosecuting 
criminals, for the last 27 years. I donate my time as a tribal 
council member to my tribe, the Cowlitz people.
    I want to thank the first panel for their explanation. As a 
lawyer, I have some understanding of this. It is a complicated 
area. I do want to briefly respond to Senator Cantwell's 
question about the Kalispel Tribe, just for the record. That 
two-part determination, that was not stressed, also required 
the concurrence of the Governor of the State of Washington, 
which was done.
    So there was input on the Kalispel decision by the people 
of the State of Washington through the elected Governor of the 
State of Washington. That would not have happened without the 
Governor's concurrence. That was the two-part exception to 
Indian gaming on off-reservation land.
    I want to stress that, Mr. Alexanderson said that this 
started 4 years ago for him. This started for the Cowlitz 
people probably in 1792 when Captain Gray came over the bar of 
the Columbia River; in 1805, when Lewis and Clark reached the 
mouth of the Columbia River; in the 1820's and the 1830's when 
many of the tribes on the Columbia River were decimated and 
destroyed, and the Cowlitz people were nearly wiped out by the 
fevers and the diseases that were brought from the Europeans to 
this area; and also in 1855, when the tribes in Southwest 
Washington did not sign treaties with then-territorial Governor 
Stevens.
    The Cowlitz controlled their land at that time, and 
negotiating with the Federal Government, and received no land 
or no reservation or no treaty. Then in 1863, as the Indian 
Claims Commission has documented, when President Lincoln opened 
the then-Washington Territory to settlers, the Cowlitz lost 
over 1 million acres of their territory and land without 
compensation.
    So it has been a long time for the Cowlitz people in this 
history. The Cowlitz throughout this time have attempted to 
obtain a land-base in their historic area of Southwest 
Washington, which includes all of Clark County, I would submit 
to you. The records, if you read the reports from the Indian 
Claims Commission, they found that the Cowlitz has sole and 
exclusive occupancy to all of this land, all of the way down to 
the Kalama River, which is about 14 miles north of the present 
site.
    They also acknowledged that this area south of the Kalama 
River down to the Columbia River, that they could not find that 
the Cowlitz had sole and exclusive use and occupancy of this 
area, but they found that the Cowlitz occupied this area since 
the first contact with Europeans in this area.
    Just to remind the committee, the first contacts with 
Europeans in this area was with the British. They controlled 
Fort Vancouver and the north side of the Columbia River, and 
most of the documentation of the Cowlitz Tribe are because of 
the Hudson Bay Company, and the documentation from the British 
at that time. This did not become American territory until 
1846, when we signed a treaty with Great Britain and they ceded 
this land to the United States.
    So the Cowlitz have always been there. They have always 
sought their land base. They have always negotiated and been 
with the Federal Government. Their history is bleak. They got 
nothing from the Federal Government until 1969, when the Indian 
Claims Commission did grant compensation to them, but then 
never awarded them the money.
    In 1975, the Cowlitz asked for a land-base and asked that 
the money that they were granted be applied to acquire land. 
The Interior Department refused at that time. It took 35 years 
and an Act of Congress signed by President Bush 2 years ago to 
get that compensation that was awarded in 1969 for the Indian 
Claims Commission.
    The tribe in 1975 petitioned the BIA for acknowledgment or 
re-recognition. That process took 25 years and then 2 years of 
appeal. So in 2002, when the Cowlitz Tribe applied for a fee-
to-trust application for this property, we are now four years 
from that time. I would submit to you, and I give this history 
just to show that it has gone longer for the Cowlitz Tribe and 
the Federal Government and the agencies involved.
    The Cowlitz have been up front and have followed the rules 
from the very beginning. Our fee-to-trust application followed 
the current BIA guidelines back in 2002, which required us to 
submit the fee-to-trust application to the Portland Regional 
Office, and we did not have to designate other than economic 
benefit of the tribe.
    The BIA's rules changed and they required us then, if we 
were going to use the property for gaming, we had to resubmit 
an application to the central office and we did tell them that 
we were proposing gaming on this. We have been up front and we 
have followed the rules. It has been a long time for justice 
for the Cowlitz Tribe. These exceptions to the Indian Gaming 
Regulatory Act are very important to the Cowlitz because this 
151 acres is clearly restored lands for the Cowlitz Tribe.
    The opinion that was sought from the Commission is an 
excellent opinion. It is well-documented. It is factual and 
followed adjudicated facts, and gives guidance to everyone in 
this area. The important thing is, if the Cowlitz Tribe goes 
forward and it is not our restored lands, we are spending close 
to $2 million for a full environmental impact statement to take 
this land into trust.
    There is more open process over this land than anything 
else I think in Western Washington at this time. We will 
complete a full environmental impact statement. In fact, the 
draft has been delayed because many of the local communities 
have put comments in as participating agencies, and so we are 
hoping next month to have that draft. There will be the full 
environmental impact statement. There will be public hearings, 
and there will be a time to appeal if the Department then takes 
the land into trust.
    So I submit to you that in the two exceptions that we are 
dealing with, restored lands or initial reservation, the 
Cowlitz have done nothing but follow the rules. They only ask 
that the Congress and the local agencies and the Federal 
Government provide the Cowlitz with the means to, as Senator 
Dorgan had earlier said, illegal actions and land that was 
taken from the Cowlitz needs to be restored.
    The Cowlitz have to buy this 152 acres, then we have to 
petition the government to take it into trust. Nothing has been 
given to the Cowlitz Tribe. We are a landless tribe with no 
economic base. We have over 3,500 members. I submit to you, 
what the Cowlitz want and what the Cowlitz need are adequate 
funds to provide housing, jobs, health care, education and to 
help restore our cultural artifacts and our history in this 
area. I would urge this committee, and I commend Chairman 
McCain, the BIA does need to have regulations in place so that 
these procedures are open and transparent.
    I would submit to you the Cowlitz, using the Cowlitz case 
here, is a classic example of why the restored lands exception 
or the initial reservation exception is important. There are 
not many of those pending with the BIA, but those exceptions 
are important for tribes such as the Cowlitz, who are fighting 
for their very existence in Southwest Washington.
    Thank you.
    [Prepared statement of Mr. Harju appears in appendix.]
    The Chairman. Thank you.
    Mr. Kromm.

 STATEMENT OF DUANE KROMM, SUPERVISOR, SOLANO COUNTY BOARD OF 
 SUPERVISORS, ON BEHALF OF THE CALIFORNIA STATE ASSOCIATION OF 
                            COUNTIES

    Mr. Kromm. Thank you.
    On behalf of the California State Association of Counties, 
I would like to thank Chairman McCain, Vice Chairman Dorgan, 
and the other distinguished members of the Committee on Indian 
Affairs for giving us the opportunity to submit testimony as 
part of this oversight hearing.
    I am Duane Kromm, a member of the Solano County Board of 
Supervisors, a member of the CSAC Indian Gaming Working Group, 
and a member of the Northern California Counties Tribal Matters 
Consortium.
    Every Californian, including every tribal member, depends 
upon county government for a broad range of critical services, 
from public safety and transportation to waste management and 
disaster relief. Most of these services are provided to 
residents both outside and inside city limits. Because counties 
are so intricately involved with services to all residents, we 
strongly believe the counties must be significantly involved in 
the process of approving tribal gaming proposals.
    California is at the epicenter of the reservation-shopping 
phenomenon. For example, there have been vigorous efforts by 
three tribes with no nexus to the land to engage in Indian 
gaming in Contra Costa County, a highly urbanized Bay Area 
county. Counties are now experiencing tribes with established 
casinos trying to leapfrog over other tribal gaming operations 
to get closer to a population center.
    In California, the reservation-shopping problem has been 
driven in large part by the restoration exception contained in 
section 20 of IGRA. This exception allows tribes that are 
restored to Federal recognition to avoid the two-part test 
under IGRA. The restoration exception is by far the most 
frequently used exception under IGRA and serves to avoid the 
two-part test. Since 1988, the Secretary has approved 26 Indian 
trust acquisitions that were determined to meet one of the five 
section 20 gaming exceptions. Of these exceptions, 12 were 
under the provision for restored land to a restored tribe. Of 
these 12, one-quarter were in California.
    Of the 10 or 11 pending gaming applications before the BIA 
claiming an exception under section 20, nine of them are in 
California, all of which are claiming an exemption from the 
two-part test under the restored land exception.
    The experience in California, driven in part by the 
restoration of the legally terminated rancherias, is that the 
restored land exception is being misused. CSAC therefore 
supports continuation of the two-part test for the acquisition 
of new lands, along with an increased level of local government 
participation in the decision of whether land should be taken 
into trust for gaming purposes.
    Chairman McCain has recently introduced legislation to 
increase Federal oversight of Indian gaming operations and to 
alter the lands-into-trust process. CSAC sincerely appreciates 
the efforts of Chairman McCain and the members of the committee 
for investigating the problems with the oversight of and 
current legal framework for determining the eligibility of 
Indian lands for gaming.
    Today, we are primarily interested in Chairman McCain's S. 
2078, which contains language to limit the two-part test to 
petitions already being considered for fee-to-trust in 2005. 
The bill also amends the restored lands exception to require 
the finding that a tribe has a temporal, cultural and 
geographic nexus to the piece of land in question before 
granting permission for the tribe to take it into trust.
    While CSAC supports increased oversight of section 20 
proposals and supports the existing two-part test, we must add 
that any amendments to the process must include the early 
direct participation of both State and local governments, 
particularly counties, before a land-into-trust application is 
granted.
    Furthermore, under the current system, States and affected 
communities are not even notified by the National Indian Gaming 
Commission when a tribe files a request for determination of 
whether tribal lands are Indian lands, and thus eligible for 
gaming. CSAC believes that Congress must specifically require 
the NIGC and the Department of the Interior to provide for the 
timely notice, comment and the submission of evidence from 
affected parties in all proceedings.
    We also question the BIA's practice of beginning the 
environmental review process under NEPA before lands are 
determined to be Indian lands. Counties and other affected 
parties are required to expend considerable time and money in 
evaluating the environmental documents, when it might be 
entirely unnecessary if the land is ultimately not eligible for 
gaming. S. 2078 also includes amendments to increase the 
regulation of class II gaming.
    With relative ease, a tribe can now establish a large 
gaming facility, install class II devices, and trigger 
virtually the same impacts on local government as those that 
result from a class III facility, without any of the safeguards 
afforded by IGRA. This, in fact, has happened already in Contra 
Costa County in I think a casino you are well familiar with, 
the Lytton Band of the Pomos in San Pablo.
    Many tribes have expressed concern for such participation 
by local government, equating it with relinquishment of 
sovereignty and a land-acquisition veto. This is simply untrue. 
There are many examples of California counties working 
cooperatively with tribes on a government-to-government basis. 
Madera, Placer and Yolo Counties have reached comprehensive 
agreements with the tribes operating casinos in their 
communities. These comprehensive agreements provide differing 
approaches to the mitigation of off-reservation impacts of 
Indian casinos, but each is effective in addressing unique 
community concerns.
    CSAC supports the committee's efforts to craft amendments 
to IGRA that preserve its original goals of supporting tribal 
economic development, while minimizing the impacts of 
reservation shopping of local communities. We believe that the 
single most important provision you can enact would be the 
formal participation of affected State and local governments, 
particularly counties, in the process of granting trust lands 
to tribes who wish to operate gaming casinos.
    CSAC has submitted written testimony to assist the chairman 
and committee members in their efforts to amend IGRA. In 
California, there is an urgent need for counties to have a 
greater voice in matters that create impacts that the county 
will ultimately be called upon by its constituents to address. 
Enactment of amendments that strengthen IGRA by limiting its 
exceptions and allowing a greater role for local government 
would further the original goals of IGRA, while helping to 
minimize abuses that have created a backlash against Indian 
gaming and the opportunities its affords.
    As such, CSAC offers its assistance to Chairman McCain and 
the Committee on Indian Affairs in any manner that you 
determine to be helpful as you tackle this complex issue.
    Thank you.
    [Prepared statement of Mr. Kromm appears in appendix.]
    The Chairman. Thank you very much.
    Ms. Thomas. Welcome.

 STATEMENT OF LIZ THOMAS, SPOKESPERSON, TAX PAYERS OF MICHIGAN 
                        AGAINST CASINOS

    Ms. Thomas. Thank you. Thank you very much for allowing me 
to testify in front of this committee. I am a representative of 
a community of grassroots organizations called Tax Payers of 
Michigan Against Casinos. We have worked to prevent a tribal 
casino from opening in our area in New Buffalo, MI for almost 
10 years.
    New Buffalo is right along Lake Michigan. It is about 2,500 
residents, and it is about 1.5 hours from Chicago. We and other 
members of our group feel that a large, generally unregulated 
casino will fundamentally change the character of our community 
forever.
    Throughout the past 10 years, those of us who oppose the 
casino in New Buffalo have found our voices and fought in many 
different ways to prevent the casino. The fight has been 
constant, costly and often demoralizing, none more so than last 
Friday when we received word that the government had taken the 
land into trust and the tribe announced that they would begin 
construction soon.
    Our opponents are funded by powerful gaming companies that 
have always had more resources than we do. I have come to 
believe that over the last 10 years, the only way to ensure 
that people in small communities like ours will have a genuine 
say in whether an unwanted casino comes to its town is with 
changes to the IGRA legislation, which must come from the U.S. 
Congress.
    After hearing the news reports over the weekend, so many of 
our supporters called and pleaded with me to come today and 
tell you our recommendations and how we think the process might 
be improved. So here I am. I would like to give you a little 
history first.
    In September 1994, the Pokagons received status as a 
federally recognized tribe, with the help of cosponsors, U.S. 
Representative Fred Upton and U.S. Representative Tim Roemer. 
Both Congressmen claimed that the tribe promised that gaming 
was not in their interest, but by November the Pokagons were 
negotiating with Leisure Time and Harrah's entertainment 
companies about opening a casino. Congressman Upton told us 
later that he felt that he had been double-crossed by the 
tribe.
    For the next year, the Pokagons held informational meetings 
along the I-94 corridor from Kalamazoo into Indiana, in at 
least 30 communities, looking for the right spot to open a 
casino. By the spring of 1996, the tribe had narrowed it down 
to three locations: New Buffalo and Bridgeman in Michigan, and 
North Liberty in Indiana.
    On May 3, 1996, the tribe announced that New Buffalo was 
their choice. A few days later, our group of casino-fighters 
met in the basement of the local Methodist Church and took the 
name Tax Payers of Michigan Against Casinos.
    We first fought at the local level. In 1996, we worked hard 
to support candidates for local offices who opposed the casino. 
We were even successful in electing a slate of anti-casino 
candidates, only to see them fall under the spell of promised 
revenue from the casino. This very same group that had run on 
an anti-casino platform, turned around and signed a local 
revenue-sharing agreement with the tribe.
    We have fought the casino at State level. The Pokagon Tribe 
was trying to pass a compact with the State of Michigan in 
1998, and several of us from TOMAC were there in Lansing when 
the compact passed in December, on the last day of the 
legislative session, at 1 o'clock in the morning.
    The compact was passed not as a bill, but as a resolution 
so that it would not require a majority of members of the 
legislature, just a majority of the people that were there on 
the floor voting. It was going to be a very close vote, and we 
watched as many legislators walked out of the chamber so that 
they would not have to make a public vote, a public stance on 
this very controversial project, so that it could the majority 
of people who were on the floor at the time.
    We have fought this casino in Michigan court, arguing that 
the compact was invalid because it was passed as a resolution 
instead of a full law. We won in the circuit court. We lost in 
the appellate court, and then lost again in the Michigan 
Supreme Court, though a piece of this case still remains alive 
and to be determined in the Michigan Appeals Court.
    We filed suit in Federal courts, too. We sued the BIA, 
asking that the tribe be forced to conduct an environmental 
impact study because it seemed plain and simple enough to us 
that a massive casino designed to attract over 4.5 million 
people a year into a community of 2,500 people, would have a 
significant impact. The court initially agreed with us, and 
rejected the BIA's conclusion that the casino would be 
insignificant. But the court later deferred to the BIA, and 
then it reached the same conclusion after further study. The 
appellate court agreed.
    Overcoming agency deference is a big hurdle, even when any 
citizen on the street will tell you that a casino will 
obviously have a transforming and significant impact on a 
community. The tribes should not be allowed to have it both 
ways. They should not be allowed to have it both ways. They 
should not be allowed to garner support from local governments 
with the promise of thousands of jobs, millions of visitors and 
even more millions of dollars, and then turn around and ask the 
BIA to declare that the casino will have no significant impact.
    The BIA made its initial decision that this casino would be 
insignificant on the last moments on the last day of the 
Clinton administration, January 19, 2001. The person who signed 
the papers was Michael Anderson from the BIA. He went to work 
for tribal interests shortly thereafter. This kind of blatant 
duplicity does not inspire public confidence in the fairness of 
government operations, now that the Jack Abramoff scandal shows 
that the level of public corruption and the money involved in 
Indian gaming matters has gotten completely out of control.
    There are other communities in Michigan that are struggling 
with the threat of a proposed casino. We are thankful and 
grateful for their generous support that we have received over 
the years, and share their concerns about what may be happening 
in their own communities, people from CETAC in Battle Creek, 
MI; Gambling Opposition and 23 Is Enough in Grand Rapids, MI; 
Positively Muskegon in Muskegon, MI. We have also had the 
pleasure of working closely with Tom Grey from the National 
Coalition Against Gambling.
    Casino gambling is spreading throughout the country, and it 
is time for Congress to get its arms around the problems before 
it is too late. I would like to offer what TOMAC thinks would 
be improvements to this process, based on our experience.
    First and foremost, what we have asked for all along is a 
chance for the people of the community to have a vote on this. 
When the casino project was announced, we the community 
residents were told it was a done deal and that there was 
nothing that we can do about it, and there certainly was 
nothing we could do to stop it.
    But we the people never had a chance to register our formal 
vote. I believe there should be a local public referendum on 
every tribal casino project to ensure that the majority of the 
community actually wants it. If a community wants a casino, God 
bless them. But if a community does not want a casino, then 
that community deserves the right to self-determination.
    Another more serious problem is this reservation shopping. 
Newly minted tribes and existing tribes work with their casino 
sponsors to find the best possible site for commercial 
gambling, and then they ask the Government to put it into trust 
for them.
    The Chairman. Ms. Thomas, you are going to have to 
summarize.
    Ms. Thomas. Okay. Fine. I am sorry.
    Last, there is the issue of the EIS, which is required 
under the IGRA land-to-trust process. We believe there should 
be an independent agency that would conduct analysis of the 
environmental, economic, and social impacts, with an honest 
picture.
    We also support the legislation being proposed by Mike 
Rogers that basically would offer a moratorium of 2 years on 
tribal land and casino processes.
    We thank you very much for allowing us to testify today.
    [Prepared statement of Ms. Thomas appears in appendix.]
    The Chairman. Thank you very much, Ms. Thomas.
    A pretty simple question. You know, we like to deal with 
citizens, but we also place great credence on the testimony and 
views of the local elected officials, on the theory that 
Government closest to the people is probably the most aware of 
the views of the community they represent. If the local 
government supports the casino, shouldn't those elected 
representatives be deemed to express the will of the community, 
Ms. Thomas?
    Ms. Thomas. I think that in order to know what the will of 
the community is, they need to have a vote taken. You have been 
in Government for a very long time. You know very well that 
people can say one thing to get their job, and do the other 
thing when they have their job. And that is what has happened 
in our community.
    The Chairman. I have never seen a case of that. [Laughter.]
    Ms. Thomas. Maybe you just have not been paying close 
attention. [Laughter.]
    The Chairman. Thank you.
    Mr. Kromm, would you respond to that question?
    Mr. Kromm. I understand that concept real well. We wrestle 
all the time at the local level with representative government 
versus the initiative process. I do not have an absolute 
opinion on it. I am a person that personally has participated 
in urban growth boundary campaigns because I think local 
government officials often get blinded to where the interests 
of the community are when they start talking with big dollars. 
I think that goes to what Ms. Thomas' experience is with in her 
community.
    So I tend to favor the initiative process on very major 
land-use issues. I find it intriguing that Congressman Pombo's 
draft legislation talks about the thought of having some kind 
of local initiative process before a casino would be sited. At 
CSAC we have not taken a formal position on that yet because it 
is not a full-blown bill.
    In general, I think that appeals to many of us. These are 
exceptional types of development. It is not the typical, do you 
put in condos, or do you put in houses, or do you put in a 
shopping mall. This is something that can fundamentally change 
the character of a community.
    The Chairman. In your county, if there was a referendum on 
the construction of towers to allow cell phones to operate, 
would it ever pass?
    Mr. Kromm. I do not think so.
    The Chairman. You see, it is a bit of a dilemma here.
    Mr. Kromm. Yes.
    The Chairman. I am asking the questions. I am not reaching 
any conclusions. It is a very difficult issue here as to the 
degree of public and grassroots organizations, versus the 
elected representatives. I think Ms. Thomas also described part 
of the problem.
    Mr. Kromm. If I may, one of the experiences that many of us 
in California have had is that a tribe will start the 
reservation-shopping process, and they will fairly quietly 
approach a local government. That is what happened in our 
county. It was a tribe that was looking at an agricultural area 
that was in my supervisorial district outside of a local city. 
In our case, it is an area that has heavy land-use protections 
to keep it in ag. They wanted to know if they could start 
government-to-government discussions without having a public 
discussion.
    It only took me about a nano-second to realize that what 
was going to happen was massive dollars were going to be put on 
the table as an incentive for us to negotiate, and that we 
would start down that path before it became very public. That 
just fundamentally I was opposed to, to have that discussion 
before the public process.
    Once we started the public process, it took all of one 
public hearing. The only person who showed up in favor of the 
casino, citing the proposed site, was the broker who was 
brokering the land. The community in toto came out in 
opposition. I thought it was pretty interesting.
    This exact same tribe has been marching around the Bay 
Area. They are into their third site now in the Richmond, 
California area, further into the bay. When they first arose in 
the Bay Area, it was in the city of Antioch, which is south and 
a little bit east of us. The local city council there was very 
much in favor, until they had their first public hearing. They 
had to move it out of the council chambers into the high school 
gymnasium because 500-plus people showed up. That city council 
rapidly decided that, hmmm, we think we have heard from our 
community in a very meaningful way.
    So whether it is a vote or whether it is a process that 
pretty much mandates a very early public participation, it has 
to be day lighted very, very early, and not start down the path 
of how many millions of dollars will come to your community if 
you start down the approval process. Dollars, well, you know 
what dollars do.
    The Chairman. Mr. Alexanderson.
    Mr. Alexanderson. Senator, one problem with relying on 
local officials is the question which ones. We have the State 
involved. We have two counties. In our situation, we have at 
least four cities and that is not counting going across the 
river toward Portland, where the effects will be great.
    I think a vote is a good idea, but I worry the opposite 
about the vote. Not that they will always be voted down, rather 
that the farther away you are from the casino, the more likely 
you are to think of it as a good idea.
    The Chairman. Councilman Harju.
    Mr. Harju. Yes, Senator; Before I answer that question, I 
would like to send greetings to Senator Cantwell from her 
Cowlitz constituents from the great State of Washington. I do 
want to put that in the record.
    To answer your question, yes, there should be consultation 
with the local officials.
    The Chairman. I was talking about a vote.
    Mr. Harju. A vote, as you pointed out, what group would we 
have vote on our casino? Would we have the State of Oregon? 
Which county? Which city? What we have done is, as you know, we 
have done a full environmental impact study, which allows all 
of the agencies to participate in that. So we have plenty of 
public process.
    I think to answer your question, and I think Mr. Kromm 
touched on it a bit, the thing I think that gets lost in here 
is tribal sovereignty. The federally recognized tribes are 
sovereign nations that are afforded a government-to-government 
relationship. Part of the problem that the Cowlitz Tribe has 
had in Clark County and in Southwest Washington is that they 
have never had an Indian reservation in their area. They have 
never had a government-to-government relationship with a 
federally recognized Indian tribe.
    I know in the State of Arizona, your tribes have 
longstanding reservations and the governments have worked 
there.
    The Chairman. By the way, we have a compact between the 
State and the Indian tribes which was ratified by a ballot 
referendum throughout the entire State.
    Mr. Harju. And our State has a compacting procedure. We 
have a State Gaming Commission. We have the Governor involved 
in that. As Senator Cantwell knows, the established tribes that 
have reservations and that have had government-to-government 
relations with local communities, that has been established 
over years because they have been there.
    The Cowlitz problem in Clark County is that they have not 
had a federally recognized tribe to deal with. So the answer I 
think is to stress the government-to-government relationship 
with the communities.
    The Chairman. I have been and remain a strong advocate of 
tribal sovereignty and the government-to-government 
relationship which has been decided by our courts and by our 
American citizenry. But when you have an operation where 99.94 
percent of the patrons are non-Indians, then this puts a 
different cast on the entire issue.
    If this were an Indian agricultural project which only 
Native Americans were involved in, and received the benefits 
of, or many other things to do with Native Americans. But when 
it is non-Indians that are the primary source of the revenue, 
then I have an obligation to look out for the non-Indians as 
well as preserving the government-to-government relationship, 
with full respect to tribal sovereignty. I would be glad to 
hear your response to that.
    Mr. Harju. I do not disagree with that characterization, 
but again if you look at an example. We are talking about the 
two Section 20 exceptions to the Indian Gaming Regulatory Act, 
which prohibits gaming on any lands after October 17, 1988. 
There are tribes such as the Cowlitz. There are not many. As 
you know, the Federal recognition process is difficult, long, 
and there are not many. But tribes like the Cowlitz that are 
landless, we have no land-base.
    If you follow your reasoning, there will be no area where 
the Cowlitz would be able to pick a reservation to do gaming. 
We are not involved in reservation-shopping.
    The Chairman. I do not know how my reasoning moves in that 
direction, but go ahead.
    Mr. Harju. I mean, the reasoning that is here, that the 
Cowlitz will never find any land that will satisfy everyone. So 
we are going to follow the rules of IGRA which allow these 
exceptions, and we have done that. We have followed the law. We 
have had an open process. I would submit to you, I think that 
the there were some, I just want to correct the record here, 
there is some insinuation that the Cowlitz have all this other 
land that they could use. There is no other land that the 
Cowlitz can do a gaming facility on.
    We own some property that is not in trust on the Cowlitz 
River. It could never be, under the shoreline management rules 
and NEPA, it could never be turned into a gaming facility on 
the side of the river. We own a small parcel of land in the 
city of Longview, where we have our tribal office.
    There is no room for a gaming facility there. The parcel of 
land that we have at St. Mary's, interestingly enough, was 
donated to the church by the Cowlitz Indian Tribe so they could 
put a mission there to help the Cowlitz Tribe. The Cowlitz 
Tribe has purchased that property back for tribal housing in 
that area. It is not in trust either, and there is not enough 
land there to build a casino.
    The Chairman. Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman.
    I thank the residents of Washington for being here today. 
As much as the microscope is on this particular project and as 
painful or as enlightening as that may be, it is a timely 
example of the challenges I think we face, Mr. Chairman, on the 
current statute and what changes we need to make to it.
    I wanted to ask Mr. Alexanderson, in your statement on page 
4 there is a list of recommendations. Sixth on that list, you 
have ``no site should be restored to the tribe that was not 
part of the historical sovereign.'' Would you elaborate on 
that?
    Mr. Alexanderson. Yes; Thank you, Senator.
    This I believe, I call it a Federal-tribal casino siting 
process because the issue is where to put them. In order to put 
them someplace under the law, the land on which they are placed 
has to be handed over to the sovereignty of the requesting 
tribe. So it becomes land that is taken away from the 
sovereignty of the State and the tribe governs it. All State 
and local regulations are nullified.
    So what I am saying here is that the concept of restoring 
land to a tribe, as I see what Congress was thinking about, is 
where did they once have sovereignty and govern the land; where 
did they have their villages and homeland and where were the 
missions established; and particularly where did all that occur 
pre-European contact, because after European contact a lot of 
stuff got mixed up and a lot of things changed. But where is 
the historical base of the tribe; where can we look and say, 
this is where they ruled.
    When you have a landless tribe, but you can look at their 
history and see where they ruled, it seems to me you can only 
restore that situation within that area. It makes no sense to 
me to restore the Cowlitz Tribe to sovereignty on a parcel that 
was the original land of the Chinook.
    Senator Cantwell. To restore them to sovereignty?
    Mr. Alexanderson. Yes.
    Senator Cantwell. At all?
    Mr. Alexanderson. No; to restore them to sovereignty on 
this parcel. The decision to restore them to sovereignty, well, 
actually it has not been made, I guess, yet, because they are 
not sovereign over any land yet. They do not own this land, the 
proposed land, and the other tribal land has not been taken 
into trust. I believe technically it is the taking into trust 
that restores the sovereignty, because it then allows the tribe 
to govern.
    Senator Cantwell. You are not questioning their sovereignty 
in general.
    Mr. Alexanderson. No; absolutely not. That has been 
decided.
    Senator Cantwell. Okay.
    Mr. Harju, do you want to comment on this?
    Mr. Harju. Well, I guess if we follow his analogy, the 
Federal Government will give the million acres back that were 
taken from the Cowlitz without compensation in 1863, but that 
is not realistic. Most of that land is now in the Gifford 
Pinchot National Forest, the Mount St. Helen's National 
Monument, Mount Rainier National Park, the Fort Vancouver 
Monument.
    So most of that land is not available for the Cowlitz to 
regain sovereignty to, or to purchase and ask to be placed into 
trust. There is not that much land that is just out there for 
the taking.
    As I pointed out, we are only asking for 152 acres that is 
in our historic area to be taken into trust to help the 
economic benefit of our tribe, a landless tribe. We are not 
reservation-shopping. We are attempting to obtain land in our 
historical area. The restored lands opinion, which is a legal 
opinion, it is just one part of this process. It is a 
determination by the Federal agency that has the jurisdiction 
in this area, that this was restored lands under the Indian 
Gaming Regulatory Act for the Cowlitz Tribe. But that is just 
one piece of it.
    Senator Cantwell. You are saying that it is in a historical 
area.
    Mr. Harju. Oh, it is.
    Senator Cantwell. You are saying it has been determined 
already that it is an historic area.
    Mr. Harju. Well, the restored lands opinion that was 
authored by Ms. Coleman clearly demonstrates that, and that is 
their administrative finding that this is in the historic 
cultural area of the tribe. I would point out, the Cowlitz 
Tribe from time immemorial occupied all areas in Southwest 
Washington. It shared some of those lands on the Columbia 
River.
    As you know, Senator Cantwell, the Columbia River divides 
Oregon and Washington. Pre-European contact, the Columbia River 
was the interstate highway for the tribes in that area. They 
used the river to navigate and for transportation. So on the 
river, there were different bands of different Chinookan tribes 
on the river many times.
    As I have pointed out, in the 1820's and 1830's, many of 
those bands were wiped out by the fever and the cholera and the 
epidemics. But the Cowlitz have always been in that area, and 
as the opinion points out, this is our historic land.
    So I do take offense to people saying, well, you should 
just go build your casino where you had land. We do not have 
any land in trust at this time. We are going through the 
complicated process to take this land into trust, as Mr. 
Skibine has pointed out. This land, we are going through the 
fee-to-trust process. We are going through the full 
environmental impact statement.
    Before the BIA takes it into trust for the Cowlitz Tribe, 
we will have to fulfill all of those requirements. Once that 
happens, we have the opinion from the Indian Gaming Regulatory 
Act that it is our restored lands, and it is clear to everyone 
that then on that land we could either build a casino, and as 
we have pointed out, we also want to put tribal housing, a 
cultural center, and a governmental office there on that land. 
It is only 152 acres.
    Senator Cantwell. But I think, Mr. Harju, you could also 
could see from my colleague's perspective, too, on the process 
that we are trying to make sure is established since the 
implementation of this act and transparency, that when people 
are discussing these issues of the historical lands, you are 
right. There are many other examples of these trade offs that 
we deal with every day in our office as it relates to tribal 
sovereignty and the non-further use of tribal land that the 
Federal Government has taken and the implications of that, 
particularly as it relates to fish and to water and to power 
resources.
    So are you suggesting that we do not need to make any 
changes to the Indian gaming law as it relates to transparency?
    Mr. Harju. My suggestion is in regards to the two 
exceptions that we are discussing today, either the restored 
lands exception or the initial reservation exception, I agree 
with Senator McCain that I think what direction the committee 
and the Congress should take would be to direct the BIA to 
implement regulations so that everyone knows exactly what the 
BIA does, and what is expected of all the parties, the tribes, 
the public, and they have their input. So in regards to those 
two, the two exemptions that we are talking about, I think 
regulations are what we need right now, not amendments to IGRA.
    Now, the two-part determination is what gets into 
reservation-shopping. I am not discussing that. The tribe has 
not asked for a two-part designation from the BIA or the State 
of Washington at this time. We are asking that the land be 
taken into trust and we will be applying one of the other 
exceptions, then. We have asked for an initial reservation 
proclamation and we have also asked for the restored lands 
opinion.
    I might add that there is some indication that we have done 
this secretly. If you read the restored lands opinion, you will 
see that a State Representative responded. Several of the 
groups opposing the casino responded to them. They got input 
from another Indian tribe. A whole bunch of individuals 
opposing the tribe did have input on this opinion. It states 
that in the opinion. So it can hardly be said this was a secret 
process.
    Senator Cantwell. Mr. Alexanderson.
    Mr. Alexanderson. It was secret from March to October, and 
was discovered because Mr. Skibine advised one of the people 
that he visited with that the process was underway. Indeed, it 
was nearly over and at the very last minute that was some 
opportunity to put input in, but it did not apply to everybody, 
and it was inadequate.
    If I may just clarify my position on one thing. 
Historically, you could find an area that everyone agrees was 
the exclusive area of tribe A. And you could find another area 
that was the exclusive area of tribe B. And you might find an 
area in between that you cannot tell, or was shared. Maybe 
there were resource sites that were shared and so on.
    I am saying that when you are restoring a tribe to 
sovereignty over land, they should have had to make a showing 
that they once had sovereignty, exclusivity over that land. In 
that middle-land where more than one tribe has a claim, it is 
not right to restore it to the exclusive governance of one of 
the tribes and exclude the other. That is my position.
    Senator Cantwell. And what if that is not clear?
    Mr. Alexanderson. I am sorry?
    Senator Cantwell. I am not sure that is always so clear. I 
see Mr. Kromm smiling. I do not know in your experience in 
California if that is always so clear. I mean, how do you 
determine dominance on a particular parcel? I think if you were 
talking about a broad geographic area, east or west of the 
Cascades or north or south of the Columbia River, you know, it 
is easier.
    But when you start getting into smaller territories, my 
guess is they were fighting over this for a long time about who 
was dominant. So I am just saying, it gets complicated.
    Mr. Alexanderson. That is absolutely true. In this case, 
that very issue was fought out twice before in the case of the 
Cowlitz, and the Indian Claims Commission, after a long trial 
that lasted years, I believe, made a determination as to where 
their exclusive area was, and where it was not. The 
determination they made as to where it was not was the mouth of 
the Lewis River area, the area we are talking about.
    So that has been found, and it was found again when the 
Bureau of Acknowledgment and Recognition spent years with 
expert historians looking into the Cowlitz history. Again, the 
Cowlitz representatives claimed that they had a band of the 
Cowlitz that lived in that area. The BAR found they did not.
    So it has been ruled twice before already. It is a very 
difficult process, very fact-intensive. It involves reading the 
journals and evidence and maps of the time to see what the 
answer is. But once you get the answer, we should live with it.
    Senator Cantwell. Thank you.
    Mr. Chairman, I am sure the case study of the Cowlitz could 
go on all day, and so could my questioning, but I will continue 
to work with you on the larger reform issues and appreciate my 
constituents being here.
    I am not sure we like to be in the limelight on this issue, 
but I do think it is a case study of the challenges of the Act 
that we have now had for so long, and so many changes that have 
come along that require us to look at revisions. So I think the 
chairman for this hearing.
    The Chairman. Thank you very much.
    Ms. Thomas, we will allow you to make a closing comment if 
you would like.
    Whoops, Senator Dorgan is back. Okay.
    Senator Dorgan. Mr. Chairman, sorry. I had to be at another 
committee hearing to introduce a witness, so I apologize.
    The Chairman. Ms. Thomas.
    Ms. Thomas. I would just like to say that I know that this 
committee worked, or the committee that you were a part of that 
worked so hard on the IGRA, did their level best to make sure 
that they had anticipated all the problems that might happen, 
and make provisions for those. And we do know that a lot of 
things have changed in the last 17 years. I just wanted to let 
you know how grateful communities like mine are that this is 
actually happening, because it is something that in our fight 
for the last 10 years, we have wanted to see happen, and we 
really appreciate it.
    The Chairman. Thank you very much.
    Mr. Kromm.
    Mr. Kromm. Thank you.
    Maybe a brief point I could make is that the California 
State Association of Counties has probably been the most active 
of the local government groups in the country of working on 
this issue. I want to thank Mr. Skibine. I came out here a 
couple of years ago when an issue first arose in our county, 
and just was kind of alone, a very inexperienced supervisor. He 
made time to meet with me. I have heard this from numerous 
other county supervisors in California, that the door has been 
open back here.
    I think the challenge is, as you hear across the country, 
is that most folks do not quite know where to go and do not 
know how to address the problem, and it is difficult. We have 
been working with the National Association of Counties. CSAC 
has very much taken the lead. We are putting on workshops for 
the Western Regional group of counties as part of NACO later 
this year. Mr. Skibine is going to be meeting with the League 
of Cities representatives.
    I think an education process is part of what is needed. 
Part of it, I think, then goes back to your transparency 
questions earlier, about how do we make the process more open, 
more transparent. Good regs would help. It gives people 
something that they can put their hands on.
    At the local government level, to kind of have an 
understanding that you do have a seat at the table; you need to 
have an appropriate recognition of the sovereignty of the 
tribes that are involved; and the difference between when land 
that is well-recognized is in trust versus when the 
reservation-shopping process comes about.
    So I think a giant educational process nationwide is very 
necessary. We have been active in that. We would be glad to 
continue to help. I think reforms to IGRA could help that 
process also. Thank you.
    The Chairman. Thank you very much, sir. I hope you work as 
quickly as possible to return Arizona's water from California. 
Thank you. [Laughter.]
    Mr. Kromm. I am from California. Wine is for drinking and 
water is for fighting, right? [Laughter.]
    The Chairman. Mr. Alexanderson.
    Mr. Alexanderson. Thank you.
    Mr. Chairman, I think I have been clear about what I want 
from the process in terms of open access to information and 
opportunity to meet and present evidence, and a neutral, open-
minded person to run the process and to make the decisions.
    Substantively, I do not understand in this day and age why 
there should be exceptions to section 20. Those exceptions 
basically say that this giant Federal machine siting giant 
tribal casinos does not have to consult with anyone in the area 
and does not have to get the Governor's okay, and it can be 
proved that it will be damaging to the community. That is not 
okay with me. So urge substantive reform, as well as procedural 
reform.
    Thank you.
    The Chairman. Thank you.
    Councilman Harju.
    Mr. Harju. Again, thanks to the committee for this 
opportunity. I do have a written statement and I would ask that 
that be submitted for the record.
    The Chairman. Without objection.
    Mr. Harju. I guess, just to followup on that, there is need 
for regulation. Oversight is always important, but again I 
think there was a reason for these two exceptions that we have 
talked about today. It only affects a very few tribes, as you 
know, and any changes to those could have devastating results 
for tribes like the Cowlitz, and there is now the Snoqualmie 
Tribe in the State of Washington that has just recently 
obtained Federal recognition.
    It is important to allow those tribes to have the same 
economic benefits of the tribes that had reservations and have 
gaming facilities or other economic benefits to help their 
tribal members. All the Cowlitz want are to be able to take 
care of the Cowlitz people.
    Thank you.
    The Chairman. Thank you, sir.
    Senator Dorgan.
    Senator Dorgan. Mr. Chairman, thank you very much.
    As I said, I had a Commerce Committee hearing I had to rush 
off to, so I missed part of this, but I have read the 
statements offered today and I think they are very constructive 
and very helpful to this committee.
    Again, Mr. Chairman, thank you for continuing on, and I 
thank all of you for traveling here today to be a part of this 
hearing.
    The Chairman. Thank you very much.
    This hearing is adjourned.
    [Whereupon, at 11:31 a.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
=======================================================================


                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

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


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

    Good morning Chairman McCain, Vice Chairman Dorgan, members of the 
committee, and staff. My name is Penny Coleman. I am the Acting General 
Counsel of the National Indian Gaming Commission [NIGC]. Thank you for 
this opportunity to discuss the NIGC's role in, and process for, making 
Indian lands determinations for off-reservation gaming. I understand 
that you are specifically concerned about such determinations when a 
tribe is trying to establish gaming off of its reservation or when a 
tribe is trying; to begin gaming when it does not have a reservation at 
all.
    Under the Indian Gaming Regulatory Act (IGRA), tribes may conduct 
gaming operations only on ``Indian lands,'' a term which is defined by 
the statute to include reservation land, as well as non-reservation 
land held in trust or restricted status by the United States for the 
benefit of a tribe or individual member of a tribe. IGRA prohibits 
gaming on non-reservation trust lands acquired after October 17, 1988, 
unless the tribe and its proposed gaming site qualify for one of six 
statutory exceptions in 25 U.S.C. section 2719.
    In fulfilling its statutory duties under IGRA, there are three 
circumstances when the NIGC must make determinations regarding whether 
a site qualifies as ``Indian land'' on which a tribe is allowed to 
conduct gaming operations. The first circumstance arises under the 
chairman's duty to approve all management contracts between Indian 
tribes and gaming management contractors. In those cases, the NIGC will 
first confirm that the gaming operation to be managed is located on 
Indian lands eligible for gaming. Similarly, the second circumstance 
that may call for an Indian lands determination is created by the NIGC 
chairman's duty to approve all tribal gaming ordinances. Third, the 
Office of General Counsel, within the NIGC, issues Indian lands 
opinions when the Commission must determine whether it has regulatory 
authority over an existing gaming operation since the NIGC's authority 
is limited to Indian gaming operations on Indian lands. In conducting 
our analysis, we attempt to reach consensus with the Department of the 
Interior.
    The working relationship that we have with the Department of the 
Interior on these issues is guided by a memorandum of understanding. 
Our practice of notifying, the State Attorney General is based on our 
internal policy developed as a result of a request by the Conference of 
Western Attorneys General. Regarding the issue of public notice and 
participation, our policy is to respond openly to inquiries and accept 
and consider any information provided by the subject tribe, other 
governments, community groups, or any member of the public. We 
typically do not provide public notice that any articular Indian lands 
analysis is, underway because this process involves a narrow, legal 
determination that does not require the solicitation of public comment.
    Presently, we have approximately 21 active Indian lands opinions 
pending. The NIGC has assumed the responsibility for drafting 17 and 
the Department of the Interior is drafting 4. Of the 21, four include 
pending management contracts as well as pending trust acquisitions: 
Ione Band of Miwok Indians; Elk Valley Rancheria; Federated Indians of 
Graton Rancheria and Hopland Band of Pomo Indians. The public will 
receive notice of these pending trust acquisitions through the 
environmental compliance processes, as well as the Department of the 
Interior's trust acquisition process.
    I am available to answer any questions or provide further 
information that might assist in your review of this issue.
                                 ______
                                 

  Prepared Statement of Rebecca A. Miles, Chairman, Nez Perce Tribal 
                          Executive Committee

    Mr. Chairman, the Nez Perce Tribe appreciates the opportunity to 
submit the following brief comments for the record of the hearing 
conducted by the Senate Committee on Indian Affairs on February 1, 
2006.
    First, the Nez Perce Tribe is concerned that Congress is 
considering taking such drastic action as amending the Indian Gaming 
Regulatory Act [IGRA] based on anecdotal evidence that does not 
necessarily comport with the known facts. As Mr. Skibine stated in his 
testimony, it appears that the media have created a firestorm of 
controversy about an explosion of off reservation gaming by Indian 
tribes that simply does not exist.
    In order for a tribe to conduct such activities, tribes are 
required, under existing law, to go through a two-part determination 
test. The two-part determination process requires the approval of the 
BIA and the concurrence of the State Governor where the off-reservation 
casino would be located. The BIA must consult with local governments 
and nearby tribes before making a decision. According to Mr. Skibine, 
since IGRA was passed in 1988, only three casinos have been opened 
under the two-part determination process required under the existing 
law. In addition, the Department of the Interior has approved only one 
tribal acquisition under the land settlement exception and three tribal 
land acquisitions under the initial reservation exception but no land 
has been taken into trust yet.
    The above process in conjunction with the required compliance with 
the National Environmental Policy Act means an adequate regulatory 
structure already is in place. It is at this point that the public is 
given an adequate outlet to comment on the process. As a result, it is 
the opinion of the Nez Perce Tribe that adequate safeguards are already 
in existence to regulate the area of applications for off reservation 
gaming by Indian tribes.
    However, if the committee still believes that action needs to be 
taken, the Nez Perce Tribe believes that the current regulatory process 
can be amended to achieve the desired result without taking the drastic 
step of opening up IGRA for amendment. The draft regulations 
implementing section 20 that are being promulgated by Mr. Skibine's 
office should help resolve existing concerns over the off reservation 
gaming issue by fleshing out the exceptions allowed in section 20, 
providing more guidance with the secretarial determinations allowed, 
and defining important terms related to the process. The promulgation 
of these regulations will include tribal involvement before they become 
final. This helps insure the sovereign voice of the tribes is heard.
    Finally, it should be noted that although the tribal gaming 
business has grown greatly since 1988, it has only grown because of the 
demand by the public. Each person that patronizes a tribal gaming 
facility does so at their own discretion. If customers did not feel 
welcome and safe at tribal facilities they would not visit. Statements 
made by the committee that the growth of the industry requires 
governmental intervention by the State are misplaced. The sovereignty 
of the tribes that conduct such gaming should be respected. It is 
important to allow tribes to grow and nurture our limited opportunities 
for economic development and as a result become more self sufficient 
and able to provide the services and programs that all governments are 
expected to provide.
    Thank you for the opportunity to comment on this issue.
                                 ______
                                 

Prepared Statement of Liz Thomas, Taxpayers of Michigan Against Casinos

    Good morning. Thank you Chairman McCain and members of the Senate 
Committee on Indian Affairs for giving me the opportunity to testify. I 
am a representative of a community grassroots organization called 
Taxpayers of Michigan Against Casinos. We have worked to prevent a 
tribal casino from opening in New Buffalo, MI, for almost 10 years. New 
Buffalo is a Lake Michigan community of about 2,500 residents. My 
husband and I opened a small resort in 1990. We and the other members 
of our group firmly believe a large, generally unregulated casino will 
fundamentally change the character of our community forever.
    Throughout the past 10 years, those of us who oppose the potential 
Pokagon casino in New Buffalo have found our voices and fought in many 
different ways to prevent the casino. The fight has, been constant, 
costly, and often demoralizing, none more so than last Friday when we 
received word that the Government had taken the land in trust or the 
casino and the tribe announced they would begin building the casino 
soon.
    Our opponents are funded by powerful gaming companies that always 
have more resources at their disposal than we do. I have come to 
believe over these 10 years that the only way to ensure that people in 
small communities like mine have a genuine say in whether an unwanted 
casino comes to town is with changes to the IGRA legislation, which 
must come from the United States Congress. And after hearing the news 
reports over the weekend, so many of our supporters called pleading 
with me to come today and tell you our recommendations about how to 
improve this process. So that is why I am here today, and before giving 
my recommendations I would like to give you a little history.
    In September 1994, the Pokagons received status as a federally 
recognized tribe with the help of cosponsors U.S. Representative Fred 
Upton and U.S. Representative Tim Roemer. Both Congressmen claimed that 
the tribe promised that gaming was not the tribe's interest. By 
November the Pokagons were negotiating with Leisure Time and Harrah's 
entertainment companies about opening a casino. Congressman Upton told 
TOMAC he felt he had been double-crossed by the tribe.
    For the next year the Pokagons held ``informational meetings'' 
along the I-94 corridor from Kalamazoo into Indiana, in at least 30 
communities, looking for the right spot to open a casino. By the spring 
of 1996, the tribe had narrowed it down to three locations New Buffalo 
and Bridgeman in Michigan and North Liberty in Indiana. On May 3, 1996 
the tribe announced that New Buffalo was their choice. A few days later 
our group of casino fighters met in the basement of the local Methodist 
church and took the name of Taxpayers of Michigan Against Casinos.
    We first fought the casino at the local level. In 1996, we worked 
hard to support candidates for our local offices who opposed the 
casino. We were even successful in electing a slate of anti-casino only 
to see them later fall under the spell of promised revenue from the 
casino. This very same group that had run on an anti-casino platform 
turned around and signed a local revenue sharing agreement with the 
tribe. In a small community like ours, the lure -of much-needed revenue 
to help support the budget just became too much. And one thing casinos 
bring is a basket full of promises about lots of money flowing into 
town.
    We have fought the casino at the State level. The Pokagon Tribe was 
trying to pass a compact with the State of Michigan in 1998, and 
several of us from TOMAC were there in Lansing when the compact passed. 
This compact passed in December on the last day of legislative session 
that year, at 1 a.m.
    The compact was passed not as a bill but as a resolution so that it 
wouldn't require a majority of members of the legislature, just a 
majority of the people there on the floor voting. It was going to be a 
very close vote and we watched as many legislators walked out of the 
chamber so they wouldn't have to make a public vote a public stance on 
this very controversial project and so that it could get the majority 
of people who were on the floor at the time.
    We have fought the casino in the courts. We filed suit in Michigan 
court, arguing that the compact was invalid because it was passed as a 
resolution instead of a full law. We won in the circuit court, lost in 
the appellate court, then lost again in the Michigan Supreme Court 
(though a piece of this case remains alive in the Michigan Appeals 
Court).
    We filed suit in the Federal courts, too. We sued the BIA asking 
that the tribe be forced to conduct an Environmental Impact Study, 
because it seemed plain and simple enough to us that a massive casino 
designed to attract over 3 million people a year into a Community of 
2,500 residents would have a significant impact.
    The court initially agreed with us and rejected the BIA's 
conclusion that the casino would be insignificant, but the court later 
deferred to the BIA when it reached the same conclusion after further 
study. The appellate court agreed. Overcoming agency deference is a 
very big hurdle, I learned, even when any common citizen on the street 
will tell you that the casino will obviously have a transforming, 
significant impact on our community.
    The tribes shouldn't be able to have it both ways. They should not 
be allowed to garner support from local governments with the promise of 
thousands of jobs, millions of visitors and even more millions of 
dollars, then, turn around and ask the BIA to declare the casino will 
have No Significant Impact on a community.
    The BIA made its initial decision that this casino would be 
insignificant on the last day of the Clinton administration, January 
19, 2001. The person who signed the papers was Michael Anderson from 
the BIA. He went to work for tribal interests shortly thereafter. This 
kind of blatant duplicity does not inspire public confidence in the 
fairness of government operations. And now the Jack Abramoff scandal 
shows that the level of political corruption and the money involved in 
Indian gambling matters has gotten completely out of control.
    There are other communities in Michigan struggling with the threat 
of proposed tribal, casinos. We are thankful and grateful for the 
generous support we've received over the years and share their concerns 
about their own communities--people from CETAC in Battle Creek, MI; 
Michigan Gambling Opposition and 23 Is Enough in Grand Rapids, MI; 
Positively Muskegon in Muskegon, MI. We've also had the pleasure of 
working closely with Tom Grey from the National Coalition Against 
Legalized Gambling.
    But casino gambling is spreading throughout the country and it is 
time for Congress to get its arms around the problems before it is too 
late. Now that you know the history of our fight, I'd like to offer 
what TOMAC thinks would be improvements to this whole tribal casino 
process, based on our experience.
    First, most important, and what we have asked for all along, is a 
chance for the people of the community to vote on this. When the casino 
project was announced, we, community residents, were told it was a DONE 
DEAL. We were told what was going to happen, when, how wonderful it was 
going to be for our community, and that we shouldn't ask questions and 
that we certainly couldn't do anything to stop it. Fortunately for us, 
we had good souls like Tom Grey who told us it WASN'T a done deal and 
that there were ways we could try to stop it. But we the people have 
never had a chance to register our formal vote.
    I believe there should be a local, public referendum on every 
tribal casino project to ensure the majority of the community actually 
wants it. If a community wants the casino, God bless them. But if a 
community does not want it, that community deserves the right to self 
determination.
    The other, serious problem with this process is the ``reservation 
shopping'' as it is being called. Newly minted tribes and existing 
tribes work with their casino sponsors to find the best possible site 
for commercial gambling, and then they ask the government to put it in 
trust for them.
    The Pokagons wish to build on land that they bought in 1996. This 
is not the Pokagons' existing reservation land. This is not even where 
the majority of Pokagons live now. The tribe's tribal hall is in 
Dowaigac, but the property there just isn't an attractive site for a 
commercial casino.
    And yet once this newly acquired land is given trust status, it 
will be viewed forever more as a sovereign nation that belongs to the 
Pokagons, and on which they can build a casino that attracts 4.5 
million people a year to our community of 2,500. The Pokagons decided 
on New Buffalo after they openly shopped ``in probably all of the 
communities along the I-94 corridor in our service area''. [Matt 
Weesaw, Harbor Country News, 5/9/96] We believe tribal casinos are best 
when built on tribal land and that ``reservation shopping'' was never 
the intent of the IGRA.
    And last, there is the issue of the EIS which is required under 
IGRA in the land to trust process. We believe there should be an 
independent agency that would conduct an analysis of the environmental, 
economic and social impacts studies that would be an honest picture of 
the land in question. The present system allows the tribes to hire a 
firm that has experience with the BIA and knows what they want. These 
studies are inadequate, biased and often glaze over issues of great 
importance to host communities.
    What has happened in my community, we call it Harbor Country, is 
not unique and that is what makes it so sad. It is not unusual or 
extraordinary because this nightmare is happening to towns all across 
America. As we debate this issue today here in Washington, there are 
grassroots groups all across America, calling their legislators, asking 
for help only to be told that this is an issue out of their 
jurisdiction. I ask you, who do we go to when our local, State, and 
Federal Governments have been seduced by the mere promise of millions 
of dollars of ``revenue'' that. once was some family's ``paycheck''. 
And I respectfully ask this committee, when did our rights as American 
citizens cease to matter on any day that was not an election day?
    In the late 1980's the committee that drafted the IGRA did their 
best to include. Very thing they could imagine into the regulations 
that would govern an industry of gambling and an alliance with tribal 
nations. After nearly 20 years we know there is much more to learn. We 
applaud this committee's efforts to reach out to its critics and 
supporters and craft a solution that would be welcomed by all.
    Thank you so much again for allowing me to speak today.

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