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



                                                 S. Hrg. 109-298, Pt. 2
 
                         OFF-RESERVATION GAMING

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

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

 OVERSIGHT HEARING ON OFF-RESERVATION GAMING: LAND INTO TRUST AND THE 
                         TWO-PART DETERMINATION

                               __________

                           FEBRUARY 28, 2006
                             WASHINGTON, DC

                               __________

                                 PART 2

                               __________


                    U.S. GOVERNMENT PRINTING OFFICE
26-326                      WASHINGTON : 2006
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                      COMMITTEE ON INDIAN AFFAIRS

                     JOHN McCAIN, Arizona, Chairman

              BYRON L. DORGAN, North Dakota, Vice Chairman

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

                 Jeanne Bumpus, Majority Staff Director

                Sara G. Garland, Minority Staff Director

                                  (ii)

  
                            C O N T E N T S

                              ----------                              
                                                                   Page
Statements:
    Kennedy, Cheryle, chairwoman, Confederated Tribes of the 
      Grand Ronde Community of Oregon............................    12
    Kulongoski, Hon. Ted, Governor, Oregon.......................    23
    Lang, Michael, Conservation Director, Friends of the Columbia 
      Gorge......................................................    17
    McCain, Hon. John, U.S. Senator from Arizona, chairman, 
      Committee on Indian Affairs................................     1
    Schmit, Cheryl, director, Stand Up For California............    19
    Skibine, George, acting deputy assistant secretary, Policy 
      and Economic Development for Indian Affairs, Department of 
      the Interior...............................................     2
    Suppah, Ron, chairman, Confederated Tribes of the Warm 
      Springs Reservation of Oregon..............................    10
    York, Carol, commissioner, Hood River County, OR.............    14

                                Appendix

Prepared statements:
    Adler, Robert M., counsel to the St. Croix Chippewa Indians 
      of Wisconsin (with attachment).............................    31
    Clark, Guy C., chairman, National Coalition Against Gambling 
      Expansion..................................................    59
    Kennedy, Cheryle (with attachment)...........................    62
    Lang, Michael (with attachment)..............................    73
    Schmit, Cheryl...............................................    29
    Skibine, George (with attachment)............................    99
    Suppah, Ron..................................................   105
    Walker, M.D., R. Dale, director, One Sky Center, National 
      Resource Center for American Indian/Alaska Native Substance 
      Abuse and Mental Health Services; president, First Nations 
      Behavioral Health Association (with attachment)............   117
    York, Carol (with attachment)................................   123


                         OFF-RESERVATION GAMING

                              ----------                              


                       TUESDAY, FEBRUARY 28, 2006


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:30 a.m. in room 
485 Senate Russell Office Building, Hon. John McCain (chairman 
of the committee) presiding.
    Present: Senators McCain, Dorgan, Smith, and Thomas.
    Also Present: Hon. David Wu, U.S. Representative from 
Oregon; and Ted Kulongoski, Governor, State of Oregon

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

    The Chairman. Good morning.
    When Indian Gaming Regulatory Act [IGRA] was enacted 17 
years ago, following the decision of the Supreme Court in the 
Cabazon case, Congress established a regulatory structure for 
tribes that conduct gaming on their lands. The IGRA made clear 
that, as a general rule, gaming was not to be conducted on 
lands acquired after 1988, the date on which IGRA was enacted. 
At the same time, however, we carved out several exceptions to 
this general rule.
    In light of the astronomical growth in Indian gaming, both 
in the amount of revenues generated and in the number of gaming 
operations established, it is clearly time to revisit these 
exceptions. Today's hearing focuses on an exception known as 
the ``two-part determination,'' which allows for gaming on 
lands off the reservation and potentially unrelated 
historically to the tribe.
    This exception allows for gaming if, one, the Secretary 
determines after consulting with the tribe and State and local 
officials, including other nearby Indian tribes, that the 
gaming establishment would be in the best interest of the tribe 
and would not be detrimental to the surrounding community; and 
two, the Governor of the State in which the property is located 
concurs with the Secretary's determination.
    While I believe that an assessment of the impacts of new 
Indian casinos on local communities is appropriate, when siting 
casinos on after-acquired land, the IGRA reform bill, S. 2078, 
proposes to eliminate the two-part determination. I did this 
because we believe that the proliferation of proposals by 
tribes with existing reservations and their developer-backers 
to site casinos off-reservation on lands to which the tribes 
often bear no historic relationship is fostering opposition to 
all Indian gaming.
    We also did this because residents and communities, 
including nearby Indian tribes that thought in 1988 that by 
looking at a map of established reservations they could predict 
where casinos would be built, now find themselves surprised, 
confused and divided by proposals to site massive gaming 
operations in their backyards.
    I look forward to hearing from the witnesses today who will 
speak to both the pros and cons of the two-part determination.
    Senator Thomas, welcome.
    Senator Thomas. Thank you, Mr. Chairman.
    [Remarks made off microphone.]
    The Chairman. Thank you very much. I take back everything I 
said about [remarks made off microphone.]. [Laughter.]
    [Remarks made off microphone.]
    We will have to just speak up, Mr. Skibine and I. I welcome 
you back. George Skibine is the Acting Deputy Assistant 
Secretary, Policy and Economic Development for Indian Affairs. 
Among other issues, of course, Indian gaming is one of the 
areas that he has been heavily involved in and appeared several 
times before this Committee.
    I notice the presence of one of our colleagues from the 
House side, Congressman Wu. Would you like to make any opening 
comments? You are welcome and I know we would be glad to hear 
from you, if you would like.
    Mr. Wu. [Remarks made off microphone.] hear from the 
witness. At some point, Mr. Chairman, if I may ask some 
questions, I would appreciate it.
    The Chairman. Thank you. We appreciate very much your 
involvement in this issue and your presence here today.
    Mr. Wu. Thank you very much.
    The Chairman. Mr. Skibine, does your microphone work?
    Mr. Skibine. It does.

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, Senator 
Thomas, and Mr. Wu.
    I am pleased to be here to present our views on the two-
part determination.
    [Remarks made off microphone.]
    The last hearing focused on the exceptions for initial 
reservation and for restored land for restored tribes, and 
today's hearing is going to focus on the two-part 
determination. My testimony is made part of the record. I am 
not going to go through it again.
    The Chairman. Without objection.
    Mr. Skibine. I am just going to focus on the salient points 
regarding the two-part determination.
    When a tribe wants to engage in off-reservation gaming, and 
usually when none of the other exceptions in section 20 apply, 
it can still game if, as Mr. Chairman you stated, the gaming 
establishment, the land is acquired in trust after October 17, 
1988, and the Secretary makes a determination after 
consultation with appropriate State and local officials and 
nearby tribes, that the gaming establishment will be in the 
best interest of the tribe and its members and will not be 
detrimental to the surrounding community, but only if the 
Governor of the State concurred in such a determination.
    When the tribe submits an application, the land may already 
be in trust, because section 20 is not a land acquisition 
authority. We have approved applications for two-part 
determinations, for instance, for the Kalispel Tribe in the 
State of Washington, when the land was acquired in trust after 
October 17, 1988, for purposes other than gaming, and the 
tribe, in that particular case, decided that it wanted to 
conduct gaming operations on the land, so it submitted an 
application for a two-part determination.
    Most of the time, the application will include a land-into-
trust application and also a two-part determination 
application. The processes are intertwined, and a lot of the 
requirements under the 25 CFR part 151 regulation are parallel 
in the section 20 determination. We have published a checklist 
since 1994, I believe, in terms of guidance for the regional 
office on how to process those applications.
    Essentially, the application is submitted for the two-part 
determination, to the regional office and the regional office 
then will have to conduct consultation with the appropriate 
State and local officials, and nearby tribes. In the current 
checklist, we require consultation with State and local 
officials that are located within 10 miles of the proposed 
site, and with the Governor, and we require consultation with 
nearby tribes located within 50 miles of the proposed site.
    The consultation is conducted by letter. The letter to the 
appropriate officials asks pertinent questions regarding the 
best interests, that is the letter to the tribe, and the not 
detrimental letter to the affected officials. Usually, we give 
the local officials at least 30 days to submit their comments, 
which can be extended.
    In addition, the regional office can, if it so decides, 
conduct additional consultation by having public hearings and 
public meetings, which then have to be documented with a court 
reporter so that there is a transcript, and all that becomes 
part of the record.
    When all that is done, and at the same time, there is also 
a process for compliance with the National Environmental Policy 
Act that goes on, usually requiring an environmental assessment 
or an environmental impact statement, and that goes parallel to 
the consultation for the two-part determination.
    When all of the application is ready by the regional 
office, they will submit to my office a recommendation on the 
two-part determination and perhaps under the 25 CFR part 151 
application process, if applicable. Usually, we make our 
determination for the two-part determination in the central 
office before we make a determination to take the land into 
trust, if that is applicable. And that is because usually if 
the Governor does not concur in the two-part determination that 
is issued, then usually the tribe will not be interested in 
taking the land into trust. So that determination is made 
first. If we receive a positive concurrence from the Governor, 
then we will proceed to the 151 process, if applicable.
    So far, since 1988, as you know, we have had only three 
instances where a Governor has concurred in a positive two-part 
determination by the Secretary. These establishments are 
located in Wisconsin, in the State of Washington, and in the 
State of Michigan. Currently, there are, and I brought a list 
here that I want to submit as part of the record, 13 pending 
applications under the two-part determination. It is not 
included as part of my testimony, but I would like to submit it 
as an update.
    The Chairman. Without objection.
    Mr. Skibine. These applications are in various stages, some 
of them are pretty close to ready; some of them are not.
    In addition, we are in the process of publishing 
regulations, as I mentioned at the last hearing. I was hoping 
to have a draft done by yesterday so that there would be a 
"dear tribal leader'' letter that would go out to all the 
leaders announcing the regulations, including a draft, and 
setting forth a consultation process. My boss, the Associate 
Deputy Secretary, is going over the draft with a microscope.
    The Chairman. That is the regulations concerning IGRA or 
just the two-part determination?
    Mr. Skibine. No; the regulation is concerning IGRA, all of 
section 20. That will include the two-part determination and 
the initial reservation and the restored land. At this point, 
we hope to have this letter out by the end of this week, and we 
hope to have the consultation with tribes done by the next 2 
months, March and April, so that sets a schedule that would 
have proposed regulations published in late May or June, and a 
final regulation sometime over the summer. You have sent us a 
letter. We expect to respond by March 3, setting forth the 
schedule for the development of that regulation.
    This concludes my comments. I am available for questions, 
if you have any. Thank you.
    [Prepared statement of Mr. Skibine appears in appendix.]
    The Chairman. Thank you.
    Senator Thomas, I know you have to go to another hearing. I 
wonder if you would like to go ahead and ask questions?
    Senator Thomas. Just one that I am curious about. If a 
tribe wants to do gambling that is not allowed in the State, is 
this same process used, even though it is on the reservation?
    Mr. Skibine. If the gaming is not permitted in the State at 
all, including class II and class III?
    Senator Thomas. The type of gambling, not all States allow 
for it at all. In Wyoming, for example, they allow some 
gambling, but if the tribes want to go beyond that, then it is 
my understanding they can go to the Secretary and go to the 
Governor and so on. Is that the same process pretty much as 
described here?
    Mr. Skibine. I think the scope of gaming is decided when 
the tribe enters into a compact with the State for class III 
gaming. If the tribe wants to do gaming and if there is some 
gaming permitted, and the tribe can do class II gaming, which 
is bingo and bingo-related games, then we can proceed to do a 
two-part determination based on the fact that the gaming is 
authorized.
    If it is a State like, let's say, let me take a State like 
Hawaii, for instance, where there is no gaming permitted, then 
essentially we would not take the land into trust because we 
know that the purpose for which the tribe wants to use the land 
is not a permissible purpose. In our 25 CFR part 151 
regulations, we ask for the purpose for which the land will be 
used. If the tribe says gaming, then we have to make a decision 
that either class II or class III gaming is permitted. If it is 
not permitted, then we are not going to be able to take the 
land in trust.
    Senator Thomas. Well, I am not talking about taking the 
land into trust.
    Mr. Skibine. Oh.
    Senator Thomas. There is no trust to it. It is just 
expanding on the reservation more than the State allows in the 
State. It takes the Governor's approval and the Secretary.
    Mr. Skibine. I am not quite understanding exactly.
    The Chairman. I think what Senator Thomas is saying is that 
additional lands within the State, taken into trust, then would 
that----
    Senator Thomas. No; that is not the issue that we are going 
at in Wyoming. It has nothing to do with lands. It was going 
beyond what the State allows for anybody in Wyoming. The tribes 
want to do something that goes beyond that. I am just asking 
you, is this the same process that is used for that?
    Mr. Skibine. No; I don't think it is the same process. I 
think the process you are talking about would be the compact 
approval process.
    Senator Thomas. All right. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Thomas.
    There seems to be a lot of controversy surrounding this 
issue. Right?
    Mr. Skibine. Yes; there is.
    The Chairman. Is it myth or fact that there are tribes that 
are doing two things: one, purchasing land, sometimes not 
contiguous, for the purpose of gaming operations; and two, that 
there are occasions where a tribe says, we are taking this land 
into trust and we are not going to use it for gaming, and then 
some years later change their policy that now they want to 
engage in gaming, which tribal governments, like our 
Government, has the right to do, reverse previous policy. Are 
those real concerns, or are they just exaggerated, in your 
view?
    Mr. Skibine. Historically it is true that tribes take land 
in trust off-reservation for, let's say, housing, and then some 
years later may decide to change the use to gaming. That has 
happened.
    The Chairman. Could I stop you there? You see, that is what 
concerns us. If we think that additional land is taken into 
trust for housing purposes, then there is really very little 
controversy associated with that. But if later on they change 
their mind and want to set up a gaming operation, then that has 
an entirely different effect on the surrounding community and 
the State in which they exist. That is why we are looking at 
just doing away with the whole process because of the 
controversy that has generated. Do you see my point?
    Mr. Skibine. Yes; I do see your point. Of course, those 
tribes cannot engage in gaming unless they comply with section 
20 of IGRA. So they will have to submit an application to the 
Secretary for a two-part determination.
    The Chairman. Yes; but when a tribe already owns the lands, 
that is a little bit different because then you make the 
argument that they should be able to do whatever they want to 
with what is tribal sovereignty. That puts a different set of 
circumstances on the issue, as opposed to a tribe saying, we 
want to take this land into trust and we are going to game on 
it.
    But if they say, we are going to take this land into trust 
and all we are going to do is build houses or a youth center or 
a school, for most people that is less than controversial. It 
becomes controversial when the gaming issue is taken up. If 
they own the land, it is theirs to administer, and then they 
say we are going to start a gaming operation, then it seems the 
whole burden of proof is shifted. Do you see my point?
    Mr. Skibine. Yes; that is correct.
    The Chairman. So do you think that is a problem, both for 
BIA and for us, and for the Governors and for the local people?
    Mr. Skibine. Well, historically it has not really been a 
problem because there have only been three instances where this 
has gone forward. In two of the three instances, in fact the 
land was taken into trust for other purposes before.
    The Chairman. But now you have 18 years after IGRA, you 
have 13 new applications for, I think that is what you 
testified.
    Mr. Skibine. Yes; we have 13 pending on the two-part 
determination.
    The Chairman. One of the witnesses, Stand Up for 
California, will say there are 40 applications pending for 
gambling on restored lands just in California. Do you know how 
we reconcile that?
    Mr. Skibine. I think that in California a lot of the 
applications try to come under the restored land exception or 
the initial reservation exception. That is a separate list. We 
have pending under those exceptions, I think I have this 
somewhere, another 11 applications that we know are pending.
    The Chairman. So here we are 18 years after, and this was 
sort of viewed as a bridge, the restored lands aspect of it, 
and now we have more and more tribes who are applying to game 
on land that they have acquired and taken into trust. True?
    Mr. Skibine. Well, we have more, yes. But the restored land 
exception applies usually if there is either a restoration by 
traditional determination, and in California that is the case 
because of what happened to the California tribes under the 
California Restoration Determination Act, and/or if Congress 
passes a restoration act that authorizes the Secretary to take 
land in trust. We have a number of these, not in California 
specifically, although there too, we have a number of these 
applications that are in the case where Congress has 
subsequently passed a restoration act, and those applications 
fall under that exception.
    I think the idea there is not to penalize new tribes and 
restored tribes for being restored after the date of enactment 
of IGRA, when you have all tribes that have trust lands before 
IGRA was enacted that can game on their reservations. The new 
tribes would not be able to engage in any gaming. My feeling 
was that Congress wanted to strike a balance for authorizing 
newly recognized tribes to be able to engage in gaming.
    The Chairman. Does consultation under your interpretation 
include public hearings? Under section 20, it says 
consultations are required. Does that include public hearings, 
in your view?
    Mr. Skibine. In my view, I think we will address this in 
our regulations. Right now in our checklist, we say that the 
consultation is done by letter, and we leave it to the 
discretion of the regional director whether to do a public 
hearing in addition. Now, for our purposes, I think that if we 
are approached by public officials or by members of Congress 
from that area to do public hearings, we will do that.
    The Chairman. Let me strongly recommend that public 
hearings are important on an issue of this significant impact 
on the local community. Not only should we hear from elected 
officials, but I think from public officials as well.
    Thank you for coming back to the committee, and thanks for 
your hard work. I do not understate the difficulty and 
complexity of these issues that we are dealing with, and we 
appreciate your insight.
    Senator Dorgan.
    Senator Dorgan. Mr. Chairman, thank you very much.
    Mr. Skibine, thank you.
    Let me ask a question that might seem very simplistic to 
you, but I am trying to understand the two-part determination a 
bit better. This is a nearly $20-billion gaming economy for 
Indian tribes. Let's assume that I am an Indian tribe in a 
Midwestern State. We have gaming operations, a compact with 
that State, but our gaming operations are basically in rural 
areas and we would like to really kind of go for the big 
interest here. We would like to establish a gaming interest in 
Manhattan, somewhere midtown Manhattan.
    Would I be able to make application under the two-part 
determination before we acquired land in Manhattan? Or would we 
have to attempt to acquire land and then have to bring it in 
trust for the purpose of gaming in Manhattan?
    And my understanding is I would not necessarily have to be 
in the State of New York. I could be in South Dakota, for 
example, and aspiring to do this under the two-part 
determination because the basis of that is economic. Is that 
not right? Can you respond to all that?
    Mr. Skibine. Yes; if a tribe in the Midwest wants to submit 
an application for a two-part determination for land in 
Manhattan, it can do so because IGRA, the section 20(b)(1)(A), 
does not impose any boundaries. It is going to be off-
reservation, but it does not say it has to be within the State 
where the tribe is located, so that can happen.
    Now, if the tribe does not have land into trust in 
Manhattan, but only submits a two-part determination, we will 
require the tribe to submit in addition to the two-part 
determination a request to take the land into trust, because we 
will not make, I don't think we will give them an opinion on 
the two-part determination unless we know that there is going 
to be an application to take the land into trust.
    Senator Dorgan. That is not a requirement at the moment. It 
is just something that you would do.
    Mr. Skibine. Right.
    Senator Dorgan. In the absence of regulations at this 
point, you have a way of doing this. I guess you have answered 
my question. My sense is that as this goes in the longer term, 
a $20-billion industry will attempt to seek in a more 
aggressive way, to the extent it can, gaming operations in the 
major cities.
    In this circumstance, you say under the two-part 
determination, there is no requirement that that search be 
confined to a specific State. It can be anywhere, although I 
think you have indicated that the two-part determination, when 
fully framed with the acquired land and so on, is going to have 
to have the approval of the Governor. Is that correct?
    Mr. Skibine. That is correct, yes.
    Senator Dorgan. One of the points that I made, and I think 
the Chairman made as well previously, is the urgency of 
regulations. I know some people do not like regulations, but I 
think regulations are critically important in these areas in 
order to set the ground rules so that everybody understands 
what the rules are and how they are interpreted.
    I think this is an important hearing because this 
exception, the two-part determination exception, is basically 
driven by economics. It is just an economic desire. I fully 
understand, if I were in charge of a tribe and you had a gaming 
operation in a rural area, you would very much like, if you 
could, to find a way to move it to an urban area, or to 
establish an operation in an urban area. So I understand that.
    My guess is that we will see more and more applications and 
desires to do that. You say you have 13 applications?
    Mr. Skibine. We have 13 pending.
    Senator Dorgan. How many have previously been approved 
under the two-part determination?
    Mr. Skibine. Three have been approved with the Governor's 
concurrence.
    Senator Dorgan. All within the same State of the tribe of 
domicile?
    Mr. Skibine. That is correct. The Secretary since 1988 has 
sent two-part determination findings, positive ones, to a 
Governor maybe in half a dozen more, where the Governor has not 
concurred.
    Senator Dorgan. Are any of the 13 crossing State lines?
    Mr. Skibine. Yes.
    Senator Dorgan. How many, roughly?
    Mr. Skibine. There are two on our list.
    Senator Dorgan. Mr. Chairman, thank you.
    Mr. Skibine, thank you again for your testimony.
    The Chairman. What is the rationale for allowing the gaming 
operation in land taken into trust in another State?
    Mr. Skibine. What is the rationale for it?
    The Chairman. Yes.
    Mr. Skibine. Congress chose not to impose limits on that 
process. Now, that is on the two-part determination. For taking 
land into trust, we would look at our 25 CFR part 151 process, 
and I know that the department is also developing new 
regulations to implement that aspect.
    The Chairman. Senator Smith.
    Senator Smith. Thank you, Senator McCain.
    I apologize for being late. I have to be in three different 
hearings at once, but this is a very important hearing.
    Mr. Skibine, thank you for being here.
    I am interested to know, was it unusual for the BIA to 
require the Warm Springs to take the land into trust before the 
two-part determination was made?
    Mr. Skibine. No; the BIA is not requiring the Warm Springs 
Tribe to take the land into trust before the two-part 
determination is made. What we did is we decided to disapprove 
their compact for class III gaming because the land was not in 
trust yet. That is a separate issue. If they get the land into 
trust, the tribe will have the opportunity to resubmit their 
compact with the State and then we will make a decision on that 
compact. That is a separate issue.
    Senator Smith. You did not require that to occur? You did 
not require them to take it into trust?
    Mr. Skibine. To take it into trust before the two-part 
determination, absolutely not, no.
    Senator Smith. Thank you, Mr. Chairman.
    The Chairman. Congressman Wu, would you like to pose a 
question?
    Mr. Wu. Thank you very much, Mr. Chairman. I greatly 
appreciate your indulgence.
    Mr. Skibine, I have many questions about the general issues 
that you are talking about, but I would like to focus like a 
laser beam on one particular instance, which Senator Smith and 
I care about in common. That is the proposal of the 
Confederated Tribes of the Warm Springs Reservation to build a 
gambling casino in the Columbia River Gorge.
    For those of you in this room who are not familiar with the 
Columbia River Gorge, it is an 80-mile long, almost sea level 
cut through the Cascades, and it is the only such cut from 
California up to the Canadian border. In my view, it is truly 
the crown jewel of Oregon's natural heritage. It is like the 
Everglades in that it is a national treasure adjacent to a 
metropolitan area, and finding appropriate human uses is very, 
very important. There are always going to be human uses of that 
territory.
    However, the gorge, it is like Yosemite Valley with a large 
river flowing through it. The Warm Springs Tribe has signed a 
compact with the Governor of Oregon to build a 500,000-square 
foot casino, which will draw 3 million visitors and about 1 
million extra cars per year.
    Now, there are alternatives to building a casino in the 
gorge. I want to focus right down on the EIS process, because 
it is my understanding that the tribe was allowed to adjust its 
needs statement so that in essence the needs statement was 
manipulated to exclude certain alternatives, that is under the 
current needs statement as adjusted by the tribe, there is only 
the Cascade Locks, the site that the tribe wants; the Hood 
River site that the tribe threatens to build on, that no one 
wants a casino on; and a no-build option.
    There are other alternative sites. The Warm Springs have 
the largest reservation in the State of Oregon, and there are 
major highways through that reservation, and all of those 
alternative sites were eliminated by customizing the needs 
statement.
    Are you aware of other instances in either the three that 
were approved or in the 13 that are pending, where the needs 
statement are manipulated to eliminate other appropriate on-
reservation sites?
    Mr. Skibine. Off hand, I am not aware because I am not all 
that familiar with the pending, with the details of the EIS. 
But I am aware of the issue you raise because it was 
communicated to us. We are looking into that issue right now. 
The EIS is not final. It is still in draft, so I think we are 
looking at the technical details to see whether the EIS will 
satisfy the requirements of NEPA. So we will look precisely at 
the issue you are raising when we review the documents.
    Mr. Wu. Very good, and if we can be of any assistance in 
your review, we certainly would look forward to that.
    Let me just mention, Mr. Chairman, that the House version 
of the bill, well, your Senate bill, right now the House 
version of the bill has a specific exemption in it for this 
particular casino in this particular gorge in this particular 
national scenic area. We in Oregon certainly hope that the 
Senate side of the legislation will not have a grandfather 
clause which many of us view as inappropriate.
    Thank you very much, Mr. Chairman.
    The Chairman. Thank you very much.
    Thank you very much, Mr. Skibine. It is good to see you 
again. Thanks for being here.
    Our next panel is Ron Suppah, chairman, Confederated Tribes 
of the Warm Springs Reservation of Oregon; Cheryle Kennedy, 
chairwoman, Confederated Tribes of the Grand Ronde Community of 
Oregon; Carol York, commissioner, Hood River County of Hood 
River, OR; Michael Lang, conservation director, Friends of the 
Columbia Gorge; and Cheryl Schmit, director, Stand Up for 
California.
    Chairman Ron Suppah, we will begin with you, sir. Please 
proceed, Mr. Chairman.

 STATEMENT OF RON SUPPAH, CHAIRMAN, CONFEDERATED TRIBES OF THE 
               WARM SPRINGS RESERVATION OF OREGON

    Mr. Suppah. Good morning, Chairman McCain and members of 
the committee. My name is Ron Suppah. I am the tribal council 
chairman of the Confederated Tribes of the Warm Springs 
Reservation of Oregon. I appreciate the opportunity to be here 
today.
    The 650,000 acre Warm Springs Reservation is located in a 
remote area in north central Oregon, away from major population 
centers. Since the early 1990's, our tribal government has 
experienced serious financial difficulties, due largely to the 
decline of our timber-based economy. Our overall tribal 
governmental revenue has declined by one-third. Our revenues do 
not meet our governmental needs and we are having to make 
painful budget cuts and to draw upon our emergency reserve 
funds. We expect this financial crisis will only get worse in 
the years ahead.
    To try to address our needs for additional revenue, in 1995 
we opened a casino on our reservation, but with our remote 
location its revenues have done little to span the growing gap 
between our tribe's income and our governmental needs. In the 
late 1990's, following a survey of alternative gaming sites, a 
tribal referendum directed the tribal council to pursue a 
casino on our traditional ceded lands along the Columbia River. 
We first looked at a gaming-eligible 40 acre tribal trust 
allotment about 38 miles from our reservation, and near the 
city of Hood River, but Hood River and others objected.
    At that time, in 1998 and 1999, the city of Cascade Locks, 
about 17 miles to the west, asked us to consider their 
industrial park as an alternative site. This 25 acre 
alternative site addresses Hood River's concern and makes sense 
to many other parties. Therefore, we decided to forego the Hood 
River site in exchange for the industrial park site. We 
understood this would require getting the land into trust for 
gaming and a positive secretarial two-part determination, 
including the Governor's consent.
    Before we engaged these two processes, we fully appreciated 
they would not succeed without the support of Oregon's Governor 
and the local community. We decided it was best to reach all 
necessary agreements first so that all the parties and the 
public could know what will occur once the land is taken into 
trust. We started discussions with the Governor and Cascade 
Locks in 1999 and signed the compact and other agreements in 
March and April 2005. If we had not reached those agreements, 
we would not be here today.
    We also appreciate that to have a chance with the fee-to-
trust process and the secretarial two-part determination, we 
would have to conduct a model process. We are seeking to do so. 
This is an exacting and lengthy effort, but it is strengthened 
by the trust, common purpose and commitment with our State and 
local governmental partners.
    All of our communities have a thorough understanding of the 
project. It has been widely discussed. Although it has its 
detractors, it has been endorsed by 32 Federal, State, and 
local elected officials, including Representative Greg Walden, 
who represents Warm Springs and Cascade Locks.
    In an April 8, 2005 letter to BIA, Warm Springs formally 
requested the land into trust process and a two-part 
determination. The BIA initiated the secretarial two-part 
determination with a June 15, 2005 letter asking six impact 
questions to all local governments within 10 miles of the site 
and tribes within 50 miles of the site. The responses were 
broadly supportive and posed no objections.
    The tribe also filed a 45-page response with hundreds of 
pages of supporting documents. The BIA initiated the land-into-
trust process within an early June letter to the governments 
with jurisdiction over the Cascade Locks site, whose responses 
were uniformly supportive.
    BIA is also preparing a full environmental impact statement 
under NEPA, and published a formal notice of intent to conduct 
the EIS on August 30, 2005. Even though the BIA administers the 
EIS, our tribe has to pay its bills.
    Mr. Chairman, much of the Columbia River Gorge is in a 
national scenic area. Our project in the industrial park inside 
Cascade Locks' city limits is not subject to the Scenic Act 
restrictions, but we are very sensitive to the environment of 
the area. After all, we have lived there from time immemorial 
and continue to rely on the fish from the Columbia River.
    With our partners, we are dedicated to doing a good and 
careful job on this project. Preparing the EIS is a very public 
and expensive process. BIA conducted five public open meetings 
in four locations last September, and held an additional public 
comment period in December. A draft EIS is expected this summer 
and will provide for further public input. The final EIS could 
be out by this fall, at which time the Cascade Locks 
application packets should go to Washington for review.
    Mr. Chairman, this has been an expensive process to comply 
with IGRA and land-into-trust requirements. To date, we have 
spent about $4.2 million. Design has cost $8 million. This has 
all been our own money. To complete the process to the point of 
starting construction, we expect to spend an additional $9 
million. We have committed these resources in reliance on the 
current process, and welcomed the fairness provision in section 
10 of S. 2078, so projects such as ours can be finished by the 
rules under which we started.
    We believe the current processes for gaming land into 
trust, and the two-part determination, are very demanding and 
exacting. Most importantly, the two-part determination will not 
allow a project to go forward without the support of the 
Governor and the local community.
    Since IGRA's enactment, only three tribes have succeeded. 
But the existing process could be improved with regulations 
which we understand Interior may be developing. As we have 
stressed, we believe reaching agreement with the Governor and 
local governments first before proceeding with the land-into-
trust and two-part process is the best way to proceed.
    Mr. Chairman, thank you for hearing our story. We believe 
we are making a model effort under the current rules. There is 
no guarantee we will succeed, but Warm Springs and our State 
and local government partners at Cascade Locks are giving it 
our best try, and we particularly appreciate your bill's 
intention to let projects like ours complete the process 
without changing those rules.
    Thank you.
    [Prepared statement of Mr. Suppah appears in appendix.]
    The Chairman. Thank you very much, Chairman Suppah.
    Chairwoman Kennedy.

 STATEMENT OF CHERYLE KENNEDY, CHAIRWOMAN, CONFEDERATED TRIBES 
             OF THE GRAND RONDE COMMUNITY OF OREGON

    Ms. Kennedy. Good morning, Mr. Chairman, members of the 
committee.
    My name is Cheryle Kennedy. I am the chairwoman of the 
Confederated Tribes of Grand Ronde in Oregon. I am proud to be 
here today representing our approximate 5,000 members of the 
Confederated Tribes today.
    On a personal note, I just want to say that I am very 
humbled to be here today, given the fact that I come from a 
terminated tribe. Back in the 1950's, policy was made, a 
decision was made to terminate tribes. There was a whole list. 
I think everyone is pretty familiar, of all the tribes who were 
listed on that list. The policy of Congress was to terminate 
all of tribes and to mainstream them into society.
    I was a young child at that time, and the humbling part of 
it is that I am here today representing the Confederated Tribes 
of Grand Ronde because if things continued on the path that was 
there originally, I would not be here. So I am grateful to be 
here representing my tribe.
    Prior to termination, the Confederated Tribes of Grand 
Ronde had a reservation of about 69,000 acres. All of that was 
done away with. All that remained after that was our cemetery. 
Our ancestors were allowed to remain in the graves that they 
lay at.
    Since restoration, which happened in 1983, the Confederated 
Tribes of Grand Ronde now have approximately 11,000 acres. Most 
of the acreage is not where we live. I might say that in terms 
of developing a nation and building a nation, it has been a 
long, hard road. To serve about 5,000 members, we only have 
approximately 100 homes.
    The Grand Ronde Reservation is small in comparison to other 
reservations in Oregon, some of which are large and have 
diversified economies. Our casino is located within the heart 
of the current and historical Grand Ronde Reservation. We are a 
treaty tribe. Our tribe has seven treaties. The lands that were 
ceded on behalf of the Confederated Tribes of Grand Ronde were 
millions and millions of acres, stretching from the borders of 
Washington State to California State.
    Today, we are here to support your efforts to address the 
issues of off-reservation gaming. We know that a majority of 
tribes are against opening IGRA to focus on this, or any other 
issue. It was a difficult decision for our tribe to make, but 
after consideration and deliberation, we believe that for the 
continued success of Indian gaming, these difficult issues must 
be addressed.
    Grand Ronde's opposition to off-reservation gaming stems 
from our concern that off-reservation casinos weaken public and 
Government support for Indian gaming. They undermine the 
purpose of IGRA, which is to promote development of strong 
reservation economies through on-reservation casinos. It 
invites disputes among tribes when located in areas where one 
or more tribe has a significant historical connection.
    As the Confederated Tribes of Grand Ronde, we look and 
engage at what is happening not only with our tribe, but within 
the State of Oregon. We learn that through termination, when 
you stand by yourself, oftentimes bad things happen to you as 
it does. So we look to our neighbors and to our fellow citizens 
for what they are thinking as well.
    So in doing so, we conduct public opinion polls regularly 
to see how the nature of things are. Oregon's citizens are 
concerned about the expansion of gaming and fear, as does Grand 
Ronde, that approval of an off-reservation casino under the 
two-part determination process will lead to a proliferation of 
casinos near urban areas.
    As tribes and others rush to surround urban areas with 
casinos, Grand Ronde and other tribes will no doubt be forced 
to reassess their own positions on off-reservation gaming to 
the ultimate detriment of both tribes and the public at large. 
It is no secret that off-reservation facilities proposed by 
other tribes and Warm Springs in Oregon and the Cowlitz-Mohegan 
effort in Washington, will have a significant impact on the 
Grand Ronde Tribe and the community in which we operate. 
However, our concerns and Oregonians' concerns, as we have seen 
through public opinion research, are much larger.
    We feel strongly that the continuation of these types of 
proposals will only continue to tarnish the Indian gaming 
industry as a whole, and jeopardize all of the wonderful 
advancements that tribes who are abiding by the rules have been 
able to make for the benefit of their people and the 
communities in which they operate.
    This legislation and the law need to be about a policy that 
treats all tribes equally. There should be no loopholes for 
tribes that happen to have already submitted their application 
for an off-reservation casino. The law should not benefit a few 
tribes at the expense of the majority of tribes.
    In sum, we are here today in support of eliminating IGRA's 
two-part determination exception to the prohibition against 
gaming on lands acquired in trust after October 17, 1988. 
However, the elimination of this exception should be done 
without a loophole that allows continued consideration of some 
two-part determination applications and not others.
    I appreciate your time in hearing this testimony and taking 
it into consideration. We have submitted for your reading the 
full comments that we are providing. Again, thank you for this 
opportunity.
    [Prepared statement of Ms. Kennedy appears in appendix.]
    The Chairman. Thank you very much. Your complete statement 
will be made part of the record.
    Carol York, Commissioner of Hood River County. Welcome.

  STATEMENT OF CAROL YORK, COMMISSIONER, HOOD RIVER COUNTY, OR

    Ms. York. Thank you, and good morning, Chairman McCain and 
members of the Senate Committee on Indian Affairs.
    My name is Carol York, and I am one of five locally elected 
County Commissioners in Hood River County, OR. Cascade Locks is 
in my commission district, and Cascade Locks is located about 
50 miles from Portland, our metro center in Oregon.
    Hood River County is also the home of Representative Greg 
Walden, a strong supporter of the Warm Springs proposal. I 
appear before you today to describe our county's activities 
regarding a proposed off-reservation casino in our county. I am 
honored to be here and I thank you for the opportunity to 
testify.
    You have my written testimony, but today I would like to 
speak about my experience and why there needs to be a method 
within the Indian Gaming Regulatory Act for commonsense 
decisions for tribes and local governments working in concert. 
I have discussed the opportunities, threats, challenges and 
pitfalls of tribal casinos with county officials throughout 
Oregon and across the Nation. I have also visited several 
tribal casinos for research, although I have not sampled any 
games or machines. I do not even know how to buy a lottery 
ticket.
    But whether one likes it or not, gambling is an approved 
form of recreation and entertainment in nearly every State. I 
have also discussed tribal casinos at great length with 
proponents and opponents, including highly regarded tribal law 
attorneys who can guarantee delaying a casino, but not 
preventing it from eventually happening on trust land.
    The primary winners in multi-year legal battles are the 
attorneys. Therefore, it is necessary to take a proactive 
approach and create a win-win situation by siting the casino in 
a community that wants it, and in a Columbia Gorge urban area 
where development is encouraged.
    In my research, I found that the impacts of tribal casinos 
are measurable, predictable and can be mitigated by negotiating 
a comprehensive agreement with the tribe before it is built. 
Cascade Locks and Hood River County have done this through a 
long process, which resulted in a memorandum of agreement with 
the Warm Springs Tribe.
    I also discovered that communities benefiting the most from 
their tribal casinos were those that had established 
relationships early with the tribe, in the planning process, 
not after the casino had opened for business. There is an 
overwhelming difference in local government success with tribal 
casinos based on when relationships began. Those who 
communicated before the casino opened were far better off than 
those who did not. Agreements were more likely to be upheld and 
partnerships built. The difference is having something done to 
you, instead of having something done with you.
    Members of the Warm Springs voted to build a casino in the 
Columbia River Gorge without specifying a location. They have 
trust land on the east side of Hood River, adjacent to the 
Senator Mark O. Hatfield State Park. The historic Columbia 
River Highway accesses and crosses the tribe's trust land.
    George Skibine, BIA Director of Indian Gaming, has assured 
me that the tribes have an absolute right to build a casino on 
this trust land, which is located in the general management 
area of the National Scenic Area. The National Scenic Act, 
section 17-7, specifically exempts trust land, therefore 
allowing a casino to be built in this location.
    The tribes are so certain of this that they purchased an 
additional 175 acres of land nearby. The tribes' geotech 
analysis says the site is buildable. The high construction cost 
of the project in this location would be insignificant when 
considering the revenue potential. Approving the Cascade Locks 
Industrial Park site, instead of the Hood River trust land, 
simultaneously preserves and protects these lands within the 
National Scenic Area and prevents smokestack industries from 
locating in Cascade Locks, both positive environmental 
benefits.
    The now 20-year-old National Scenic Act is still the 
Nation's only national scenic area. Congress recognized that it 
is a national treasure, but not a national park. Not every 
square inch is suitable to be protected as if it were 
wilderness. It is an overlay zone over private and public 
lands, with towns, a freeway, two railroads, and State 
highways, not at all like Yosemite or Yellowstone. The 
reservation, by the way, has only a two-lane highway and it is 
very congested at the Portland end.
    The second purpose of the Scenic Act specifically 
encourages development to occur within the urban areas of the 
gorge, of which Cascade Locks is one of only four on the Oregon 
side of the Columbia River. Their long-vacant industrial park 
site, on fill from the Bonneville Dam's second powerhouse 
construction spoils, is clearly not a pristine site. It is next 
to a pellet plant, construction equipment, railroad crossings 
and a gravel pit. You can see the photo in my submitted 
testimony. If the photos were not included in your copies, I am 
happy to submit these additional copies for your review.
    The city and Port of Cascade Locks recognize numerous 
benefits, including improved access to the industrial park, 
with a bridge over the railroad tracks and a full interchange. 
The majority of the community of Cascade Locks has demonstrated 
through surveys and elections their approval of the Warm 
Springs Resort Casino. There have been many town halls and 
public meetings. I have been elected twice since this process 
began and local contested elections have been won by casino 
supporters. I hear from my constituents on this issue 
constantly.
    There is significant support from local governments in 
Oregon and in Washington, because Washington State is our 
neighbor across the river, unanimous support from Hood River, 
Wasco, Skamania, and Klickitat Counties, plus local city 
governments, economic development organizations and chambers of 
commerce. I would like to submit these letters signed by 35 
local officials into the record.
    In the current NEPA scoping process, 80 percent of the 
comments are from outside the gorge, many of which are form 
letters. The Oregon gorge resident comments are positive, but 
comments from outside the area generally are not. It is not 
fair for urban dwellers outside the gorge to dictate to those 
of us most impacted, who are working to create a win-win 
project for two economically depressed communities.
    The people who live here care about the gorge and about the 
future of our region. The Warm Springs are the only Oregon 
tribe with trust land in the National Scenic Area, and they are 
also in the unique position to be able to resolve the historic 
highway land use dispute on their trust land by moving the 
proposed casino away from Hood River, where it has met strong 
public opposition, to a new location, an alternate location 
welcomed by the community of Cascade Locks.
    Therefore, allowing land in the tribe's original homeland, 
aboriginal territory, and land ceded in the Treaty of 1855, now 
known as Cascade Locks, to become trust land for a casino is 
not setting a precedent that could be replicated by any other 
tribe. The economic and environmental benefits to the people of 
Oregon, the region and the community, as described in the 
Governor's compact and in the memorandum of agreement with the 
City of Cascade Locks, are substantial.
    The Chairman. Commissioner, you will have to summarize, 
since you are 2 minutes over your 5 minute time. Please 
summarize. As I mentioned, your complete statement will be made 
part of the record. Thank you.
    Ms. York. Okay. Regardless of whether this committee feels 
it is time to amend section 20, we urge the committee to 
include in any final legislative proposal a clause 
grandfathering certain in-process gaming proposals. In going 
forward, reaching agreements with local governments and the 
Governor should be first, before proceeding with the land-into-
trust and the two-part determination process.
    Then, the compact must be approved by the Secretary of the 
Interior, before the land-into-trust process. Otherwise, it 
jeopardizes the landowner, in our case the Port of Cascade 
Locks, because once the land goes into trust, it takes an act 
of Congress to revoke that status. If lands are taken into 
trust and then the compact is denied, both the landowner and 
the tribes lose.
    Thank you very much for the opportunity and I will look 
forward to questions.
    [Prepared statement of Ms. York appears in appendix.]
    The Chairman. Thank you very much.
    Mr. Lang, welcome.

 STATEMENT OF MICHAEL LANG, CONSERVATION DIRECTOR, FRIENDS OF 
                       THE COLUMBIA GORGE

    Mr. Lang. Thank you very much, Chairman McCain, for 
inviting me and Friends of the Columbia Gorge, and also 
sponsoring this forum. We have submitted written comments into 
the record. Also, we provided photographs that should help the 
committee understand the relationship between the Warm Springs 
Reservation, the site that is proposed in Cascade Locks, within 
the heart of a National Scenic Area, and the target gaming 
market, which is the Portland metropolitan area.
    The Chairman. Without objection, these shall be made part 
of the record. Thank you very much.
    Mr. Lang. Thank you.
    We believe that the Columbia River Gorge National Scenic 
Area is a national scenic treasure that is worth protecting for 
our children and future generations, and should not be turned 
into a mecca for casino gaming. We believe that the Indian 
Gaming Regulatory Act has inadequacies. It does not properly 
allow the consideration of the adverse impacts to communities 
that are outside of the 10-mile radius circle that is put in 
place by rule.
    We support your efforts to amend the Indian Gaming 
Regulatory Act to end off-reservation casinos, to stop the 
practice of reservation shopping, and also provide greater 
community consultation and approval generally for off-
reservation casinos. We also would support removing a loophole 
in the legislation that would exempt current off-reservation 
proposals from the amendments.
    Moreover, we support amending the Indian Gaming Regulatory 
Act to prohibit Indian gaming casinos in our national parks and 
our national scenic areas. Again, the Columbia River Gorge is a 
national scenic treasure. As mentioned by Congressman Wu, it is 
the only sea level passage through the Cascade Mountains. It 
stretches 85 miles, with cascading waterfalls and tremendous 
cliffs, and a diversity in wildlife and plants, with some found 
nowhere else in the world.
    The Columbia River Gorge National Scenic Area Act was 
passed in 1986. It is a bipartisan effort that was signed into 
law by President Reagan. The national scenic area would be 
adversely affected by this casino proposal that started out as 
a 50,000-square foot facility in 1998, when it was initially 
proposed in the area around Hood River, and it has steadily 
grown since then.
    Two years ago, it was up to 500,000 square feet. The 
compact signed by our Governor approved a 500,000-square foot 
casino, and we are very grateful that the Department of the 
Interior denied that compact. It gave us another chance to 
really evaluate the community impacts and the environmental 
impacts of this incredible proposal.
    Since that time, the proposal, according to the casino EIS 
website, has grown to 611,000 square feet. Some comments were 
made previously about urban areas within our national scenic 
areas being intended for economic development. That is true, 
but economic development that is compatible with the protection 
and enhancement of the Columbia River Gorge National Scenic 
Area.
    We had a proposal for a Wal-Mart in Hood River just a 
couple of years ago, which was denied. It was 180,000 square 
feet. We supported Commissioner York in voting to deny, to 
oppose that Wal-Mart. That is an example of how economic 
development is encouraged in the urban areas, but you cannot 
contain the impact of a 600,000-square foot casino with 3 
million new visitors coming into the gorge every year, 
dramatically increasing traffic, increasing air pollution.
    There is a significant air pollution problem in the gorge 
already. There are eagle nesting areas, osprey nesting areas, 
blue heron rookeries, spawning habitat for salmon and 
steelhead, both listed under the ESA, that are right in the 
vicinity of this proposal.
    The Pacific Crest National Scenic Trail cuts down through 
the gorge on the bluffs right above the casino proposal. The 
scenic impact would be tremendous and they would be adverse.
    I would like to talk a little bit about the current process 
with NEPA and also section 20's two-part determination. The 
NEPA review so far with this proposal has been inadequate. We 
feel that the BIA and the consultants working on this have 
tried to shape a proposal that leads to the conclusion of an 
off-reservation casino in the gorge, even to the point of 
proposing to eliminate on-reservation alternatives in the EIS.
    The section 20 two-part determination we believe is 
completely inadequate. The 10-mile radius circle fails to take 
into account the concerns of the target market, and that is 
Portland, the Portland metropolitan area. Make no mistake, the 
Portland area is the target, but it is more than 10 miles away 
from the proposed site center, so the comments of the people of 
Multnomah County, of the city of Portland, of the surrounding 
communities are not taken into account under the current two-
part determination.
    Furthermore, because this is a proposal in the heart of a 
national scenic area, there is a national interest at stake 
that is not being considered under the current two-part 
determination. That is why we strongly support adding to the 
bill a prohibition of any casinos within our national parks and 
national scenic areas, and also eliminating any loopholes. We 
feel that there is no legal basis whatsoever to have a loophole 
for the current proposal for a gorge casino.
    It is a very speculative process. As Mr. Skibine testified 
earlier, there have only been three off-reservation casinos 
granted in the entire country. And also, it would be unfair to 
other tribes to allow one tribe to exploit the two-part 
determination, slam the door on all the other tribes in the 
State of Oregon who have chosen to live by our State's current 
prohibition of off-reservation casinos. So there is no legal 
basis for it, and it would be unfair to other tribes and to the 
State of Oregon.
    I would just like to summarize, too, that Oregonians are 
overwhelmingly opposed to this proposal. Polling shows 63 
percent of Oregonians are opposed to an off-reservation casino, 
and 68 percent would vote against this if it was put on the 
ballot in Oregon in the form of a ballot measure. 
Unfortunately, it is not because the current law and 
regulations do not allow adequate consideration of the enormous 
impacts of a casino in a national scenic area.
    I will conclude my remarks with that. Thank you very much.
    [Prepared statement of Mr. Lang appears in appendix.]
    The Chairman. Thank you very much.
    Ms. Schmit, welcome.

 STATEMENT OF CHERYL SCHMIT, DIRECTOR, STAND UP FOR CALIFORNIA

    Ms. Schmit. Thank you, sir.
    My name is Cheryl Schmit. I am director of Stand Up For 
California. My organization serves as an advocate and 
information resource for community groups and policymakers at 
the local, State and Federal level, trying to understand and 
respond to the complexities surrounding the expansion of tribal 
gaming.
    I thank you, Chairman McCain and Vice Chairman Dorgan and 
the committee members, for the many Senate hearings in which 
you have invited affected parties to participate in this policy 
debate essential to ensuring fairness, objectivity and 
accessibility on this complex and controversial issue.
    Our organization supports the efforts of citizens who want 
to make sure that there are adequate protections for all 
communities potentially adversely impacted by unregulated 
gambling expansion. We do not seek to impede the economic 
progress and advancement of California's native peoples. 
Rather, we seek regulatory reforms that we believe are in the 
best interests of all the inhabitants of our State.
    Reservation shopping in California is driven by the 
restored lands exception, not an abuse of gubernatorial 
concurrence or the two-part determination. There are currently 
40 after-acquired land proposals in California, which tribes 
and gaming investors continue to promote restored lands and 
other mandatory exceptions under the section 20 of IGRA. This 
is being done specifically to preclude our Governor or local 
governments from having any say in the process since he has 
made clear his opposition to such blatant reservation shopping.
    Gaming investors and tribes are intentionally seeking a 
restored lands exception to avoid the rigorous two-part 
secretarial process, as well as the substantial scrutiny 
involved by requiring input from neighboring tribes, local 
governments, State agencies and the concurrence of the 
Governor.
    Mandatory exceptions avoid the Office of Indian Gaming 
management, circumventing established guidelines and safeguards 
developed by that office to address the protections, 
involvement of affected governments and State agencies, and 
other nearby Indian tribes. Clearly, there is a need for a more 
collaborative approach to mandatory land acquisitions like the 
restored lands exception, especially whenever proposed 
acquisitions present serious environmental, taxation, 
jurisdictional and infrastructure problems, or a State or local 
community has a reasonable or legitimate objection.
    Perhaps a special provision can be crafted for mandatory 
applications mandating that the Secretary of the Interior, upon 
request by a State or its cities, counties or parishes, come 
together with the affected parties early in the decision 
process, that there is a requirement to work out a solution to 
identified environmental, taxation, jurisdictional and 
infrastructure problems. As an incentive to working 
cooperatively, a fast track process could be offered greatly 
reducing the workload of the BIA officials, the need of the 
tribe to request ad hoc legislation, and most importantly 
eliminating local opposition and tribal gaming backlash.
    We would rather the committee eliminate the mandatory 
aspects of the exceptions and require that all after-acquired 
lands go through the two-part determination and gubernatorial 
concurrence. Gubernatorial concurrence, judiciously used, 
solves land use problems such as casino development in 
sensitive environmental locations, or placement of a casino 
adjacent to public parklands, or social concerns over the 
health and public welfare that result from casino placements 
near homes, churches and schools.
    Moreover, the elimination of the two-part determination 
creates reverse incentives, encouraging gaming investors to 
rewrite tribal histories to meet the exceptions in section 20 
of IGRA, as we have and continue to witness in California.
    Stand Up For California sincerely appreciates the 
opportunity to comment on off-reservation gaming and urges only 
a moderate modification to IGRA so not to upset this delicate 
balance between tribal, State and Federal levels of government.
    Thank you.
    [Prepared statement of Ms. Schmit appears in appendix.]
    The Chairman. Thank you very much, Ms. Schmit.
    Chairman Suppah, the Grand Ronde Tribe has testified that 
the Warm Springs Tribe proposed off-reservation would severely 
impact their on-reservation casino. How do you respond to that?
    Mr. Suppah. I guess, Mr. Chairman, the simplest way is if 
you compare, I guess, competition at other places, maybe a good 
example may be the town of Phoenix, to where you have maybe 9 
to 11 casinos and maybe by 4 or 5 different tribes, and all of 
them make it because I guess you could equate that to if you 
built a shopping center, you don't just put one store in there 
in order to attract the customers. You put a whole bunch of 
different, a variety of stores in there so that you have a 
better market.
    I think that the indirect response would be along the lines 
of the market is far from saturated in our area, and the 
competition can only be healthy.
    The Chairman. There is criticism, Mr. Chairman, that this 
casino would be located in a scenic area that has certain 
pristine qualities, that there are neither the roads nor 
infrastructure to handle the kind of traffic that patrons of a 
casino this size would entail. How do you respond to all of 
that, particularly the impact on what people claim, I think 
with validity, is one of the most beautiful parts of the State 
of Oregon?
    Mr. Suppah. Mr. Chairman, I sincerely believe that the 
Confederated Tribes of Warm Springs would in no way ever 
jeopardize the environmental or the beauty of the Columbia 
River Gorge. That is our aboriginal home, and we still live 
there. I guess the best response that I could give to you today 
is that Warm Springs has been very proactive in putting 
together its gaming compact.
    The EIS will ferret out all of the issues and concerns, and 
they will be grouped. These issues that you talk about are 
among those.
    So I think that the draft EIS will be out this summer and 
the final EIS later on this year. So I think that it has been a 
very open and public process. I think that the tribes have 
worked vigilantly to respond to any and all of the questions.
    The Chairman. Chairwoman Kennedy, you state in your 
testimony that the Grand Ronde has been historically opposed to 
off- reservation gaming. Is that true?
    Ms. Kennedy. That is true.
    The Chairman. Yet I am told the Grand Ronde has sought an 
urban casino in or near Portland.
    Ms. Kennedy. That is true.
    The Chairman. How do you reconcile your two statements?
    Ms. Kennedy. That is true. We originally held the on-
reservation gaming until the Governor of Oregon made his 
declaration that he would approve off-reservation gaming. Of 
course, then as in any business, you have to look at your 
strategies.
    The Chairman. I don't disagree that you have to look at 
your strategies, but if you say you have been historically 
opposed to off-reservation gaming, and then you sought a casino 
that was off-reservation, I do not know how you reconcile those 
two positions.
    Ms. Kennedy. Well, again we did, after the Governor said 
that, we have since re-thought that and stick with our original 
declaration. Of course, when rules change mid-stream, you have 
to move to protect your investment for your people. In our 
original testimony, we have invested over $150 million into our 
Spirit Mountain Casino to keep it very prestigious, to make 
sure that all of the attractions are there to generate the 
revenue that we have. It is our only source of revenue that we 
have. It is our only source of revenue. It is the engine behind 
which supports all of our tribal government services.
    The Chairman. I understand all those things. I understand 
all that. Thank you very much.
    Ms. Kennedy. Thank you.
    The Chairman. Commissioner York, you indicate there has 
been a lot of local discussion of the project. Many local 
government officials support it. Was there ever a town hall 
meeting?
    Ms. York. Yes; in Hood River and in Cascade Locks, more 
than one in each city.
    The Chairman. And how was the attendance?
    Ms. York. Attendance was quite full at both of them. In 
Hood River, there is extreme opposition, particularly to the 
Hood River site, where the trust land is. In Cascade Locks, all 
of the town halls and all of the surveys have shown 
approximately 67 percent or more in favor, and in the last Port 
election, the Port Commissioner race between a pro-casino 
candidate and an anti-casino candidate was won by over 79 
percent for the pro-casino candidate.
    The Chairman. Mr. Lang, you say that you have been shut out 
of the NEPA process, but it appears you did participate in the 
scoping session and weighed in during the process. How would 
you suggest the process be changed so you are not shut out?
    Mr. Lang. As far as being shut out in the process, that is 
in the two-part determination in particular. We feel that the 
10-mile radius circle is something that may work in the Eastern 
United States, but as you well know, in the West communities 
are much more disperse. You may have to drive 10 miles to get a 
gallon of milk.
    The Chairman. My question was, how were you shut out of the 
process if you were in the scoping and in the NEPA process?
    Mr. Lang. Well, within the NEPA process, there was no true 
hearing. In the scoping meetings that were held, there were a 
lot of----
    The Chairman. Did you attend those meetings that were 
scoping?
    Mr. Lang. I absolutely did, but I----
    The Chairman. Then I don't think you were shut out, Mr. 
Lang. Go ahead, please.
    In other words, how the process should be improved, in your 
view.
    Mr. Lang. In the NEPA process, how it could be improved is 
actually hold scoping hearings where the public can speak and 
participate in them; to have it so that it is not run by the 
consultants and the tribes. Having the attorneys for the tribe 
responding and answering questions directed at the BIA does not 
particularly help the public understand the BIA's role. That 
would certainly be an improvement.
    Also, there were many requests for a scoping hearing near 
or on the Warm Springs Reservation. None was ever held. To have 
a hearing on or near the reservation allows tribal members to 
weigh in on this very important proposal. Petitions circulating 
now I have heard have 400 opponents, tribal members signed this 
petition opposed to an off-reservation casino in the gorge. So 
certainly holding hearings in other communities, in affected 
communities particularly near the reservation, would be a 
definite improvement in the process.
    The Chairman. Thank you very much, Mr. Lang. If there are 
additional ways that you think that the process can be improved 
to increase participation I would appreciate it if you would 
submit it for the record. I thank you for your involvement.
    Mr. Lang. Thank you very much.
    The Chairman. Ms. Schmit, do you think the process for 
allowing gaming on initial reservations and restored lands 
should include gubernatorial concurrence?
    Ms. Schmit. Definitely.
    The Chairman. Do you think the legislature should play a 
role?
    Ms. Schmit. Well, in California, our legislature is a bit 
predisposed at the moment. They are influenced significantly by 
campaign contributions from tribal governments. So it is very 
hard for a Governor to negotiate a compact with the tribe, and 
then have that compact ratified. We have two of those right now 
that are ready to be ratified and one of the tribes is now 
going to sue the State.
    The legislature has put the State in a very difficult 
situation. These are tribes that have established reservations 
and they are very large tribes in very rural areas of the 
State. So I am not sure if the legislature needs to do anything 
more than an up or down vote.
    The Chairman. I am told that the Governor of Oregon is 
here. Is that correct? Governor, would you mind joining us? We 
would be very honored to hear from you on this issue, if you 
would like to come up here and share your views with us. We 
would appreciate it. If you would like, we would be pleased if 
you would like to come up.
    It is good to see you again, Governor, and thank you for 
honoring us with your presence. We would certainly for the 
record like to hear any views or any information you could 
provide us that could help us with this issue. Thank you, 
Governor.

     STATEMENT OF TED KULONGOSKI, GOVERNOR, STATE OF OREGON

    Mr. Kulongoski. Thank you, Senator.
    Senator Smith, Congressman Wu, if I could, from a 
Governor's perspective, and I want you to understand how I see 
this. I am not a fan of gambling. If I were to try to come up 
with a way to give the tribes economic self-sufficiency, I am 
not sure I would have chosen this route, but this was what was 
given to us.
    We have nine federally recognized tribes in the State. The 
Warm Springs are the largest land-based tribe in Oregon, with 
about a 620,000-acre reservation out in Eastern Oregon. They 
had a casino on a resort area called Kah-nee-tah. I was the 
attorney general for the State when that was put in out there. 
The tribe made their decision.
    I want you to know that from my experience at that time, I 
knew that the issue of gaming was very controversial with the 
tribe, within the tribal membership itself. They took a vote of 
whether they wanted to even have the casino out at the resort, 
at Kah-nee-tah. They did.
    When I received the request for them to sit down for 
another site, I talked to the tribe about other areas other 
than the Hood River site, which is the tribal land that they 
have, of which you have heard testimony on. There is a 
community outside of the reservation called Madras. They looked 
at that site.
    I remember talking to them and my staff talking to them 
about another site on the highway down from, and Senator Smith 
and Congressman Wu know, from Timberline Lodge, where the 
reservation starts, out on that highway. They did studies of 
that and found that the traffic flow was not sufficient 
economically to support the investment that they would have to 
make in it.
    They came to me. I did not want the casino in Hood River. I 
did not think that was an appropriate site. There was an 
industrial land site in the community of Cascade Locks. It is a 
difficult area economically for the citizens in that area.
    But what really drove me more than anything is the history 
of the Warm Springs, the tribe. It is a confederation of three 
tribes. They have some very serious problems. Their children go 
to school off-reservation. They have a very large dropout from 
that school, maybe somewhere between 70 percent and 80 percent.
    I was driven more by the effort to give the tribe the 
ability to have some economic self-sufficiency to replace the 
lost revenue from their tribal general fund, which was 
primarily off of timber. They are no different than the Federal 
Government or the State government or the individual timber 
owners, that we have over-cut. They are now trying to rebuild.
    I thought that this was the best way that they would have 
the ability to add additional revenue to their general fund 
that would provide for the social programs on their 
reservation. I know they want to have a school on the 
reservation to keep their kids there, and actually make a 
better effort to keep them, to get them to graduate.
    Just a whole host of issues that I thought it was in the 
best interest of the tribe as a sovereign people and to the 
State of Oregon, to this particular reservation to see that 
they had the opportunity to be able to provide essential 
services to them. That is what drove me more than anything else 
to make the decision I did.
    The Chairman. Well, Governor, we are very glad you came by. 
We appreciate your input.
    Mr. Kulongoski. Thank you, Senator.
    The Chairman. We appreciate your outstanding leadership of 
the State of Oregon. I know that, different from members of 
Congress, sometimes you have to make very tough decisions and 
take responsibility for it.
    Mr. Kulongoski. I am where I am at, Senator. [Laughter.]
    The Chairman. Thank you, Governor. And you are welcome to 
stay for the rest of the hearing.
    Mr. Kulongoski. I am going to sit right in the back and 
watch.
    The Chairman. You are welcome to remain where you are if 
you would like. Thank you, Governor.
    Mr. Kulongoski. Thank you, sir.
    The Chairman. Senator Smith.
    Senator Smith. Thank you, Mr. Chairman. Governor, welcome.
    We really need the wisdom of Solomon on this one, Mr. 
Chairman. These are two great tribes in Oregon against one 
another, especially the Warm Springs and the Grand Ronde. To 
followup on your question to Cheryle Kennedy, Cheryle, isn't 
it, and this is just a flat-out question, if the Warm Springs 
proposal is denied, will you drop any pursuit of a casino in 
and around Portland?
    Ms. Kennedy. We certainly will. Again, it was triggered by 
Mr. Kulongoski's decision to declare that off-reservation was 
fair game.
    Senator Smith. Ron Suppah, you have heard the expression, 
we understand the economic need and the advantageousness of the 
site at Cascade Locks. We understand the tribal needs. You have 
heard Mr. Lang and others speak to the environmental concerns 
in this beautiful area of our State. The environmental impact 
statement and study that will be made, what special efforts 
will you make to protect the environment in Cascade Locks?
    Mr. Suppah. Senator Smith, thank you for being here today. 
We appreciate your presence.
    I believe, as we have worked through this process, Senator, 
beginning when we started negotiating with the Governor, all of 
these things were kind of like included in the discussions all 
the way through. Then we started meeting with the locals, again 
we had several meetings with the communities of Cascade Locks 
and Hood River and Stevenson, and we discussed these things at 
that time, too.
    But I guess if you maybe take a look at our gaming compact, 
you will find that as we have built and structured our gaming 
compact for approval and concurrence by the Governor, all of 
these things are included in there, including the issue of the 
increased traffic and the impact on the air.
    I think that we intend to work not only with Oregon, but 
with Washington's Department of Transportation, and there is a 
regional planning group that already exists. If we work things 
out, then the alternatives to individual cars versus some sort 
of mass transport, or whether that is buses, you know, 
different alternatives to where you can maybe park and go to 
the casino. I think that we are only beginning to take, we are 
in the initial phases of that planning.
    Senator Smith. Ron, if eventually you are not successful at 
the Cascade Locks site, will you pursue, then, your rights in 
Hood River?
    Mr. Suppah. Yes; we would have to because in the Whalen 
report, which did the feasibility and economic study on six 
different sites----
    Senator Smith. The site that the Governor spoke of earlier, 
from Timberline Lodge toward, I guess, the Bend area----
    Mr. Suppah. If you are familiar with Highway 26----
    Senator Smith. I am. There is a lot of development in Bend. 
Is the traffic sufficient now that the study would come out 
differently as to the economics?
    Mr. Suppah. No; we don't believe it would. I think that 
with the feasibility study that we have accomplished, a site on 
Highway 26 would not contribute anything more than the existing 
Kah-nee-tah site.
    Senator Smith. The reason I am struggling, Mr. Chairman, is 
polling has been mentioned. There is no question that my State 
is overwhelmingly opposed to a casino along the Columbia River. 
But at the same time, my State wishes no ill toward the Warm 
Springs. They would like them to be successful. Finding an 
answer to this is extremely difficult.
    Carol, isn't it a fact that the town halls you had in 
Cascade Locks favored the casino, and as I think you indicated 
in Hood River, they were overwhelmingly opposed to a casino 
there.
    Ms. York. Yes; that is correct, Senator Smith. I think the 
position that we are in, as the local government that is there 
for both sites, is that the tribe has trust land in Hood River, 
buildable for a casino, but in nearly everyone's mind, an 
inappropriate location for the casino, which is why we have 
worked so hard to develop an alternative location in Cascade 
Locks, to try to be proactive and create something that will 
work for both the tribes and for our county and the region and 
the State and the Nation, since it is a National Scenic Area.
    Senator Smith. Well, the interests of the State of Oregon 
is they really do not want off-reservation gambling. That is 
just a fact. I do not think that is going to change. The 
difficulty is that the site that they could do it on, you don't 
want. The site that they are trying to do it on, Oregon 
opposes.
    I think, Mr. Chairman, this is the great dilemma we have is 
to craft this legislation in a way that is fair to these newly 
recognized tribes, but also understand the sensitivities of the 
environment, the sensitivities of the people. The Governor is 
in a very tough spot. I wish both these tribes well, and I do 
not have an easy answer to this. It ultimately should be 
allowed to run its legal course, and it will be what it will 
be. But this is a case for Solomon.
    The Chairman. Thank you very much.
    Congressman Wu, would you like to say anything?
    Mr. Wu. Thank you very much, Mr. Chairman.
    Chairman Suppah, you were good enough to list out some 
numbers. I believe you mentioned that over $4 million has been 
spent by the Warm Springs Tribes in this effort; $8 million for 
some other efforts; and $9 million to take this process to 
completion. Could you describe those numbers for us again, 
exactly what they are, just once again for my recollection?
    Mr. Suppah. Congressman Wu, good morning. Just generally, 
all of those numbers, Chairman McCain, are listed in our 
written testimony. We would be willing to provide a copy to Mr. 
Wu. But just generally speaking, we have been working on this 
site for about seven years, and to date the tribe has spent 
approximately $10 million.
    Mr. Wu. What were the $4 million, $8 million, and $9 
million numbers that you cited earlier?
    Mr. Suppah. The $4 million would be basically the moneys 
that we have spent to date just to kind of set up for the 
eventual approval with the Governor and the State of Oregon, 
whether that was buying chips such as the 175 acres that we 
purchased in and around the Hood River site, investment in 
legal fees, investment in design and conceptual work.
    The $8 million is pretty much what we have spent to date on 
the EIS process; and the $9 million would be kind of like 
looking further on down the road to where if our project is 
approved, then we would anticipate that to finish up the 
environmental impact statement, et cetera, and also hire an 
official design company to formally say this is what you are 
going to have. We are anticipating spending around $9 million 
more.
    So we have a really high investment, not only in time, but 
tribal moneys. But we feel like the investment risk is worth, I 
guess, the outcome that we are looking toward.
    Mr. Wu. Yes, Mr. Chairman; so by your own numbers and my 
arithmetic, I am looking at a $21-million figure when this is 
all said and done, if it is ever done. I also wanted to go 
back, when this proposal was first brought up in 1998, if the 
alternative site had been picked on Highway 26, you might have 
been able to get a casino built, say, by 2000 or 2001.
    So if we count up 5 years of lost revenues from full 
operation, let's say that you made $2 million a year at the 
Cascade Locks site, and $1 million a year on the Highway 26 
site, this is a $21-million plus $5 million lost revenue adds 
up to $26 million. It would probably take you 40 years with the 
Cascade Locks site to make up the revenue that the tribe has 
lost by choosing to fight in the Columbia River Gorge, rather 
than building on Highway 26.
    The reason why I am going through this numerical exercise 
is that in many respects, I view the tribe as an equal victim 
as the Columbia River Gorge because the tribe has been paying a 
lot of people fees that it would not otherwise have to pay if 
it had chosen a site on-reservation on Highway 26. It will take 
you decades, it will take the tribe decades to make that 
revenue up. I just feel very, very badly that the tribe is 
victimized in the same way that the gorge might potentially be 
victimized if the casino is every built.
    Mr. Suppah. Congressman Wu, I disagree with your math, 
because if we looked at the Whalen report and we looked at the 
investment that my tribe would have to make in building a 
casino on the reservation, and the time for amortization to pay 
for that back, would ultimately just would not pencil out to, I 
guess if we put it in the simplest terms, avoidance of deficit 
budgeting, and stabilizing our financial situation and building 
toward self-sufficiency.
    And the options and alternatives that we had explored, the 
one that is the best that would stabilize our future for many 
generations is the Cascade Locks site, and that is why we are 
aggressively pursuing trying to get this project approved.
    The Chairman. Thank you very much.
    Thank you very much, Congressman Wu.
    I thank the witnesses for being here. The overall issue of 
this two-part determination has been submerged a little bit 
because of this issue, but this is I think an example of the 
kind of challenges we face with this process. The witnesses 
have been very helpful today. I know you have all come a long 
way to be here. I thank you for your attendance today. This has 
been very helpful to the committee. Thank you very much.
    This hearing is adjourned.
    [Whereupon, at 11:20 a.m., the committee was adjourned, to 
reconvene at the call of the Chair.]


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                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

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


 Prepared Statement of Cheryl Schmit, Director, Stand Up For California

    My name is Cheryl Schmit. I am director of Stand Up For California. 
My organization serves as an advocate and information resource for 
community groups and policymakers at the local, State, and Federal 
level, trying to understand and respond to the complexities surrounding 
the expansion of tribal gaming.
    We thank you Chairman McCain and Vice Chairman Dorgan and committee 
members for the many Senate Hearings in which you have invited affected 
parties to participate in a policy debate essential to ensuring 
fairness, objectivity and accessibility in this complex and 
controversial issue.
    Our organization supports the efforts of citizens who want to make 
sure that there are adequate protections for all communities 
potentially adversely impacted by unregulated gambling expansion. We do 
not seek to impede the economic progress and advancement of 
California's native peoples; rather we seek regulatory reforms that we 
believe are in the best interests of all the inhabitants of our State.
    Reservation shopping in California is driven by the restored lands 
exception not an abuse of gubernatorial concurrence. There are 
currently 40 after acquired land proposals in California which tribes 
and gaming investors continue to promote restored lands and other 
mandatory exceptions under section 20 of IGRA. This is being done to 
specifically preclude our Governor from having a say in the process, 
since he has made clear his opposition to such blatant reservation 
shopping attempts.
    Gaming investors and tribes are intentionally seeking a ``Restored 
lands Exception'' to avoid the rigorous two-part secretarial process, 
as well as the substantial scrutiny involved by requiring input from 
neighboring tribes, local governments, state agencies and the 
concurrence of the Governor.
    The ``restored lands'' exception found in IGRA makes the 
acquisition of newly acquired lands mandatory. This mandatory exception 
ties the hands of a States Governor eliminating the opportunity for 
flexibility, cooperation or meaningful agreements. The exception 
reduces the decisionmaking process of the Secretary of the Interior's 
involvement to nothing more than a ministerial act of approval.
    Yet the process of the ``restored lands'' determination is a gray 
area. There is a set of vague guidelines used as standards by the 
National Indian Gaming Commission and the BIA in determining restored 
lands. Since there is no Federal regulation in place, this is a gray 
area and has left room for both political and gaming money influence.
    Determinations are often based on a ``sliding scale'' in which the 
relationship to the land wanted, the intensity of the development and 
the availability of the alternatives all play a role. Tightening the 
definition of restored lands helps but potentially only increases the 
influence of gaming money on the process.
    Currently in California the NIGC is charged with determining if a 
tribe meets the criteria of a ``restored tribe'' or ``restored lands'' 
at the same time. These are two separate questions that unduly affect 
local government's ability to comment wholly and fully on each question 
independently, and present a serious cost to community taxpayers. 
Moreover, NIGC's determination is not a final agency action, where is 
the opportunity to challenge the determination of restored tribe or 
restored lands?
    Mandatory exceptions totally avoid the Office of Indian Gaming 
Management-circumventing established guidelines and safeguards 
developed by that office to address environmental protections, 
involvement of affected governments and state agencies and other nearby 
Indian tribes.
    Clearly there is a need for a more collaborative approach to 
mandatory land acquisitions like the restored lands exception. 
Especially whenever proposed acquisitions present serious 
environmental, taxation, jurisdictional and infrastructure problems or 
a State or local community has reasonable and legitimate objections.
    Perhaps, a special provision can be crafted for mandatory 
applications mandating the Secretary of the Interior upon request by a 
State or one of its cities, counties or parishes to come together with 
affected parties early in the decision process. That there is a 
requirement to work out solutions to identified environmental, 
taxation, jurisdictional and infrastructure problems. As an incentive 
to working cooperatively a fast track process could be offered greatly 
reducing the work load of BIA officials the need for tribes to request 
ad hoc legislation and most importantly eliminating local opposition 
and tribal gaming backlash.
    We ask that this committee give grave consideration to any language 
that would limit, restrict or end the two-part determination or 
gubernatorial concurrence. The problem is not gubernatorial concurrence 
(section 2719 (b)(1)(a)) as there have only been three withholdings of 
gubernatorial concurrence in the last 17 years and more than 35 
instances of tribes acquiring land through the mandatory exceptions in 
IGRA.
    We would rather the committee consider eliminating the mandatory 
aspect of the exceptions and require that all after acquired lands go 
through a two-part determination with gubernatorial concurrence.
    Gubernatorial concurrence judiciously used solves land use problems 
such as casino development in sensitive environmental locations, or 
placement of a casino adjacent to public and park lands or social 
concerns over the health and public welfare that result from casino 
placement near homes, churches, and schools.
    Moreover, the elimination of the two-part determination creates 
reverse incentives encouraging gaming investors to re-write tribal 
histories to meet the exceptions in section 20 of IGRA as we have and 
continue to witness in California.
    Stand Up For California sincerely appreciates the opportunity to 
comment on off reservation gaming and urges only moderate modifications 
to IGRA, so not to upset the delicate balance between the rights and 
authorities of states, tribes and the Federal Government.

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