[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
H.R. 2938, ``GILA BEND INDIAN RESERVATION LANDS REPLACEMENT
CLARIFICATION ACT''
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON INDIAN AND
ALASKA NATIVE AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
Tuesday, October 4, 2011
__________
Serial No. 112-67
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
----------
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Washington, DC 20402-0001
COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
EDWARD J. MARKEY, MA, Ranking Democrat Member
Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC John P. Sarbanes, MD
Scott R. Tipton, CO Betty Sutton, OH
Paul A. Gosar, AZ Niki Tsongas, MA
Raul R. Labrador, ID Pedro R. Pierluisi, PR
Kristi L. Noem, SD John Garamendi, CA
Steve Southerland II, FL Colleen W. Hanabusa, HI
Bill Flores, TX Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann,
TN
Jon Runyan, NJ
Bill Johnson, OH
Todd Young, Chief of Staff
Lisa Pittman, Chief Counsel
Jeffrey Duncan, Democrat Staff Director
David Watkins, Democrat Chief Counsel
------
SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS
DON YOUNG, AK, Chairman
DAN BOREN, OK, Ranking Democrat Member
Tom McClintock, CA Dale E. Kildee, MI
Jeff Denham, CA Eni F.H. Faleomavaega, AS
Dan Benishek, MI Ben Ray Lujan, NM
Paul A. Gosar, AZ Colleen W. Hanabusa, HI
Raul R. Labrador, ID Edward J. Markey, MA, ex officio
Kristi L. Noem, SD
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Tuesday, October 4, 2011......................... 1
Statement of Members:
Boren, Hon. Dan, a Representative in Congress from the State
of Oklahoma................................................ 2
Prepared statement of.................................... 3
Young, Hon. Don, the Representative in Congress for the State
of Alaska.................................................. 1
Prepared statement of.................................... 2
Statement of Witnesses:
Barrett, Hon. Robert ``Bob,'' Mayor, City of Peoria, Arizona. 53
Prepared statement of.................................... 55
Bistrow, Eric J., Chief Deputy, Office of the Arizona
Attorney General........................................... 50
Prepared statement of.................................... 51
Enos, Hon. Diane, President, Salt River Pima-Maricopa Indian
Community.................................................. 31
Prepared statement of.................................... 33
Franks, Hon. Trent, a Representative in Congress from the
State of Arizona........................................... 4
Prepared statement of.................................... 5
Hart, Paula L., Director, Office of Indian Gaming, U.S.
Department of the Interior................................. 15
Prepared statement of.................................... 16
Norris, Hon. Ned, Jr., Chairman, Tohono O'odham Nation....... 42
Prepared statement of.................................... 45
Quetawki, Hon. Arlen P., Sr., Governor, Pueblo of Zuni....... 39
Prepared statement of.................................... 41
Additional materials supplied:
List of documents retained in the Committee's official files. 68
LEGISLATIVE HEARING ON H.R. 2938, TO PROHIBIT CERTAIN GAMING ACTIVITIES
ON CERTAIN INDIAN LANDS IN ARIZONA. ``GILA BEND INDIAN RESERVATION
LANDS REPLACEMENT CLARIFICATION ACT.''
----------
Tuesday, October 4, 2011
U.S. House of Representatives
Subcommittee on Indian and Alaska Native Affairs
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 2:23 p.m. in
Room 1324, Longworth House Office Building, Hon. Don Young
[Chairman of the Subcommittee] presiding.
Present: Representatives Young, McClintock, Denham,
Benishek, Gosar, Hastings [ex officio], Boren, Kildee,
Faleomavaega, Lujan, and Markey [ex officio].
Also present: Franks, Schweikert, and Grijalva
STATEMENT OF THE HONORABLE DON YOUNG, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ALASKA
Mr. Young. The Subcommittee will come to order. The
Chairman notes the presence of a quorum. Under Committee Rule
3[e], it is two Members, so we have a quorum and a little more.
I like that.
The Subcommittee on Indian and Alaska Native Affairs is
meeting today to hear testimony on H.R. 2938, the Gila Bend
Indian Reservation Lands Replacement Clarification Act.
Under Committee Rule 4, opening statements are limited to
the Chairman and Ranking Member of the Subcommittee, so that we
can hear from our witnesses more quickly. However, I ask
unanimous consent to include any other Members' opening
statements in the hearing record if submitted to the Clerk by
the close of business today.
I ask unanimous consent that the gentleman from Arizona,
Mr. Grijalva, be allowed to participate in the hearing. Without
objection, so ordered.
I will also ask unanimous consent that following his
testimony, the gentleman from Arizona, Mr. Franks, be allowed
to sit with the Subcommittee and participate in the hearing.
Without objection, so ordered.
Today's hearing concerns a bill to prohibit gaming on lands
placed in trust for the Tohono Tribe Nation under the Gila Bend
Indian Reservation Plan's replacement activated in 1986. The
immediate effect of H.R. 2938 is to prohibit the development of
a casino resort by the Tohono Nation on a parcel of land that
the Department of the Interior has placed in trust in Glendale,
Arizona.
Whether or not the Committee should move forward on H.R.
2938 requires the study of several key issues. These issues
include what did Congress intend when it enacted the 1986 Gila
Bend Lands Replacement Law? Does the land claim exemption to
end the Indian Gaming Regulatory Act apply to Glendale
projects? What are the implications of a casino on the Tribal
State Compact in Arizona? Does the application of laws enacted
in 1986 and 1988 result in sound public policy in 2011 or
beyond, at least with respect to the situation in Glendale?
I will defer to the witnesses to explain their views on
these and other questions. With that, I now recognize the
Ranking Member, Mr. Boren, for five minutes for any statement
he would like to make.
[The prepared statement of Mr. Young follows:]
Statement of The Honorable Don Young, Chairman,
Subcommittee on Indian and Alaska Native Affairs
Today's hearing concerns a bill to prohibit gaming on lands placed
in trust for the Tohono O'odham Nation under the Gila Bend Indian
Reservation Lands Replacement Act of 1986.
The immediate effect of H.R. 2938 is to prohibit the development of
a casino-resort by the T.O. Nation on a parcel of land the Interior
Department placed in trust in Glendale, Arizona.
Whether or not the Committee should move forward with H.R. 2938
requires us to study several key issues. These issues include: what did
Congress intend when it enacted the1986 Gila Bend lands replacement
law? Does the land claim exception in the Indian Gaming Regulatory Act
apply to the Glendale project? What are the implications of the casino
on the tribal-state compact in Arizona? Does the application of laws
enacted in 1986 and 1988 result in sound public policy in 2011 and
beyond, at least with respect to the situation in Glendale?
I will defer to the witnesses to explain their views on these and
other question.
With that, I now recognize the Ranking Member for five minutes for
any statement he may have.
______
STATEMENT OF THE HONORABLE DAN BOREN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OKLAHOMA
Mr. Boren. Thank you, Mr. Chairman. Today the Subcommittee
meets to hear testimony on H.R. 2938, a bill Mr. Franks
introduced to prohibit the Tohono O'odham Nation from
conducting gaming activities, under the Indian Gaming
Regulatory Act, on property the Nation acquired near Glendale,
Arizona.
Specifically, the bill would amend settlement legislation
entered into 25 years ago to compensate the tribe for
reservation lands lost due to Federal error. We want to welcome
Mr. Franks, and welcome to all of our witnesses. I look forward
to hearing your testimonies. And I know Mr. Grijalva will be
joining us shortly, which this is actually in his district.
H.R. 2938 has strong support among Arizona tribes and the
City of Glendale. The Nation and its fellow opponents of the
bill are equally as strong, including the City of Peoria and a
wide array of local elected officials and business leaders in
Arizona.
The issues involved are complicated, and have resulted in a
vigorous dispute in Federal and State Courts, as well as
garnered interest from local and national media. And sadly, the
dispute over the Nation's plans to pursue gaming activities on
its property has turned neighboring cities and fellow tribes
against one another.
I look forward to exploring a few questions that are still
unclear to me. In the testimonies there is talk of a
``gentleman's agreement'' that existed between the tribes and
the State of Arizona. What exactly were the promises made
between the tribes? What was the exact timeline of those
promises? And similarly, what was the timeline of the land
acquisition? What is the status of the litigation, and how does
that affect government intervention?
Finally, I would like to explore the government's role in
this case. Should Congress get involved? And if so, what
precedent will it set for future tribal gaming conflicts?
I am a strong believer in keeping promises and good-faith
agreements. That said, the United States has broken its
promises to Indian tribes since our country's infancy. It has
taken decades to repair our relationship as trustees to the
first Americans, and we have a ways to go to remedy our wrongs.
I look forward to exploring today whether this legislation
will put us on the right path toward that goal. Again, I would
like to thank our witnesses for being here today, and I look
forward to your testimony. I yield back.
[The prepared statement of Mr. Boren follows:]
Statement of The Honorable Dan Boren, Ranking Member,
Subcommittee on Indian and Alaska Native Affairs
Thank you, Mr. Chairman.
Today the Subcommittee meets to hear testimony on H.R. 2938, a bill
Mr. Franks introduced to prohibit the Tohono O'odham [TO-HO-NO OH-DUM]
Nation from conducting gaming activities under the Indian Gaming
Regulatory Act on property the Nation acquired near Glendale, Arizona.
Specifically, the bill would amend settlement legislation entered into
25 years ago by the United States and the Nation to compensate the
tribe for reservation lands lost due to federal error.
Welcome, Mr. Franks, and welcome to our witnesses. I look forward
to hearing your testimonies.
H.R. 2938 has strong support among Arizona tribes and the City of
Glendale. The Nation and its fellow opponents of the bill are equally
as strong, including the City of Peoria and a wide array of local
elected officials and business leaders in Arizona. The issues involved
are complicated and have resulted in vigorous dispute in federal and
state courts, as well as garnered interest from local and national
media. And, sadly, the dispute over the Nation's plans to pursue gaming
activities on its property has turned neighboring cities and fellow
tribes against one another.
I am sympathetic to both sides. I understand their positions and
the stakes involved. But whether Congress should intervene to
essentially undo a binding legal settlement between a trustee and its
tribal beneficiary, decades after the fact, gives me pause. I am
concerned that this bill will encourage similar attempts to amend well-
established settlement legislation between the United State and Indian
tribes.
The United States has broken its promises to Indian tribes since
our country's infancy. It has taken decades to repair our relationship
as trustees to the First Americans, and we have a ways to go to remedy
our past wrongs. I have to ask if we are on the right path to that goal
with this legislation.
With that, I look forward to hearing from our witnesses and
exploring the issue further.
______
Mr. Young. I thank the gentleman. Our first witness today
is our colleague, the Representative from Arizona in the Second
District, Mr. Trent Franks. Mr. Franks, welcome to the
Committee. After you have finished testifying and the Members
have asked any questions they might have, I invite you to join
us on the dais and participate with the Subcommittee on the
unanimous-consent request I made.
Mr. Franks, you are on.
STATEMENT OF THE HONORABLE TRENT FRANKS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Franks. Well, thank you, Mr. Chairman. And I extend my
gratitude to the rest of the Committee members as well for your
consideration today. I appreciate you allowing me to testify on
H.R. 2938, the Gila Bend Indian Reservation Lands Replacement
Clarification Act.
Mr. Chairman, the fundamental bedrock that defines our
Republic is the rule of law. Indeed, it is the rule of law that
has made America the envy of the world, providing a level
playing field upon which businesses can succeed or fail, based
solely on their merits, not on their ability to curry favor
with the government or to exploit legal loopholes, or to get
away with actually flouting the law itself.
Amidst all of the debate surrounding the Tohono O'odham
Nation's proposed Glendale casino, some who favor allowing
construction to go forward seem to be missing one of the
central points. My opposition is not an anti-tribe initiative;
I harbor absolutely no ill will toward the Tohono O'odham
people or the Nation. In fact, the vast majority of the other
tribes in Arizona join me today in opposition to this
designated casino.
This debate is not about the jobs or economic development
involved, or any of the other tangential points that some would
like to use to distract from the real problem with the casino.
My opposition stems from the very commonsense, and indeed very
vital, rule of law that says when you enter into a contract,
you are expected to abide by that contract.
Incidentally, Mr. Boren mentioned a gentleman's agreement.
The compact that we are talking about here is a written legal
contract.
Mr. Chairman, in 2002 gaming tribes in Arizona all entered
into this compact, and put that agreement up to the voters to
vote upon. The agreement called for a limited number of casinos
and machines in the Phoenix metropolitan area. While
Proposition 202 was being debated, and passed by the voters,
the Tohono O'odham Nation publicly pretended to support the
measure, promising the only new casino would be constructed
near Tucson. But simultaneously, the Tohono O'odham Nation was
working behind the scenes to underhandedly secure the tract of
land in Glendale, with which they knowingly intended to break
their promise.
Furthermore, and very importantly, Mr. Chairman, the 1988
Indian Gaming Regulatory Act, the law that governs tribal
gaming, says that Las Vegas-style gaming on lands acquired
after October 1, 1988, may only occur under a compact between
the Indian tribes and the State. The Tohono O'odham Nation has
broken the compact into which it entered, thereby rendering the
proposed casino in violation of the 1988 law.
Mr. Chairman, for all of the casino's proponents' attempts
to sidetrack the conversation with red herrings, the issue
really is as simple as that. The Tohono O'odham Nation entered
into an official compact with 16 other tribes, and now they are
attempting to break the compact, and their word.
By exiting the compact, the tribe is no longer eligible,
under the Indian Gaming Regulatory Act, to construct a casino
like the one proposed in Glendale. It is also worth asking the
question, what is the purpose of such a compact if any party
may simply break it at will, without ramifications?
But assuming for a moment that the casino weren't in
violation of the law. Many of the arguments being brandished by
opponents to the casino still remain dishonest. Representatives
of the Tohono O'odham Nation claim to have proposed the casino
would create many jobs for the West Valley. However, when the
City of Glendale requested the data and methodology behind the
numbers being repeated to the public, their request was denied
by the tribe.
And on the other hand, when the City of Glendale, per State
law, put together a plan in 2002 outlining possible uses for
the subject land, estimates put the number of jobs created
under the City's plan at 5,756 high-quality jobs. That is
excluding the construction jobs that would also be created.
Furthermore, the City's plan at buildout would have created
$10.9 million in construction sales tax; and, more importantly,
$5.6 million in annual recurring revenue.
The casino, on the other hand, would result in no sales tax
revenue for the City of Glendale. It becomes easy to see the
many reasons why the City of Glendale so strongly opposes the
effort of the Tohono O'odham to forcibly build this casino in
the heart of the City of Glendale.
Mr. Chairman, the fallacious arguments used by casino
supporters highlight the disingenuous nature of assertions that
building the casino was really just about creating jobs and
economic development for the surrounding area. Developing the
casino is certainly not the only means by which the tribe can
profit from the Glendale land. This is not an either-or
situation.
It is possible to develop the land while also abiding by
the law. Unfortunately, a Las Vegas-style casino is not one of
those legitimate options, per the Indian Gaming Regulatory Act.
To preserve the rule of law, Mr. Chairman, I have
introduced the Gila Bend Indian Reservation Lands Replacement
Clarification Act, a nice short name. My bill will allow the
Tohono O'odham Nation to develop their land in a legal,
responsible, and, I sincerely hope, a lucrative manner. But it
will prohibit a casino, as discussed.
The bottom line is this. If the Tohono O'odham Nation's
plan succeeds, no tribal compact will be safe from such
duplicity in the future; and the very laws that govern tribal
gaming will be rendered meaningless, subject only to the whim
of any tribe that decides it no longer deems the law a
convenience.
Mr. Chairman, thank you again for holding this hearing
today. It is my hope at the conclusion of today's hearing,
members of the Subcommittee will appreciate the importance and
necessity of this legislation. And with that, thank you all
very much.
[The prepared statement of Mr. Franks follows:]
Statement of The Honorable Trent Franks,
a Representative in Congress from the State of Arizona
Mr. Chairman, I want to thank you for holding this hearing and
allowing me to testify on H.R. 2938, the Gila Bend Indian Reservation
Lands Replacement Clarification Act.
Mr. Chairman, the fundamental bedrock that defines our Republic is
the rule of law. Indeed, it is the rule of law that has made America
the envy of the world--providing a level playing field upon which
businesses can succeed or fail based solely on their merits, not on
their ability to curry favor with the government, to exploit legal
loopholes, or to get away with flouting the law.
Amidst all of the debate surrounding the Tohono O'odham Nation's
proposed Glendale casino, some who favor allowing construction to go
forward seem to be missing the point: my opposition is not an anti-
tribe initiative--I harbor absolutely no ill-will toward the Tohono
O'odham Nation. The fact is that every other tribe in the state of
Arizona joins me in my opposition to the casino. This debate is not
about jobs or economic development, or any of the other tangential
points that some would like to use to distract from the real problem
with the casino. My opposition stems from the very common-sense and,
indeed, vital rule of law that says when you enter into a contract, you
are expected to abide by that contract.
Mr. Chairman, in 2002, gaming tribes in Arizona all entered into a
compact and put that agreement to voters. The agreement called for a
limited number of casinos and machines in the Phoenix metropolitan
area.
While Proposition 202 was being debated and passed by voters, the
Tohono O'odham Nation publicly pretended to support the measure,
promising the only new casino would be constructed near Tucson. But,
simultaneously the Tohono O'odham was working behind the scenes to
underhandedly secure the tract of land in Glendale with which they
knowingly intended to break their promise.
Furthermore, and very importantly, Mr. Chairman,--the 1988 Indian
Gaming Regulatory Act--the law that governs tribal gaming--says that
Las Vegas style gaming on lands acquired after October 1988 may only
occur under a compact between the Indian tribe and the state. The
Tohono O'odham Nation has broken the compact into which it entered,
thereby rendering the proposed casino in violation of the 1988 law.
Mr. Chairman, for all of the casino proponents' attempts to
sidetrack the conversation with red herrings, the issue really is as
simple as that: the Tohono O'odham Nation entered into an official
compact with sixteen other tribes, and now they are attempting to break
the compact and their word. By exiting the compact, the tribe is no
longer eligible, under the Indian Gaming Regulatory Act, to construct a
casino like the one proposed in Glendale. It's also worth asking the
question: what is the purpose of such a compact if any party may simply
break it, at will, without ramifications?
But, assuming for a moment that the casino weren't in violation of
the law, many of the arguments being brandished by proponents of the
casino still remain dishonest. Representatives of the Tohono O'odham
Nation like to claim the proposed casino would create many jobs for the
West Valley. However, when the City of Glendale requested the data and
methodology behind the numbers being repeated to the public, the
request was denied by the tribe.
On the other hand, when the City of Glendale, per state law, put
together a plan in 2002 outlining possible uses for the land, estimates
put the number of jobs created under the city's plan at 5,756 high-
quality jobs. That's excluding the construction jobs that would also be
created. Furthermore, the City's plan, at build-out, would have created
$10.89 million in construction sales tax and, more importantly, $5.6
million annual recurring revenue. The casino, on the other hand, would
result in NO sales tax revenue for the City of Glendale. It becomes
easy to see the many reasons why the City of Glendale so strongly
oppose the effort of the Tohono O'odham to forcibly build this casino
in the heart of the city of Glendale.
Mr. Chairman, the fallacious arguments used by casino supporters
highlight the disingenuous nature of assertions that building the
casino is really just about creating jobs and economic development for
the surrounding area.
Developing a casino is certainly not the only means by which the
tribe can profit from the Glendale land. This is not an either/or
situation; it is possible to develop the land while also abiding by the
law--unfortunately, a casino is not one of those legitimate options,
per the Indian Gaming Regulatory Act.
To preserve the rule of law, Mr. Chairman, I have introduced the
Gila Bend Indian Reservation Lands Replacement Clarification Act. My
bill will allow the Tohono O'odham nation to develop their land in a
legal, responsible--and, I sincerely hope, lucrative--manner. But it
will prohibit gaming.
The bottom line is this: if the Tohono O'odham Nation's plan
succeeds, no tribal compact will be safe from such duplicity in the
future and the very laws that govern tribal gaming will be rendered
meaningless, subject only to the whim of any tribe that decides it no
longer deems the law a convenience.
Mr. Chairman, thank you again for holding this hearing today. It is
my hope that at the conclusion of today's hearing, the members of this
subcommittee will appreciate the importance and necessity of this
legislation. I yield back.
______
Mr. Young. Thank you, Mr. Franks. Mr. Schweikert, you want
to participate in this? Without objection, we are allowing
another Member to participate in this.
Mr. Boren.
Mr. Boren. I don't have any real questions, other than a
comment. You know, I have kind of been looking at this
legislation, and on its face I certainly considered maybe being
a co-sponsor of the bill. I have not become a co-sponsor as of
yet, but it is something I looked at.
But you mentioned the compact, and you mentioned, talked
about a gentleman's agreement. Actually, in the compact there
is not language, am I correct, that reflects an agreement that
they will not, they will not game, is that correct? So the
Nation did not agree to that in a compact. Am I right on that?
Mr. Franks. The Nation agreed to a specific number of
casinos in specific places, and that they would not go above
that. The actual land itself, taken into trust at this point,
was not discussed.
But just so the Committee understands the process here.
There was a corporation that no one knew, it sounded like a
French name, and the tribe created this corporation so that no
one would know it was even a tribe buying the land.
So it was one of those situations where it was kind of a
surreptitious effort from the beginning. And I know those are
strong words, and I wish that it weren't.
Mr. Boren. I think that is the real crux of this whole
thing that everyone is trying to wrap their arms around.
Whether it is in the compact, whether it is codified in
language, whatever it is. When there is someone who has given
their word, and they say hey, we are going to do this, we are
not going to game in this area; and then all of a sudden yes,
we are.
And then there is the number of casinos versus this area on
this land. And I think that is what we are all trying to figure
out today. That is why we are having this hearing, is who knew
what, when; who made what kind of agreement. You know, who is
kind of telling the truth.
There is obviously a lot of support for your legislation, a
lot of groups. There are some on the other side, too, that have
support the other way. And that is something that hopefully we
can get to the bottom of today, and I certainly appreciate you
being here. No further questions.
Mr. Franks. Thank you. Mr. Chairman, it would just be, just
for the record, I just want to point out that there is no ill
will in my heart whatsoever toward the Tohono O'odham people.
Their leaders in this case, however, the record is very clear,
to comments from Mr. Boren, that they knew indeed that they
were agreeing to this, and that this was part of the public
discussion. There was a major effort, initiative, where it was
on television; all of the tribes had represented that this
would be the agreed-upon guideline going forward.
And then at the very moment they were doing that, they were
out trying to obtain this land for this purpose. And so that is
the crux of the situation.
Mr. Young. Mr. McClintock.
Mr. McClintock. Well, with the respect of the surreptitious
nature of the acquisition, I think back to Walt Disney, who
acquired the land for Disney World in the same manner. They do
that to assure that prices don't get bid up beyond market
value. I don't see anything nefarious in that; that is just
good business sense.
What I am unclear about is the nature of the compact
itself. Did the tribe actually agree not to allow gambling on
this, on the parcel that they ultimately acquired?
Mr. Franks. The agreement was broader than that. They
agreed that there would be only a certain number of casinos.
And all of the tribes in Arizona, I believe there are 17, all
agreed to that. And according to that scrutiny, it would have
ruled this one out.
They didn't say well, if we buy land in Glendale, we
promise not to build a casino on it. And the only thing I would
suggest to you related to the Walt Disney example is that Mr.
Disney, you know, it is a very different situation. He didn't
come in and all of a sudden declare this part of a reservation
that was not subject to any of the local ordinances.
Mr. McClintock. No, but he was very clever about not
revealing that he was the purchaser of this land as he was
assembling the parcels. And I don't see anything nefarious in
that. Again, it was designed to assure that prices didn't get
bid up as a result of their finding out who was the purchaser.
Mr. Franks. Well, that is understandable, and I don't
disagree with you that there are different motivations. But in
this case, the reason for the tribe not buying the land
outright is because it would have made it very clear where they
were going early on. And the tribe had every motivation to keep
this a secret, for reasons that, in my judgment, skirted the
law.
Mr. McClintock. But that is not a crime. Engaging in
commerce is not a crime. You know, conducting gambling on
sovereign Indian land is not a crime.
Mr. Franks. But if they can come in and create sovereign
Indian land in any city in the nation, Mr. McClintock, the
precedent is pretty profound.
Mr. McClintock. Well, yes, except as I understand it, this
was unincorporated territory. It might have been surrounded by
the city, but it was not part of the city. They seem to have
abided by that provision of the agreement.
Mr. Franks. Ultimately, I would just suggest to you that
the record in Arizona is very clear: The tribe was part of a
legal compact, and this breaks that compact very directly. And
I think the implications are pretty significant across the
board.
Mr. McClintock. Well, people have an inherent natural right
to engage in commerce, and to do what they wish with their own
money. I mean, I don't gamble myself; I don't enjoy it, and I
am not very good at it. I feel the same about stamp collecting.
But I certainly don't have the right to tell other people, who
are good at it or who do enjoy it, how they should be able to
spend their own money. That is a natural right that government
is designed to protect.
And as I read the Declaration of Independence, when a
government becomes destructive of this right, the people have
the right to alter those terms. Which appears to be what this
is all about.
Mr. Franks. Well, as you know, Mr. McClintock, no one
supports property rights more than I do. This is about breaking
legal agreements, and I think that that is the place where I
will probably----
Mr. McClintock. Well, again, can you define exactly what
was the legal----
Mr. Franks. What we should do is to have the compact, I can
have my staff send the compact language to your office. And we
can----
Mr. McClintock. Thank you. I yield back.
Mr. Young. Are you up next?
Mr. Kildee. Thank you very much, thank you for this
hearing, Mr. Chairman. I helped create IGRA back in 1988, and
that was shortly after the Cabazon decision, which gave the
Indians their right, under their sovereignty, not to be
governed by the State laws on gaming.
So we wrote IGRA. I remember Tony Coelho, he was kind of
taking the side of the commercial casinos, and I was taking the
side of the Indian casinos at the time. And we reached a
compromise.
I think one of the concerns we had at the time--and I still
have the concern. We have had struggles in Michigan. I have
helped about half the tribes in Michigan get their sovereignty
reaffirmed.
But we worried about people feeling that there is going to
be a proliferation of tribes, tribal casinos. As I said, I have
helped about half the tribes, probably about six or seven
tribes in Michigan, get their sovereignty restored.
Some of them have tried to expand their number of casinos,
and it creates a great deal of--and you and I have worked on
some of these things that are probably for some and against
some, and probably working for some again. But it does create,
if you aren't careful, in having a proliferation of tribes,
that people just don't trust the restrictions put in by IGRA.
We know that Indians have the right to do this gaming under
their sovereignty; that is according to the Cabazon decision of
the U.S. Supreme Court.
But I think we also have to be cautious not to create a
backlash. And that is my only concern here. Whenever you add
another casino, particularly when it is maybe different than
the original compact or the original agreement, you just want
to be careful not to create a backlash that would hurt all
Indian gaming. And that is my concern.
So I just wanted to give you some of the history of this.
We spent months in this room writing IGRA, and tried to put
together--it was not written on Mt. Sinai, it was written on
Capitol Hill, so it is not a perfect law. But it is a fairly
good law. And I want to make sure that we keep IGRA and
maintain that right of Indians to game under their sovereignty,
as defined by the U.S. Supreme Court, but not create that
backlash. And I yield back the balance of my time, Mr.
Chairman.
Mr. Young. Mr. Benishek.
Mr. Benishek. Thanks, Mr. Chairman.
Mr. Young. Do you have a question?
Mr. Benishek. Well, I do have a question. You know, in
Michigan, as Mr. Kildee said, we have had some similar issues
with off-reservation gaming. And you know, I want every tribe
to do well and make a profit, and gaming allows tribes to do
that.
How has it been for you, though? I mean, did you start,
when did you hear about all this? I mean, isn't it kind of
troubling? I mean, I found it really troubling when there is a
compact, and then some, it seemed like they entered into the
spirit of an agreement, and then, you know, something is all
different now. I mean, did you, how did you find out about it?
Does it make you feel troubled?
I mean, it troubles me to see this happening, to tell you
the truth.
Mr. Franks. Obviously, it troubles me personally. But there
is another aspect of it, and that is when there is reservation
shopping, when there is an effort to create reservations in
different areas in a way that seems to just empower one
particular tribe, whether all the other tribes involved or not
have any--to go in and turn a particular area into a sovereign
nation, it has some pretty significant implications for our
country.
And the law, he speaks of it as IGRA, the acronym, Mr.
Kildee was so involved in writing, gives great emphasis on
these compacts. They are not just, you know, casual agreements.
Because in 1988 IGRA says that tribal gaming cannot be--in
other words, the Las Vegas-style gaming on lands acquired after
October 1988, which these were, can occur only under a compact
between the Indian tribes and the State.
And we acted on that law, and we had a compact in 2002. All
the tribes, every one of the tribes, including Tohono O'odham,
agreed to that. We put it before the voters, and the voters
passed it based on that.
So the notion that it is just a casual thing is, the 1988
IGRA gives great emphasis to the compact that was broken by the
Tohono O'odham.
Mr. Benishek. Thank you. I will yield back.
Mr. Young. Thank you, gentlemen. Mr. Eni.
Mr. Faleomavaega. Thank you, Mr. Chairman. I want to thank
our colleague, Mr. Franks, for his testimony. And I certainly
don't have any doubt whatsoever in the sincerity of his efforts
in trying to resolve the problem that we have here with the
Tohono O'odham Tribe.
I am glad that we have also a distinguished Member on our
Committee, Mr. Grijalva, who is also from Arizona.
As you know, Mr. Chairman, the interesting thing on how the
Indian gaming law came about was a very serious concern, given
the fact that Indian Nations, as far as their educational and
social standing in the country, were the lowest of the lowest.
Not even below, it was not even under the barrel, it was below
the barrel, in terms of any means of trying to find some
economic opportunities to be self-sustaining.
And so Congress, in its infinite wisdom, passed the bill in
1988. So that way there were some Members who were very
concerned about the morality issue, that Indians are not
capable of controlling their habits in gambling or gaming. I
mean, we went into this moral diatribe in thinking that
Indians--everybody else can gamble, all the other States and
Territories can do gambling, except the Indians.
So we passed IGRA, in making sure that there is a compact
relationship existing between the tribes, as well as with the
States. And some tribes have been very successful in this
effort to become more self-sustaining.
And as a result, other situations have also developed, that
Mr. Franks has alluded to. And if I understand it correctly,
Mr. Franks, there was a legal compact signed between, what,
nine tribes in Arizona, with the State of Arizona?
Mr. Franks. I think there were 17 tribes.
Mr. Faleomavaega. And they all signed to this compact.
Mr. Franks. All of the tribes agreed to this compact. All
of them were signers to the compact.
Mr. Faleomavaega. And Tohono O'odham was one of them.
Mr. Franks. Right.
Mr. Faleomavaega. By the way, the original name of the
tribe is Papago, right?
Mr. Franks. I believe that is correct.
Mr. Faleomavaega. I think they came from Samoa, Papago. It
has a very similar ring to it.
And so what you are saying here in this proposed bill is
that the tribe has not kept the provisions of this basic
compact that they signed into, along with 17 other tribes.
Mr. Franks. That is the fundamental impulse of the bill,
yes, sir.
Mr. Faleomavaega. It is not that you are against the gaming
aspects of it or anything. You are just----
Mr. Franks. You know, I say to you in the interest of total
honesty, I have never been fond of gaming. Everyone knows that.
But I have never at any time gone out to try to interdict
tribal gaming in any other situation, except this one. Because
this one definitely, in my judgment, breaks the law.
And so I want you to know my goal here is not to have a
discussion about the ins and outs of gaming. I hope that some
day, that we will all realize that there are probably better
ways to sustain ourselves and the tribes to sustain themselves
than gaming, because conversations like this probably would
never occur if----
Mr. Faleomavaega. My time is getting up, and I want to just
make another observations, Mr. Franks. And that is, basically,
Mr. Chairman, we have a double standard here. We have to pass a
law to control the gaming aspects for Indian country, but it is
OK for all the other States to do gaming, lottery, Bingos,
everything else. And we are all under the same Constitution.
We all, I realize that we have a special relationship with
the Native American Indians. But we passed this law to give
them opportunity. I remember distinctly, Mr. Chairman, the
Pequot Tribe in Connecticut. Did you know that not one
commercial bank here in the United States was willing to give
any kind of financial assistance when this tribe was trying to
make a go with their gaming operation? They had to go to Asia
to get a financial, to help them develop their gaming
operations.
And by the way, it is one of the most successful
operations. It has been very, very helpful to meet the needs of
the Pequot Tribe in Connecticut. Even the Governor, a former
Senator, from Connecticut was very, very supportive of this
effort.
So if I am clear, for the record, Mr. Franks, you are not
in any way opposition to whatever the Tohono Tribe may want to
do with its gaming operations. But it seems like it is the
place where they are having it that is causing some problems.
Mr. Franks. As long as they stay within their compact, they
don't have anything to worry from me. Just for the record,
where they are building, or trying to build the casino, no one
else besides the tribe could build one, either. In other words,
there is an even prohibition there for others to build a casino
in the same place that they are trying to build it.
Mr. Faleomavaega. Thank you, Mr. Chairman.
Mr. Young. Mr. Gosar.
Dr. Gosar. Well, I think the comment has to be, is that we
have a double standard, yes. But sovereignty is implied, but
only moderately given, under the context of the U.S.
Constitution and what we have that jurisdiction of.
We still have a jurisdiction over the tribes that is
Congress-based, and only Congress can give that. And we gave
some parameters. We gave some base lines for that.
And what this basically does is that it also gave a confine
for the tribes to orchestrate under State laws, which they are
citizens, as well. And they have to work within a camaraderie
type of a format, back and forth, within the State's confines.
And so I find it, it is very simple. It is that we made an
agreement. Yes, I do understand why they purchased land through
a secondary organization, for what Tom said.
However, the confines at that point should have been
discussed. If we were looking at to put a gaming site in there,
during the compact negotiations those should have been brought
up, and it wasn't. Therefore, a clear violation.
We have the same laws. The laws still have to be upheld, a
certain parameter. We cannot bypass that just because it is a
tribal entity.
Gaming is very interesting. And I find it very interesting
that my past comes forward on this. I used to represent Nevada.
And it is interesting that the numbers on gaming really stay
the same, as far as the numbers of monies transposed through
the gaming industry. It is pretty level. It just gets divided
up a lot bigger.
And what really is the showcase in Las Vegas isn't so much
the gambling, but the shows. That is how they work their
marketing; that is the biggest key.
Now, I know there have been a lot of inadequacies to tribes
throughout history. I am no part of that. But in this regards,
there is a law, and the law was violated. A compact with the
Arizona State, with the citizens of Arizona, with the other
tribal members here it was violated, and it is very, very
clear. There is no middle ground here. This was very, very
clear as to the violation that occurred here.
Anything other than having a casino is well warranted.
However, not doing that is a key.
And with that after said, Congressman Franks, if this
compact were to dissolve, explain to me how this compact
dissolves. Do the tribes benefit?
Mr. Franks. Mr. Chairman, Mr. Gosar, I think if the compact
totally dissolves, that chaos will be the result. There will be
reservation-shopping all over the State probably, and I don't
think that this will redound to the benefit of the tribes in
any way. And I certainly believe that the proliferation of
gaming within the cities brings with it some negative
components. I don't think we can hide from that pink elephant
in the room.
So I think it is chaotic if this dissolves. But more
importantly, you mentioned the Federal law, the 1988 IGRA law.
It specifically says that gaming must be controlled by the
State compacts, which is exactly what we did. We followed the
Federal law, and all these tribes agreed to that compact. And
only one of them here--this is not some sort, I mean, the vast
majority of the tribes are opposing this effort by Tohono
O'odham to build the casino, because they understand the
implications it has for the entire compact, for the entire
legal construct in Arizona. And I also think it has
implications for other States, as well.
Dr. Gosar. Doesn't it open up a whole ball of wax in the
State of Arizona for non-Indian gaming, and the parameters and
bases and ratios that are associated with it?
Mr. Franks. Mr. Chairman, Mr. Gosar, it absolutely does.
Dr. Gosar. So wouldn't you say that now what we have done
is, with an individual tribe being very individualistic, we
have subjugated the tribes' pretty much biggest moneymaker,
outside of natural resources, to their whim, and subjugated it
to the State?
Mr. Franks. I believe that is essentially correct. Yes,
sir.
Dr. Gosar. Thank you.
Mr. Young. Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman, and thank you and
the Members for their courtesy in allowing me to be a part of
this hearing. I appreciate it very much.
I have no questions for my good friend from Arizona, other
than, Mr. Chairman, to inject into the record Section 3[j] of
the Arizona compact, which specifically allows for gaming on
lands acquired by the Nation after 1988, as long as the land
acquisition met certain exemptions, including, and one of those
exemptions being land acquired as part of a land claims
settlement.
So as we go forward with the debate and the discussion on
this, I think it is important that references to the compact be
specific, and I place that into the record of this hearing. I
thank you very much for the courtesy.
Mr. Young. I thank the gentleman. Mr. Schweikert.
Mr. Schweikert. Thank you, Mr. Chairman; and to the
Committee members, I appreciate you letting me interlope.
In 1993 I lost a year of my life, and it was on this
subject. I was the Majority Whip in the State House of Arizona.
And it is when IGRA had come in front of us, and it was my job
to go find the votes.
We had a fairly cranky Legislature at the time in regards
to the subject, so I bathed myself in this for not months, but
it took us a year. And at the end of that year, we
substantially created a framework, and let the Governor create
compacts. So maybe this is stepping back almost 20 years for
many of us. But I have to share with you why this scares me so
much, and why I also believe it is dangerous for all
participating Native American communities.
First off, I will swear to you, time and time and time and
time and time again, this was the question I would get from the
members of the Legislature: What if we get one in Scottsdale? I
represent Scottsdale. What if we had this piece of property,
that State trust, or this BLM, or this were traded or that were
traded? And over and over, the lawyers who were with us, some
of the legal staff from John McCain's office, which actually I
believe was your Senate sponsor, and others would come to us
and reassure us to stop being worried about that.
And now we are here 20-some years later, and we are back at
that same question.
But there is also the nature of Arizona, and this is
actually one of the reasons to do this when Trent is up here.
In my heart of hearts, I believe if this happens, in about half
a dozen years, Arizona will be a full-scale gaming state. And
here is why.
Arizona, as you know, is an initiative referendum State. We
have already had rumblings of we need tax revenues, let us do
racinos, let us expand slot machines at the horse-racing
tracks. Well, if you do that, you blow up the compacts. And
thee are others who have said fine, I would love to have
casinos in Scottsdale, I would love to have one downtown next
to the Convention Center.
If this goes in Glendale, in that Glendale area, I believe
those advocates who desperately want to blow up these compacts,
change the nature of Arizona, and move to a statewide casino
gaming by option in the community standard, it does happen.
Because it doesn't take that many signatures to put something
on the ballot in Arizona. And this will be the excuse to do it.
And my State will be different half a dozen years from now.
But more importantly, all the compacts, 20 years of work,
of understanding the rules and the agreements, and huge capital
investments from dozens of communities out there, will be
crushed. And all the good that has been accomplished with IGRA
will go away. Because the gaming is on the fringe of the urban
areas, and the urban areas themselves will take over that
market.
And Mr. Chairman, Mr. Franks, do I at least--you have
actually run initiatives in Arizona. I mean, am I fair in my
comments?
Mr. Franks. You are. I am living proof that any moron can
get an initiative.
[Laughter.]
Mr. Franks. There is a story behind that. But yes, sir. No,
it is not that difficult. You can do page signature drives, and
it is fairly, it is not easy, but it is something that any
group that is determined can put an initiative on the ballot.
But you know, the point is here, we did have an initiative
on the ballot. And we did pass this agreement, by the vote of
the people. And the Federal law was adhered to, and the Federal
law says that this will be, the State compacts will govern
this. And that was violated.
And Mr. Chairman, in case I don't get the chance here,
might I offer a letter from the Governor of Arizona supporting
the bill? And also a letter from members of the Arizona
Legislature, as well, for part of the record.
Mr. Young. Without objection.
Mr. Schweikert. And Mr. Chairman, Mr. Franks actually stole
my little closing sentence. After years of fussing back and
forth, and not knowing how many machines, and the Indian
communities actually going to the ballot, we finally reached an
agreement. And with an overwhelming vote of the public in the
State.
This is a unique agreement. You cannot have this on non-
tribal lands outside the compacts. This is a unique franchise
given to these tribal communities. And there is now sort of an
understanding--well, actually what, legal and a vote--
understanding. This will cause a cascade that will destroy that
understanding in our communities.
Thank you, Mr. Chairman.
Mr. Young. I want to thank you, Mr. Franks. This has been
good testimony, and thanks for introducing the legislation. You
are excused.
Mr. Franks. Thank you, Mr. Chairman. Thank all of you.
Mr. Young. Bring up the next panel. Ms. Paula Hart,
Director of the Office of Indian Gaming, Office of Assistant
Secretary Indian Affairs, U.S. Department of the Interior. Ms.
Hart, you are up.
STATEMENT OF PAULA HART, DIRECTOR OF THE OFFICE OF INDIAN
GAMING, OFFICE OF THE ASSISTANT SECRETARY--INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Ms. Hart. Good afternoon, Mr. Chairman and members of the
Committee. My name is Paula Hart. I am the Director for the
Office of Indian Gaming, in the Office of the Assistant
Secretary for the Department of the Interior.
Thank you for the invitation to be here to provide the
Department's testimony on H.R. 2938, the Gila Bend Indian
Reservation Land Replacement Clarification Act, which is a bill
that if enacted, would prohibit Class II and Class III gaming
activities on certain lands in Arizona.
H.R. 2938 speaks directly to one tribe, the Tohono O'odham
Nation, which is a Federally recognized tribe located in
southern and central Arizona. The Nation has approximately
30,000 enrolled members; it has one of the largest tribal land
bases in the country.
In 1986, Congress enacted the Gila Bend Indian Reservation
Lands Replacement Act, Public Law 99-503, to redress flooding
that occurred on the Nation's land that resulted from the
construction of the Painted Rock Dam on the Gila River. Both
the Bureau of Indian Affairs and the Army Corps of Engineers
assured the Nation that flooding would not impair other culture
use of lands within the Nation's San Lucy District.
Nevertheless, construction of the dam resulted in
continuous flooding of nearly 9,880 acres of land within the
San Lucy District, rendering them unuseable for economic
development.
The Gila Bend Act authorizes the Nation to purchase private
lands as replacement reservation lands. It authorizes the
Secretary of the Interior to take up to 9,880 acres of land in
Pima, Pinal, and Maricopa Counties, into trust for the Nation,
subject to certain other requirements; and mandated that the
land shall be deemed to be Federal Indian reservation for all
purposes.
H.R. 2938, the Gila Bend Indian Reservation Land
Replacement Clarification Act, would amend the original Gila
Bend Act of 1986 by prohibiting Class II and Class III gaming,
as defined under the Indian Gaming Regulatory Act, on the lands
taken into trust, pursuant to the Gila Bend Act of 1986.
The Department opposes H.R. 2938. Congress was clear when
it originally enacted the Gila Bend Act of 1986, where it
stated that replacement lands shall be deemed to be Federal
Indian reservation for all purposes. By this language, Congress
intended that the Nation shall be permitted to use replacement
lands as any other tribe would use its own reservation lands.
The Gila Bend Act was intended to remedy damages to the
Nation's lands caused by flooding from the construction of the
Painted Rock Dam.
The United States and the Tohono O'odham Nation agreed to
the terms of the Gila Bend Act, which included restrictions on
where and how the Nation could acquire replacement lands.
H.R. 2938 would impose additional restrictions, beyond
those agreed upon by the United States and the Tohono O'odham
Nation 25 years ago. The Department cannot support unilaterally
altering this agreement so long after the fact.
While the purpose of H.R. 2938 may restrict the Nation from
conducting gaming on the 53.54-acre parcel in Maricopa County,
Arizona, the effect of H.R. 2938 could reach all lands under
the Gila Bend Act.
Also, H.R. 2938 could alter established law that prohibits
gaming authorized under the Indian Gaming Regulatory Act on
lands acquired by the Secretary into trust for the benefit of
an Indian tribe after October 17, 1988, except in certain
circumstances. The effect of H.R. 2938 would be to add tribe-
specific and site-specific limitations to IGRA's prohibitions.
The process of determining whether land qualifies for an
exception to this prohibition is firmly established. The
Department is aware the Nation's request to acquire land in
trust for gaming purposes in Maricopa County has been a subject
of significant contention among tribes and local governments in
the State of Arizona. However, the Indian Gaming Regulatory Act
already establishes a process to determine whether lands are
eligible for gaming, and that question is pending before the
Department.
The Department respects Congress's authority to legislate
in this area. However, we are concerned about establishing a
precedent for singling out particular tribes through
legislation to restrict their access to equal application of
the law.
This Administration has consistently held the position that
fair and equal application of our laws toward all tribes is
essential to upholding the United States' nation-to-nation
relationship with Indian tribes.
For these reasons, the Department opposes H.R. 2938. This
concludes my prepared statement, and I am happy to answer
questions from the Subcommittee.
[The prepared statement of Ms. Hart follows:]
Statement of Paula L. Hart, Director, Office of Indian Gaming, Office
of the Assistant Secretary--Indian Affairs, U.S. Department of the
Interior
Good afternoon, Mr. Chairman and Members of the Committee. My name
is Paula Hart. I am the Director of the Office of Indian Gaming in the
Office of the Assistant Secretary for Indian Affairs at the Department
of the Interior (Department). I am here today to provide the
Department's testimony on H.R. 2938, the `Gila Bend Indian Reservation
Lands Replacement Clarification Act', which is a bill that if enacted
would prohibit Class II and Class III gaming activities on certain
lands in Arizona.
Background
The Tohono O'odham Nation (Nation) is a federally recognized tribe
located in southern and central Arizona. The Nation has approximately
30,000 enrolled members, and has one of the largest tribal land bases
in the country.
The San Lucy District is a political subdivision of the Nation. It
was created by Executive Order in 1882 and originally encompassed
22,400 acres of land. In 1960, the U.S. Army Corps of Engineers (Corps)
completed construction of the Painted Rock Dam on the Gila River. Both
the Bureau of Indian Affairs (BIA) and the Corps assured the Nation
that flooding would not impair agricultural use of lands within the San
Lucy District.
Nevertheless, construction of the dam resulted in continuous
flooding of nearly 9,880 acres of land within the San Lucy District,
rendering them unusable for economic development purposes. Included
among the destruction was a 750-acre farm that had previously provided
tribal revenues. The loss of these lands forced a number of the
Nation's citizens to crowd onto a 40-acre parcel of land.
Gila Bend Indian Reservation Lands Replacement Act P.L. 99-503
Congress first moved to remedy the plight of the Nation's San Lucy
District in 1982, when it directed the Secretary of the Interior to
study the flooding and identify replacement lands within a 100-mile
radius. After attempts to find replacement lands failed, Senators Barry
Goldwater and Dennis DeConcini, along with then-Congressmen John McCain
and Mo Udall, sponsored legislation to resolve the situation.
Congress enacted the Gila Bend Indian Reservation Lands Replacement
Act (Public Law 99-503) (Gila Bend Act) in 1986 to redress the flooding
of the Nation's lands.
The Gila Bend Act authorized the Nation to purchase private lands
as replacement reservation lands. It authorized the Secretary of the
Interior to take up to 9,880 acres of land in Pima, Pinal, or Maricopa
Counties into trust for the Nation, subject to certain other
requirements, and mandated that the land ``shall be deemed to be a
Federal Indian Reservation for all purposes.''
Assistant Secretary's Decision
The Nation purchased a 53.54 acre parcel (Parcel 2) in Maricopa
County, Arizona, and requested that the Secretary acquire the land in
trust pursuant to the Gila Bend Act. On July 23, 2010, Assistant
Secretary Echo Hawk issued a letter to Ned Norris, Jr., Chairman of the
Tohono O'odham Nation, stating that the Nation's request for the trust
acquisition of Parcel 2 satisfied the legal requirements of the Gila
Bend Act and that the Department was obligated to, and therefore would,
acquire the land in trust pursuant to congressional mandate. This
decision is currently the subject of several lawsuits, one of which is
pending before the United States Court of Appeals for the Ninth
Circuit.
H.R. 2938
H.R. 2938, the Gila Bend Indian Reservation Lands Replacement
Clarification Act would amend the original Gila Bend Act of 1986, by
adding at the end of ``Any such land which the Secretary holds in trust
[pursuant to the Gila Bend Act of 1986] shall be deemed to be a Federal
Indian Reservation for all purposes,'': ``except that no class II
gaming or class III gaming activities, as defined in section 4 of the
Indian Gaming Regulatory Act (25 U.S.C. 2703), may be conducted on such
land.''
The Department opposes H.R. 2938.
Congress was clear when it originally enacted the Gila Bend Act in
1986, where it stated that replacement lands ``shall be deemed to be a
Federal Indian Reservation for all purposes.'' By this language,
Congress intended that the Nation shall be permitted to use replacement
lands as any other tribe would use its own reservation trust lands.
The Gila Bend Act was intended to remedy damage to the Nation's
lands caused by flooding from the construction of the Painted Rock Dam.
The United States and the Tohono O'odham Nation agreed to the terms of
the Gila Bend Act, which included restrictions on where and how the
Nation could acquire replacement lands. H.R. 2938 would impose
additional restrictions beyond those agreed upon by the United States
and the Tohono O'odham Nation 25 years ago. The Department cannot
support unilaterally altering this agreement so long after the fact.
While the purpose of H.R. 2938 may be to restrict the Nation from
conducting gaming on the 53.54 acre parcel in Maricopa County, Arizona,
the effect of H.R. 2938 would reach all lands under the Gila Bend Act--
including those that have already been acquired.
H.R. 2938 could also alter established law that prohibits gaming,
authorized under the Indian Gaming Regulatory Act (IGRA), on lands
acquired by the Secretary into trust for the benefit of an Indian tribe
after October 17, 1988, except in certain circumstances. The effect of
this legislation would be to add a tribe-specific and site-specific
limitation to IGRA's prohibition. The process for determining whether
lands qualify for an exception to this prohibition is firmly
established.
The Department is aware that the Nation's request to acquire land
in trust for gaming purposes in Maricopa County has been the subject of
significant contention among tribes and local governments in the State
of Arizona. As previously noted, the Assistant Secretary's decision on
July 23, 2010, to approve the trust acquisition pursuant to
congressional mandate has been the source of litigation, which is still
pending. However, IGRA already establishes a process to determine
whether lands are eligible for gaming, and that question is pending
before the Department. The Department's opposition to H.R. 2938 is not
based upon any particular analysis of whether the land in Maricopa
County would be eligible for gaming, but rather for the other policy
concerns expressed in this testimony.
The Department respects Congress's authority to legislate in this
area. However, we are concerned about establishing a precedent for
singling out particular tribes through legislation to restrict their
access to equal application of the law. This Administration has
consistently held the position that fair and equal application of our
laws toward all tribes is essential to upholding the United States'
nation-to-nation relationship with Indian tribes.
For these reasons, the Department opposes H.R. 2938. This concludes
my prepared statement. I am happy to answer any questions the
Subcommittee may have.
______
Mr. Young. I thank you. Just one question, Ms. Hart. Do you
support the compacts and the intent of IGRA?
Ms. Hart. Yes, we do.
Mr. Young. OK. I believe under that compact, the Tohono
Nation, and if the tribe operates four gaming facilities, then
at least one of the four gaming facilities shall be at least 50
miles from the existing gaming facilities of the tribe in the
Tucson metropolitan area, as of the effective date; and have no
more than 645 gaming devices, and having no more than 75 card
tables.
Now, they signed onto that compact. They said nothing about
Glendale. Is that correct?
Ms. Hart. In that section of the compact they did not, you
are correct.
Mr. Young. That is right. So what I am suggesting here,
this is about location, location, location.
Ms. Hart. OK.
Mr. Young. If they were to, in fact, have the land that was
acquired before the IGRA, and they signed this compact
afterwards, it was to be in Tucson, is that correct?
Ms. Hart. Can you restate the question?
Mr. Young. Well, I mean, the land in debate here was
purchased before.
Ms. Hart. Right, OK.
Mr. Young. Now, the compact they signed was related to
Tucson, and that is a compact with the State, with all the
other tribes, including themselves.
Ms. Hart. That is correct.
Mr. Young. So why are they trying to move into an area that
doesn't even, is nowhere near Tucson? It is 100 miles away?
Ms. Hart. I believe you have to look at Section 3[j] of the
compact, which would include, which states, and I think was
read earlier in the record, that under 3[j], it does
contemplate gaming on lands that are exceptions to the 2719
prohibitions.
So Section 3[j] of the compact does contemplate other
lands.
Mr. Young. I will have to review this, because it just
appears to me, this compact is pretty telling. Mr. Schweikert,
he worked, how many times you worked on it. And I am just
curious, that is all.
Mr. Lujan. Congratulations, you got promoted.
Mr. Lujan. Well, for the time being.
Mr. Young. Right over Mr. Kildee? What is this freshman
stuff?
Mr. Lujan. I think Mr. Boren went down the line there, Mr.
Chairman. With that being said, thank you for being here,
Director Hart. It is always a pleasure to be able to visit with
you.
Do you think that this is something which Congress should
get involved in? And if so, how? And what is the role of the
State of Arizona that they should take in this situation?
Ms. Hart. I think that Congress enacted, in 1986, a
settlement Act between the Department of the Interior and the
Tohono O'odham Nation, and I think in that case that is when
Congress acted. And they mandated that the Secretary take this
action. I don't think that any further clarification needs to
be made.
Mr. Lujan. If H.R. 2938 is not enacted and the Nation is
able to move forward with their proposed plans to open a fourth
casino, current gaming compacts could be nullified. What is
your response to that?
Ms. Hart. From my reading, I actually looked at this in
2002, and then again I was asked, and I wrote a letter in 2009.
As I read the compacts, and as in the position of the
Department, is the compacts allow for, as I said, Section 3[j]
allows for land to be, land outside of the reservation to be
gamed upon, as long as it is in accordance with Section 2719 of
the Indian Gaming Regulatory Act.
And in this case, that is being looked at. And if that does
occur, that where the tribe is in compliance with the Indian
Gaming Regulatory Act, then that would not nullify the compact.
Having said that, also you are right, unless it is like a
fifth facility, which we are not aware of.
Mr. Lujan. Has the Administration made a determination to
that effect yet, one way or the other?
Ms. Hart. That is under review in the Solicitor's Office.
Mr. Lujan. Thank you, Mr. Chairman, I yield back.
Mr. Young. Just before I go to Mr. McClintock, I still
can't get around this idea there was a compact. And I think all
the tribes signed onto it, and the State signed onto it.
Ms. Hart. That is correct.
Mr. Young. Would this new land, if it was purchased, how
could you, as the Department of the Interior, issue a license
to gamble if there was no compact? Because they would have to
have a compact like the rest of them, would they not?
Ms. Hart. On the new land?
Mr. Young. Yes.
Ms. Hart. Well, because the terms of the compact itself
contemplate----
Mr. Young. No. Before any gambling took place, before any
of the tribes had gambling in Arizona, was there not a compact,
and it had to be signed by the Governor?
Ms. Hart. Yes.
Mr. Young. And it had to be set up with the Legislature?
Ms. Hart. Yes.
Mr. Young. Now, if this new land is purchased for a
gambling casino, the Governor is cut out and the Legislature is
cut out?
Ms. Hart. Well, I would not say that the Governor or the
Legislature would be cut out. I think the Governor, when he
signed the agreement, was aware of Section 3[j] in the compact.
Mr. Young. Not, see, I disagree with that. Because the land
was purchased, purchased prior to IGRA.
Ms. Hart. OK.
Mr. Young. It wasn't purchased to gamble. It was a
settlement for flooding. OK?
Ms. Hart. OK.
Mr. Young. So now, you mean to tell me that a tribe can go
to the Department of the Interior, and you can OK their
gambling, even if the State objects to it? That was never the
intent of IGRA. I was there. Kildee was here. But that was
never the intent of IGRA. It was supposed to be a cooperation.
It was done in Michigan, it has been done in California, every
one has been signed. So you mean to tell me now, the TO gets
this land, they could build a casino even though the State
objects to it?
Ms. Hart. I wouldn't say the State objected to it, because
they signed the compact in 2002, which would allow it.
Mr. Young. So did TO.
Ms. Hart. That is right.
Mr. Young. Said they would not come out of Tucson.
Ms. Hart. The compact terms itself, which is all that we
have to look at, and Class III gaming is regulated by the
compact. And I don't see anything within the bounds of this
agreement that would prohibit--and actually what it says is,
under 3[j], that the tribe can, as long as they comply with the
terms of IGRA.
Mr. Young. But the terms of IGRA says there has to be a
compact with the Governor.
Ms. Hart. That is right.
Mr. Young. Has to be. Now, what I am saying, if they get
this land and the Governor doesn't agree, and we have a letter
that says they oppose it; the Legislature opposes it, and all
but one member of the delegation oppose it; now, how could they
get the license to put a casino on there?
Ms. Hart. As I stated, the compact was signed, it had a
provision in there that allowed for after acquired land, under
3[j].
Mr. Young. No, no, we are not arguing about that. I am
suggesting, what role does the Governor and the State
Legislature have in issuing and allowing gambling on this new
land?
Ms. Hart. The compact that they entered----
Mr. Young. No, no. What role do they have now? Any role? Or
is it just going to be your Department?
Ms. Hart. The Department of the Interior is looking at that
as of right now. Under the Settlement Act, they are reviewing--
--
Mr. Young. The Settlement Act is different than the
compact.
Ms. Hart. Right.
Mr. Young. That is different. That was for flooding.
Ms. Hart. Yes.
Mr. Young. OK, just put that aside.
Ms. Hart. OK.
Mr. Young. We are talking about this new land. How can they
get a license to gamble if the State objects to it, and the
legislative body objects to it?
Ms. Hart. OK, under the Indian Gaming Regulatory Act.
Mr. Young. They have to have a compact with the State.
Ms. Hart. That is right.
Mr. Young. OK. So if the State doesn't give them a compact,
how can they have a casino on that new land?
Ms. Hart. They do have a compact, though.
Mr. McClintock. I want to keep drilling down on this point,
because I think it is very important. The crux of the argument
in favor of the bill is that the provisions of the compact
signed by the tribe limited both the number of machines and
proximity to other establishments.
Ms. Hart. That is correct.
Mr. McClintock. And that this site violates that compact.
But what you just said is no, there is an exception within the
compact itself to a land acquisition of this type. Would you
elaborate on that, please?
Ms. Hart. Section 3[j] of the compact allows for the tribe
to do gaming on land acquired after, as long as it complies
with the Indian Gaming Regulatory Act, Section 2719. And under
Section 2719 there are a number of exceptions.
One of the exceptions, and the one that applies here, is
that if the tribe has a land acquisition that was mandated by
Congress.
Mr. McClintock. So that is a very clear exception to the
restrictions in the compact, that both the State and the tribe
signed.
Ms. Hart. Correct.
Mr. McClintock. So the tribe is entirely within its rights,
under the terms of that contract, because of the nature of the
acquisition itself.
Ms. Hart. That is correct
Mr. McClintock. Mr. Chair, I have to say, I am rather
sympathetic. I had a similar situation in my district. The
Enterprise Rancheria lost its land to an inundation caused by a
dam. They have been attempting for some time to acquire
replacement property. And the first thing that happens is the
tribes with existing establishments, in this case I think it
was Auburn, ganged up on this poor little Rancheria, and tried
to shut them down.
I am very sympathetic to the situation of a tribe that is
simply trying to replace property that was destroyed by a
similar inundation, and facing the same kind of opposition from
groups that simply don't want to compete for people's business.
Mr. Young. Well, we have a difference of opinion. When the
voters went to the poll and they voted on it, they thought they
were buying the same car. They didn't expect to get a Mercedes
when they actually bid on a Volkswagen.
Mr. Kildee. No questions. Mr. Denham. See, I go down the
line according to seniority, but go ahead.
Mr. Denham. Let me first ask, Prop 202, how is that
different from Prop 1[a] and Prop 5 in California?
Ms. Hart. I am familiar with both of the Propositions, but
I am not sure what you are--I think, I am not sure.
Mr. Denham. I think they are very similar, and so I am just
trying to understand if there are any nuances there, if the
people of the State of California, for example, pass something
that they felt--I mean, I remember the ads very, very clearly.
We weren't going to have reservation-shopping, we weren't going
to have off-res gaming; tribes were not going to continue to
leap-frog other tribes and move into urban areas. Which is
exactly what it looks like is happening here. Whether you are
talking about California, or Arizona, or many other States
across the nation.
So you know, there was a set criteria. I was actually
pretty surprised that that new criteria has changed from an
administrative standpoint, and how that is going to affect
tribes across the entire nation.
You know, in the case of California, North Fork does have
property. I understand that thee are issues with that property,
the same way that Enterprise has issues there, as well. But if
we continue to allow this leap-frogging from one area to
another, I mean the '99 compacts in California allow two
casinos. So why wouldn't every tribe that has authorization for
two casinos leap-frog the next one to another opportunity that
is going to be more focused on gaming, rather than on tribal
sovereignty?
Ms. Hart. Well, the only thing I guess I can add to that is
we, in the Office of Indian Gaming for the Assistant Secretary,
we follow the Indian Gaming Regulatory Act. We interpret it,
and we follow the law as it is stated.
And in Enterprise and North Fork's case, what just happened
is that in those cases, it does go to the Governor. But that is
different from a settlement act.
Mr. McClintock. You are not following the law. You are
changing an administrative policy. You have changed what was an
administrative policy under George Bush to a new administrative
policy under President Obama.
So I guess my question is, what is the necessity to change
that policy?
Ms. Hart. There were a number of lawsuits filed under the
Bush, under the policy that was applied under the Bush
Administration. And they were all regarding the way that policy
came into effect.
And so we did, once this Administration came in, we did a
number of consultations regarding the substance of the policy.
And once we----
Mr. McClintock. OK, what are the changes in the substance
of the policy?
Ms. Hart. What we did is we withdrew the Carl Artman memo,
which added a commutability policy on how far you could go away
to do off-reservation gaming.
Mr. McClintock. Why? Why extend the distance from a
community?
Ms. Hart. Based on the consultation that we held.
Mr. McClintock. We are still not getting to the bottom of
the point. We had a set criteria of a certain amount of mileage
from their ancestral lands.
Ms. Hart. Right.
Mr. McClintock. And now we have extended that to allow a
further distance, and closer to an urban area.
Ms. Hart. I am not, I am not sure that that is what we have
done.
Mr. McClintock. OK, what have we done?
Ms. Hart. What we have done is we have withdrawn the
commutability, the Carl Artman memo. We have withdrawn that. We
have looked at, what we have to do, what we are doing now is we
are looking at each application on a case-by-case basis.
Mr. McClintock. OK. But the administrative policy that has
been changed here is extending the mileage that you can go, the
greater distance that you can go away from current tribal
lands. What is the reason for changing that mileage criteria?
Ms. Hart. I don't think that that is what it does. I don't
think we have extended the mileage that you can go away.
Mr. McClintock. Wasn't it 30, 50 now and it was 33 before?
Ms. Hart. No, no. That was, there was no----
Mr. McClintock. It is the Administration's policy; I would
expect you to know. But I will make sure before my next round
of questioning that I get the answer for you.
Ms. Hart. Well, in the Carl Artman memo, there was a
commutability distance. And basically it wasn't a mileage, it
was, is the distance from your existing reservation to where
you want to go a commutable distance. So there was no mileage.
Mr. McClintock. And how is commutable defined?
Ms. Hart. What we did is we looked at a number of different
definitions on that. And so, under the Carl Artman memo--and
then what the problem was, is under the APA we didn't do
consultation, and that memo was enacted.
So we came back, we did the consultation, and we said it is
a case-by-case basis. Still, again, under Carl Artman, there
was no set number of how far is commutable. Because in each
case, like in D.C., a commutability distance would be a little
bit further out than if you go into the middle of Wyoming. So
now that is how we are looking at it.
Mr. Young. Thank you, time is up. Mr. Eni.
Mr. Faleomavaega. Thank you, Mr. Chairman. Ms. Hart, I am
trying to follow the line of questioning the Chairman is
asking, and I am just trying to get in my own mind exactly the
sequence here.
Congress passes IGRA in 1988, and allows States to have
contract agreements with tribes to establish gaming operations.
Arizona is one of those States that has this agreement with,
what, 17 tribes I understand. Tohono, as well as the Gila Bend
Tribe, all the others are all part of the compact.
Ms. Hart. Right.
Mr. Faleomavaega. Apparently one of the tribes has
expressed concern that the Tohono is not complying with the
provisions of that contract agreement. And the reason for
Congressman Franks's proposed bill is simply to express the
will of Congress, and tell the Tohono Tribe go back to the
agreements that you made with the contract.
Now you are saying the Department of the Interior opposes
the bill.
Ms. Hart. Right.
Mr. Faleomavaega. Can you explain exactly why the
Department of the Interior opposes the bill, again?
Ms. Hart. Yes. Because the Department cannot support a
unilateral altering of an agreement 25 years after the
agreement, when the Tohono O'odham and the United States made
an agreement back then to change the terms of those agreements.
Mr. Faleomavaega. Would it be possible for the other tribes
to take the Tohono Tribe to Court? Simply the fact that there
is a contractual relationship with the State, one tribe isn't
complying, so could this matter have been taken to the Court?
Ms. Hart. Yes, I believe it is being litigated.
Mr. Faleomavaega. Or the other option is to come to the
Congress and provide a remedy directly. And you are saying that
the Department of the Interior does not allow unilateral, what
was it again?
Ms. Hart. Well, Congress certainly can do whatever they
choose. The Department's position is we don't unilaterally
support, we don't support a unilateral change.
Mr. Faleomavaega. What would be your recommendation to cure
the concerns that Congressman Franks has shared with the
members of the Committee?
Ms. Hart. I believe, based on that, I think the Tohono
O'odham Tribe should be a part of the agreement.
Mr. Faleomavaega. I know, we understand that. They are part
of the agreement. But again----
Ms. Hart. Well, clarification, then.
Mr. Faleomavaega. Well, not really for--how would you
remedy the situation where these other tribes have expressed
concerns that the Tohono Tribe is not acting in compliance with
this contract, which is authorized by IGRA?
Ms. Hart. The difficulty is, under the terms of the
compact, all of the tribes have----
Mr. Faleomavaega. Wait, wait, compact. What do you mean,
the contract?
Ms. Hart. The compact, the Tribal-State Compact, which 17
tribes signed off on.
Mr. Faleomavaega. OK.
Ms. Hart. Under the terms of that compact, all of the
tribes agreed that as long as a tribe--any of them could do
this, any one of them could do this--as long as they comply
with Section 2719 of the Indian Gaming Regulatory Act, then
they have agreed to, they have agreed to this.
Mr. Faleomavaega. OK, I am visiting the Tohono Tribe
reservation, if you call it. How far is the tribal location
from the City of Glendale? I know it is closer to Tucson than
it is to Phoenix.
Ms. Hart. Right.
Mr. Faleomavaega. So how far is it from Glendale?
Ms. Hart. We did do a number of maps on that specific
number, but we did it from a different, a bunch of different
areas. And I think it went from 53 miles in certain parts of
the reservation, to like 117 miles. And then that varies
depending on driving distance and a straight-line distance.
Mr. Faleomavaega. It was part of the prohibitions not to do
anything outside 50 miles? Can you elaborate this 50 miles that
we talked about earlier? Restriction, or was it allowable under
the law for, for the Tohono Tribe to purchase, was it to
purchase the land in Glendale to conduct a----
Ms. Hart. I believe the part, you are talking about on the
settlement agreement?
Mr. Faleomavaega. I am talking about Glendale. This seems
to be where the land is in controversy.
Ms. Hart. Right.
Mr. Faleomavaega. OK. And the Tohono Tribe wants to
purchase, right? To conduct a casino or whatever.
Ms. Hart. Right.
Mr. Faleomavaega. How far is that from the Tohono
Reservation?
Ms. Hart. Depending on, because of the size of the
reservation, depending on where you are, it is between 53 and
about 117 miles.
Mr. Faleomavaega. So it is beyond the 50-mile, if there is
a restriction, beyond 50 miles or whatever?
Ms. Hart. It is beyond, yes.
Mr. Faleomavaega. It is further than 50 miles then, OK. All
right, Mr. Chairman, my time is up. Thank you.
Mr. Young. Before I go to Mr. Gosar, Ms. Hart, we
requested, you are a career employee, right?
Ms. Hart. That is correct.
Mr. Young. Yes. So before we are too cruel to her, we
requested a political appointee to be here, somebody that was a
little higher ranked. And they put poor Ms. Hart into the
briar's patch, gentlemen, so just keep that in mind. So that as
you beat up on her, be kind.
She is doing very well for herself, but I am just saying, I
would prefer, Mr. McClintock, that we had somebody, when we ask
the Administration, they send somebody we asked for. And this
is one of the gripes I have had in this Committee in every
Administration. They sort of thumb their nose at the Congress,
and it just really frustrates me. If you guys don't understand
that, you had better understand it because we are equal
branches of the government. When we request somebody come up
here, we want them up here. But conveniently, they are all out
of town today. I would like to check their travel schedule and
see where they really are.
[Laughter.]
Mr. Young. This is not the only Administration I have this
complaint about, so just keep it in mind. Because when we do
allow them to do what they have done to us today from that side
of the aisle, they are thumbing their nose at us. It is time
that stops.
What is wrong with this nation today? There is no king. If
you read the Constitution very closely, it is the Congress that
is to lead this nation, and the Congress is to make the laws of
the nation, not the President and his Executive Order. We
should be ashamed allowing this to happen.
Mr. Gosar, if you are ready.
Dr. Gosar. And I am sorry that you have to answer this, but
you work for the government, and therefore, there comes the
work. So is the Department unified on this decision? Is your
Department unified in this decision, that you have come forward
that you are against this bill?
Ms. Hart. Yes, the Department has approved the statement
that I have made today, yes.
Dr. Gosar. OK. So now let me ask you a question. What took
you so long for the deliberation in this process? Because there
is something wrong here, there is something very wrong here.
In our world, if this was Wall Street, this is called
insider trading, OK?
Ms. Hart. Yes.
Dr. Gosar. That is wrong. And you know this is wrong.
Because what has happened is, everybody is sitting at the table
playing cards, but we have a hidden card here. And we knew all
along. We should have been telling the Tohono O'odham this was
wrong, and that it violated the whole precedence of this
decision.
Because what you did is you put the, subjugated the whole
State of Arizona, every part of the compact, to this breach.
Because they knew something about an insider-trading issue.
That is where you should have gone, this is where you went
wrong, is that you should have adjudicated something saying you
are wrong here. Because you could have used this for any other
thing here, but you had insider trading. You should have come
forward within this compact, but you knew in the context of
this legal agreement, this binding agreement, that you put,
that we put, Congress put all parties at the table.
They didn't just put the Tohono O'odhams; they put all the
tribes there.
Ms. Hart. Right.
Dr. Gosar. They put the State there. And they not only
said, not allowed it, but demanded a compact. Did they not?
Ms. Hart. I believe so.
Dr. Gosar. So if it was insider trading, why haven't you
said this is wrong?
Ms. Hart. This issue is being litigated.
Dr. Gosar. OK, then let us step back again. Thee are a
number of ways. I mean, a lot of times the quandary for
litigation has to do because of the jurisdiction of the tribes.
It rests with Congress, and Congress only, does it not?
Ms. Hart. Yes.
Dr. Gosar. Wouldn't it be interesting to acknowledge that
there was a de facto problem here? I know we spent years and
years and years going over criminal jurisdictions within tribal
aspects versus our normal code. They are similar, but they are
not perfect.
Now, we are going into an area that has vastly never been
explored, is that true?
Ms. Hart. Yes.
Dr. Gosar. Wouldn't it be interesting to have the dialogue
saying we have a problem here, but actually acknowledging that
the problem is here? Because we have had a problem here. What
is wrong is wrong, and this is wrong. And then you can work out
the rest.
But to have insider trading, having insider information, is
desperately wrong. I don't care if you cut it thin, it is still
ham. And I find this, I find this very repugnant, that we are
even having this discussion based on the individuality breakup
of tribes. On a compact and an agreement. This makes everybody
look horribly wrong, horribly bad. And it is for greed. It is
for greed.
Because I look at all the tribes, and I serve a lot of the
tribes. And what is going to happen if this goes forward, there
is no agreement that is sacred any more. Nothing. And that is
where you should be principally held upon, is the rule of law.
And I have a lot of disdain for what is going on right here.
This is horrible.
And that is why I asked you the question, that there is
more to this. And I would have hoped that everybody in this
Department would have well taken this into consideration, that
this law was a quandary that was put in, in this exception.
With insider trading, that supersedes the wrong on anything
else here. And then we can reevaluate the law. I think that is
what is horrible here.
So I am sorry to say that I, at least, can see wrong, right
from wrong. And I know that there are 16 other tribes in this
same quandary in Arizona. I also know the State is doing the
same thing. Because we shouldn't be in the aspect of making
laws from an administrative capacity. It should come from
Congress. It should go through the right process.
So with that, I am going to say pass it up the buck.
Mr. .Grijalva Thank you, Mr. Chairman.
Mr. Young. You are ready.
Mr. Grijalva. No similarity, but just to point out, I think
the Chairman made an excellent point about the will of Congress
and the role of Congress. And legislation to acquire trust land
that I proposed for the Cocopah in the Yuma area, there is a
prohibition against gaming if that land were to be acquired.
That prohibition was part of the legislative process, part of
the will of Congress to include that, and with the consent of
the Cocopah Nation.
The return of lands that were taken from the Colorado River
tribes is something we were successful in returning to that, to
that Nation years ago. Again, the prohibition existed. I didn't
like the prohibition, but that was the way the legislation was
going to move, and we got the consent of the Colorado River
tribe to allow that provision of no gaming on their newly
acquired land.
Let me ask Ms. Hart, has the other Nations legal, you know,
what they are doing now, in going through asking both the
Department of the Interior and the National Gaming Commission
for a determination on whether that West Valley land is
eligible for gaming? Is that appropriate and legal, and is it
legal under the compact?
Ms. Hart. That is part of the process for doing gaming on
the land, yes.
Mr. Grijalva. And I understand that we are dealing with
issues of location, issues of, all the issues that have been
allowed here. But I want to reiterate, and enter it into the
record, that under the compact itself, the exceptions
explicitly listed there for settlement land is there. And I am
assuming that is why the Nation is going through the process to
validate and verify and legally get the reading on that
exception.
Ms. Hart. That is correct.
Mr. Grijalva. Let us walk back in history before we jump
too far ahead. In 1986, did gaming exist when the Settlement
Act was passed?
Ms. Hart. Gaming did exist, yes.
Mr. Grijalva. OK. And was there a prohibition on gaming on
newly acquired trust lands in 1986?
Ms. Hart. Not that I am aware of.
Mr. Grijalva. And Congress was considering legislation to
regulate Indian gaming generally, and to prohibit gaming on
newly acquired lands, prior to and during 1986?
Ms. Hart. The hearings on gaming started in 1984.
Mr. Grijalva. So Congress, in their Settlement Act, if they
wanted to prevent the Nation from gaming on land it acquired
under that Settlement Act, wouldn't they have, wouldn't now-
Senator McCain and then-Senator DeConcini explicitly say so in
that piece of legislation?
Ms. Hart. Yes, they could have done that.
Mr. Grijalva. And both of them were working on the IGRA
legislation at that same time. And so the settlement occurred
almost at that period of time, and before--and I hope I have my
dates right, because thee are about 28 lawyers in the audience,
and I am sure they are checking that right now.
The other proposition that I feel is important to ask you
about. Do you feel, I think it was asked, as a general
proposition that Congress, after the fact, should feel free to
unilaterally amend an Indian land or a water rights settlement
without the consent of the tribe? And this process allows
consent to be the issue, which that settlement was originally
negotiated on. Whether it is water, whether it is this
settlement issue that we are talking about. And settlement
questions that abound all across this country. I think that is
the precedent that I want to ask about.
Ms. Hart. Yes. The Department cannot support the unilateral
altering of agreements such as that.
Mr. Grijalva. There is--no, that should do it. Thank you,
Mr. Chairman.
Mr. Young. I thank the gentleman and his passion for his
position on this. My concern is when Moe Udall and I, and Moe
Udall was sitting right here, and I was sitting right there.
And we definitely always made the agreement in IGRA that there
would have to be an agreement from the Governor and a
legislative body. Otherwise there would be no gambling. And
that is my biggest concern with this whole thing.
I got a letter from a Governor, I got a letter from
everybody, and we thought this was a way to make everybody work
together. And basically it worked all this time. This is the
first time, I think, since IGRA where we have had a leap-
frogging aspect. And I go back to the deal about Tucson; I am
all for it, a casino in Tucson. I think it is going to be a
good idea.
But that bothers me when we are now, the Department is
saying we don't need to have that compact doesn't mean
anything, and the State doesn't play a role in it, I think
there is something wrong. Because that was never our intent.
And I challenge anybody to dispute me. Go back and look up the
report and the language we had when we passed IGRA. By the way,
we were criticized for it at that time, too.
But anyway, let me see, who is up next? Mr. Schweikert.
Mr. Schweikert. Thank you, Mr. Chairman. I was teasing Mr.
Franks because he is now the Ranking Member of our delegation.
Is it Ms. Hart?
Ms. Hart. Yes.
Mr. Schweikert. Ms. Hart, how long have you been in this
area of specialization?
Ms. Hart. Almost 20 years.
Mr. Schweikert. Twenty years. Have you ever wanted to just
go beat up your career counselor?
[Laughter.]
Mr. Schweikert. Oh, come on, that was funny.
[Laughter.]
Mr. Schweikert. Do you remember, were you covering Arizona
at the time, we will call it the original compacts, 1993? Yes,
I think that was when we did the first set.
Ms. Hart. That is right. Yes, yes, I would have been.
Mr. Schweikert. And this is partially also for the members
of the Committee. Then I believe actually sort of the update of
that was, what, 2002?
Ms. Hart. Yes.
Mr. Schweikert. And that was actually done through an
initiative process, I believe.
Ms. Hart. That is correct.
Mr. Schweikert. The gambling tribes, if that is the proper
way to phrase it, got together and actually put something on
the ballot. And if I also remember at that time there was also
a competing initiative, and this is me reaching my brain back a
little bit, for some of the horse-racing they had also wanted.
You know, racinos. And the public voted that one down.
Ms. Hart. Yes.
Mr. Schweikert. Is my memory serving me OK?
Ms. Hart. That seems correct, yes.
Mr. Schweikert. Did you pay attention to sort of that
language that was part of that initiative in 2002?
Ms. Hart. Well, when the Tribal-State Compact comes into
the Gaming Office, we are bound to look at what is in front of
us. Any agreements--the Indian Gaming Regulatory Act clearly
states that Class III gaming is regulated by a Tribal-State
Compact. So that agreement that is in front of us is what we
review.
Thee are very limited circumstances in which we can
disapprove a compact. So we look at the terms of the compact
that is in front of us.
Mr. Schweikert. OK. You have actually just hit a very
interesting point, and I want to make sure. So in many ways you
are sort of an overseer, but ultimately this really is an
agreement between the State and the tribal communities.
Ms. Hart. That is correct.
Mr. Schweikert. I mean, that is who is actually making this
deal. You are sort of the, you know, the sort of stamp of
approval on top of that.
Ms. Hart. Yes, to make sure it is legal.
Mr. Schweikert. Because my memory of that initiative in
2002, which the public all over the State voted for, and
actually voted for overwhelmingly, was that--and literally, I
can actually picture these gigantic brochures. They must have
spent a fortune with their printers. Talking about there would
be seven casinos within the, you know, around the Maricopa
County urban area. But with it also that there would be a
transfer of rights to certain gaming machines from rural tribes
that did not have urban populations transferred over to those.
Does that seem familiar?
Ms. Hart. Yes.
Mr. Schweikert. Doesn't this cause some mechanical issues,
if that is the agreement between the State and the gaming
tribes? That A, we told the public seven, and this I think
would blow that number up. But you also, what would happen to
these contracts between the tribes and the State if that
racino, you know, if the dog track or horse track had gone
through? You know, if all of a sudden I woke up tomorrow and
there was Class III gaming at the local horse-racing track.
Ms. Hart. The exclusivity provisions in the compact would
be violated.
Mr. Schweikert. And with the violation of that, then boom,
functionally the tribal communities would have the choice just
to put in whatever they chose. I mean, race books, anything,
because at that point we have blown up the Class III
restrictions?
Ms. Hart. Well, it would have to be legal in the State.
Mr. Schweikert. OK. But isn't the definition of legal in
the State that a class of gaming, not actually the individual
activity, but it is a class definition. This is something that
used to drive me nuts getting my head around, that a lottery, a
State lottery is, what, a Class II?
Ms. Hart. Yes.
Mr. Schweikert. And yet, now slot machines, are they Class
II or Class III?
Ms. Hart. Class III.
Mr. Schweikert. Class III. So if I had slot machines at a
horse track, then I can have all types of Class III. I mean, it
would blow up in everything within Class III. Is there anything
above Class III?
Ms. Hart. No.
Mr. Schweikert. OK, so it is everything.
Ms. Hart. Right.
Mr. Schweikert. And that sort of makes that circle back
around, that the public, statewide, had a vote. We were
promised seven in the urban area; this blows that up. And my
great fear back again comes, that if this does blow up and we
end up having that initiative back on the ballot again, where,
for money for the State budget or whatever the excuse is, they
try to put, you know the cascade. It blows it all up.
Thank you, Mr. Chairman, for tolerating me.
Mr. Young. Do you have a question, Mr. Franks? We want to
thank the witness. And remember to go down and tell your bosses
don't do that to me again. And I am going to have them in front
of me if I have to subpoena them, that is what I am going to
do. It is not fair to you, Ms. Hart, believe me.
Ms. Hart. Thank you.
Mr. Young. We will call the next panel: the Hon. Diane
Enos, Salt River Pima-Maricopa Indian Community; the Hon. Arlen
Quetawki, Governor of the Pueblo of Zuni; the Hon. Ned Norris,
Chairman of the TO Nation; Mr. Eric Bistrow, Chief Deputy,
Office of the Arizona Attorney General; and the Hon. Robert
Barrett, Mayor of the City of Peoria, Arizona. Please take your
seats.
Diane, honorable President, you are up first. Make sure
your microphone is on, and take your time. And I think you all
know the rules: five minutes, and I will maybe be a little lax,
but not too lax.
Oh, I have to say happy birthday, too. I probably should
sing you happy birthday, but someone might say I was prejudiced
that way, so I better not. So happy birthday.
STATEMENT OF THE HONORABLE DIANE ENOS, PRESIDENT, SALT RIVER
PIMA-MARICOPA INDIAN COMMUNITY
Ms. Enos. Thank you. I am trying to get comfortable here.
Thank you, Chairman. I would ask that my written testimony be
included as part of the record in these proceedings.
Today I am joined by two members of our community council:
Councilwoman Diana Chavez and Councilman Tom Largo. In addition
I would like to also recognize Chairwoman Louise Benson of the
Hualapai Tribe in northern Arizona, Councilman Irwin Twist of
the Cocopah Tribe in southwestern Arizona, Councilman Paul
Russell with the Fort McDowell Yavapai Nation, Councilman
Barney Enos of the Gila River Indian Community.
These tribal leaders have traveled long distances from the
corners of Arizona to show support for the legislation which
will prevent a serious injustice to their communities and the
voters of Arizona. A dozen tribes formally oppose these ill-
advised efforts by the Tohono O'odham Nation. Not one Arizona
tribe has voiced support for Tohono's efforts to establish an
off-reservation casino in the aboriginal territory of my
community.
First, aboriginal territory. Tohono's reservation, the
second-largest tribal homeland in the United States, is in
southern Arizona along the border. I included in my written
testimony a map that shows the aboriginal tribal areas in
Arizona, as recognized by the Indian Claims Commission.
As the map shows, the City of Glendale, where Tohono is
seeking to develop their casino, is clearly in the aboriginal
lands of the Pima-Maricopa, my community, not the Papago who
comprise Tohono.
Second, broken promises are key. Our current Arizona Gaming
Compact is the result of a united effort by tribes in the 1999
to 2002 period to negotiate with the State to revise and extend
the prior compacts. I had the privilege of being an elected
tribal leader then, as well, and Salt River was involved in the
entire process.
My views today are based on my personal experience and
discussions with other tribes who were also involved during the
compact negotiations, and the subsequent initiative process
that was required to approve the compact. We all agree on the
following key points.
Number one. All of the 17 tribes negotiating with the
State, including Tohono, bound ourselves together by written
agreement to support each other and the positions taken as a
unified group. We promised each other that if we could not
support the common positions taken by the group, or acted
inconsistently with those common positions, we would inform the
others, so that they could take actions accordingly.
Number two. We all agreed, in response to an initial demand
from the State, that there would be a reduction in the total
number of casinos in the Phoenix metro area from 11 to seven;
and that there would be no new casinos in that area. This was a
deal-breaker for the State from the very beginning of
negotiations.
We, along with Tohono, then made the same promise to the
voters of Arizona in written materials that I have included as
part of my written testimony. What is up there is the agreement
in principle that was signed by all of the tribes, including
Tohono.
The promise that we made to the voters of Arizona and
written materials I have also included as part of my written
testimony. Tohono was a major contributor to that campaign, and
was involved in its direction and execution throughout. That is
my recollection and that of other tribal leaders with whom I
have spoken, some of whom are here with me today.
I need to be crystal-clear on this one point. We believed
then, and we believe now, that we had a clear agreement with
Tohono that there would be no new casinos in Phoenix. Whatever
else you take away from my testimony today, I hope that you
understand how we view that very fundamental question.
Now, I have heard the current Chairman of Tohono say in
response that the words of the voter materials and of the
Governor and our own are just that, words. He points to the
papers and says, where in this document have we made that
promise, or, where has Tohono signed an agreement, a document
that says that. This saddens and disturbs us, but it is also
what motivates us to be here today. Because in our tribal
cultures, one's word ought to be enough. Tribes should not have
to worry about whether we can trust the word of another tribal
government. Yet that is what we have today.
Tohono is now seeking to use a 1986 Federal law to bypass
the promise it has made to Arizona voters and tribes. Tohono is
manipulating the 1986 law to avoid the prohibition against off-
reservation gaming, to develop a casino in Glendale, in direct
violation of the promise that there would be no new casinos in
the Phoenix metropolitan area. This is wrong, unfair, and
Congress should stop it.
The Gila Bend Act of 1986 was an honorable effort by
Congress to provide compensation and replacement lands to the
people of the San Lucy District of the Tohono O'odham Nation.
But it was not a promise that Tohono could operate casinos on
that land, nor could it have been, as it was passed well before
the Indian Gaming Regulatory Act of 1988.
The fact that they are here today arguing for the right to
build a casino in Phoenix, in direct violation of their word to
us and all the other affected tribes in Arizona, and the voters
in Arizona, is perhaps the most compelling reason I can offer
as to why this legislation is absolutely necessary.
Thank you for the opportunity to testify. I will be happy
to answer any questions the panel may have.
[The prepared statement of Ms. Enos follows:]
Statement of Diane Enos, President,
Salt River Pima-Maricopa Indian Community
Executive Summary
The Salt River Pima Maricopa Indian Community (``Community'') would
like to thank Rep. Trent Franks (R-2nd/AZ) along with Reps. Paul Gosar
(R-1st/AZ), Ben Quayle (R-3rd/AZ), David Schweikert (R-5th/AZ), and
Jeff Flake (R-6th/AZ) for sponsoring this important legislation, H.R.
2938, the ``Gila Bend Indian Reservation Land Replacement Clarification
Act.'' We also want to thank Representative Dale Kildee, long a
champion of tribal rights, for his co-sponsorship of this bill.
This bill will prevent gaming on lands acquired by the Tohono
O'odham Nation (``Nation'') in Arizona pursuant to the Gila Bend Indian
Reservation Lands Replacement Act in 1986 (P.L. 99-503, 100 Stat. 1798)
(``Gila Bend Act'') and protect the current Indian gaming structure in
Arizona.
H.R. 2938 is necessitated by the Nation's efforts to manipulate the
Gila Bend Act in a manner that would directly violate their commitments
made in the current Arizona compacts. The Nation is currently trying to
utilize the 1986 Gila Bend Act to acquire lands more than 100 miles
from its existing reservation, in our tribe's aboriginal lands,\1\ to
develop a casino in the Phoenix metropolitan area.
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\1\ The map attached as Exhibit 1 clearly demonstrates that the
lands in Glendale are the aboriginal lands of the Pima Maricopa people,
not the Papago (who are now represented by the Nation).
---------------------------------------------------------------------------
Congress passed the Gila Bend Act in 1986. The purpose of this law
was to allow the Nation to replace up to 9,880 acres of primarily
agricultural lands that were being intermittently flooded due to
Federal dam projects. These lands were located in southern Arizona near
the existing reservation of the Nation. The law provided $30 million to
the Nation to purchase replacement lands.
While there is no mention of gaming in this law, two years later
Congress passed the Indian Gaming Regulatory Act (25 U.S.C. 2701, et
seq.) (``IGRA''), which specifically restricted the ability of Indian
tribes to conduct gaming activities on lands acquired after October
1988, except in certain very narrow circumstances.
The Nation is now asking that the Secretary of the Interior take a
fifty-three acre portion of this land near Glendale, Arizona into trust
status for the purpose of developing a Las Vegas-style casino on it.
The Nation argues that the Gila Bend Act mandates the Secretary to do
so, and to do so without any consultation with the local communities,
the State, or other American Indian tribes in Arizona despite the
prohibitions in IGRA and the promises made by the Nation during the
Compact negotiations and the Prop 202 process.
While the Secretary of the Interior has not yet opined on whether
these lands would be eligible for gaming, he has issued a decision to
take the lands into trust status. A federal district court has issued
an injunction prohibiting the Secretary from doing so until the appeals
from that decision have run. The Gila Bend Act was passed before IGRA
and was not intended to allow for gaming on these lands. Congressman
Franks' bill would clarify Congress' intent.
In addition to seeking to sidestep the limits of the Indian Gaming
Regulatory Act, the efforts of the Nation also jeopardize a well-
balanced system of gaming in Arizona, that the Nation helped to
construct. The State of Arizona is unique in that it has a system of
gaming that was jointly negotiated amongst the tribes and the State,
and then approved by the citizens of Arizona in a state-wide
referendum. The Arizona system prohibits any additional casinos in the
Phoenix metropolitan area, but allows the Nation to develop a fourth
casino (the Nation currently operates three successful casinos) in the
Tucson metropolitan area, where the Nation has historically been
located.
The Nation financially and publicly supported the development of
the current gaming system in Arizona.\2\ However, unbeknownst to the
other tribes, the State and the voters of Arizona, at the same time
that it was advertising to the voters and other tribes that there would
be no new casinos in the Phoenix area, the Nation was entering into a
confidential agreement with a realtor to buy land in the Phoenix area
for a casino.
---------------------------------------------------------------------------
\2\ The Tohono O'odham Nation was a major contributor to the entire
referendum process, contributing over $1.8 million, and participating
in the direction and implementation of the campaign throughout. One
particularly telling example of the promise that they were endorsing in
the campaign materials for the Compact is attached as Exhibit 2. In it,
on page 5, appears the following text:
``Q. DOES PROP 202 LIMIT THE NUMBER OF TRIBAL CASINOS IN ARIZONA?
``A. YES, IN FACT, PROP 202 REDUCES THE NUMBER OF AUTHORIZED GAMING
FACILITIES ON TRIBAL LAND, AND LIMITS THE NUMBER AND PROXIMITY OF
FACILITIES EACH TRIBE MAY OPERATE. UNDER PROP 202, THERE WILL BE NO NEW
ADDITIONAL FACILITIES AUTHORIZED IN PHOENIX, AND ONLY ONE ADDITIONAL
FACILITY PERMITTED IN TUCSON.''
---------------------------------------------------------------------------
Twelve American Indian tribes in Arizona oppose the efforts of the
Nation to develop a casino in the Phoenix metropolitan area; as does
the Governor of Arizona and the Cities of Glendale, Phoenix, Scottsdale
and others, and no other Arizona Indian tribe has indicated support of
the casino development.
Congress did not intend this type of situation to occur when it
passed the Gila Bend Act. H.R. 2938 would bring some common sense to
this situation and clarify that lands purchases through the Gila Bend
Act cannot be used for gaming, confirming the promises made by the
Nation in 2002 to the tribes, to the State and the voters of Arizona.
H.R. 2938 will not make any amendments to the Indian Gaming Regulatory
Act. The bill would not take any lands away from the Nation, nor will
it prevent any lands from going into trust status. The bill will only
prohibit the Nation from conducting gaming on lands acquired pursuant
to the Gila Bend Indian Reservation Lands Replacement Act of 1986 which
is critical in order to be able to protect the entire Arizona Indian
gaming structure.
I. H.R. 2938
As its title makes clear H.R. 2938 clarifies the Gila Bend Act to
expressly prohibit Class II or Class III gaming, as defined in IGRA, on
lands placed into trust pursuant to the Gila Bend Act. H.R. 2938 is a
simple one sentence amendment that clarifies that the Gila Bend Act was
not intended to authorize gaming on newly acquired lands.
H.R. 2938 does not jeopardize tribal sovereignty nor create
negative precedent for Indian Country. H.R. 2938 simply seeks to
clarify that Las Vegas-style gaming is not permitted on land acquired
pursuant to the Gila Bend Act. In fact, this type of legislative
restriction is common in Indian Country. Congress has included various
restrictions in legislation involving Indian land, particularly gaming.
For instance, it is not unusual for Congress to revisit existing
statutes to clarify that gaming is prohibited, so long as the
legislation is narrowly tailored. \3\ Similarly, legislative bills
consistently grant federal recognition to tribes or grant land-into-
trust status with an explicit provision prohibiting gaming pursuant to
IGRA. \4\ This is a proper and necessary role for Congress.
---------------------------------------------------------------------------
\3\ See e.g., the Rhode Island Indian Claims Settlement Act,
settling the Narrangansett's land claims, was enacted in 1978 without a
provision regarding gaming. 25 U.S.C. Sec. 1701 et seq. Congress
subsequently amended the Rhode Island Indian Claims Settlement in 1996
to explicitly prohibit gaming pursuant to IGRA. See 25 U.S.C.
Sec. 1708(b) (``For purposes of the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.), settlement lands shall not be treated as Indian
lands''). See also, the Colorado River Indian Reservation Boundary
Correction Act, to clarify or rectify the boundary of the Tribe's
reservation while also including a provision prohibiting gaming (``Land
taken into trust under this Act shall neither be considered to have
been taken into trust for gaming nor be used for gaming (as that term
is used in the Indian Gaming Regulatory Act (25 U.S.C. 2701 et
seq.)''), Pub. L. 109-47 (Aug. 2, 2005); Congress passed legislation to
waive application of the Indian Self-Determination and Education
Assistance Act to a parcel of land that had been deeded to the Siletz
Tribe and Grand Ronde Tribe in 2002 but also included a gaming
prohibition provision (``Class II gaming and class III gaming under the
Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) shall not be
conducted on the parcel described in subsection (a)'') Pub. L. 110-78
(Aug. 13, 2007); Congress clarified the Mashantucket Pequot Settlement
Fund, 25 U.S.C. Sec. 1757a to provide for extension of leases of the
Tribe's land but provided that ``No entity may conduct any gaming
activity (within the meaning of section 4 of the Indian Gaming
Regulatory Act (25 U.S.C. 2703)) pursuant to a claim of inherent
authority or any Federal law (including the Indian Gaming Regulatory
Act (25 U.S.C. 2701 et seq) and any regulations promulgated by the
Secretary of the Interior or the National Indian Gaming Commission
pursuant to that Act) on any land that is leased with an option to
renew the lease in accordance with this section.''), Pub. L. 110-228
(May 8, 2008); Congress passed the Indian Pueblo Cultural Center
Clarification Act which amended Public Law 95-232 to repeal the
restriction on treating certain lands held in trust for the Indian
Pueblos as Indian Country with the explicit clarification that although
it was Indian Country it could not be used for gaming (``Gaming, as
defined and regulated by the Indian Gaming Regulatory Act (25 U.S.C.
2701 et seq.), shall be prohibited on land held in trust pursuant to
subsection (b).'') Pub. L. 111-354 (Jan. 4, 2011).
\4\ See e.g., Hoh Indian Tribe Safe Homelands Act, Pub.L. 111-323
(Dec. 22, 2011), transferred federal and non-federal land to the Hoh
Indian Tribe. The legislation specifically provided that ``[t]he Tribe
may not conduct on any land taken into trust pursuant to this Act any
gaming activities--(1) as a matter of claimed inherent authority; or
(2) under any Federal law (including the Indian Gaming Regulatory Act
(25 U.S.C. 2701 et seq.) (including any regulations promulgated by the
Secretary of the National Indian Gaming Commission pursuant to that
Act)); the Omnibus Public Land Management Act of 2009 included a land
transfer to the Washoe Tribe but restricted the use of land for gaming:
``Land taken into trust under paragraph (1) shall not be eligible, or
considered to have been taken into trust, for class II gaming or class
III gaming (as those terms are defined in section 4 of the Indian
Gaming Regulatory Act (25 U.S.C. 2703)) Pub. L. 111-11, 123 Stat. 1115
(Mar. 30, 2009); Pechanga Band of Luiseno Mission Indians Land Transfer
Act of 2007, Pub. L. 110-383 (Oct. 10, 2008) transferred federal land
in trust to the Pechanga Reservation but prohibited gaming such that
``[t]he Pechanga Band of Luiseno Mission Indians may not conduct, on
any land acquired by the Pechanga Band of Luiseno Mission Indians
pursuant to this Act, gaming activities or activities conducted in
conjunction with the operation of a casino--(A) as a matter of claimed
inherent authority; or (B) under any Federal law (including the Indian
Gaming Regulatory Act (25 U.S.C. 2701 et seq.) (including any
regulations promulgated by the Secretary or the National Indian Gaming
Commission under that Act))''; Albuquerque Indian School Act, Pub.L.
110-453 (Dec. 2, 2008) that authorized the Department of Interior to
take land into trust for the benefit of nineteen (19) pueblos and
included a prohibition on gaming: ``No gaming activity (within the
meaning of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.))
shall be carried out on land taken into trust under section 103(a)'';
Congress passed a bill to provide for lands to be held in trust for the
Utu Utu Gwaitu Paiute Tribe and included a gaming restriction: ``Lands
taken into trust pursuant to subsection (a) shall not be considered to
have been taken into trust for, and shall not be eligible for, class II
gaming or class III gaming (as those terms are used in the Indian
Gaming Regulatory Act (25 U.S.C. 2701 et seq.))'', Pub. L. 109-421
(Dec. 20, 2006).
---------------------------------------------------------------------------
This continues to be a consistent practice of Congress. Recently,
Congressman Grijalva introduced the Cocopah Lands Act (H.R. 1991), a
bill to transfer land in trust to the Cocopah Tribe and included a
provision restricting gaming. (``Land taken intro trust for the benefit
of the Tribe under this Act shall not be used for gaming under the
Indian Gaming Regulatory Act''). See Exhibit 3.
The Community supports H.R. 2938 because it is narrow in scope,
does not impact tribal sovereignty and is the simplest solution to this
current threat to Indian gaming in Arizona. Instead, this legislation
merely makes express what had been the common understanding of the
rights and remedies available under the Gila Bend Act.
II. The Gila Bend Act Did Not Create a Right to Conduct Gaming
In 1950, Congress enacted the Flood Control Act, Pub. L. No. 81-
516, 64 Stat. 163, authorizing the construction of the Painted Rock Dam
in central Arizona. The Painted Rock Dam was built ten miles downstream
from the Nation's Gila Bend Reservation, which was held in trust by the
United States for the benefit of the Nation. H.R. Rep. No. 99 851 at 4
(1986). Before completion of the dam, the Army Corps of Engineers (the
``Corps'') repeatedly attempted to obtain a flowage easement over the
lands (both Indian trust lands and non-Indian fee lands) that would be
intermittently flooded as a result of the dam's construction. Id. at 5.
Because the Corps could not reach an agreement with the Nation or other
non-Indian landowners, it eventually instituted condemnation
proceedings in federal district court. Id. Through those proceedings,
the Corps obtained a condemnation of fee title for the non-Indian lands
and a flowage easement for the affected Indian and non-Indian lands
pursuant to a 1964 federal court decree.\5\ Id.
---------------------------------------------------------------------------
\5\ Many tribes across the Nation, including various Missouri River
valley tribes impacted by the Pick-Sloan project, and even the Seneca
Nation of Indians in New York impacted by the Kinzua Dam have been the
subject of such proceedings.
---------------------------------------------------------------------------
The flowage easement for Painted Rock Dam did not ``take'' the Gila
Bend Reservation from the Nation but rather authorized intermittent
flooding of approximately 7,700 acres of the Nation's Gila Bend
Reservation, for which the Corps paid $130,000 in compensation to the
Nation. Id. In the late 1970s and early 1980s, high rainfall caused
repeated flooding upstream of Painted Rock Dam, ``each time resulting
in a large standing body of water.'' Id. ``[T]he floodwaters destroyed
a 750-acre farm that had been developed at tribal expense and precluded
any economic use of reservation lands.'' Id. at 5-6. In 1981, the
Nation petitioned Congress ``for a new reservation on lands in the
public domain which would be suitable for agriculture.'' Id. at 6.
We understand the inexcusable damage done to the cemetery and the
houses in the San Lucy village and we believe that Congress rightfully
enacted the Gila Bend Act in 1986 to address the unexpected flooding
and its effects. To be certain, however, the Gila Bend Reservation was
not inundated or otherwise rendered inhabitable. The most predominant
effect was the wide spread growth of tamarisks (salt cedars) on the
Nation's reservation lands, which are an invasive species that is
difficult to destroy and makes agricultural development extremely
difficult.
Thus, the Gila Bend Act gave the Nation the means to replace 9,880
acres with 9,880 acres of other land. It provided that if the Nation
assigned the entire reservation to the United States, it would receive
in return funds to be used for the purchase of replacement land and for
other related purposes. Specifically, Section 4(a) authorized payment
of $30 million to the Nation, plus interest from the date of enactment,
if it agreed to assign ``to the United States all right, title, and
interest of the Tribe in nine thousand eight hundred and eighty acres
of land within the Gila Bend Indian Reservation.''
In other words, the Gila Bend Act authorized an acre for acre
exchange of land funded by the federal government in order to put the
Nation back into the position it was before Painted Rock Dam was
constructed--in possession of land suitable for agricultural
development. Thus, the Nation made such an assignment shortly after
enactment and received the statutory funds in return.
The Nation seeks to justify the operation of gaming in the Phoenix
metro area on the ground that the Gila Bend Act qualifies as a
``settlement of a land claim'' within the meaning of IGRA. But a ``land
claim'' is a claim to land, rather than a claim for damage to land. To
read ``land claim'' to mean a claim to title or possession is faithful
to historical congressional and judicial usage, to the statutory text
of IGRA, and to IGRA's implementing regulations. In contrast, to read
``land claim'' as the Nation suggests defies the statutory text of
IGRA.
The regulations define a ``land claim'' as one that (i) arises
under the U.S. Constitution, federal common law, federal statute or
treaty; (ii) accrued on or before October 17, 1988 and (iii) involves
``any claim by a tribe concerning the impairment of title or other real
property interest or loss of possession.'' The regulations make clear
that the term ``land claim'' for purposes of Section 20 relates to
claims concerning the title of the land or loss of possession. The term
``land claim'' does not encompass all claims relating to land, such as
ones for injury to the land.
A ``land claim'' as that term has been used by Congress for over a
hundred years is a claim to land--a claim to title. Every occurrence of
the term ``land claim'' located in federal statutes confirms this
interpretation. The prototypical Indian land claims when Congress
enacted IGRA were claims such as those made by Eastern tribes pursuant
to the Indian Nonintercourse Act. See, title 25, Chapter 19, United
States Code. In each instance, a state or other non-Indian entity
acquired title and possession of the Indian land in contravention of
federal law.
As a result, the Indian tribes brought actions for the immediate
possession of the land and ejectment of the non-Indian occupants based
upon the tribe's superior title to the land as recognized and
guaranteed by federal law. Thus, the hallmark of an Indian land claim
is one in which an Indian tribe claims a right to a parcel of land,
either by title or possession, against an adverse claim of title. This
Congress has enacted at least thirteen (13) ``land claim'' settlements,
each of which arose out of claims filed or asserted by Indian tribes
alleging the illegal dispossession of their land and a possessory
interest based upon superior title. See 25 U.S.C. Chapter 19,
Sec. Sec. 1701-1778h.
The Gila Bend Act did not settle any ``land claim'' and mentions no
such claim. Rather, it settled ``any and all claims of water rights or
injuries to land or water rights (including rights to both surface and
ground water).'' Gila Bend Indian Reservation Lands Replacement Act,
Pub. L. No. 99-503, 100 Stat. 1798, 9(a) (1996). The Nation has
proffered a number of self-serving assertions of viable ``land claims''
allegedly settled by the Gila Bend Act, none of which hold up when
analyzed under well settled law.
III. H.R. 2938 Recognizes and Supports Tribal Sovereignty
The Community, along with the 12 other tribes in support of H.R.
2938, know firsthand the importance of tribal sovereignty. As federally
recognized tribes, we fight on a daily basis to protect tribal
sovereignty and provide for our people. We would not support a bill
that jeopardizes tribal sovereignty. Rather, we pride ourselves on
working with our brethren on issues of common concern to Arizona tribes
because it strengthens our collective sovereignty and helps us fulfill
our responsibilities to our individual tribal communities.
There is no better example of this united and collective action
among Arizona tribes than the 17 tribe coalition that jointly
negotiated and worked to pass by voter referendum Proposition 202--the
2002 Tribal--State compacts between Arizona gaming tribes, including
the Nation, and the State of Arizona. Ironically, however, it is Tohono
O'odham's unilateral breach of this very Compact and the spirit of
unity that has bound each tribe to the commitments made in those
agreements that now threatens tribal sovereignty and has compelled the
Community and 11 other Arizona tribes to publicly oppose Tohono
O'odham's efforts.
We are here today in support of H.R. 2938 because in our view, H.R.
2938 explicitly recognizes and respects tribal sovereignty by upholding
the commitments that all of the 17 tribes made during the compact
process and that were memorialized through passage of Proposition 202.
Here, H.R. 2938 is narrowly tailored to maintain the status quo and
sustain the carefully negotiated gaming structure, voted on by the
citizens of Arizona. Without H.R. 2938, Tohono O'odham will proceed on
its path to circumvent existing gaming restriction, both under Federal
and State law, conduct gaming far from their existing reservation, and
most importantly jeopardize the other Arizona tribes' existing rights
under Federal law that we all share. As sovereign nations, we cannot
simply stand by and watch someone, albeit another Arizona tribe,
threaten our gaming rights and unravel the comprehensive and inter-
connected gaming structure in Arizona. Accordingly, we urge passage of
H.R. 2938 to uphold tribal sovereignty.
IV. Arizona Compact
We and many other Arizona tribes believe that the existing tribal-
state gaming compacts are the model in the Indian gaming industry. It
is regulated at all levels of government (tribal, state, and federal),
is limited in both the number of gaming devices and locations, benefits
both gaming and non-gaming tribes alike, benefits local municipalities
throughout the state, and is beneficial to the State of Arizona. But
most importantly, the citizens of Arizona benefit because the tribal-
state gaming compacts were the direct result of a voter approved ballot
initiative in 2002.
Today, the proposed casino development project by the Nation runs
contrary to what the voters approved in 2002 and threatens the existing
tribal-state gaming compacts. For example, prior to the passage of the
voter approved ballot initiative (``Prop 202'') which culminated in the
existing Tribal-State gaming compacts, tribal leaders held extensive
negotiations on an acceptable framework for all tribes. Importantly, 16
tribal leaders, including the Nation, signed an Agreement in Principle
(``AIP'') to make a good faith effort to maintain a cooperative
relationship as to gaming matters and compact renegotiation. See
Exhibit 4.
Specifically, the AIP stated that tribal leaders would make ``Good
Faith'' efforts to share among themselves the details of compact
renegotiations with the State of Arizona. Further, tribal leaders
agreed to make ``Good Faith'' efforts to develop and maintain
consistent positions and to notify other tribal leaders if they
believed they could not abide by the AIP.
We negotiated in good faith with all Arizona tribes and the
Governor of Arizona to craft a tribal-state gaming compact that
preserved tribal exclusivity for casino gaming, allowed for larger
casinos and machine allotments with the ability to expand machine
allotments through transfer agreements with rural tribes, and limited
the number of casinos in the Phoenix metropolitan area. In order to
reach a deal with the Governor of Arizona all tribes, including the
Nation, had to agree that no more than seven casinos could be located
in the Phoenix metropolitan area.
This meant that the Salt River Pima-Maricopa Indian Community and
the three other Phoenix Metro tribes (Ak-Chin, Gila River & Fort
McDowell) each had to give up their rights to one casino. The Tohono
O'odham tribe was aware of this concession on the part of other tribes
and was fully aware that this was a key deal point for the State of
Arizona that needed to be made if negotiations were to move forward.
However, it is clear the Nation began actively seeking to purchase
land in the Phoenix area for the sole purpose of establishing a casino,
prior to the ratification of the tribal-state compacts. As a result,
many Arizona tribes have opposed the actions of the Nation. Indeed,
Exhibit 5, a chronology of events from the time of enactment of the
original land settlement further clarify the intent of Congress, the
State of Arizona and Indian tribes throughout the state.
Tellingly Chairman Norris has not denied, because he could not,
that the 17 tribe coalition had made promises directly to the Arizona
voters that there would be no more casinos in the Phoenix metropolitan
area. When confronted his public response to some of these tribes was,
``those are just words on a publicity pamphlet.'' \6\
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\6\ See also Exhibit 6, in which the Nation admits in documents
filed in federal district court that ``various parties'' viewed the
statements made in the voter materials and otherwise as a commitment
that there would be no new gaming sites in the Phoenix metropolitan
area. (Admission 40, pp. 6-7).
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Arizona Tribes overwhelmingly agree that the collaborative approach
to crafting the current tribal-state compact has been a great benefit
to tribal communities, local communities--such as our neighbors, the
Cities of Tempe and Scottsdale, for the State, and the people of
Arizona.
However, not then and certainly not now, did we expect to be here
today to say that one of our sister tribes did not act in ``good
faith''. However, the record is clear there were ongoing efforts by the
Nation government to purchase land, have it taken into trust status and
develop a casino.
It is not an easy thing to stand here and talk about a lack of
``good faith'', and we do so reluctantly. However, we act today so that
in future years, we will not have to look back and say to all, that
``we should have said something.''
V. The Nation already has a thriving gaming enterprise with three
operating casinos.
The Nation already has very successful gaming enterprise. The
Nation operates two casinos in the Tucson metropolitan area and an
additional casino in Why, Arizona. The success of the Nation's gaming
enterprise was recently highlighted in Indian Country Today. See
Exhibit 7. Additionally, under the current gaming Compact, the Nation
is allowed to develop a fourth casino on their existing reservation
lands, including in the Tucson metropolitan area. H.R. 2938 would not
impact the Tribe's existing 3 casinos or impact its ability to develop
a fourth casino on its existing reservation.
VI. Congressional action is necessary
The Nation's secretive and deceptive actions have resulted in
litigation in the federal courts from the District of Columbia to the
State of Arizona and up to the Court of Appeals for the Ninth Circuit.
Significantly, however, not one of these cases has dealt with the
Nation's claim that the Glendale land is the ``settlement of a land
claim''.
Why? Because the Nation has manipulated the land-into-trust and
gaming eligibility process in a calculated way to prevent the public
and any other interested party from ever challenging their notion that
the Gila Bend Act settled a land claim or that the Glendale parcel
actually qualifies for Indian gaming. Definitive action by Congress is
therefore necessary to resolve, once and for all, the intent of the
Gila Bend Act and more importantly, preserve the deal that was struck
in 2002.
Indeed, this Congress has often clarified--even retroactively--that
certain land acquisition bills were never intended to be used for
gaming, especially on lands far flung from existing reservation lands.
Of course, the Nation prefers to keep things tied up in court while
blaming everyone else for the state of uncertainty created by their
unilateral actions. More problematic, however, is the Nation's public
relations campaign that is premised on taking procedural orders from
the various courts and implying that the law sanctions off-reservation
urban gaming in Arizona. Nothing could be farther from the truth. Only
Congress has the power to put an end to the Nation's costly courtroom
tactics.
While the Arizona tribal community, the state, and the co-sponsors
of the bill would welcome a resolution that ensures that there would be
no casino gaming in Glendale, or other attempts to game on lands
removed from Tohono O'odham's current reservation in the Tucson area,
one cannot simply turn a blind eye to the fact that Tohono O'odham's
current proposal to game in Glendale is illegal and violates the
agreement that Tohono O'odham made with other Arizona tribes, the
state, and with Arizona voters in 2002. It is therefore particularly
ironic that the Nation claims the trust responsibility would be
violated by this measure. In reality, the trust responsibility is a
further reason to enact H.R. 2938--without it, the self-interested
economic desires of one tribe would be advanced to the detriment of
every other gaming tribe in Arizona.
Furthermore, because courts often struggle with interpreting
congressional intent and will often invite Congress to clarify a
statute that has become controversial, Congress is uniquely situated to
clarify the Gila Bend Act that is being misused by Tohono O'odham and
to address an issue that the administration seems reluctant to address.
In doing so, Congress can ensure that Tohono O'odham will not be
allowed to develop a casino in Glendale, a result never envisioned by
Congress in the first instance, and which the Nation explicitly
promised it would not do in the Compact and Prop 202 process.\7\
---------------------------------------------------------------------------
\7\ Contrary to the Nation's statements that this legislation is
being prompted by its victories in court, the Nation has either lost or
is fighting an appeal on major issues. For example, the federal
district court issued an injunction against the United States
prohibiting it from taking the land into trust until the appeals on
lower court decisions have been heard and decided. In June, a court
rejected the Nation's attempt to keep other Arizona tribes out of a
legal action aimed at protecting the integrity of the gaming compact,
and the court rejected Tohono O'odham's attempt to dismiss the legal
counts of that suit. In August, the NIGC disapproved the Nation's
request for approval of an amendment to its gaming ordinance, and, in
September, a court ruled against the Nation's attempts to stop the
discovery of salient facts about Tohono O'odham's purchases of land
under the Gila Bend Act, including its use of a sham corporation.
---------------------------------------------------------------------------
The Nation has manipulated the regulatory review process in a thus
far successful attempt to shield the ultimate question--gaming
eligibility--from judicial review. If the bill fails and the process
continues, there is a strong possibility that the Department of
Interior has been maneuvered into a position where it will be forced to
render an opinion on gaming eligibility totally separate from any
vehicle that would give interested parties the opportunity to challenge
that decision. Thus Congress must act.
There are also important practical considerations that compel
Congressional action now. Among them, taxpayers and other tribes in
Arizona should not have to wait and continue to have to spend time and
money to fight against the unfair and dubious actions by the Nation.
The result is that this bill would clarify what everyone except the
Nation understands, that the Gila Bend Act cannot be used to shoehorn
an off-reservation casino into Glendale or any other location not on
its existing reservation.
While the Arizona tribes who support H.R. 2938 do not want to have
to be critical of the Nation's conduct here, it is hard to avoid the
fact that it has repeatedly thwarted the normal process for obtaining
federal approval of Indian gaming by trying to get federal regulators
at the National Indian Gaming Commission to approve the Tribe's
Glendale plan as part of its existing gaming ordinance and by
engineering procedural moves at Interior to avoid review there.
VII. Summary
The Salt River Pima Maricopa Indian Community, and the other tribes
from Arizona that are present today, urge Congress to pass H.R. 2938.
It is needed to clarify the original Gila Bend act so that any land
purchased since its enactment is not eligible for Class II or Class III
gaming pursuant to the Indian Gaming Regulatory Act (IGRA). The
clarification does not interfere with the Nation's desire to have land
taken into trust. It maintains the status quo in Arizona and does not
adversely affect any tribe. Without this bill, the other Arizona Tribes
may suffer because the current gaming compacts could be nullified. This
bill does not prevent the Nation from acquiring the land in trust and
establishing other economic development. We support this legislation.
______
Mr. Young. Thank you, Madame President. The Hon. Arlen
Quetawki, Governor of the Pueblo of Zuni. You are up.
STATEMENT OF THE HONORABLE ARLEN P. QUETAWKI, SR., GOVERNOR,
PUEBLO OF ZUNI
Mr. Quetawki. Thank you, Chairman. It is great to have this
opportunity to testify on behalf of the Pueblo of Zuni.
Chairman and Ranking Member, thank you for the opportunity to
address the Subcommittee.
I am Governor Arlen P. Quetawki, Sr. I represent the Pueblo
of Zuni and its 11,000 members. Our lands are located in the
States of Arizona and New Mexico. I am here today to speak
about the Zuni Pueblo's views on a non-gaming tribe and the
purpose of H.R. 2938.
We are a remote tribe, and we do not have a casino in
Arizona or New Mexico. However, under our gaming compact we
have with Arizona, we are able to transfer our slot machine
allocation, under lease agreements, to other tribes located in
better markets. This was a negotiated compromise reached among
Arizona tribes and the State through the current gaming
compacts.
In return for agreeing to limits on gaming in the Phoenix
and Tucson areas, and for giving up off-reservation gaming near
these markets, we get to share in gaming revenues generated
through transfer agreements.
As a remote tribe with limited economic opportunities,
those funds have been essential. We use and rely on these
revenues to support our limited government operations, and have
dedicated some of these funds to reacquire aboriginal lands,
and to fund a wellness center to treat diabetes.
Our concern with the proposed Glendale casino is that it
would unravel the negotiated balance and benefits we achieved
through the compacts. First of all, the casino will break the
promise of all tribes made about limiting casino locations in
securing the passage of Prop 202. The people of Arizona have
shown they approve that the benefits of limited Indian gaming.
We do not wish to backtrack on those commitments.
Second, we anticipate that the Glendale casino proposal
will blur the distinction which the Arizona voters supported in
their approval of Prop 202: that Class III gaming be limited to
reservation lands. With a new casino established on new tribal
lands in Glendale, non-Indian interests within the State will
seek the right to conduct Class III gaming. Then tribes may
lose their exclusive right to conduct Class III gaming. And if
that occurs, and the compacts are void, the tribes in the urban
markets will no longer need to make transfer payments to tribes
like Zuni. Thus, this project comes at the expense of all other
Arizona tribes.
We believe if this occurs, the Zuni Pueblo, like remote
tribes, will suffer the most. For us, it will mean the loss of
revenues provided to us under the compact, which we depend on.
Let me be clear. We support the Tohonos' efforts to
exercise its rights to lands under the 1986 Act, but our
concern is how that Act is being used, and the impacts it would
cause for my tribe and other Arizona tribes. For that reason,
we support the narrow scope of H.R. 2938, because we believe it
addresses this problem.
The measure would not impact tribal sovereignty, and would
not impact the Indian Gaming Regulatory Act. Instead, the law
merely reflects the common understanding of the 1986 Act.
Indeed, the bill would maintain the stability of the current
compact structure; thus, securing sovereignty for all Arizona
tribes.
As a tribe in both Arizona and New Mexico, we have seen
firsthand the harm that can result when a tribe tries to obtain
off-reservation land for gaming. In New Mexico, the Pueblo of
Hamus's application to open a casino 300 miles away has brought
unfavorable attention from Congress and the New Mexico
Legislature. None of this attention has been positive, and the
ill will it created among numerous stakeholders remains.
We think that the Department of the Interior made the right
decision when it recently denied the application for that
casino. We hope that relationships among tribes and other
interested groups will be restored, and strengthen with the
passage of time, just as we will see in Arizona, after this
dispute is resolved.
As you examine this bill and the controversy in Arizona
which it addresses, we ask that you recognize and support the
benefits of Indian gaming in Arizona under the current compact
structure. That structure works because it supports everyone,
including my tribe. And if appropriate steps are not taken to
maintain the stability of the compacts, ultimately my tribe and
all tribes in Arizona will lose.
Thank you for allowing me to speak, and I am happy to
answer any questions you may have.
[The prepared statement of Mr. Quetawki follows:]
Statement of The Honorable Arlen Quetawki, Sr.,
Governor, Pueblo of Zuni
My name is Arlen Quetawki, Sr and I am the Governor of the Pueblo
of Zuni which has approximately 11,000 members. Zuni lands are located
in the States of Arizona and New Mexico.
My remarks concern H.R. 2938, ``The Gila Bend Indian Reservation
Lands Replacement Clarification Act,'' which the Zuni Pueblo supports
for the reasons given below.
Zuni Pueblo is a rural tribe and does not have a casino in either
our Arizona or New Mexico lands. Even though Zuni Pueblo is not a
gaming tribe we are familiar with the Indian gaming issues that affect
tribes in both states. From 1999 to 2002, Arizona tribes accomplished
something unique in Indian country; they formed a coalition to jointly
negotiate a compact with the Arizona Governor that balanced the
interests of tribes in large markets, tribes in small markets, and
tribes like Zuni that have no market due to that fact our lands in
Arizona are very remote. Under the Tribal-State gaming compact, which
was approved by the Arizona voters in 2002 when they voted to pass the
Proposition 202 initiative, we are able to transfer our slot-machine
allocation under lease agreements to other tribes that are located in
better gaming markets.
This important compromise was a negotiated balance of interests
reached among the Arizona tribes and with the State through the current
Arizona gaming compacts. In return for our agreeing to limits on gaming
in the Phoenix and Tucson metropolitan areas, and for giving up an
opportunity to seek off-reservation gaming near these lucrative
markets, we get to share in gaming revenues generated in these markets
through transfer agreements.
As a result of that balance of interests, the Zuni Pueblo receives
revenues from gaming tribes located closer to the metropolitan markets.
As a rural tribe which struggles with severely limited economic
opportunities, those funds have been essential. We use and rely upon
those revenues to support our limited government operations. We have
also dedicated a portion of those funds to develop the Pueblo's new
Wellness Center, which will be instrumental in our fight against the
growing rate of diabetes among our people. Lastly, those funds have
enabled the Pueblo to reacquire aboriginal lands in Arizona which link
our main reservation to the lands containing the sacred Zuni Heaven. We
recognize that the stability and negotiated balance of the compact
structure in Arizona was designed for the interests of all
participating tribes, and we are very grateful for the revenues it has
provided us.
Our concern with the proposed Glendale Casino by the Tohono O'odham
Nation is that it would threaten to unravel the negotiated balance and
benefits we achieved through our gaming compacts. First of all, the
venture would break the promise all tribes made about limiting casino
locations in securing the passage of Proposition 202, which authorized
the State to enter into the gaming compacts which are currently in
effect. The people of Arizona have repeatedly shown they approve the
benefits of Indian gaming, but only if it is limited in scope, location
and size. We do not wish to backtrack on those commitments.
Second, we anticipate that the Glendale Casino proposal would blur
the distinction which the Arizona voters supported in their approval of
Proposition 202, that Class III gaming be limited to what was
recognized as Indian reservations in existence in 2002. With a new
casino established on new tribal lands within a large non-Indian
metropolitan area, other competing interests within the State will also
seek the right to conduct Class III gaming. And, if the tribes lose
their exclusive right to conduct Class III gaming, as assured in the
compacts, those compact terms will be voided and the limits placed on
gaming will be lifted. If that occurs, the tribes in the urban markets
will no longer need to make transfer payments to rural tribes to
acquire rights to additional gaming devices. Thus, this project which
is sought to expand Class III gaming for one Indian Tribe could be
completed at the expense of all other Arizona tribes. We believe that
if this occurs, the Zuni Pueblo, like other rural tribes will suffer
the most. For us, it would mean the loss of revenues provided to us
under the compact, which we depend upon.
Plus, it must not be overlooked that the only protection that the
non-gaming tribes had when the compacts were approved by Interior was
its review to determine whether the compacts were consistent with its
trust obligation to Indians. On their face, there would not have been a
concern, given that the state and the tribes were acting in concert,
and the voters placed their imprimatur on the deal struck by Governor
Hull and the tribal leader-negotiators. There is no way in the world
that the non-gaming tribes would have willingly exposed ourselves to
the uncertainty that has resulted from the Glendale casino plan
announced by the Tohono O'odham Nation only two years ago. Nor would we
have asked Interior to approve the compact had we known of the
intention of our fellow tribe.
Zuni Pueblo supports the Tohono O'odham Nation's efforts to
exercise its rights under federal law to remedy the taking of its lands
in its San Lucy District through passage of the Gila Bend Indian
Reservation Lands Replacement Act. As a fellow tribe we understand the
importance of remedying past wrongs. All tribes have suffered hardship
and many continue seek redress for past wrongs. So we are sympathetic
but our sympathy has limits when these past wrongs are used to excuse
concealing a plan to gain a competitive advantage over fellow tribes
when it had a duty to disclose such a plan, and this plan puts all
other Arizona tribes gaming ventures at risk.
Moreover, it should not be ignored that the Tohono O'odham received
$30 Million dollars under the Land Replacement Act and was able to
purchase over 16,000 acres with these funds as compensation for the
9,880 acres that were flooded. Nowhere in the Land Replacement Act does
it say that the Tohono O'odham had a right to game on lands placed into
trust under the Land Replacement Act, let alone well outside of its
aboriginal territory. But, even if, for the sake of argument, that
legislation can be interpreted to allow the Tohono O'odham to conduct
gaming on lands placed into trust after 1988, the Tohono O'odham agreed
not to seek expansion of its casinos into the Phoenix metropolitan area
when it contributed to the Proposition 202 campaign in which it and
other tribes promised voters in campaign materials that there would be
no additional casinos in the Phoenix metropolitan areas.
The Zuni Pueblo is very concerned with how this legislation is now
to be interpreted by Tohono O'odham, and the impacts it would cause for
my tribe and other Indian tribes in Arizona. For that reason, we
support the narrow scope of H.R. 2938 because we believe it is the
simplest solution to this problem. The measure would not impact tribal
sovereignty and would not impact the Indian Gaming Regulatory Act,
whether in Arizona or elsewhere within the country. Instead, the law
merely states what had been the common understanding of the rights and
remedies available under the Land Replacement Act. In that regard, the
measure would maintain the stability of the current compact structure
and the recognition of the established reservation boundaries in
Arizona, which had been the basis for the Proposition 202 negotiations
by the tribes and the ultimate approval by the State voters.
As a Tribe in both Arizona and New Mexico, we have seen firsthand
the harm which can result when a tribe tries to obtain noncontiguous
land for gaming. In New Mexico, the ensuing battles and ill will
stemming from the application by the Pueblo of Jemez to open a casino
three hundred miles away has brought unfavorable attention from
Congress, the U.S. Senators, the New Mexico Legislature, and the voters
of the State. None of this attention has been positive, and the ill
will it created among numerous parties and stake holders still remain.
We think the Department of Interior made the right decision when it
recently denied the application for that casino, and we hope that
relationships among tribes and other interested groups will be restored
and strengthened with passage of time, just as we hope to see in
Arizona after Glendale casino dispute is resolved.
As your subcommittee examines this legislation and the controversy
in Arizona which it is intended to address, we ask that you recognize
and support the benefits of Indian gaming in Arizona under the current
compact arrangement. That arrangement works because it supports
everyone, including my Tribe. And if appropriate steps are not taken to
maintain this stability, ultimately my Tribe and all tribes in Arizona
will lose.
Thank you for the opportunity to provide the Subcommittee with this
testimony.
______
Mr. Young. Thank you. And I do appreciate both of you
giving testimony in a very concise period of time. So the rest
of you recognize that, too.
The Hon. Ned Norris, Jr., Chairman of the Tohono O'odham
Nation.
STATEMENT OF THE HONORABLE NED NORRIS, JR., CHAIRMAN, TOHONO
O'ODHAM NATION
Mr. Norris. Thank you, Mr. Chairman. Before I begin in my
oral testimony, I would like to acknowledge my fellow tribal
leaders in the room; my fellow tribal leaders sitting here at
the panel with me, as well.
But also I would like to recognize one of our Tribal
Council members from the Tohono O'odham Legislative Council
that is here with us: Councilwoman Evelyn Juan-Manuel.
I would also like to recognize two members of the Gila Bend
Indian Reservation, which we now call the San Lucy District.
They are members of the District Council there. Councilman
Gerald Pablo, and Councilwoman Caroline Mecham.
Chairman Young, Congressman Lujan, and distinguished
members of the Committee, I am Ned Norris, Jr., Chairman of the
Tohono O'odham Nation. The Nation has some 30,000 members. Our
reservation lands, which are not contiguous, are located in
Maricopa, Pima, and Pinal Counties.
One of our reservation areas was the 10,297-acre Gila Bend
Indian reservation, which was set aside for us in the 1880s,
and which is in Maricopa County. Against the express wishes of
the Nation, the Corps of Engineers built a dam that flooded the
Gila Bend Indian reservation. The land was rendered useless,
and the people who lived there were crowded into a 40-acre
village.
Congress recognized that the flooding of our Gila Bend
reservation had caused great hardship, because almost the
entire reservation was unusable. The United States tried to
replace our lost land with public domain land suitable for
agriculture within a 100-mile radius of the reservation, but
that land turned out not to be possible, but that turned out
not to be possible.
In 1986 the Nation and the United States came to an
agreement to settle our property rights claims relating to the
flooding of the Gila Bend reservation. The settlement agreement
was ratified by the United States when Congress passed, and
President Reagan signed, the Gila Bend Indian Reservation Lands
Replacement Act.
H.R. 2938 would fundamentally alter that settlement
agreement. I must convey the Nation's profound dismay that the
sponsors of H.R. 2938 have moved to do this without the
Nation's consent; indeed, without even one moment of
consultation with the Nation before the bill was introduced.
It is my hope that after you know more about the Nation and
our land claim settlement, that you will reject H.R. 2938. It
sets a dangerous precedent for all tribes.
In the Act, Congress directed the Department of the
Interior to accept into trust the same number of acres that had
been taken from us, in any of the three counties where we
already have reservation land. The Act specifically states that
replacement lands should be suitable for non-agricultural
economic use; and that once it is in trust, the land must be,
and I quote, ``deemed to be an Indian reservation for all
purposes.''
Relying on the United States' commitment, the Nation bought
about 135 acres of land in the West Valley area of Maricopa
County, near the City of Peoria's shopping district and the
City of Glendale's sports and entertainment district. Our
planned development is expected to create 9,000 new jobs.
It took some years after we purchased this property before
we made a final decision to use it for this development. But
once we did, we immediately reached out to our local elected
officials and the community to develop the same kind of good,
close working relationships we have with the communities where
our other gaming facilities are located.
In August of 2010, the Department of the Interior issued a
decision to take our West Valley land into trust. The Gila
River Indian community, the City of Glendale, and others have
challenged the Department of the Interior's decision. Our
opponents say that the Lands Replacement Act could not have
been intended to allow use of our replacement lands for gaming.
But this is just not true.
Co-sponsors of our Act were directly involved in drafting
the Indian Gaming Regulatory Act, at the same time they were
working on our Settlement Act. If they had wanted to ban gaming
on our replacement lands, they knew how to do it, but they did
not.
Enactment of H.R. 2938 would create a very ugly precedent.
The United States would unilaterally break the settlement
agreements it made with the Nation a quarter of a century ago,
which would be yet another black mark in the history of the
United States' broken promises to Indian tribes.
In addition, enactment of H.R. 2938 would create new
breach-of-contract, breach-of-trust, and takings claims against
the United States for breaking the settlement agreement under
the Lands Replacement Act, exposing the United States and
American taxpayers to substantial liability, including
compensation for the resources the Nation has invested in
reliance on the current language of the Settlement Act, and for
the economic benefits of the Nation we will lose if H.R. 2938
is enacted.
Enactment of H.R. 2938 would have a real negative effect on
the Nation and its people. It will prevent the Nation from
reducing its dependence on Federal funding, and prevent the
Nation from getting closer to being able to adequately provide
for its people.
I should note here that nearly half of our families on the
reservation live below the poverty line, and more than 21
percent of our adult members are unemployed. But enactment of
H.R. 2938 will not just hurt the Nation; it will also hurt the
people of the West Valley. It will kill 9,000 jobs that would
be directly created by our proposed development, and deprive
the West Valley of the thousands of other jobs that would
result from new local spending.
Finally, enactment of H.R. 2938 would directly interfere
with ongoing litigation in both Federal and State Courts. These
actions will determine whether the Nation has complied with the
Lands Replacement Act and our Tribal-State Gaming Compact. So
far, the Courts have confirmed that the Nation and the
Department have acted entirely in compliance with the law.
I hope the Subcommittee realizes that it is precisely
because the opponents, by losing in Courts, that they are now
pushing Congress to change the law.
Mr. Chairman, members of the Committee, H.R. 2938 is
nothing more than special-interest legislation designed to
protect the market interests of a few, at the expense of the
greater good of many. The Tohono O'odham Nation has played by
the rules every step of the way. All we ask is that you let us
complete this journey without changing the rules so late in the
game.
I thank you again for giving me this opportunity to speak
to the Committee. I would be happy to answer any questions, and
ask that my oral testimony become part of the record. Thank you
very much, Mr. Chairman.
[The prepared statement of Mr. Norris follows:]
Statement of The Honorable Ned Norris, Jr., Chairman,
The Tohono O'odham Nation of Arizona
Chairman Young, Ranking Member Boren, and distinguished members of
the Subcommittee on Indian and Alaska Native Affairs, my name is Ned
Norris, Jr. I am the Chairman of the Tohono O'odham Nation. Twenty-five
years ago the United States made a solemn promise to the Nation to
redress the hardship and damage our people suffered when the Army Corps
of Engineers flooded the portion of our lands known as the Gila Bend
Indian Reservation. The United States' promise was enacted into federal
law when Congress passed and President Reagan signed the Gila Bend
Indian Reservation Lands Replacement Act (the Lands Replacement Act),
Public Law 99-503.
I am here today to convey the Tohono O'odham Nation's outrage and
profound sense of betrayal. H.R. 2938 would fundamentally alter the
Lands Replacement Act, a settlement statute on which we have now relied
for a full quarter of a century. My Nation was not consulted by the co-
sponsors of H.R. 2938 before it was introduced nineteen days ago. And
while I have always welcomed the opportunity to discuss the Lands
Replacement Act, the Nation was not consulted as to the date of this
hearing. Not only did it leave the Nation an inadequate time for
preparation, it also takes place on one of the holiest of the Tohono
O'odham religious days, precluding my participation in ceremonies of
profound significance to my people.
That said, I do appreciate that I have been given an opportunity to
share the Nation's story with you today. It is my great hope that once
the Subcommittee knows more about the Nation, about our land claim
settlement, and about what is really going on in the West Valley, you
will reject H.R. 2938. I am confident that you will live up to Justice
Hugo Black's admonition that ``Great nations, like great men, should
keep their word.'' Federal Power Comm'n v. Tuscarora Indian Nation, 362
US 99, 142 (1960) (Black, J., dissenting).
The Gila Bend Indian Reservation and the Flooding Caused by A Federal
Dam
The Tohono O'odham Nation has approximately 30,000 members. Our
reservation lands are located in central and southern Arizona in
Maricopa County (where Phoenix is located), Pima County, and Pinal
County. Historically, the Nation's lands included four separate areas,
one of which was known as the Gila Bend Indian Reservation, located
near the town of Gila Bend on the Gila River. Gila Bend is located in
Maricopa County, and is part of the Phoenix metropolitan area. Before
the events that led up to enactment of the Lands Replacement Act in
1986, the Gila Bend Indian Reservation encompassed about 10,297 acres.
In 1950, Congress enacted the Flood Control Act, Pub. L. 81-516, 64
Stat. 176 (1950), which, among other things authorized construction of
the Painted Rock Dam on the Gila River. The primary purpose of the
Painted Rock Dam was to prevent the flooding of nearby non-Indian
agricultural operations. As Congress and the Department of the Interior
later recognized, the Flood Control Act of 1950 did not authorize the
condemnation of the Nation's lands.
In the 1950s, the U.S. Army Corps of Engineers began construction
of the Painted Rock Dam, ten miles downstream from the Gila Bend Indian
Reservation. Construction was completed in 1960. Despite the assurances
of the Bureau of Indian Affairs and the Corps that periodic flooding
caused by the dam would not harm the Nation's agricultural use of its
reservation lands, and despite a 1963 U.S. Geological Survey report
asserting that the long range effects of flooding would be
``unimportant,'' the Gila Bend Indian Reservation sustained almost
continual flooding throughout the late 1970s and early 1980s. Most of
the people living there had to be relocated to a small 40-acre village
known as San Lucy. The flooding caused pronounced economic hardship,
destroying a 750-acre tribally owned and operated farm that had been
developed at tribal expense, and rendering the remaining acreage
unusable for economic development.
In 1982, Congress authorized the Secretary of the Interior to
conduct studies to determine which of the Nation's lands had been
rendered unusable for agriculture. Southern Arizona Water Rights
Settlement Act of 1982 (SAWRSA), Pub. L. No. 97-293, sec. 308(a), 97
Stat. 1274 (1982); H.R. Rep. No. 99-851 at 6. Congress also authorized
the Secretary, with the consent of the Nation, to exchange public
domain lands for those reservation lands that had been ruined. SAWRSA,
Sec. 308(b), H.R. Rep. No. 99-851 at 6.
A study of the reservation lands carried out in 1983 under SAWRSA
determined that the flooding had rendered almost the entire Gila Bend
Indian Reservation, more than 9,952 acres, unusable for either
agriculture or livestock grazing purposes. H.R. Rep. No. 99-851 at 6. A
later 1986 study to identify replacement lands within a 100-mile radius
of the reservation concluded that none of the sites identified were
suitable replacement lands, from either a lands and water resources
standpoint, or from a socio-economic standpoint.
The Gila Bend Indian Reservation Lands Replacement Act
The destruction of nearly 10,000 acres of the Nation's lands caused
extreme hardship for the Nation, giving rise to a number of claims
against the United States. The United States was unable to redress the
harm to the Nation by providing replacement lands for agriculture. So,
in 1986, more than a quarter century after the dam was built, Congress
created an alternative settlement mechanism to address the wrong done
to our people and to settle our claims against the federal government.
That was the origin of the Gila Bend Indian Reservation Lands
Replacement Act.
The House Committee considering enactment of the Lands Replacement
Act concluded that the Nation had a reservation ``which for all
practical purposes cannot be used to provide any kind of sustaining
economy. Significant opportunities for employment or economic
development in the town of Gila Bend. . .simply do not exist.'' H.R.
Rep. No. 99-851 at 7. As a result, Congress explicitly directed the
Secretary of the Interior in the Lands Replacement Act to accept into
trust the same number of acres that had been taken from us, and
explicitly contemplated that the lands would be for non-agricultural
development. Congress specifically stated in the Act that the intent
was to ``facilitate replacement of reservation lands with lands
suitable for sustained economic use which is not principally farming.''
P.L. 99-503, sec. 2(4), see also H.R. Rep. No. 99-851 at 9.
The Lands Replacement Act provides funds for land acquisition, and
if certain requirements are met, it directs the Secretary to accept
into trust up to 9,880 acres of replacement land within the three
counties (Pima, Pinal, and Maricopa) in which our other reservation
lands are located. P.L. 99-503, sec. 6(c) and (d). The lands may not be
incorporated into any city or town. Also, the lands must consist of no
more than three areas of contiguous tracts, including one area
contiguous to San Lucy Village, unless the Secretary waives this
requirement. P.L. 99-503, sec. 6(d). If these statutory requirements
are met, then, at the request of the Nation, the Secretary of the
Interior must accept the lands in trust and the lands thereafter will
be ``deemed to be a Federal Indian Reservation for all purposes.'' P.L.
99-503, sec. 6(d).
Section 4(a) of the Lands Replacement Act required the Secretary to
pay the Nation $30 million in three installments of $10 million if the
Nation agreed to assign to the United States ``all right, title and
interest'' to 9,880 acres of its land within the Gila Bend Indian
Reservation. The Act also required the Nation to execute a waiver and
release of ``any and all claims of water rights or injuries to land or
water rights with respect to all lands of the Gila Bend Indian
Reservation from time immemorial to the date of the execution by the
Nation'' of that waiver. P.L. 99-503, sec. 9(a). In October 1987, less
than a year after enactment of the Lands Replacement Act, the Nation
executed an Agreement that contained this waiver and release, as well
as the Nation's assignment of all right, title, and interest to the
Gila Bend Indian Reservation. In short, Congress (i) enacted the Lands
Replacement Act to compensate the Nation fairly for the nearly 10,000
acres of its lands that were lost due to the flooding caused by the
Painted Rock Dam, and to allow the Nation to acquire replacement lands
for economic development purposes that were not principally farming;
and (ii) required in exchange that the Nation transfer property and
rights to the United States and release the Nation's claims against the
United States, both of which the Nation did years ago.
The Nation's West Valley Lands
After enactment of the Lands Replacement Act, the Nation began
working to identify lands that would satisfy the requirements of the
Act, so those lands could be taken in trust and used for economic
development purposes. The Department of the Interior already has taken
one parcel of land (about 3,200 acres) in trust under the Act. One of
the parcels that the Nation purchased is the West Valley property in
Maricopa County, which is situated near the City of Peoria's upscale
Peoria Crossings shopping district as well as the City of Glendale's
sports and entertainment district. The Nation's West Valley Resort
project is predicted to generate some 9,000 new construction and
operations jobs for the West Valley, and the Nation and many others in
the area believe the project will provide a huge economic boost to the
region. The Nation has worked closely with the surrounding community to
establish itself as a good neighbor and has the support of many in the
area for its proposed resort casino project, including the Mayor of
Peoria, the Peoria Chamber of Commerce, and many local business owners.
Although the West Valley property is a significant distance from
other tribal gaming operations in the Phoenix metropolitan area (the
nearest tribal gaming operation is more than twenty miles away), the
Nation reached out to nearby tribes to discuss its plans and to try to
address concerns. The Nation also reached out the Mayor of Glendale and
its City Council. Despite the expected benefits from the project and
despite the Nation's efforts to work with surrounding communities and
tribes, the City of Glendale opposes the project, as do the Gila River
Indian Community and the Salt River Pima-Maricopa Indian Community.
These two opponent tribes collectively operate five casinos in the
greater Phoenix area, a region with over 4 million people, and 20
incorporated municipalities, across a land area encompassing
approximately 2,000 square miles.
The Department's Decision to Acquire the Nation's Lands in Trust, and
the Opposition's Efforts To Try to Block the Trust Acquisition
On January 28, 2009, the Nation asked the Department of the
Interior to accept its West Valley property in trust, as required by
the Lands Replacement Act. In July 2010, the Secretary determined,
despite lengthy arguments submitted in opposition by the City of
Glendale and the Gila River Indian Community, that the Nation's land
meets the requirements of the Lands Replacement Act and that the
Secretary has an obligation to take the land in trust. Accordingly the
Secretary issued a decision to take the land in trust in August of
2010. 75 Fed. Reg. 52,550 (Aug. 26, 2010). The Gila River Indian
Community, the City of Glendale, and other plaintiffs challenged the
decision in federal district court in Arizona, but the district court
upheld the Secretary's decision. Gila River Indian Community, et al. v.
United States and Tohono O'odham Nation, No. 10-cv-1993-DGC (D. Ariz.)
(Order dated March 3, 2011). Gila River, Glendale, and the other
plaintiffs have appealed that decision to the Court of Appeals for the
Ninth Circuit and the appeal is pending.
Having failed to convince either the Secretary or the federal
district court that the Nation was not entitled to have its West Valley
property taken into trust, the City of Glendale and the Gila River
Indian Community lobbied the Arizona state legislature for special
legislation to allow the City of Glendale to annex the Nation's land--
without notice and without any of the procedural requirements usually
required for annexation under Arizona law--hoping that annexation would
make the land ineligible for trust status under the Lands Replacement
Act. The Nation challenged that state law, and the federal district
court in Arizona found the state annexation law to be preempted by the
federal Lands Replacement Act. Tohono O'odham Nation v. City of
Glendale and State of Arizona, No. 11-cv-279-DGC (D. Ariz.) (Order
dated June 30, 2011). The City of Glendale and the State of Arizona
also have appealed that decision to the Ninth Circuit and the appeal is
pending.
In fact, every decision so far relating to the Nation's fee-to-
trust acquisition has confirmed the Nation's rights under the Lands
Replacement Act. So now the Gila River Indian Community, the City of
Glendale, and other parties to the litigation have asked Congress to
change the Act. More precisely, the proponents of H.R. 2938 ask
Congress to unilaterally amend the Nation's land settlement, the Lands
Replacement Act, an Act that the Department has said is ``akin to a
treaty.'' Tohono O'odham Nation v. Acting Phoenix Area Director, Bureau
of Indian Affairs, 22 IBIA 220, 233 (1992).
Enacting H.R. 2938 Would Break the United States' Promise to the Nation
Enacting H.R. 2938 would break the promise made by the United
States to the Tohono O'odham Nation to compensate the Nation for the
nearly 10,000 acres of land that it lost due to the actions of the
United States in exchange for the transfer of the Nation's Gila Bend
land and the release of its rights and claims. More than twenty-five
years after the United States constructed the Painted Rock Dam, the
Nation and the United States entered into a settlement, embodied both
in the Lands Replacement Act and in a formal written settlement
agreement. There is absolutely no justification for this Congress to
back out of the terms of that agreement. If Congress enacts H.R. 2938,
it not only will provide another example in the long, sad tradition of
the United States breaking its promises to Indian Tribes, but it also
will burden the United States and its taxpayers with very substantial
liability for the breach of contract, breach of trust, and takings
claims that the Nation will have against the United States for
breaching the settlement agreement entered into under the Lands
Replacement Act.
H.R. 2938 Conflicts with the Intent of the Original Drafters of the
Lands Replacement Act
H.R. 2938 seeks to prevent the Nation from using the land it
acquires under the Lands Replacement Act for gaming-related economic
development. This is not a ``clarification'' of what the original
sponsors of the Lands Replacement Act intended; rather, it would be
completely inconsistent with what they intended.
The Nation's opponents assert that the lands acquired under the
Lands Replacement Act were never intended to be used for gaming-related
economic development. That is simply untrue. Indian gaming was not
``invented'' with the passage of IGRA in 1988. Indian gaming not only
existed in 1986 when Congress passed the Lands Replacement Act, but the
Nation had been operating a gaming business for several years in 1986.
Moreover, due to the lack of federal restrictions on Indian gaming
before the IGRA, Congress understood that, if it desired to prohibit
gaming on Indian lands, it needed to do so through explicit statutory
language. See, e.g., the Florida Indian Land Claims Settlement Act of
1982, Pub. L. 97-399 (Dec. 31, 1982), the Ysleta del Sur Pueblo
Restoration Act, Pub. L. 100-89, Tit. I (Aug. 18, 1987), and the
Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. L.
100-89 Tit. II (Aug. 18, 1987). In each of those pre-IGRA statutes,
Congress explicitly restricted or banned gaming by those tribes. If
Congress had wanted to impose a similar restriction on the Nation, it
could have done so in the Lands Replacement Act--but it did not.
Moreover, no one can seriously contend that the co-sponsors of the
Lands Replacement Act did not understand Indian gaming or that the
Nation would be able to use its replacement lands for gaming-related
economic development. Before Congress passed the Lands Replacement Act,
two of its co-sponsors, Senator DeConcini and then-Representative
McCain, were involved in the consideration of several pieces of Indian
gaming legislation that were the precursors of IGRA. In 1983, three
years before the Lands Replacement Act was enacted, an earlier version
of IGRA (H.R. 4566) co-sponsored by then-Representative McCain
contained no restrictions whatsoever on when or where land could be
acquired in trust for gaming. In 1985, Senator DeConcini sat on the
Senate Committee on Indian Affairs when it recommended passage of H.R.
1920, which became the primary basis for IGRA. When that Committee
recommended passage of H.R. 1920 with an amendment in the nature of a
substitute, the amendments included a provision excepting land taken
into trust as part of a settlement of a land claim from the general
prohibition on gaming on lands acquired after passage of the bill. Both
Senator DeConcini and then-Representative McCain would have known that
land acquired under the Lands Replacement Act for ''sustained economic
use which is not principally farming'' might be used for gaming,
particularly because the Nation was operating a pre-IGRA gaming
facility across the street from the Tucson airport at the very time
that the Lands Replacement Act was passed. In addition, these sponsors
of the Lands Replacement Act were aware of high-profile Indian gaming
litigation being conducted in the federal courts during this time
period, as the Ninth Circuit rendered its decision confirming the
rights of tribes to conduct gaming in early 1986 in Cabazon Band of
Mission Indians v. County of Riverside, 783 F.2d 900 (9th Cir. 1986).
In light of the particular knowledge of two co-sponsors of the
Lands Replacement Act about Indian gaming, the restrictions Congress
placed on gaming in other Indian settlements in that time frame, and
the high profile litigation that then was pending in the courts, it
simply is not plausible to suggest that Congress did not understand
that the language ``[a]ny land which the Secretary holds in trust shall
be deemed to be a Federal Indian Reservation for all purposes'' meant
that the Nation would be entitled to conduct gaming on those lands.
P.L. 99-503, sec. 6(d).
I also note that the Department of the Interior's Office of the
Solicitor confirmed that land acquired under the Lands Replacement Act
could be used for gaming as far back as 1992. Also in 1992, the Nation
informed the State of Arizona during compact negotiations of the
Nation's rights under the Lands Replacement Act, including its right to
conduct gaming on lands acquired under the Lands Replacement Act. The
State of Arizona did not object to the Nation gaming on such lands,
provided they were held in trust and met the requirements of Section 20
of the IGRA. The Nation's 1993 gaming compact expressly permits gaming
on such lands, as does the Nation's 2003 gaming compact.
Finally, the Gila River Indian Community was well aware that lands
acquired under the Lands Replacement Act could be used for gaming when
Gila River and the United States negotiated the Arizona Water
Settlements Act in 2004. P.L. 108-451 (Dec. 10, 2004). Yet both Gila
River and the United States agreed to water rights settlement language
and settlement legislation which reaffirmed the Nation's rights under
the Lands Replacement Act.
H.R. 2938 Will Cause Real Harm to the Tohono O'odham Nation
In addition to the injustice of changing the law enacted to
compensate the Nation and on which the Nation has relied in acquiring
land for gaming-related economic development, the enactment of H.R.
2938 would have a devastating effect on the Tohono O'odham Nation and
its people. More than 32 percent of the Nation's households have annual
incomes less than $10,000, over 46 percent of the Nation's families
live below the poverty line, and there is a greater than 21%
unemployment rate among Tribal members on the reservation. The Nation
has devoted an enormous amount of time and financial resources to its
West Valley project in reliance on existing federal law; if H.R. 2938
is enacted, all the effort and resources the Nation has invested to
reduce its dependence on federal monies and become self-sufficient, as
Congress intended in the Lands Replacement Act, would be wasted.
H.R. 2938 Will Cause Real Harm to the West Valley: It is Job-Killer
Legislation
Enactment of H.R. 2938 would kill off 9,000 new construction and
operation jobs for the West Valley, as well as countless thousands of
other jobs that would result from new local spending generated by both
the resort and the people who work there. If Congress takes affirmative
action to prevent this non-taxpayer funded economic stimulus from
becoming a reality, Congress effectively withholds these thousands of
jobs from West Valley residents.
H.R. 2938 Circumvents Pending Litigation
Enactment of H.R. 2938 directly interferes with ongoing litigation
in both federal and state courts. There are currently three separate
actions pending in the federal District Court for the District of
Arizona and in the Court of Appeals for the Ninth Circuit. These
actions will determine whether the Nation has complied with the Lands
Replacement Act, other laws, and its Tribal/State gaming compact,
whether the Department of the Interior has properly implemented the
Lands Replacement Act, and whether the Act is constitutional and
validly enacted in the first place. Thus far, the courts have confirmed
that the Nation and the Department of the Interior have acted entirely
in accordance with the law. For that reason, opponents of the Nation's
plans (driven largely by market protection motivations) are pushing
Congress to change the law. Surely Congress' role in Indian Affairs is
not to create special legislation to protect the market share of the
few to the detriment of the greater good of the many.
H.R. 2938 Will Create New Litigation: Breach of Trust, Breach of
Contract, and Takings Claims
Enactment of H.R. 2938 will create significant new liability for
the United States, as it will generate causes of action against the
United States for breach of contract, breach of trust, and takings
claims that could result in a substantial sum of money being awarded to
the Nation. The Lands Replacement Act confirmed an agreement between
the United States and the Nation, and this legislation reneges on that
agreement and the promises underlying it. If H.R. 2938 is enacted, the
United States will be liable for the immense resources that the Nation
has spent in reliance on that agreement and for the economic
development benefit that has been denied it. Ultimately, the American
taxpayer will have to subsidize the cost of this special interest
legislation.
Conclusion
Mr. Chairman and Subcommittee members, I thank you again for giving
me an opportunity to speak to this Subcommittee on this legislation. In
sum, I must reiterate that enactment of H.R. 2938 would break the
United States' promise, as that promise was set forth in a contract and
in settlement legislation, to compensate the Nation for the destruction
of the Gila Bend Indian Reservation. Enactment of H.R. 2938 would
interfere with ongoing litigation that will decide whether the Nation
is entitled to move forward with its West Valley development plan, and
would destroy the planned creation of 9,000 new jobs for the West
Valley area. Enactment of H.R. 2938 would create new breach of trust,
breach of contract and takings claims against the United States,
thereby exposing American taxpayers to unnecessary financial risk. And
finally, enactment of H.R. 2938 would add yet another black mark to the
United States' long history of breaking its promises to Native
Americans. With all due respect, is the breaking of commitments made in
long-established Indian land and water rights settlements really going
to be the 112th Congress' legacy to Indian Country?
I thank you for your time today, and I would be happy to answer any
questions you may have.
______
Mr. Young. Thank you. Eric, Chief Deputy, Office of the
Arizona Attorney General, you are up.
STATEMENT OF ERIC J. BISTROW, CHIEF DEPUTY,
OFFICE OF THE ARIZONA ATTORNEY GENERAL
Mr. Bistrow. Mr. Chairman, ladies and gentlemen. Under the
Gila Bend Act, the unthinkable has happened. The Tohono O'odham
Nation, in the sole pursuit of money, and without regard for
its fellow tribes and the citizens of Glendale, secretly
purchased an unincorporated parcel surrounded by the City of
Glendale, and announced they would add this land into its
reservation, and then construct and operate a huge casino. This
cannot be what Congress intended in the Gila Bend Act.
But the possibility now looms that a distorted
interpretation of the Act will permit a casino to be operated
on a new tribal reservation, located in the middle of a city,
next to a high school and residential neighborhoods.
The prospect of a casino in Glendale would not only cause
untold harm to the City and the people of Glendale; it also
betrays the promises the Nation made to the State and the
people of the State of Arizona.
The essential thrust of the Indian Gaming Regulatory Act is
that casino gaming will be permitted to operate only pursuant
to Tribal-State compacts. It is thought that States and tribes,
negotiating in good faith, would reach balanced agreements that
would protect each other's legitimate interests.
In Arizona, by the early 2000s, the dog- and horse-racing
industries sought to siphon off a large portion of Indian
gaming revenues, and asked voters to allow racetracks, located
in urban areas, to operate thousands of slot machines. This led
to a valid initiative called Prop 201.
At the same time, State officials negotiated a compact with
17 of Arizona's 21 Indian tribes. This compact, known as Prop
202, was submitted to the voters in November 2002 as an
alternative to Prop 201. Prop 201 was defeated, and Prop 202
was enacted into law.
What did Prop 202 do? First, it protected Arizona's Indian
tribes from non-Indian gaming competition. The only casino
gaming in Arizona is conducted by Indian tribes.
It also reduced the number of gaming facilities that could
be operated on tribal lands, while expanding the types of games
that could be operated.
The policy objectives of Arizona's officials were clear:
The State understood that casinos can impose costs on the State
and on local governments, both in terms of lost revenues and by
social ills, such as crime, bankruptcy, and pathological
gambling behaviors. At the same time, there is a recognition
that Indian tribes for generations had been mired in poverty,
and that gaming offered them a real opportunity to enhance
their economic well-being. Prop 202 forced a compromise between
these competing interests.
In reaching this compromise, the State made it clear that
it did not want large-scale gaming facilities to expand into
its heavily populated and urban areas. That is why it opposed
and campaigned against the horse- and dog-racing initiative.
That is why it reduced and limited the number of casinos on
Indian tribal lands.
Official statements in favor of Prop 202 assured voters
that no new casinos will be built in the Phoenix metropolitan
area. The gaming was to be kept on Indian reservations, and not
be allowed to move into our neighborhoods.
Every signatory to this compact, including the Nation,
understood that the compact sold to the voters of Arizona would
not allow for any additional casinos in the Phoenix area.
Without this mutual understanding, there would have been no
compact.
No one from the Nation, during the campaign, ever stated a
contrary understanding. No one from the Nation said that it
could, or that it intended to, purchase property in the heart
of Glendale, and, under the Gila Bend Act, put a casino on it.
Every interested party was left in the dark.
Now we have the specter of the Nation violating the solemn
understanding that it reached with the State and its
negotiating partners. It cared not that the casino would be
located next to a high school and neighborhoods. It cared not
about the effects of gambling on Glendale. It did not even care
about its fellow tribes, and how a casino in Glendale would
threaten their collective economic interests.
In short, it is not concerned with the balancing of
interests that had been so delicately carved out in the Compact
of 2002.
Arizona's Attorney General and Governor support H.R. 2938.
The bill protects the integrity of the Prop 202 compromise
between the State and the Indian tribes, and corrects the
distortion of the Gila Bend Act that has brought us here today.
Thank you very much.
[The prepared statement of Mr. Bistrow follows:]
Statement of Eric J. Bistrow, Chief Deputy,
Office of the Arizona Attorney General
I have been a lawyer for 40 years. During my career, I frequently
dealt with statutory construction issues. I learned over time that our
lawmakers try to redress grievances, enact just legislation, and serve
the public good. Yet, in spite of their best intentions and their
careful attention to the wording of legislation, there are times when
the meaning of the law is perverted and twisted. When that occurs, our
legislators are dismayed by the unintended consequences of their work.
More importantly, public respect for our institutions is diminished.
Today we find ourselves dealing with the Gila Bend Indian Lands
Replacement Act. This Act was passed in order to compensate the Tohono
O'Odham Nation for flood damage to its farming property caused by the
federally constructed Painted Rock Dam. Congress had benevolent
intentions. It voluntarily agreed to pay the Nation $30 Million in
exchange for damaged farm land and allowed the Nation to purchase
replacement property in certain areas that would be put into its
reservation system. But this right to put property into trust was not
limitless. The Act excluded lands located within cities or towns.
Now anyone with commonsense knows that, in this context, ``within''
means inside the geographical boundaries of the city or town. And I say
commonsense because no member of Congress would allow a tribe to
acquire property in the middle of a city and then tell that city: ``you
have no power to ever regulate the land, collect taxes, impose zoning
requirements, require pollution control, or provide for the safety of
your citizens; that you cannot do any of these things and more because
there is a new sovereign government in town and you are helpless to do
anything about it.'' The Gila Bend Act was not intended to lead to such
nonsensical results.
And yet the unthinkable happened. The Nation, in the sole pursuit
of money, and without caring one whit about the sensibilities of its
fellow tribes and the citizens of Glendale, secretly purchased an
unincorporated parcel surrounded by the City of Glendale and announced
that it would add this land into its reservation and then construct and
operate a huge casino. It argued that ``within'' did not mean a
``geographical boundary'' but instead referred to a ``jurisdictional
boundary.''
Even more remarkable, the Department of Interior bought into the
Nation's interpretation of ``within'' and decided it would accept the
land into trust. It gave its imprimatur to an interpretation of a
statute that led to absurd consequences and surely up-ended the
original intentions of Congress. The possibility now looms that a
twisted interpretation of the Act will permit a casino to be operated
on a new tribal reservation located in the middle of a city and next to
a high school and residential neighborhoods.
The prospect of a casino in Glendale would not only cause untold
harm to the City and people of Glendale, it also betrays the promises
the Nation made to the State and People of Arizona.
As you know, Congress enacted a comprehensive statutory scheme to
regulate Indian gaming in 1988. The essential thrust of the Indian
Gaming Regulatory Act is that Class III gaming--that is, casinos--will
be permitted to operate only pursuant to tribal-state compacts. It was
thought that states and tribes, negotiating in good faith, would reach
balanced agreements that would protect each other's legitimate
interests.
IGRA has been a resounding success from an economic perspective.
Before IGRA was passed in 1988, there were 108 gambling facilities on
Indian lands spawning some $100 million in revenues. By 2007, 226
tribes offered gaming at 419 sites generating gambling revenues of
$26B. Gaming on tribal lands constitutes big business!
The economic juggernaut of casino style gaming did not pass Arizona
by. By the early 2000's, the dog and horse racing industries sought to
siphon off a large portion of Indian gaming revenues and asked voters
to allow race tracks, located in urban areas, to operate thousands of
slot machines. This led to a ballot initiative, Proposition 201, that
was submitted to the voters in 2002.
At the same time that the dog and horse racing industries were
gathering signatures for their ballot initiative, state officials under
the leadership of Governor Hull negotiated a compact with 17 of
Arizona's 21 Indian Tribes. This compact, known as Proposition 202, was
submitted to the voters in November 2002 as an alternative to Prop 201.
State officials opposed the racing track initiative and strongly
supported the comprehensive agreement set forth in Prop 202.
Prop 201 was defeated and Prop 202 was enacted into law over 8
years ago. What did Prop 202 do? First and foremost, it protected
Arizona's Indian tribes from non-Indian gaming competition--the only
casino gaming in Arizona is conducted by Indian tribes. It also reduced
and limited the number of gaming facilities that could be operated on
tribal lands, while expanding the types of games that could be
operated.
The policy objectives of Arizona's government officials were clear.
The State recognized that there existed a strong aversion to gambling.
It understood that casinos can impose costs on the State and on local
governments, both in terms of lost revenues and by social ills such as
crime, bankruptcy, and pathological gambling behaviors. At the same
time, there was a recognition that Indian tribes, for generations, had
been mired in poverty and that gaming offered them a real opportunity
to create jobs, rebuild their communities and provide their members
with decent schools, roads, water facilities, and other vital services.
Prop 202 forged a compromise between these competing interests.
All of the parties to the compact understood the delicate nature of
the compromise. The State made it clear that it did not want large
scale gaming facilities to expand into its heavily populated and urban
areas. Indeed, it rejected any such efforts. That is why it opposed and
campaigned against the horse and dog racing track initiative. That is
why it reduced and limited the number of casinos on Indian tribal
lands. Official statements in favor of Prop 202 spoke in terms of
``limited Indian gaming,'' that ``no new casinos will be built in the
Phoenix metropolitan area,'' that gaming was to be kept ``on Indian
reservations'' and not be allowed ``to move into our neighborhoods.''
Every signatory to this compact, including the Nation, understood that
the compact entered into by the parties and sold to the voters of
Arizona limited the number of facilities each tribe could operate and
would not allow for any additional casinos in the Phoenix area. Had
there not been this mutual understanding, there would have been no
compact.
When the compact was being negotiated and as the campaign to pass
Prop 202 proceeded, no one from the Tohono O'Odham Nation stated a
contrary understanding. No one from the Nation told its fellow tribes
that it was eyeing a piece of property in the heart of Glendale. No one
from the Nation said a word that it could or that it intended to
purchase such property under the Gila Bend Act and put a casino on it.
The State was left in the dark. Fellow tribes were left in the dark.
The citizens of this State, and most important, the citizens of
Glendale, were left in the dark. The Nation allowed Prop 202 to be
signed and passed without uttering a word of its intentions to its
negotiating partners.
So now we have the specter of the Nation secretly purchasing this
134 acre parcel in 2003, not in its own name, but in the name of a
foreign corporation (``Rainier Resources LLC''). Two years ago, it
announced its intention to put this property into trust under the Gila
Bend Act with the avowed purpose to place a casino on the site. It
knew, in doing so, the casino would be located next to a public high
school and surrounded by residential homes. It cared not a whit about
the solemn understanding reached with the State and its fellow tribal
partners. Nor did it care about the broad public concerns regarding the
deleterious effects of gambling and how those effects might harm cities
such as Glendale in both social and economic terms. It did not even
care about its fellow tribes and how a casino in the middle of Glendale
would threaten their collective economic interests. In short, it was
not concerned with the balancing of interests that had been so
delicately carved out in 2002. It was concerned about one thing:
profit.
The State of Arizona, by its Attorney General, supports H.R. 2938.
The bill protects the integrity of the Prop 202 compromise between the
State and the Indian tribes within its borders, and corrects the
distortion of the Gila Bend Act that has brought us here today. Thank
you.
______
Mr. Young. Thank you, sir. The Hon. Robert Barrett. You are
up, buddy.
STATEMENT OF THE HONORABLE ROBERT ``BOB'' BARRETT, MAYOR, CITY
OF PEORIA, ARIZONA
Mr. Barrett. Good afternoon, Chairman. Chairman and
distinguished members of the Subcommittee, my name is Bob
Barrett, and I am the Mayor of the City of Peoria, Arizona. I
am speaking before you today on my own behalf; I am not
representing an official position of the Peoria City Council,
which has not yet adopted a position.
Let me be clear from the outset: H.R. 2938 is most
certainly not about protecting the local community. It is job-
killing legislation brought by selfish special interests.
Unlike other matters this Congress may consider to promote job
creation, this bill goes in the opposite direction. As the duly
elected Mayor of my community, I cannot stand by while
political gamesmanship so blatantly stands between my
constituents and the opportunities for employment they
desperately seek.
For those of you who are not familiar with greater Phoenix,
the West Valley refers to the communities west of the City of
Phoenix. The cities of Peoria and Glendale are the largest
communities in the West Valley, bordering each other and
Phoenix.
The West Valley has experienced some of the fastest growth
in Arizona, but has also suffered significantly from the
recession, and faces economic fragility. The Nation's West
Valley land is not located in the heart of Glendale, unless
Glendale wears its heart on its sleeve. The Nation's West
Valley is located on an incorporated county island adjoining
the cities of Peoria and Glendale.
As you can see on the map, visible on the screen--no, I
guess you can't. If you look over here to the display, you are
looking north from a place roughly hovering over the University
of Phoenix Stadium, the home of the Arizona Cardinals. The line
in purple at the bottom represents Glendale. The light brown at
the top represents Peoria. The land in green represents the
property purchased and owned by the Nation on unincorporated
county land. The other land without color shading represents
other unincorporated parcels, most of which are dedicated to
agricultural uses at this time.
The highway is State Route 101, a loop freeway that
circumnavigates much of the greater Phoenix region. This
development is projected to create 6,000 construction jobs and
3,000 permanent jobs, jobs desperately needed in Arizona.
In addition to the direct employment benefits, the resort
will create collateral economic benefits for the local
businesses that will supply the goods and services needed to
construct and operate the resort. The West Valley deserves to
enjoy the benefits of tribal gaming that the East Valley has
enjoyed for the past 10 years, from the very tribes who now
selfishly seek to deny us the same economic benefits.
I want to emphasize that from the beginning, the Tohono
O'odham Nation has engaged in an open dialogue with State and
local leaders, including myself, community groups, and
constituents. The Nation has also been receptive to feedback,
as demonstrated through the revised site plan for the project
that reflects movement of the casino closer to 95th Avenue and
Northern. They have also gone on record in support of the
planned improvements to Northern Avenue, contrary to the
intense statement in H.R. 2938.
The day this project was announced, the leaders of the
Tohono O'odham Nation met with me to inform me of their plans,
as they did with many others. They made it clear to me that
they were committed to work closely with me to address the
concerns that I, my council, and my constituents may have.
Since that day they have lived up to that commitment. They
have participated in hundreds of community meetings. They have
joined our local Chambers of Commerce. They have sponsored
important community charities, and participated personally in
local events.
They have met with key potentially affected constituencies,
including the Peoria Unified School District, to identify early
on potential issues, and to work cooperatively to resolve those
issues before an ounce of dirt has been turned.
There are many in our local community who understand the
benefits of the proposed project, and fully support it. And I
have brought with me, and would like to submit, comments,
written testimony from The Honorable Adolfo Gomez, owner of the
nearby, excuse me, Mayor of the nearby City of Tolleson, and
The Honorable Phil Lieberman, a 20-year veteran of the Glendale
City Council. Each asked that I bring to you today a copy of
their respective written testimony in support of the project,
and in opposition to H.R. 2938. And I ask that both statements
be included in the record of this hearing.
Mr. Young. Without objection.
Mr. Barrett. Mr. Chairman, Honorable Members, H.R. 2938 was
introduced less than three weeks ago. The directors of the
legislation did not consult with me, or my City Council, or
with Mayor Gomez or his City Council, or with the West Valley
community in general.
While I very much appreciate the opportunity you have
afforded me to testify today, I am but one voice among so many
in the West Valley who support the Nation's project. Therefore,
I strongly urge that you reject this legislation, or at a
minimum conduct a field hearing in West Valley before further
consideration. Come out and see for yourselves where this
property is located, and the troubles we are experiencing.
Perhaps most importantly, come out and help promote community
dialogue that will help move this project forward in a way that
works for all of us.
The picture the project's opponents have been attempting to
paint for two years is completely at odds with what I have
witnessed. In every respect, I have found the Tohono O'odham
people, their elected leadership, to be honest, respectful,
responsible, and personally engaged in working to improve the
West Valley communities. From my perspective, they are already
good neighbors.
I thank you again for giving me the opportunity to speak to
the Subcommittee about this badly misguided legislation. I am
happy to answer questions you may have.
[The prepared statement of Mr. Barrett follows:]
Statement of The Honorable Bob Barrett, Mayor,
The City of Peoria, Arizona
Chairman Young, Ranking Member Boren, and distinguished members of
the Subcommittee on Indian and Alaska Native Affairs. My name is Bob
Barrett, and I am the Mayor of the City of Peoria, Arizona. I want to
thank you for the opportunity to testify this afternoon regarding H.R.
2938. If enacted, H.R. 2938 would amend the Tohono O'odham Nation's
land claim settlement statute, known as the Gila Bend Indian
Reservation Lands Replacement Act, Public Law 99-503.
Before I begin, I need to clarify that I am speaking before you
today on my own behalf. I am not representing an official position of
the Peoria City Council. I will clarify that point later in my
testimony. Let us be clear from the outset about what H.R. 2938 really
is: job-killing special interest legislation designed to protect
existing Indian gaming operations and those who benefit from those
operations. This bill is not about whether the Nation's land lies
within its aboriginal territory or about whether the proposed casino
and resort complies with the tribal-state compact or other applicable
laws. And it most certainly is not about ``protecting'' the local
community. Rather, this bill represents an attempt to circumvent
ongoing litigation challenging the Nation's project which, so far, has
not gone to the established gaming interests' liking and has upheld the
right of the Tohono O'odham Nation to develop its resort project.
For those of you who are not familiar with the greater Phoenix
metropolitan area, the ``West Valley'' refers to the communities west
of the City of Phoenix. The Cities of Peoria and Glendale are the
largest communities in the West Valley, bordering each other and
Phoenix. The West Valley has experienced some of the fastest growth in
Arizona, but it has also suffered significantly from the recession and
faces continued economic fragility.
The Nation's West Valley land is located on a county island
(meaning that the land is not within the jurisdiction of either Peoria
or Glendale) between the City of Peoria and the City of Glendale. The
border between our two cities lies along Northern Avenue, which can be
seen on the map which follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
In this map, you are looking north from a place roughly
hovering over University of Phoenix Stadium, the home of the Arizona
Cardinals. The land in purple represents incorporated City of Glendale.
The land in light brown at the top represents the City of Peoria. The
land in green represents property purchased and owned by the Tohono
O'odham Nation, on unincorporated county land. The other land, without
color shading, represents other unincorporated parcels, most of which
is dedicated to agricultural uses at the moment. The highway on the
west side of the map is State Route 101, which is a loop freeway which
circumnavigates much of the Greater Phoenix Region in a shape roughly
equivalent to a horseshoe.
Because the Nation's proposed resort facility would be located just
across the street from a commercial center within the City of Peoria,
the proposed development is very likely to provide a much-needed
economic boost to Peoria and Glendale and the surrounding community.
I want to emphasize that from the beginning, the Tohono O'odham
Nation has engaged in open dialogue with state and local leaders--
including myself--community groups and constituents. During these
discussions the Nation's leaders described their plans and the economic
and social impact that this proposed project would have on the West
Valley. The Nation has also been receptive to feedback as demonstrated
through the revised site plan for the project that reflects movement of
the casino closer to 95th Avenue and Northern. They have also gone on
record in support of the planned improvements to Northern Avenue at the
urging of the local community.
This development is projected to create 6,000 construction jobs and
3, 000 permanent jobs--jobs desperately needed in Arizona, particularly
in the construction industry. In addition to the direct employment
benefits, the resort will create collateral economic development
opportunities for the local businesses that will supply the goods and
services needed to construct and operate the resort. The bottom line is
that this proposed resort complex is a vital economic growth package
for the West Valley, which neither the federal nor state government
need expend one dime of taxpayer money to implement. It is designed to
drive visitor traffic to an area that was specifically anticipated as a
Sports and Entertainment District.
The day this project was announced, the leaders of the Tohono
O'odham Nation met with me to inform me of their plans. They described
their intentions and the necessary federal review to come. And they
made it clear to me that they were committed to work closely with me to
address the concerns I, my Council and my constituents may have. I know
they met with many other local officials to introduce them to the
project, and I have to assume they made the same assurances to them
that they made to me.
Since that day, they have lived up to that commitment. They have
participated in hundreds of community meetings. They have joined our
local Chambers of Commerce. They have sponsored important community
charities, and participated personally in local events. They have met
with key, potentially affected constituencies, including the Peoria
Unified School District, to identify early on potential issues, and to
work cooperatively to resolve those before an ounce of dirt has been
turned.
The Peoria City Council has not taken a formal position on this
project. Why? We are engaged in extensive discussions with the Nation,
and their engineering and architectural firms, regarding potential
infrastructure requirements, transportation planning and other design
matters. We are approaching those negotiations with an open mind, and
remaining attentive to issues and complications that may arise. Our
staff has visited the Nation's gaming facilities to review their
operations and to understand how the West Valley Resort may be
similarly operated.
To take a formal council position of either support or opposition
may compromise the integrity of those discussions, and lead us to take
conclusions that may not necessarily be in the best interest of our
City. But speaking personally, I have every confidence that these
matters will be reconciled successfully, and that after more formal
consultations, support from my Council will be easy to come by. In my
mind, Council neutrality is appropriate at this time to allow our city
staff to conduct their work professionally and dispassionately. But I
am very anxious for litigation to be concluded, and for this project to
proceed so we can see many of our people get back to work.
There are many in our local community who understand the benefits
of the proposed project and fully support it. In fact the Honorable
Adolfo Gamez, Mayor of the nearby City of Tolleson, asked that I bring
to you today a copy of his written testimony in support of the
project--and in opposition to H.R. 2938--and he and I both ask that it
be included in the record of this hearing. As Mayor Gamez said more
than a year ago when the established gaming interests first tried to
stop this project through efforts to change state law, ``I can't see
the logic of not bringing jobs to the West Valley.'' Tolleson Backs
Tribe's Plan for Glendale Casino, The Arizona Republic (Feb. 20, 2010).
I want to make sure that everyone here today understands that this
project will provide a huge economic boost to our region.
Mr. Chairman, Honorable Members of the Committee, H.R. 2938 was
introduced less than three weeks ago. The drafters of the legislation
did not consult with me or my City Council, or with Mayor Gamez or his
City Council, or with the West Valley community in general. Not only
were we not consulted regarding this legislation, but we strongly
object to the fact that the legislation is being fast-tracked by
scheduling a hearing with so little notice to the community that it
will affect most. While I very much appreciate the opportunity you have
afforded me to testify today, I am but one voice among so many in the
West Valley who support the Nation's development project.
I strongly urge that before you move forward with this
legislation--before you decide whether to kill off these 9,000 jobs and
the ongoing economic growth opportunities for the West Valley--that the
Subcommittee consider holding a field hearing in the West Valley. Come
out and see for yourselves where this property is located. Come out and
see for yourselves how our communities are suffering during these
recessionary times. And come out and see for yourselves whether you
think special interest legislation to protect the market share of a few
is worth compromising the greater good of the many.
Finally, I want to register my significant personal discomfort that
parties involved in litigation against the Tohono O'odham Nation's
project now seek to effect a change in federal law in order to skew the
outcome of that litigation. In my view, the Nation has been playing by
the rules set out for it by Congress. If it should turn out that the
courts disagree based on the law as it is currently written, then so be
it. But for Congress now to amend the law is to change the rules in the
middle of the game--this to me is fundamentally unfair, and frankly
unworthy of our federal government.
I thank you again for giving me an opportunity to speak to this
Subcommittee about this legislation, which would unfairly prevent the
Tohono O'odham Nation from pursuing its planned West Valley Casino/
Resort development, would destroy 9,000 new jobs for Peoria, Glendale
and the rest of the West Valley, and would ensure that we do not
benefit from the related economic growth and development opportunities
that will be created by the Nation's West Valley project. I do not
think that the folks responsible for this legislation have heard the
whole story, and they certainly have not heard from the many local
officials and business leaders who strongly support this project. For
all these reasons, I believe that H.R. 2938 is ill-advised, and I hope
that the Subcommittee will not recommend that this legislation become
law.
I am happy to answer any questions you may have.
______
Mr. Young. Thank you, sir. Now, Mr. Lujan.
Mr. Lujan. Thank you very much, Mr. Chairman. You are
always looking after me, Mr. Chairman.
I want to welcome one of my Governors from Zuni, as well,
for being here, Governor Quetawki. It is always a pleasure,
sir, to have you here, and members of the Council, as well as
those we have had a chance to visit with today on educational
initiatives on behalf of the Pueblo Zuni.
Also our friends that are both with us, President Enos and
Chairman Norris, thank you both for being here, as well.
Governors, can you explain to the Committee what
Proposition 202 is, and what it means to the tribal
communities? I know this is an area that we have had some
conversation on, but just specifically with the importance,
especially to Zuni, with what Proposition 202 laid out as a
foundation and moving-forward policy in Arizona?
Mr. Quetawki. Can you repeat that again?
Mr. Lujan. Governor, if you could just give us your
perspective on the importance of Proposition 202, with moving
the gaming compacts forward, which provided a platform for the
Governor to enact some of those gaming compacts in Arizona.
Mr. Quetawki. OK. Well, specifically for Zuni, these
Proposition 202 is very important to us, is that it allows the
non-gaming tribes, the remote tribes like Zuni, being afforded
that opportunity to get revenue sharing. The lease agreements,
slot machine transfer agreements. And we utilize those
machines, the revenues, to the best we can.
And again, if this issue that we are talking about, H.R.
2938, goes into effect, the disastrous impacts it is going to
create on those small tribes.
Mr. Lujan. And President Enos, can you explain the
gentleman's agreement about gaming in the Phoenix area, and how
the Tohono O'odham was involved in this and was the tribal
party to the agreement? And when was that made specifically?
Ms. Enos. Certainly. Thank you for the question. I wouldn't
call it a gentleman's agreement, because there were some
gentlewomen that signed it, as well.
Mr. Lujan. I am corrected, Madame President.
Ms. Enos. I am just teasing. But when the States, excuse
me, when the tribes agreed to come together and negotiate with
the State, we knew that in order to present and provide a
unified front, that we had to come to an understanding amongst
each other. That is in a written document, and it is the
document that I had on the screen. It is included in part of my
written testimony. It is called an agreement in principle.
All the tribes that agreed that we would share our concerns
and we would come together on a unified front, that was the
critical part. Because we knew the racetracks and the beverage
owners weren't after slot machines; they were after Class III
gaming. And we knew that in order to effectively, efficiently,
and cleanly deal with the Governor and the State of Arizona,
that we had to be together. We had to be united.
So all the tribes signed that agreement. And the critical
part of that was that if, in signing the document, if a tribe
felt that it had to, had to take some actions that were
inconsistent with the interests of the body of tribes, that it
had a duty to disclose that to the rest of us. Tohono O'odham
signed that, yet they didn't disclose to us that they were
looking to buy land in the Phoenix area.
Mr. Lujan. And Mr. Norris, pertaining to the agreement in
principle, thee are two bullets there, in the therefore clause.
One is bullet point four and one is bullet point five, that I
believe that President Enos was just referring to, especially
bullet point five.
But bullet point four reads, ``The tribal leaders' first
priority is to protect the interests, sovereignty, and right to
self-determination of their individual Indian Nations. Nothing
in this agreement shall be construed to impair their tribal
leaders' ability to protect the sovereign interests of their
individual Indian Nations, or their ability to take any action
inconsistent with the actions or positions of other tribal
leaders.''
Number five reads, ``Tribal leaders will make a good-faith
effort to notify other tribal leaders if they believe that they
cannot abide by this agreement, or that they must take
positions or actions inconsistent with those of other tribal
leaders.''
With that being said, Mr. Chairman, how has the tribe moved
forward, under your leadership and under the previous Chairman
as well, in this area, specific to those two bullets?
Mr. Norris. Thank you for the question, Mr. Chairman and
Mr. Lujan, members of the Committee. I have to respond to one
thing that it wasn't until President Enos's testimony became
public that I was aware, or even saw that particular agreement
that you are referring to. I have not seen it until I have seen
it in her testimony.
And I also have to say that at the time that agreement was
discussed, I was not privy to the conversations that typically
would have been held in executive session by elected tribal
leaders only to make those decisions. Although I was involved
as an employee of then our current gaming operation, I was
allowed to participate in the meetings to the extent that I,
along with lawyers and lobbyists and non-elected persons, were
excused from those meetings when the tribal leadership chose to
have much more detailed conversations. Similar to what we do
even today, when tribal leaders want to discuss issues amongst
themselves.
So in answer to your question, what I have to say, too, is
that in 1992, what I do know is that in 1992, the State of
Arizona and an attorney that represents one of the tribes that
are in opposition were advised of the Nation's acquisition of
this property, and there was no disagreement amongst those
representatives that the Nation could game on these after-
acquired lands, in accordance with the current compact, with
the compact at that time.
And so based on the current terms of the compact, it is our
position that, and much reference was made to the 50-mile
clause in the Tucson market to Section [j] in the compact, it
is that section that the Nation feels it has the authority to
move forward and acquire this land into trust, and game on that
land. Because the compact that my Nation's leadership signed,
along with the Governor at that time, provides for the Nation's
ability to game on after-acquired land, as long as that land
has been acquired as the result of a land settlement, and it is
a provision under our current compact.
Mr. Lujan. Thank you, Mr. Chairman.
Mr. Young. Mr. Schweikert.
Mr. Schweikert. Thank you, Mr. Chairman. I still feel a
little bit like an interloper.
Mr. Young. If you become an interloper, I will let you
know. Go right ahead.
Mr. Schweikert. I have the funny feeling, knowing how shy
and retiring you are, you would, yes.
Is it Mr. Barstow?
Mr. Bistrow. Bistrow.
Mr. Schweikert. Bistrow. And this is one, forgive me, I am
just trying to also help put some things back into context.
Have you, not only as the Attorney General's Office, but also
been working with the Governor of the State?
Mr. Bistrow. Yes. We are on the, as far as I know, the
Attorney General and the Governor are in sync on this issue.
Mr. Schweikert. OK. I did not know if you have had
conversations with her, because she has an interesting history
of this area and this community. I believe this was
substantially her legislative district when she was also on the
Board of Supervisors, this area, and now obviously as Governor.
But Jan, or Madame Governor, was actually the Whip in the
Senate when I was the Whip in the House, and dealing with the
first set of compacts. Just from a personal anecdotal
standpoint, a lot of people don't realize we were very close to
having the votes to remove horse tracks, dog tracks, and the
lottery, and go the other direction in IGRA. Which is saying we
will be like Utah; we just won't have it. And it was
substantially because of the fear of this type of situation.
President Enos, can I ask you to step back. Were you
involved in the Prop 202 campaign?
Ms. Enos. Yes. I was an elected official at the time, and
Salt River was involved in the whole process. And while I heard
Chairman Norris say that he didn't know about the agreement in
principle, the agreement in principle was signed by Chairman
Manuel, who was a chairman at the time, and Tohono O'odham was
active in all phases of the Prop 202 campaign. And part of my
written record, written testimony includes references to now-
Chairman Norris making assertions about our unity, and about
the tribes and Chairman Manual sticking together.
And I would also acknowledge that the Tohono O'odham Nation
contributed a large part of, a significant amount of the monies
to finance that campaign, and was involved in the steering
committee for the Arizona Indian Gaming Association developing
those messages that we were giving to the voters and the State
of Arizona.
Mr. Schweikert. Mr. Chairman, Madame President, do you
remember the discussions in the ads and all the brochures,
about vote for this, it will help our rural tribes be able to
move their allocations; but at the same time, it would also
limit the number? And I don't know why that is sort of burned
into my memory, and I am trying to have someone else also
confirm that piece of memory.
Ms. Enos. Absolutely. Because as I mentioned earlier, the
coalition of 17 tribes, it was called the, it was the
Initiative for Fairness I believe, something like that. But
during that campaign, the monies that we all contributed
together, including Tohono O'odham, we had television ads, we
had bumper stickers. There were voter guides, pamphlets that
went out to the voters in Arizona to get them to vote for
Proposition 202.
Mr. Schweikert. OK. And Mr. Chairman, this one is for
anyone that is on the Committee. Let us reach back to that 2002
campaign. What would have happened if the initiative that was I
think primarily financed through some of the horse and dog
tracks had been victorious? If it had the most votes, so we
would have had Class III gaming at those establishments? Do I
have anyone that is comfortable saying what would have happened
to our existing compacts at that time?
Ms. Enos. Well, I am comfortable answering that question.
Mr. Schweikert. Did we disclose to everyone you are a
lawyer, also?
Ms. Enos. I am very proud of it, thank you. Honorable
profession.
[Laughter.]
Mr. Schweikert. Oh, no. I think I may have hurt us with the
Chairman.
Ms. Enos. You know, what would have happened, it is hard to
go back and predict, and go back in time. But it certainly
would have made things different.
And I acknowledge what Chairman Norris just said, about him
not knowing about our agreement in principle, and not being
aware of it now. I guess the question that I would have is
that, does that mean that you understand that the Tohono
O'odham Nation made a promise then, and broke that promise to
not only the other tribes in Arizona, but the voters in
Arizona, and the Governor?
I am sorry, what was the question? I am getting excited
here.
Mr. Schweikert. Well, it was just my, my fear is sort of
the looping back, that if the racinos had passed, what that
would have done to the compacts and the whole nature of
Arizona.
Ms. Enos. Yes. Mr. Schweikert, part of the campaign, and
this is what Governor Jane Hull in fact said in the press
conference where she supported the compact the tribes had
negotiated. She said many things, but one of them is she said
this would keep, limit the number of casinos in the Phoenix
metro area to seven, because that is what, that is what exists
right now.
And then-Attorney General Janet Napolitano also was
supportive of Prop 202. And she said this will keep gaming out
of our neighborhoods. So there were many supporters that
aligned with the 17-tribe coalition in support of the Prop 202
campaign.
And it is hard to say what would have happened. I know that
Salt River would have objected strongly if Tohono had said
look, folks, we are getting ready to purchase some land in the
middle of metro Phoenix, or Glendale, or Peoria, wherever that
is, in that area there. I know that it would have diametrically
changed everything.
Because not only in those negotiations among the tribes
ourselves, we had to do a lot of give-and-take; the number of
slot machines, the number of locations. Salt River already, and
Gila River, gave up one casino, the right to have a casino. But
Tohono maintained their right to have four casinos, and to have
an additional one in Tucson, as part of those negotiations.
Mr. Schweikert. Mr. Chairman, thank you, Madame President.
Thank you for your tolerance. Thank you, sir.
Mr. Young. Mr. Kildee.
Mr. Kildee. Mr. Chairman, I yield my time to Mr. Franks
from Arizona.
Mr. Franks. Thank you, sir, that is very kind. I appreciate
that.
Let me address the first question if I could to President
Enos. As you know, President Enos, after Congress enacted the
Indian Gaming Regulatory Act in 1988, referred to as IGRA here,
it specifically required that for gambling or gaming to be
allowed in the tribal areas, that there had to be a compact
with the State and among the tribes. That was one of the
fundamental predicates of the entire situation.
As you know, Arizona enacted legislation that restricted
gaming within the State to existing or contiguous reservation
lands, and prohibited the Governor from concurring with any
Federal decision to allow gaming on so-called after-acquired
lands that were not contiguous to an existing reservation.
Also, a complex background there.
But with that background, you mentioned the written
agreement among the tribes promising good faith and solidarity.
I know that you have covered this so well, but would you
reiterate, in the key areas, what you think the purpose of that
agreement was? Ultimately, was it not to meet this requirement
of IGRA, to create a compact to allow the gaming on the tribal
lands?
Ms. Enos. Yes.
Mr. Franks. And please feel free to elaborate.
Ms. Enos. Mr. Franks, yes, it was. And when the tribes--I
have to explain the process that we underwent, undertook
actually.
The tribes met as a group, as a coalition. And we
understood, the first thing the Governor said was limited
gaming. Limited gaming. Otherwise the State is not going to
talk to you about this; we are not going to negotiate with you.
So the tribes, we began to negotiate amongst ourselves. And
we knew that we couldn't have as many machines as we wanted. We
knew that we couldn't have as many facilities as we wanted,
because the State said limited gaming.
And also, the requirements with IGRA, which was enacted in
1988, were well in place, and we recognized that as a framework
that we had to work with, with dealing with the State, with
negotiating with the State.
So after-acquired lands is clearly a restriction on the
Governor to approve those compacts that have land that is
after-acquired, presumably after the 1988, and I think the
statute specifically says that. But you are correct, in lands
that are not contiguous.
The State of Arizona has a very strong interest against
expanded gaming. Thus, the clearest answer I can give to you,
to all of you here, the State of Arizona negotiated with the
tribes in good faith and fair dealing, to limit gaming to then-
existing lands, homelands. And it was our clear understanding,
not only amongst each other, but with the Governor and with the
voters of Arizona, but also with the Governor and the State.
So IGRA, the way we looked at IGRA was that we all had to
play by IGRA. And again, I go back to the point that Tohono
O'odham didn't tell us, when we were negotiating amongst
ourselves in 1999 to 2002 and into the Prop 202 campaign, they
did not tell us. Not once did they say we are thinking of
buying land in the Phoenix metro area, and we are even thinking
that it is going to be consistent and under IGRA. Nobody said
that to us. They didn't tell the State, they didn't tell us.
And again, it goes back to the very concept of fair
dealing. It goes back to the very concept of keeping your
promise. It goes back to the very basis on which the compact
was signed by the State of Arizona and the tribes. Trust,
reliance, and a promise. And they were not, they didn't play
along with that.
Mr. Franks. Thank you, President Enos. I guess thee are two
questions I would like to throw in here, and I will get it in
here and let you answer them as you can.
One is, if the compact should blow up, given the construct
of IGRA, if the compact should blow up, does it not call into
question the entire legality of some of the other reservation
gaming that is occurring now? I mean, at this point, if the
compact dissolved it would be in direct conflict with IGRA for
there to be any gaming in Arizona. Is that correct?
Ms. Enos. Well, what would happen, in practical terms, if
the Tohono O'odham Nation is permitted to game in Glendale, not
only will the voters, the promises that the tribes and that we
all made that no more casinos in the Phoenix area, no more than
seven, that promise is violated. And that trust that we asked
for from the voters of Arizona and the State is gone.
It is almost like dealing with somebody, you have business
dealings with somebody. You sit down at the table, and you want
to work out a partnership of sorts. You put everything that you
have on the table: This is what I am dealing with, these are my
potentials, these are my negatives. Because you have an
expectation that people are going to be truthful, and that the
result will be what everybody understands.
You can't deal with another party, especially in a
partnership-type relationship, which is what this was, and
crossing your fingers behind your back. You can't do that.
There is a provision in the Arizona Compact that says
specifically if non-Indian interests get slot machines, get
Class III gaming, then all bets are off. They call that the
Poison Pill provision.
And what it means is that if the racetracks are able to get
slot machines, or the beverage owners, as they are asking for
right now, then the tribes don't have to provide any more
revenue sharing, and we can build 20 casinos. But that makes
the State of Arizona a gaming State, and everybody can have
slot machines. Everybody.
And that is what people mean when they say the compact
could blow up here. Because we have achieved what, in a lot of
our opinion, is a well-balanced agreement among not only the
tribes, the cities, the counties, the State and the citizens of
Arizona. That is what would be disrupted here.
Mr. Young. Your time is up.
Mr. Franks. Thank you, Mr. Chairman. Thank you. Thank you
all for being here.
Mr. Young. Mr. Eni.
Mr. Grijalva. Thank you, Mr. Chairman. If I may, Mr.
Chairman, ask unanimous consent to enter into the record
letters in opposition to the legislation, the Pascua Yaqui
Tribe, San Carlos Apache Tribe. And also the map of the Arizona
Indian Lands map, which shows O'odham Nation's reservation in
Gila Bend, entrusted forests within the claims of Salt River
aboriginal territory, 71 letters of support from West Valley
businesses and organizations, and a letter from Senator
DeConcini to Secretary Salazar.
Mr. Young. I don't object. I can't understand it all, but I
don't object.
Mr. Grijalva. It was pretty miserable reading after a
while, but anyway.
[Laughter.]
Mr. Grijalva. Part of the discussion is about precedent,
and I want to get a little bit. Because I understand--no, I
don't understand where the motivations and emotions are around,
around the issue.
But one, if I may ask Chief Deputy, one of the points that
you testified is that in no way the drafters of this settlement
act that is central, and the interpretation of this settlement
act is central to the discussion in the ongoing process, what
it could have meant to allow the Nation to acquire land within
county islands. And that you are concerned that the Department
of the Interior has interpreted the settlement to allow for
this.
Let me quote to you from the letter that I entered into the
record from Senator DeConcini to the Secretary. ``I also
understand that some are now asserting that because the land is
adjacent to existing incorporated areas, that it is somehow
unsuitable to meet the purposes of the legislation. While our
State's population has grown significantly since the
legislation, it is important to note that there were
unincorporated lands adjacent to incorporated communities even
then. For some now to interpret this legislation included an
additional requirement that replacement lands be isolated, and
thus its economic value diminished, is incorrect, both in terms
of the letter of the law and in this Senator's intent.''
Would you care to comment on Senator DeConcini's letter?
Mr. Bistrow. I haven't seen Senator DeConcini's letter, but
this is what I meant by a written statement.
There was an exclusion under the Gila Bends Act, which
basically said that that land cannot go into the reservation if
it was within a, and I am paraphrasing, within a city or any
town.
Now, my view is that that meant within the geographical
boundaries of a city or a town. I think that is the plain
reading of that particular statute. I cannot imagine----
Mr. Grijalva. No.
Mr. Bistrow. If I can continue.
Mr. Grijalva. Well, I have limited time, with all due
respect. I have five minutes. The point is that you haven't
read the letter, and you probably should.
The next, other part of precedent is this. I think, you
know, there has been comments, and I think the Governor made
some good comments in his testimony about that nowhere in the
Land Replacement Act does the O'odham Nation have the right to
game on its lands placed into trust under the Land Replacement
Act, let alone outside aboriginal territory. I read that quote.
The precedent issue for me continues to be a vivid one. The
Zuni Pueblo has benefitted from several land acquisition
statutes. None of those statutes, both in Arizona and in other
trust decisions, none of those statutes have a provision
authorizing gaming.
So one can then conclude, on a precedent, that it is the
position that it would be illegal for lands acquired under this
kind of order, under these statutes; it would be illegal
because no express language exists to prohibit it, or to allow
it.
The same as in any settlement issue. And this is I think
that Pandora's Box said all Nations should be concerned about;
that the restrictions in H.R. 2938 was drafted without
consultation to the Nation affected by it. That, for instance,
there are complaints that some of the tribes did better off on
the water settlement in Arizona than others.
So to me, so the precedent would be would it be acceptable,
then, to also amend let us say the Gila Rivers 2004 water
rights settlement to reduce its water allocation, so that
other--over the Gila Rivers' objection, which would be
immediate, because it would serve other Arizona tribes'
interests.
The precedent issue continues to be one, Mr. Chairman. And
while the settlement issue has to be, has to go through its
process, this legislation I think is going to open up a box
both of litigation, and inevitably, if the concern is about the
effect on gaming in the long term, and what it did to the
compact.
And I don't believe the settlement violates the compact,
and that has already been, it is being litigated, this whole
issue. It is in the process in the Department of the Interior
and before the Commission.
I would suggest that the prudent and the wise route to go
is to let the process run its course, and let those decisions
be made without jeopardizing not only the relations in the
State among people, but more importantly, setting precedents
that are going to come back and haunt us one after another.
Legislation specific to a tribe, restricted to a tribe, in this
case I think opens up a precedent on a settlement that anyone
concerned about the sovereignty in Indian country should be
concerned about the legislation.
With that, let me thank you, Mr. Chairman, for this
hearing, and suggest prudence, if anything else. Thank you.
Mr. Young. I want to thank the gentleman. Mr. Norris, do
you have casinos?
Mr. Norris. Mr. Chairman, members of the Committee, yes, we
do.
Mr. Young. How many?
Mr. Norris. We operate three.
Mr. Young. In Tucson?
Mr. Norris. Two in the Tucson, and one on the furthest
western end of the Tohono O'odham Nation, near Ajo, Arizona.
Mr. Young. Now, do you share, or do you lease slot machines
and stuff from other tribes?
Mr. Norris. We have leased machine rights from two other
tribes.
Mr. Young. Two other tribes. I am just curious about, if
this new one was to be built, would you be under that same
agreement?
Mr. Norris. As far as the lease terms are concerned, or the
compact?
Mr. Young. Would you be able to lease, I mean, more
machines from other smaller tribes?
Mr. Norris. Mr. Chairman, members of the Committee, the
Tohono O'odham Nation is currently at its maximum capacity for
machine rights under the current compact, and any rights we may
have to lease additional machines.
Mr. Young. So how would you put machines in a new casino?
Mr. Norris. We have some rights to machines that we have
not put into play at this point.
Mr. Young. So the three are not fully occupied.
Mr. Norris. Right.
Mr. Young. OK. Well, I want to thank the panel. I think you
have done well. And we are going to hear a lot from all the
members of this Committee and other interested parties.
I do have the agreement in principle signed by the Tejon
Tribe in 2000, I guess it was 2000, and all the other ones. I
am interested in when it was signed. We have one in 2000, one
in 1999, is that the way it is? Ninety-nine and 2000. We have
only one tribe that didn't sign; that was the Prescott Tribe?
Yes, that is the one that didn't sign out of all the tribes.
I want to thank you all.
Mr. Lujan. Mr. Chairman? Mr. Chairman.
Mr. Young. Mr. Lujan, yes. He has a question.
Mr. Lujan. Thank you, Mr. Chairman. Mr. Bistrow, I guess
one question that is on my mind, based on the conversation that
we had here, based on the compacts and the mentioning of
Phoenix, and not having the compact in front of me.
Is Phoenix mentioned in the compact specifically?
Mr. Bistrow. Not specifically, not specifically I think in
the sense that you are saying it. Basically, it is our view
that this promise has remained during the campaign that there
would be no new casinos in the Phoenix area. There were
campaigns that were waged against Prop 201, the racing
initiative.
Indeed, the Tohono O'odham Nation campaigned against that
particular proposition on the basis of----
Mr. Young. Will the gentleman yield? This is Prop 202.
``Does Proposition 202 limit the number of tribal casinos in
Arizona? The answer is yes. In fact, Proposition 202 reduces
the number of authorized gaming facilities on tribal land, and
limits the number and proximity of facilities each tribe may
operate under Proposition 202. There will be no new additional
facilities authorized in Phoenix.''
Mr. Bistrow. OK. Mr. Chairman----
Mr. Young. But it does say one in Tucson.
Mr. Lujan. And Mr. Chairman, that was the followup
question. It sounds like it is not explicitly listed in the
compact, but it was included in Proposition 202.
Mr. Bistrow. That is right, in the campaign circulars, in
all of the ad campaigns. Many of those ad campaigns, as a
matter of fact, in the testimony before the Arizona State
Senate, those statements were made by the Indian tribes, as
well. So it is clearly understood in Arizona that that was one
of the terms of the compact.
Mr. Young. Madame President?
Ms. Enos. I would like to respond to that question. The
compact specifically lists casino facilities, and it lists
specifically seven casinos. And it lists, actually there is a
table that shows the number of facilities that each tribe is
allowed to have under the compact.
And in the Phoenix metropolitan area there are seven
casinos in the compact that are allowed for the seven, for the
tribes in the Phoenix metro area.
But I really wanted to respond to Congressman Grijalva's, I
think it was a question, and I didn't hear a response to it.
But he is talking about precedent.
Congress clearly has done land settlements specifically. We
don't believe that this was a land settlement, for one thing.
But for instance, the Narragansett land claim was settled, and
Congress went back and amended it and precluded gaming on that.
The Colorado River specifically, reservation, precluded gaming.
The Mashantucket Pequot situation also, Congress specifically
precluded gaming. Congressman Grijalva's own measure that he
introduced on the Cocopah lands specifically precludes gaming.
Mr. Lujan. And President Enos, if I may, because we are
running out of time.
Ms. Enos. Sure.
Mr. Lujan. Chairman Norris, quickly, and then I will yield
to Congressman Grijalva, just to respond there quickly.
Mr. Norris. Thank you very much, Congressman and Mr.
Chairman. I just wanted to quickly say that the Tohono O'odham
Nation's compact that we have currently signed with the State
of Arizona authorizes the Nation to game on after-acquired
lands. That is the provision that is already in there.
And the provision is that we can game on after-acquired
land as long as that land was acquired as a result of a land
settlement.
Contrary to President Enos's comment, and based on the
decisions by the Department of the Interior, the Gila Bend
Indian Land Replacement Act is land settlement; it is the
settlement of land of almost 10,000 acres that was totally
destroyed by the U.S. Government.
I am not an attorney, sir. I would like, if possible, my
attorney, who is sitting with me, to clarify certain provisions
under the compact.
Mr. Lujan. If I may, Chairman Norris, if we could ask him
to submit that in writing to the record, as well. And I will
yield the remaining time to Congressman Grijalva.
Mr. Grijalva. I think, to the point that was made regarding
other land settlements that have the prohibition, the two that
I worked on have been in cooperation and consultation with the
tribes.
We have an existing settlement here. We have a piece of
legislation that undoes that settlement. And that is the
fundamental difference.
The fact that gaming is central to the debate doesn't take
away the, doesn't take away my concern about the legal
precedent that is being set here. With that, I yield back.
Mr. Young. I just want to thank the panel again, and
appreciate your patience. It has been a good two hours, a
little more than two hours. So thank you very much. This
hearing is adjourned.
[Whereupon, at 4:56 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
The documents listed below have been retained in the
Committee's official files.
Franks, Hon. Trent, a Representative in Congress
from the State of Arizona
Brewer, Hon. Janice K., Governor, State of Arizona,
Letter submitted for the record in support of H.R. 2938
Tobin, Hon. Andy, Speaker, Arizona House of
Representatives, Letter submitted for the record in support of
H.R. 2938
Grijalva, Hon. Raul M., a Representative in
Congress from the State of Arizona
71 letters in opposition from other tribes
Map of the Arizona Indian Land Areas Judicially
Established in 1978
Gamez, Hon. Adolfo, Mayor, City of Tolleson,
Arizona, Statement submitted for the record by Hon. Robert
Barrett, Mayor, City of Peoria, Arizona
Lieberman, Phil, Council Member, City of
Glendale, Arizona, Statement submitted for the record by Hon.
Robert Barrett, Mayor, City of Peoria, Arizona
Scruggs, Elaine, Mayor, City of Glenndale,
Arizona, including statements of Vice Mayor Steve Frate and
City Council Members Joyce Clark, Mannu Martinez, and Yvonne
Knaack, Statement submitted for the record--116 pages
Smith, Diane, Owner-Founder, Marathon
Development, Statement submitted for the record
Tohono O'Odham Nation of Arizona, Supplemental
testimony 97 pages
Tovar, Hon. Anna, Arizona State Legislature,
Statement submitted for the record