[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
      

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

70-596 PDF                       WASHINGTON : 2012 

For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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

                                 
