[House Report 110-541]
[From the U.S. Government Publishing Office]
110th Congress Rept. 110-541
HOUSE OF REPRESENTATIVES
2d Session Part 2
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TO PROVIDE FOR AND APPROVE THE SETTLEMENT OF CERTAIN LAND CLAIMS OF THE
BAY MILLS INDIAN COMMUNITY
_______
April 4, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
ADDITIONAL VIEWS
[To accompany H.R. 2176]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2176) to provide for and approve the settlement of
certain land claims of the Bay Mills Indian Community, having
considered the same, reports unfavorably thereon without
amendment and recommends that the bill do not pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background....................................................... 2
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 9
Committee Oversight Findings..................................... 9
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Performance Goals and Objectives................................. 11
Constitutional Authority Statement............................... 11
Advisory on Earmarks............................................. 11
Section-by-Section Analysis...................................... 11
Additional Views................................................. 12
Purpose and Summary
H.R. 2176 would preemptively ratify a land claim settlement
concluded between the Bay Mills Indian Community and the
Governor of Michigan. Specifically, the bill would direct the
Secretary of the Interior to accept in trust, in settlement of
a claim by the Tribe to lands in Charlotte Beach, Michigan, in
Michigan's Upper Peninsula, close to the Tribe's reservation--a
claim the Tribe has already lost in court--a parcel of land in
Port Huron, Michigan, as a new addition to its reservation,
even though it is located hundreds of miles away. It would also
make the newly acquired land automatically eligible for casino
gaming, by preemptively deeming it to qualify under an
exception to the Indian Gaming Regulatory Act's prohibition of
gaming on newly acquired land.
In doing so, the bill would override the established
procedures of the Indian Gaming Regulatory Act, promises made
to the other Michigan Tribes, and the express wishes of the
citizens of Michigan as reflected in a State-wide referendum
passed just a few short years ago. It would set a dangerous
precedent, a blueprint for flouting established law to build a
casino in the name of an Indian tribe in any corner of the
country.
Background
BACKGROUND AND HISTORY OF THE INDIAN GAMING REGULATORY ACT
The Indian Gaming Regulatory Act (``IGRA'')\1\ was enacted
in 1988 to provide a legal framework for regulating the
operation of gaming on Indian lands. Congress enacted IGRA in
response to California v. Cabazon Band of Mission Indians, 480
U.S. 202 (1987), in which the Supreme Court had held that, in
the absence of any governing Federal statute, the States'
interest in regulating gaming on Indian lands within their
borders was outweighed by the Tribes' interest in promoting
such gaming for the Tribe's economic benefit. In recognition of
Tribal rights, IGRA incorporates the key holding of Cabazon,
which recognizes a Tribe's right to conduct gaming under
specified conditions even when it does not conform to the law
of the State in which the Indian lands are located. The type of
gaming at issue in the two bills before the Committee is class
III gaming, or full-scale casino gaming.
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\1\Pub. L. 100-497, 102 Stat. 2467, 25 U.S.C. Chapter 29.
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Under IGRA, the term ``Indian lands'' includes not only
lands within the limits of any Indian reservation, but also
lands to which title either is held in trust by the United
States for the benefit of an Indian Tribe or individual Native
American, or is held by an Indian Tribe or individual Native
American subject to restriction by the U.S. against alienation
and with an Indian Tribe exercising governmental power.
A number of statutes, including the Indian Reorganization
Act of 1934, authorize the Secretary of the Interior to acquire
land in trust for individual Indian Tribes. Procedures for such
land acquisition are specified in 25 C.F.R., Part 151. By this
process, Indian owners of land in fee--i.e., unencumbered by
liens that impair marketability--may apply to have their fee
title conveyed to the Secretary to be held in trust for their
benefit. This removes the land from State and local tax rolls,
and precludes the land from being sold, and from being taken by
legal process.
One central objective of IGRA was to place limits on the
potential proliferation of Indian gaming. Under section 20 of
IGRA, 25 U.S.C. Sec. 2719, lands acquired in trust by a Tribe
after IGRA's enactment are generally not eligible for gaming if
they are not within or contiguous to the boundaries of the
Tribe's reservation. There are several exceptions, however.
The first exception authorizes the Secretary to permit
gaming on newly acquired lands if (1) the governor of the State
in which the lands are located consents and (2) the Secretary
determines, after consulting with State and local officials,
including officials of other Tribes, that permitting gaming on
those lands ``would not be detrimental to the surrounding
community.''
There are five other exceptions, under which gaming may be
permitted on newly acquired lands without meeting those
conditions. Four of those exceptions involve newly recognized
Tribes, Tribes restored to recognition, or Tribes that had no
reservation at the time IGRA was enacted, factors clearly not
present here.
The fifth exception is for lands taken into trust as a land
claim settlement. This is the exception that the two bills
purport to be relying on. IGRA also requires that the Tribe and
the State have entered into a compact setting forth the terms
under which class III gaming will be conducted on the Indian
lands in question, including how State criminal and civil laws
will apply. The State-Tribe compact must be approved by the
Secretary, but approval will be forthcoming as long as it
complies with Federal law and the government's trust
obligations. The Tribe must also have adopted an ordinance
permitting class III gaming on those lands, which the Chairman
of the National Indian Gaming Commission must find was not
unduly influenced by anyone who, in light of criminal record,
prior activities, reputation, or associations, poses a threat
to the public interest or effective regulation, or a risk of
unsuitable, unfair, or illegal activities.
INDIAN LAND CLAIM SETTLEMENT PROCESS
Prior to enactment of the Indian Claims Commission Act of
1946,\2\ each Indian land claim required prior specific
congressional authorizing legislation. That Act created the
Indian Claims Commission (``ICC'') to resolve such claims. When
the ICC was dissolved in 1978, remaining unresolved claims were
transferred to the U.S. Court of Claims, and all new claims are
required to be filed there as well. A land claim may proceed to
judgment, or may be resolved through negotiated settlement. The
judgment or settlement agreement then becomes the basis for
congressional resolution of the land claim. The entire process,
from the initial assertion of the land claim to its eventual
resolution, typically takes many years.
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\2\25 U.S.C. Sec. Sec. 70-70v.
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CASINOS ON TRIBAL LANDS IN MICHIGAN
According to the National Indian Gaming Commission, there
are currently 19 Tribal casinos operated in the State of
Michigan by 10 Tribes. The Bay Mills Tribe, now seeking a new
casino pursuant to the bill, operates two of them.
The Bay Mills Tribe was among seven Michigan Tribes who in
1993 entered into parallel compacts with the State of Michigan
governing the operation of class III gaming, including any
development of off-reservation gaming.\3\ A provision in those
compacts, intended to forestall a proliferation of Indian
gaming across the State, requires that any revenue generated by
off-reservation gaming be shared among the seven Tribes:
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\3\This was the first Michigan compact. Other compacts were entered
into in 1998 covering four other Tribes in Michigan who had recently
been granted Federal recognition.
An application to take land into trust for gaming
purposes pursuant to Sec. 20 of IGRA (25 U.S.C.
Sec. 2719) shall not be submitted to the Secretary of
Interior in the absence of a prior written agreement
between the Tribe and the State's other federally
recognized Indian Tribes that provides for each of the
other Tribes to share in the revenue of the off-
reservation gaming facility that is the subject of the
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Sec. 20 application.
This provision requires each signatory Tribe to negotiate an
agreement with the others to distribute a portion of the
revenues from a casino opened on off-reservation lands acquired
after the signing of the compact in 1993. This provision is
still in effect.
OTHER MICHIGAN CASINO GAMING--THE DETROIT CASINOS
In 1994, Michigan voters approved a State-wide referendum
that authorized three casinos in Detroit. Civic leaders
promptly began discussions with interested parties, and the
three casinos were opened within a few years. The MGM Grand
opened in 1999, and its permanent resort facility opened in
October 2007. The MotorCity opened in 1999 in a 1915 building
that long housed the Wonder Bread bakery; with a permanent new
casino and hotel both opening last year. The Greektown, of
which the Sault Ste. Marie Tribe is majority owner, opened in
2000, and is constructing a permanent facility that is
scheduled to open later this year.
The construction of these three casinos has brought
significant economic development to the area. The MotorCity
construction project has been valued at $400 million, and the
MGM Grand project at $800 million, one of the largest projects
in the State. These projects have also been a centerpiece of
broader economic revitalization efforts in Detroit. Under the
terms of the referendum, a portion of the earnings from the
casinos is provided to the City of Detroit for police and fire
protection services, and to the State for public education. By
one measure, Detroit has already received well over a billion
dollars in revenues. That is in addition to the multi-year
construction jobs, permanent casino jobs, and other jobs
directly or indirectly attributable to the casinos.
In 2004, concerned about attempts to expand casino gaming
into horse-racing facilities, Michigan voters approved another
State-wide referendum to restrict the expansion of gaming by
requiring that any new private gaming expansion be approved in
a general election by a State-wide majority as well as a
majority of voters in the local community.
NEW INTERIOR GUIDANCE--WHETHER TO TAKE OFF-RESERVATION LAND INTO TRUST
FOR GAMING
On January 3, 2008, the Interior Department issued
``Guidance on Taking Off-Reservation Land into Trust for Gaming
Purposes.'' It applies to all applications, pending or yet to
be received, that involve requests to take land into trust that
is off-reservation. 25 C.F.R. 151.11 sets forth the factors the
Department will consider in making the determination. As the
distance between a Tribe's reservation and the land to be
acquired increases, the Department will ``give greater scrutiny
to the Tribe's justification of anticipated benefits from the
acquisition'' and give ``greater weight to concerns raised by
State and local governments as to the acquisition's potential
impacts on regulatory jurisdiction, real property taxes, and
special assessments.''
The guidance explains that, as a general principle, the
farther the economic enterprise is from the reservation, the
greater the potential for significant negative consequences on
reservation life. Tribes seeking off-reservation gaming desire
the economic benefits of such activity--not only the income
stream from the gaming facility, but also the related
employment and job training opportunities for Tribe members.
Because such employment programs foster a strong tribal
government and community, they are a crucial benefit of tribal
gaming facilities.
While greater distance from the reservation is not likely
to have an impact on the income stream, it can have a
deleterious effect on reservation life. A gaming facility that
is ``not within a commutable distance of the reservation'' will
not improve the employment rate of Tribal members living on the
reservation. Instead, an off-reservation gaming facility would
encourage Tribal members to leave the reservation.
Although the income stream from the gaming facility may
help offset potential negative impacts, the guidance states
that ``no application to take land into trust beyond a
commutable distance from the reservation should be granted
unless it carefully and comprehensively analyzes the potential
negative impacts on reservation life and clearly demonstrates
why these are outweighed by the financial benefits of tribal
ownership in a distant gaming facility.''
Section 151.14 also states that the Department will give
``greater weight to the concerns of State and local
governments'' with regard to the potential conflicts of land
use and the removal of the land from the tax rolls as the
distance between the Tribe's reservation and the land to be
acquired increases. This is because the increase in distance
makes it more likely that the transfer of Indian jurisdiction
to the proposed parcel of land will ``disrupt established
governmental patterns'' in distant communities that may not be
conversant with the unique regulatory practices of tribal
governments. Furthermore, the farther from the reservation the
land acquisition is, the more difficult it will be for the
Tribal government to exercise its authority appropriately.
According to the guidance, any application which does not
satisfactorily address these issues should be denied.
THE BAY MILLS AND SAULT STE. MARIE LAND CLAIMS
The Bay Mills Tribe traces its ancestry, as does the Sault
Ste. Marie Tribe, to two Chippewa bands headed by O-Shaw-Wan-O
and Shaw-wan. Its claim to the Charlotte Beach land stems from
an 1857 deed from a non-Indian couple, Boziel Paul and his
wife, to the Governor of Michigan. The deed purported to convey
the land to the Governor in trust for the benefit of the two
Chippewa bands. The Pauls had obtained the land in 1855 by
Federal land patent. Approximately 30 years later, the State of
Michigan sold the land, to non-Indians, to recover delinquent
property taxes. The Governor had apparently never acknowledged
the conveyance.
More than a hundred years after the sale by the Governor,
the Bay Mills Tribe commenced two lawsuits concerning the
Charlotte Beach land. In 1996, it filed a Federal action
against the Charlotte Beach landowners seeking equitable
title.\4\ Around this time, the Tribe also filed a State suit
against the State of Michigan for damages.\5\ The Federal suit
was dismissed for the Bay Mills Tribe's failure to join the
Sault Ste. Marie Tribe of Chippewa Indians, which also has a
claim to the Charlotte Beach lands, as an indispensable party--
the Sixth Circuit ruled that because the Bay Mills and Sault
Ste. Marie Tribes share a common ancestry, both Tribes have ``a
potential interest in the Charlotte Beach property.''\6\ The
Bay Mills Tribe lost the State suit on both substantive and
procedural grounds. Around this time, the Bay Mills Tribe filed
an application with the Department of Interior, pursuant to 25
C.F.R. Part 151, to put the land into trust for gaming
purposes. The fee trust application was withdrawn within months
of its filing. On August 23, 2002, the Tribe entered into a
settlement agreement with the Governor of Michigan; an addendum
to this agreement was signed by the current Governor, Jennifer
Granholm, on November 13, 2007.
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\4\Bay Mills Indian Community v. Western United Life Assurance Co.,
2000 WL 282455 (6th Cir., March 28, 2000).
\5\Bay Mills Indian Community v. State of Michigan, et al., Mich.
Ct. App. Docket No. 218580.
\6\Bay Mills Indian Community v. Western United Life Assurance Co.,
2000 WL 282455 (6th Cir., March 28, 2000).
---------------------------------------------------------------------------
The Sault Ste. Marie Tribe has never filed suit to claim
the Charlotte Beach land.
THE PROPOSED LEGISLATION
H.R. 2176 would ratify an agreement executed on August 23,
2002, between the Bay Mills Tribe and Governor Jennifer
Granholm of Michigan to transfer to the Tribe non-contiguous
lands in Port Huron, Michigan--located 350 miles from its
reservation and outside its historical and aboriginal
territory--to settle its dubious claim to the Charlotte Beach
lands, located in its historical territory in the Upper
Peninsula of the State. The bill directs the Secretary to take
the lands into trust within 30 days after receiving a title
insurance policy showing that they are not subject to impairing
encumbrances.
The bill provides that immediately upon the receipt of the
new lands in trust, they will be considered part of the Tribe's
reservation, and deemed eligible for gaming as lands ``taken
into trust as part of a settlement of a land claim'' in
compliance with 25 U.S.C. Sec. 2719(b)(1)(B)(i). The bill
extinguishes the land claim, and ratifies the transfer in
settlement. And it specifies as the court of jurisdiction for
resolving any dispute regarding the land claim the United
States District Court for the Western District Court of
Michigan--where the lands subject to the claim are located, but
not the lands to be transferred in settlement.
The process set forth in the bill departs from the normal
processes envisioned in IGRA and in Michigan law in a number of
significant respects.
First, the time it normally takes the Interior Department
to take lands into trust for gaming purposes is normally not a
matter of days, as the bill prescribes, but years, even
decades. Each of the four steps deemed immediately satisfied by
the bill--taking the lands into trust, approving the compact,
designating the lands as eligible for gaming under an exception
in IGRA, and declaring the lands as reservation--requires a
separate administrative procedure in the Interior Department.
One of the important administrative processes is the extensive
environmental review required by the National Environmental
Policy Act. Another is the rigorous review at Interior of the
extent of any legal and historical connections the Tribe has to
the requested lands, as part of the determination whether the
lands qualify for gaming pursuant to one of IGRA's exceptions.
This review is considered particularly important when the lands
to be taken into trust are not within or contiguous to the
Tribe's reservation lands, as set forth in 25 C.F.R. Part 151.
Second, the land claim settlement agreements that the bill
ratifies state that the lands have been obtained in settlement
of a land claim under section 20 of the Indian Gaming
Regulatory Act, 25 U.S.C. Sec. 2719(b)(1)(B)(i), when there has
been no claim against the United States considered or processed
by Interior, no agreement reached with any duly authorized
representative of the United States prior to its execution.
Instead, this is essentially a negotiation between the Tribes
and the Governor, to transfer lands to the Tribe, with no
involvement by an ordinarily essential party to such a claim
and such a transfer. While the Governor and the Tribe have
another option for bypassing the normal process set forth in
IGRA--namely, going to the voters of Michigan--they have opted
to bypass that established route as well.
Third, the settlement agreement alters central provisions
of the 1993 compacts to which the Tribe is signatory. These
compacts were negotiated between the Tribe and the Governor,
executed by them, then ratified by the Michigan State
Legislature, then submitted to, reviewed, and approved by the
Secretary of the Interior. The settlement agreement, however,
provides that a core commitment in the 1993 compact, that a
Tribe seeking off-reservation gaming locations would enter into
revenue-sharing agreements with the other signatory Tribes,
either does not apply, or is waived if deemed to apply.
Withdrawing from this core commitment ordinarily would require
going back to the legislature and the Secretary for approval,
as is required under Michigan and Federal law.
Fourth, the bill would, apparently for the first time,
legislatively ratify what is essentially a Tribal-State gaming
compact, which under IGRA the Department of Interior must
review, approve, and publish in the Federal Register before the
Tribe may conduct class III gaming. In its testimony before the
Committee, the Department of Interior expressed a number of
concerns about departing from normal IGRA procedure and
eliminating Interior's evaluation.
Fifth, this Indian land claim is unusual in the sense that
it is against the State of Michigan--alleging wrongful sale of
the lands by the State for back property taxes before the lands
were in the legal possession of the Tribe--and the land claim
settlement agreement is likewise between the Tribe and the
State of Michigan. The land claim could thus be settled without
any Federal involvement, by agreement between the State and the
Tribe. The United States is not, and has never been, a party to
the land claim, nor has it been involved with the negotiation
of the land claim settlement agreement, which is unusual for a
land claim submitted for ratification by Congress.
Sixth, the claim asserted by the Tribe has already been
litigated and lost. It was pursued in both Michigan and Federal
courts, by the Bay Mills Tribe. The Federal court dismissed the
case without prejudice, on the ground that the Sault Ste. Marie
Tribe was an indispensable party due to its own claim on the
same land--the two Tribes had once been parts of the same
Tribe--but had not been joined. But the Michigan case was
dismissed with prejudice, barring re-litigation of the claim.
Seventh, the lands identified for transfer in settlement of
the claims are far removed from the Tribes' ancestral lands,
from the Tribe's current reservation, and from the lands
subject to the claims. They are completely outside the 12
million acre area originally ceded by the Tribe to the United
States, and approximately 350 miles from both the Tribes'
reservation and the Charlotte Beach lands. While it is not
unusual for land claim settlements to involve acquisition of
lands outside a Tribe's reservation, it is highly unusual to
acquire lands that are such a great distance away. And it may
be unprecedented for a Tribe to acquire lands outside of its
historical territory in settlement of a land claim.
Finally, the bill would, apparently for the first time,
specifically deem the lands acquired pursuant to a land claim
settlement agreement to qualify for gaming. Staff is not aware
of any Federal legislation that has previously directed
specific off-reservation lands to be taken into trust and at
the same time designated those lands as qualifying for gaming
under an exception to IGRA.
Hearings
The Committee held a legislative hearing on H.R. 2176 on
Friday, March 14, 2008. Witnesses at the hearing were: Rep.
Carolyn Kilpatrick (D-MI); Rep. Shelly Berkley (D-NV); Carl
Artman, Assistant Interior Secretary for Indian Affairs,
Department of the Interior; Fred Cantu, Chief, Saginaw Chippewa
Tribe of Michigan; Alicia Walker, Counsel, Sault Ste. Marie
Chippewa Tribe of Michigan; Kathryn Tierney, Tribal Attorney,
Bay Mills Indian Community; and Dr. Guy Clark, Chairman,
National Coalition Against Legalized Gambling.
Committee Consideration
On Wednesday, April 2, 2008, the Committee met in open
session and ordered the bill H.R. 2176 unfavorably reported,
without amendment, by a rollcall vote of 29 to 0, a quorum
being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall vote occurred during the Committee's
consideration of H.R. 2176:
1. Reporting the bill unfavorably. Approved 29-0.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Sanchez..................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Ms. Sutton......................................................
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Davis....................................................... X
Ms. Wasserman Schultz...........................................
Mr. Ellison..................................................... X
Mr. Smith (Texas)............................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren.....................................................
Mr. Cannon...................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
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Total....................................................... 29 0
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2176, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 3, 2008.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2176, a bill to
provide for and approve the settlement of certain land claims
of the Bay Mills Indian Community.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leigh Angres,
who can be reached at 226-2860.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 2176--A bill to provide for and approve the settlement of certain
land claims of the Bay Mills Indian Community.
H.R. 2176 would ratify an agreement between the state of
Michigan and the Bay Mills Indian Community regarding the
tribe's claim to land in northern Michigan, known as Charlotte
Beach. CBO estimates that this bill would have no significant
effect on the Federal budget.
H.R. 2176 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The agreement that would be ratified by the bill stipulates
that the tribe relinquish all claims to the Charlotte Beach
property and that Michigan give the tribe an alternative parcel
of land in Port Huron, Michigan. The legislation would require
the Secretary of the Interior to take that land into trust for
the tribe and proclaim it to be part of the tribe's
reservation, provided that certain conditions are met.
According to information from the Bureau of Indian Affairs and
the tribe, the lands would primarily be used for gaming
purposes.
On March 6, 2008, CBO trasmitted a cost estimate for H.R.
2176 as ordered reported by the House Committee on Natural
Resources on February 13, 2008. The two versions of the
legislation are the same, and our cost estimates are identical.
The staff contact for this estimate is Leigh Angres, who
can be reached at 226-2860. The estimate was approved by Peter
H. Fontaine, Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2176 would preemptively ratify a land claim settlement
concluded between the Bay Mills Indian Community and Governor
Jennifer Granholm of Michigan and preemptively deem the newly-
acquired off-reservation land part of the Tribe's reservation
and eligible for class III casino gaming.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article 1, section 8, clause 3 of the
Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2176 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
Sec. 1. Definitions. This section sets forth the
definitions of terms used in the bill. ``Alternative Lands,''
for example, refers to non-contiguous land in Port Huron,
Michigan identified in an agreement executed on August 23,
2002, between the Bay Mills Indian Community and Governor
Jennifer Granholm of Michigan to be transferred to the Tribe in
settlement of a claim to the ``Charlotte Beach lands.''
Sec. 2. Taking Land into Trust; Extinguishment of Claims;
and Gaming. Section 2(a) of the bill directs the Secretary of
the Interior to take the alternative lands into trust within 30
days of receipt of a title insurance policy for said lands
proving they are not subject to any impairing encumbrances;
upon attaining trust status, the lands will be deemed part of
the Tribe's reservation. This would bypass established
practice, under which Interior conducts an extensive
environmental review, as required by the National Environmental
Policy Act, before taking land into trust. The mandatory nature
of this provision would require the alternative lands to be
taken into trust even if NEPA liabilities are present, thereby
subjecting the government to potentially extensive liability.
Section 2(b) provides that the alternative lands taken into
trust will be classified as part of a land settlement within
the meaning of section 20(b)(1)(B)(i) of the Indian Gaming
Regulatory Act (25 U.S.C. 2719). The land would thereby be made
automatically eligible for gaming, again bypassing established
practice, the review by Interior taking into account the
factors set forth in 25 C.F.R. Part 151--a review that is
especially important for off-reservation gaming where, the
farther the economic enterprise is from the reservation, the
greater the potential for harm to reservation life.
Section 2(c) states that all land claims concerning the
Charlotte Beach lands by the Tribe against the U.S., the State
of Michigan, or any other person will be extinguished upon the
bill's enactment.
Sec. 3. Effectuation and Ratification of Agreement. Section
3(a) mandates the ratification of the August 23, 2002 land
claim settlement agreement, in disregard of established
prerequisites and procedures, except the last sentence in
Section 10 of the agreement related to severability. Section
3(b) states that this land claim proposal shall not be
considered precedent for any future agreement between a State
and an Indian Tribe because of its unique nature. Section 3(c)
specifies as the court of jurisdiction for the resolution of
any dispute regarding the land claim the U.S. District Court
for the Western District of Michigan, where the lands subject
to the claim are located but not the lands to be transferred in
settlement.
Additional Views
H.R. 2176, to provide for and approve the settlement of
certain land claims of the Bay Mills Indian Community
We oppose H.R. 2176, a bill to provide for and approve the
settlement of certain land claims of the Bay Mills Indian
Community. We share the Majority's concerns with this bill, but
have other concerns as well.
This bill will authorize a land transfer between the State
of Michigan and the Bay Mills Indian Community in Michigan's
Upper Peninsula. The agreement between the State and the Tribe
allows for Indian gaming casinos to be operated on land that is
located near the metropolitan area of Detroit, Michigan,
roughly 350 miles away from the Bay Mills reservation.
We share the Majority's concern that this land transfer
circumvents Michigan state laws regulating the establishment
and expansion of Indian gaming operations. A 2004 amendment to
the Michigan Constitution requires state-wide voter approval
for expansion of gambling operations. To date, that voter
approval has not been given. H.R. 2176 usurps the rights of the
citizens of Michigan to vote on any proposed expansion of
gaming within the state.
We are also concerned that this legislation represents an
expansion of the Indian Gaming Regulatory Act (IGRA) beyond
Congress' original intent. IGRA provides that gaming may only
take place on Indian lands, including lands held in trust.
Lands acquired in trust after IGRA's enactment are generally
ineligible for gaming if they are outside of and not contiguous
to the boundaries of a tribe's reservation. H.R. 2176 takes the
unprecedented step of authorizing Indian gaming as part of a
land settlement on lands that are not contiguous to the Bay
Mills reservation.
We note that the Department of the Interior opposes this
legislation as well. The bill preempts the Department's
procedures for evaluating the subject property to determine
whether hazardous materials are present. Under a well-
established review process, the Department recommends approval
for land transfers only after determining the land meets
applicable environmental standards. This Committee should
ensure that these procedures are followed in every instance.
Further, we should not approve any legislation that
intentionally undermines such a review process.
Where we perhaps depart from the Majority in our opposition
is our concern about the link between gambling and crime and
the impact that these casinos will have on the local
communities. A 2004 study by the Department of Justice of
arrestees indicated that more than 30 percent of arrestees
identified as pathological gamblers committed a robbery within
a year of their arrest. The study also stated that nearly one-
third of that group admitted they committed the robbery to pay
for gambling or gambling debts. In addition, the same study
found that 13 percent of those studied said they had assaulted
someone to get money. According to the study, 25 percent of
those assaults were related to gambling.
In an earlier study undertaken in the neighboring state of
Minnesota, municipalities surrounding Indian casinos responded
to questions regarding their perception of changes since the
introduction of casino gambling. Of the areas questioned, 26.5
percent of the precincts reported higher crime rates, 36.8
percent reported increased traffic congestion, and 37.5 percent
reported an increase in problem gambling.
Even proponents of Indian gaming acknowledge the limited
benefits of legalized gambling. The pro-gaming National
Congress of American Indians states ``even after the advent of
gaming, Indian reservations continue to have a 31% poverty rate
and a 46% unemployment rate.'' Similarly, Indian health and
education statistics are among the worst in the country.
For these reasons, we join the Majority in reporting H.R.
2176 adversely to the House.
Lamar Smith.
Steve King.
Jim Jordan.