Testimony of Kevin Day, Tribal Chairman, Before the House Committee

Natural Resources on H. R. 3490, April 9, 2008

Good Morning Mr. Chairman:

My name is Kevin Day and I am the Chairman of the Tuolumne Band of
Me-Wuk Indians of the Tuolumne Rancheria. Thank you for holding this
hearing on H.R. 3490.

I'd like to start by giving you some background; the Tuolumne Band of
Me-Wuk Indians is a small federally recognized California Tribe with an
approximate membership of around 400 people. Our modern tribal
government was organized under the Indian Reorganization Act in January
of 1936. As you can see on the California State map (attached as Exhibit
A) our small reservation is located in the western foothills of the
Sierra Nevada, approximately one hour north of Yosemite National Park
and two hours east of Sacramento. We operate a successful casino under a
compact with the State of California, a new and very successful health
clinic that serves both, native and non-native customers, a native plant
nursery business, and numerous governmental service programs.

While we are proud of our success, our current tribal land base has
presented us with some serious problems that we need your help to
overcome. Presently, only 150 of our members are actually able to reside
on our tribal lands, because all of our existing trust land is currently
used for administrative offices or housing, or it is not well suited for
new construction. In fact, a study of our unused lands has found that
their rocky and hilly terrain is best suited for the grazing of
livestock.

Lack of available housing for tribal members is one of our most serious
problems. Today, we have approximately 64 on-reservation homes, which
are fully occupied. Many of these homes are seriously overcrowded, and
we are constantly finding ourselves addressing health and safety issues
within them. Many of our off-reservation members wish to return to the
reservation, but our lack of housing sites makes those moves impossible.
To make matters worse, many of our children, who were raised on the
reservation, are being forced to leave when they reach adulthood in
order to find their first home. That is why the early passage of H.R.
3490 is so important to us.

H.R. 3490 is a very straightforward piece of legislation. It transfers
three small parcels of surplus land from the Bureau of Land Management
(BLM) to the Bureau of Indian Affairs (BIA) to be held in trust for the
benefit of our Tribe. It also extends the boundaries of our reservation
to encompass those new BLM lands as well as the other lands our Band has
acquired in recent years. This reservation boundary extension is very
important to us because many federal programs, including some Indian
housing programs, draw a clear distinction between on and
off-reservation assistance. While the Secretary of Interior has the
legal authority to extend the boundaries of most existing reservations,
he lacks that authority in our case because

our reservation, like many in California, was established by Executive
Order. Thus, we need your help to accomplish this simple goal.

If you will turn now to the map which is attached to my testimony and
labeled as Exhibit B, I would like to describe the parcels we are
requesting to transfer. This map has parcels that are color coded in
yellow, blue and green. The light and dark Yellow parcels are lands
which are currently held in trust for the Tuolumne Band. The star in the
light yellow parcel is our tribal headquarters and the star in the dark
yellow parcel shows you where our tribal casino is located. This casino
is operated pursuant to an existing compact with the State of California
and in accordance with an existing Memorandum of Understanding with
Tuolumne County. The Blue parcels are the BLM lands we are seeking to
acquire, and the green parcels are lands which the Tribe currently owns
in fee simple. Those lands are pending tribal trust acquisition under
the normal fee-to-trust process.

All of the blue BLM parcels have been listed as "potentially available
for disposal" on recent BLM land reports. The first parcel, identified
as \# 1, is located less than ½ mile from our existing tribal trust
lands. That parcel contains a historic Tuolumne Me-Wuk cemetery. Because
of the site's cultural and religious significance, the BLM has, for all
intended purposes, simply allowed the Tribe's use and maintenance of the
parcel for many years. This cemetery is still in use today. In fact, one
of our Tribal Members was buried there less than three years ago. We
have always sought to acquire this parcel in trust because of its deep
cultural significance to our people, but our efforts have become even
more desperate since the BLM has listed it as "potentially available for
disposal." Simply put, we cannot lose control of the graves of our
people and of our ancestors.

The BLM parcel identified as \# 2 is a small site of around 15-16 acres.
As you can see on that map, this site is contiguous to lands already
held in trust and in fee simple by the Band This is a vacant parcel
which was originally set aside by BLM, in accordance with the Federal
Recreation and Public Purpose Act, for the establishment of an
inter-tribal health facility and a tribal cultural center. Due to
unforeseen circumstances, the intertribal health facility was never
developed and the Tribe is no longer apart of the intertribal health
consortium. We have located our health facility on other tribal fee
land; however, we have notified BLM that we are still pursuing the use
of this land for our cultural facility. Our goal is to use this parcel
for a tribal fire and emergency center, a tribal cultural center and
perhaps some tribal government buildings, none of which are related to
gaming in any way.

The third BLM parcel, identified as \# 3, is a slightly larger site of
around 50 acres. Like parcel #2, it is vacant and it is also contiguous
to our existing tribal land holdings. This parcel has been totally
unused by the BLM for many years and our goal is to put it to use for
tribal housing and tribal infrastructure buildings. Like I noted above,
we cannot bring our people home to their own tribal lands unless we can
provide them with a place to live.

The parcels identified in green are lands which the Tribe owns in fee
simple. All of these parcels are currently awaiting a final transfer
into trust. The Tribe submitted a standard 151 fee-to-trust application
for these parcels and received the Secretary's approval of that
application on January 12, 2007. Unfortunately, that transfer of title
has been held up by a frivolous appeal filed by a contiguous landowner
who is seeking leverage to force the Tribe to buy their property at an
inflated price. The BIA and the Tribe are both fighting that appeal
vigorously and we have every reason to believe that the Interior Board
of Indian Appeals (IBIA) will simply dismiss the case and order the land
taken into trust as soon as it gets the time to read the case files. The
IBIA is seriously understaffed and it has taken an average of two to
four years for it to issue a final decision on any appeal brought before
it, regardless of the merits. Anything that you can do to help speed
that process along in our case would be greatly appreciated.

With the exception of a small home-site of around 3 acres, which is
surrounded by BLM Parcel #2, and which we are in friendly negotiations
to acquire from its current non-Indian owner, every parcel of land
encompassed within the new reservation boundaries drawn by H.R. 3490 is
owned by the Tuolumne Band, either in trust or in fee. We are located in
a Public Law 83-280 state, so the re-designation of our reservation
boundaries will not alter the criminal jurisdiction over these parcels.
Additionally, the fee properties at issue were already zoned residential
when we acquired the title, and we have maintained that zoning under our
tribal laws and started to prepare our housing development plans. The
BIA has conducted a full environmental review under NEPA for the fee to
trust acquisition, including our proposed uses for the parcels.

Finally, the Tribe and Tuolumne County have developed and executed a
Memorandum of Understanding (MOU) which sets forth protocols for all
interaction between the County and the Tribe. That Agreement, which was
executed on January 16, 2001, has allowed us to maintain a good faith
working relationship with our local governments. The MOU sets forth a
process for the County and the Tribe to follow concerning any impacts
that the County may experience when lands are taken into trust for the
benefit of the Tribe. Our fee to trust application addresses potential
tax impacts the County may experience. Thus, our future trust
acquisition will have nothing but a positive impact on the County's tax
base. We therefore believe that all of our local jurisdictional issues
have already been resolved. In fact, Tuolumne County has signed written
statements of support for the transfer of the BLM lands to the Tribe and
for the Tribe's fee to trust application of the parcels codes in green.
Those letters are attached to this testimony as Exhibits C. Finally, we
have been working with our local Tuolumne Fire Protection District and
they have also supported our fee to trust application by the letter
found at Exhibit D.

In closing, I would like to make it very clear that this bill has
nothing to do with gaming. Under Section 3 (a) the bill makes it clear
that the BLM lands we are seeking to transfer shall be "held in trust by
the United States for the benefit of the Tribe for non-gaming purposes".
Additionally, as I just noted, the fee parcels being added to the
reservation are already zoned residential and our housing and
infrastructure development plans are already underway.

Mr. Chairman, I hope that I have provided you with all of the
information that you require to report this bill to the House floor in
the immediate future. I will be happy to answer any questions that you
may have or provide you with any additional information that you need.
Again, thank you for taking the time to entertain this very important
bill for the Tuolumne Band of Me-Wuk Indians.