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S. HRG. 109–18

LYTTON RANCHERIA OF CALIFORNIA

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

S. 113

TO MODIFY THE DATE AS OF WHICH CERTAIN TRIBAL LAND OF THE

LYTTON RANCHERIA OF CALIFORNIA IS DEEMED TO BE HELD IN

TRUST

APRIL 5, 2005

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman

BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

MICHAEL D. CRAPO, Idaho

RICHARD BURR, North Carolina

TOM COBURN, M.D., Oklahoma

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

DANIEL K. AKAKA, Hawaii

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

JEANNE BUMPUS, Majority Staff Director

SARA G. GARLAND, Minority Staff Director

(II)
(III)

C O N T E N T S

Page

S. 113, text of ........................................................................................................... 2

Statements:

Arner, Rock, city manager, city of San Pablo, San Pablo, CA ...................... 14

Brown, Sharon J., council member, city of San Pablo, San Pablo, CA ........ 14

Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice chairman,

Committee on Indian Affairs ....................................................................... 3

Feinstein, Dianne, U.S. Senator from California ........................................... 4

Hancock, Loni, assembly member, 14th Assembly District, Sacramento,

CA ................................................................................................................... 19

Inouye, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 4

Macarro, Mark, chairman, Pechanga Band of Luiseno Indians ................... 21

McCain, Hon. John, U.S. Senator from Arizona, chairman, Committee

on Indian Affairs ........................................................................................... 1

Mejia, Margie, chairperson, Lytton Rancheria, Santa Rosa, CA .................. 17

Miller, Hon. George, U.S. Representative from California ........................... 7

Skibine, George T., acting deputy assistant secretary for policy and economic development for Indian affairs, Department of the Interior .......... 11

APPENDIX

Prepared statements:

Brown, Sharon J. (with attachment) .............................................................. 37

Hancock, Loni ................................................................................................... 30

Macarro, Mark .................................................................................................. 31

Mejia, Margie .................................................................................................... 32

Miller, Hon. George, U.S. Representative from California ........................... 27

Sammut, Dennis J., president, Artichoke Joe’s Casino, San Bruno, CA ..... 48

Skibine, George T. ............................................................................................ 35

Additional material submitted for the record:

Brown, Harold C., president, Marin County, CA, Board of Supervisors,

letter ............................................................................................................... 59

Gambling on Tribal Lands, Legislative Constitutional Admendment, Text

of Proposition 1A ........................................................................................... 60

Lyons, Maurice, chairman, Tribal Council, Morongo Band of Mission Indians, letter ....................................................................................................... 70

Uilkema, Gayle B., chair, Board of Supervisors, Contra Costa County,

CA, letter with resolution ............................................................................. 72

(1)

LYTTON RANCHERIA OF CALIFORNIA

TUESDAY, APRIL 5, 2005

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 9:30 a.m. in room 562,

Senate Dirksen Building, Hon. John McCain (chairman of the committee) presiding.

Present: Senators McCain, Dorgan, Inouye, and Thomas.

STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR FROM

ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. Good morning. This morning, we will hear testimony supporting and opposing S. 113, a bill introduced by Senator

Feinstein to remove language from the Omnibus Indian Advancement Act that benefited the Lytton Rancheria of California.

[Text of S. 113 follows:]
2

1

II

109TH CONGRESS

1ST SESSION S. 113

To modify the date as of which certain tribal land of the Lytton Rancheria

of California is deemed to be held in trust.

IN THE SENATE OF THE UNITED STATES

JANUARY 24, 2005

Mrs. FEINSTEIN introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

A BILL

To modify the date as of which certain tribal land of the

Lytton Rancheria of California is deemed to be held

in trust.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. LYTTON RANCHERIA OF CALIFORNIA.

4 Section 819 of the Omnibus Indian Advancement Act

5 (114 Stat. 2919) is amended by striking the last sentence.

Æ
3

The CHAIRMAN. This language had the effect of making certain

property in the San Francisco Bay Area immediately eligible for

gaming pursuant to the Indian Gaming Regulatory Act without

going through the normal processes required under that act.

I have said before that I have concerns with the manner in which

the Lytton’s off-reservation casino was authorized. The question before us now, however, is what to do about it. The Lytton Band of

Pomo declared just last month that it is no longer seeking legislative ratification of the gaming compact and so the prospect of a

class III casino with thousands of slot machines is not imminent.

Nevertheless, the issue, as we will hear today, is still controversial. I look forward to hearing from all of our witnesses. It has been

my practice for many years that when a member of the Senate requests a hearing on an issue that I have tried to accommodate

those wishes. Even after the Lytton Rancheria changed their plans,

I asked Senator Feinstein if she wanted to still proceed with the

hearing. She said she did so, so therefore we are going to have this

hearing today.

This will not be the last hearing in this committee of the issue

of taking land into trust for purposes of gaming. I note the presence of my friend, Senator Inouye, with whom I worked on the Indian Gaming Regulatory Act. I think he would agree that never in

our wildest dreams at the time of the formulation of that legislation did we envision that Indian gaming would become the $19 billion a year enterprise that it is today. It is long overdue time to

review the impact and implications of the Indian Gaming Regulatory Act from a broad variety of aspects, not just that of taking

land into trust for gambling purposes, but whether there is sufficient oversight of Indian gaming and whether there needs to be

better enforcement of existing law.

I thank Senator Feinstein and my old friend from the House of

Representatives, Congressman George Miller, if he would come forward. I will recognize Senator Dorgan and then Senator Thomas

and then Senator Inouye.

Senator Dorgan.

STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM

NORTH DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN

AFFAIRS

Senator DORGAN. Mr. Chairman, thank you very much. Let me

again say I appreciate your holding this hearing. This is a hearing

that is being held at the request of Senator Feinstein on her bill,

S. 113, the Lytton Gaming Compliance Act, a bill that would require the Lytton Band to utilize the land into trust process established by the Department of the Interior before gaming could be

conducted on the land.

I think it is important to point out that this hearing is only about

the Lytton Band legislation. It is not intended to be a general discussion about the policy of off-reservation gaming. I say that because while I think a discussion of that issue is important and we

likely will have that type of discussion in other hearings, it will require much more input and much broader representation than we

have called for at this hearing.
4

Again, I welcome our colleagues, Senator Feinstein, and my colleague from my days in the House, Congressman Miller.

The CHAIRMAN. Senator Thomas.

Senator THOMAS. Thank you, Mr. Chairman. I have no questions.

The CHAIRMAN. I hope you get better soon. [Laughter.]

The CHAIRMAN. Senator Inouye.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII

Senator INOUYE. Thank you very much, Mr. Chairman, and welcome to the committee, Senator Feinstein and Congressman Miller.

I believe it is important that we understand the historical background of the bill that we address today.

For nearly 30 years from 1962–91, the Lytton Rancheria was terminated from its federally recognized status. As part of its effort

to regain that status, litigation was initiated by the tribe. The

county of Sonoma intervened in that lawsuit and as a condition of

the county’s consent to a forthcoming settlement of the legal action,

certain conditions were imposed which precluded the tribe from initiating economic development activities on the tribe’s traditional

lands.

Thus, from the outset of the restoration of the tribe’s federally

recognized status, the tribe was forced to look to other areas for the

development of the tribe’s economy. In 2000, Representative George

Miller proposed an amendment to the Omnibus Indian Advancement Act of that year, which identified lands to be taken into trust

for the Lytton Band and deemed those lands to have been taken

into trust prior to October 17, 1988, the date of the enactment of

the Indian Gaming Regulatory Act.

The bill, as amended by the House on October 26, 2000, came

back to the Senate, where it was pending on the Senate calendar

until December 11, 2000, when the bill was taken up and passed

by the Senate. In those 45 days in which the amended bill was

pending in the Senate, the customary protocol was followed to assure that the amendment was agreed to not only by the offices of

the California Senators, but that the amendment was acceptable to

other Senators prior to action on the bill in the Senate.

Legislative history is clearly documented in the records of the

Senate for all to examine.

Accordingly, I would hope that when this measure is addressed

that we take into consideration these critical aspects of the legislative history that led to enactment of the amendment to the Omnibus Indian Advancement Act of 2000, including a subsequent

amendment to the Act which provides that the Lytton Band must

comply with all aspects of the Indian Gaming Regulatory Act in the

conduct of any gaming activities on the tribe’s lands.

I thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you, sir.

Welcome, Senator Feinstein.

STATEMENT OF DIANNE FEINSTEIN, U.S. SENATOR FROM

CALIFORNIA

Senator FEINSTEIN. Thank you very much, Senator McCain, Senator Dorgan, Senator Inouye, Senator Thomas. I very much appre-
5

ciate this hearing. I introduced this bill, as you know, in the last

Congress and in this Congress as well. I would be hopeful that you

can give it consideration and that we can get it passed.

This bill is the Lytton Gaming Compliance Act, S. 113. It has one

simple purpose, to ensure that the Lytton Tribe follows the regular

process set out under the Indian Gaming Regulatory Act for gaming on newly acquired lands. This legislation strikes a provision inserted into the Omnibus Indian Advancement Act of 2000. That

provision mandated the Secretary of the Interior to take a card

club and adjacent parking lot in the San Francisco Bay Area into

trust for the Lytton Tribe as their reservation and backdate that

acquisition to October 17, 1988, or pre-IGRA.

This backdating was done expressly with the purpose of allowing

the Lytton Tribe to circumvent IGRA’s two-part determination

process, an important step that requires both secretarial and gubernatorial approval, along with consultation with nearby tribes

and the local community. The legislation that I have introduced

would simply return the Lytton Tribe to the same status as all

other tribes seeking to game on newly acquired lands.

I also want to emphasize what the bill will not do. It would not

remove the tribe’s recognition status. It would not alter the trust

status of the new reservation nor would it take away the tribe’s

ability to conduct gaming through the normal IGRA process. Section 20 of the Indian Gaming Regulatory Act has clear guidelines

for addressing the issue of gaming on so-called newly acquired

lands, or lands that have been taken into trust since IGRA’s enactment in 1988.

Most importantly, in my opinion, IGRA includes a process called

the two-part determination, which provides for both Federal and

State approval, while protecting the rights of nearby tribes and

local communities. Circumventing this process creates a variety of

serious and critical multi-jurisdictional issues, issues which can

negatively affect the lives of ordinary citizens and deprive local and

tribal governments of their ability to effectively represent their

communities.

Nevertheless, I think we need to be honest about the real reason

we have seen a proliferation of cases like the Lytton with an increasing number of tribes attempting to open casinos outside of traditional Indian lands. Attempts at off-reservation gaming and the

practice of reservation shopping have increased dramatically in

California over the past 5 years.

It is now estimated that there may be over 20 proposals to game

outside of tribal lands in California. I have watched as out-of-State

gaming developers have sought out tribes offering to assist them in

developing casinos near lucrative sites in urban areas, and along

central transit routes far from any nexus to their historic land.

Today in the San Francisco Bay Area alone, there are at least five

such proposals.

Let’s go back to proposition 1A. Off-reservation gaming was

clearly not what the people of California voted for when they overwhelmingly passed proposition 1A in March 2000 to allow tribes in

my State to engage in Nevada-style gaming on tribal lands. Not

only did the proposition language clearly state that gaming would
6

take place on Indian or tribal lands, but this claim permeated the

entire campaign in support of Indian gaming.

Let me give you a few examples. Let me read from the argument

in favor of proposition 1A.

We are asking you to vote yes on 1A so we can keep the gaming we have on our

reservations. We thank you for your past support and need your help now to protect

Indian self-reliance once and for all.

It goes on.

So 1A has been put on the March ballot to resolve this technicality and establish

clearly that Indian gaming on tribal lands is legal in California.

Then it goes on to describe 1A as a simple constitutional measure

that allows Indian gaming in California.

It protects Indian self-reliance by finally providing clear legal authority for Indian

tribes to conduct specific gaming activities on tribal lands.

It goes on this way. I would like to submit for the record proposition 1A, the arguments both pro and con that appeared on the

ballot, if I might.

The CHAIRMAN. Without objection.

[Referenced documents appears in appendix.]

Senator FEINSTEIN. Mr. Chairman, in conclusion, without this

bill, the Lytton will be able to take a former card club and adjacent

parking lot as their reservation and turn it into a large gambling

complex outside of the regulations set up by the Indian Gaming

Regulatory Act.

Let me make very clear, I oppose off-reservation gaming in California. This is not what the people voted for in the year 2000. It

is a perversion of that legislation and it should not happen without

another initiative that specifically approves it.

Even though the tribe recently announced that it was temporarily dropping its pursuit of a casino, it could reverse these plans

at any time and proceed with both class II and class III gaming

without first going through the regular process. Allowing this to

happen would set a dangerous precedent, not only for California,

but every State where tribal gaming is permitted. I do not think

it is asking too much to require that the Lytton be subject to the

regulatory and approval processes applicable to all other tribes by

the Indian Gaming Regulatory Act.

I thank the committee for allowing me this opportunity, and

would hopefully ask for your support so that this bill could go to

the floor.

Thank you very much, Mr. Chairman.

[Prepared statement of Senator Feinstein appears in appendix.]

The CHAIRMAN. Thank you very much, Senator Feinstein.

We are pleased to welcome our old friend George Miller.

Senator FEINSTEIN. May I be excused? We have the Patriot Act

in Judiciary.

The CHAIRMAN. Yes, ma’am.

Senator FEINSTEIN. I appreciate it. Thank you very much.

The CHAIRMAN. I think you answered the only question that I

had, and that was that since the Lytton Band has changed their

proposal that that does not change your commitment to this legislation.
7

Senator FEINSTEIN. No; the Governor visited with me not too

long ago. He felt he had the votes for the compact. I understand

there are not the votes for the compact. Nonetheless, should the

situation change, it could move ahead and again, it would be obfuscating the process and I believe the process ought to be carried out

for each and every tribe on a regular basis.

The CHAIRMAN. Thank you very much.

Welcome, George.

STATEMENT OF HON. GEORGE MILLER, U.S. REPRESENTATIVE

FROM CALIFORNIA

Mr. MILLER. Thank you, Mr. Chairman and members of the committee. Thank you for your time this morning. I appreciate the opportunity to testify.

Senator Feinstein, it was a pleasure to be with you. We do not

agree on this issue, but we have worked on a number of other

issues with respect to our State.

I would like to submit my written statement for the record.

The CHAIRMAN. Without objection.

Mr. MILLER. I would also like to recognize several constituents

and local representatives who will testify here. Assemblywoman

Loni Hancock represents part of this area with me in her district.

She is a strong advocate for our community. Mayor Sharon Brown

and City Manager Brock Arner of the city of San Pablo are here.

They are working very hard to stimulate economic development in

the city. I appreciate their efforts on behalf of the residents of San

Pablo.

Today’s hearing concerns the Lytton Band of Pomo Indians in the

city of San Pablo in my district and their effort to work together

to meet mutual goals of desperately needed economic development.

I support these efforts.

My involvement with this matter dates back to 1999 and 2000

when I was approached by the city to discuss the interests in working with the Lytton Band to help them acquire an existing card

room in San Pablo for the purposes of renovating it and building

a modest-sized casino. The tribe made a good-faith effort to work

through the Department of the Interior to win the right to acquire

this land for the purposes of gaming under the Indian Gaming Regulatory Act, but due to special circumstances affecting the tribe, it

is my understanding the tribe was told by the department that

they would be turned down.

After much discussion and detailed review of the circumstances,

I agreed to help the city and the tribe. I supported their project for

several reasons. The local community, including the police department, supported the project. The city stood to make significant economic development gains from the project. The tribe had a clear

need and a legitimate right to pursue lands for the purposes of economic development and made a good-faith effort to work through

the Department of Interior to do so. I have a longstanding history

of supporting the sovereign rights of Indian tribes.

The issue of whether or not American Indians should be involved

in gaming is not an issue here. There are opponents of gaming for

many reasons, some personal, some moral, some simply competitive. Of course, there are many proponents of gaming. There are
8

card rooms throughout the Bay Area and extensive lottery programs, race tracks and the California constitution allows Indian

gaming. Personally, I am neither a proponent or opponent of gaming per se. I am, however, a strong defender of the economic development of Indian sovereignty.

As you will hear in greater detail today from the Lytton’s Chairperson Margie Mejia, the Lytton Band was wrongfully terminated

in the 1960’s. A Federal court restored the tribal status in 1991.

The Lyttons are poor people, many of whom are homeless. The

tribe is concerned about preserving its tribal heritage and providing economic means for its members. The city of San Pablo and the

Lyttons share much in common. San Pablo is one of the poorest cities in the Bay Area. It is a small city with little economic activity.

It has a poverty rate of 18 percent, twice that of the entire Bay

Area and more than twice of that of the county in which it resides.

Its unemployment rate is higher than that of the Bay Area and the

county and more than 90 percent of the city’s residents work outside the city because there are not enough jobs created within the

city.

The key question before this committee is whether it was appropriate for Congress to have passed section 819 of the Omnibus Indian Advancement Act in 2000 on behalf of the Lytton Band. It believe that it was appropriate and that the provision should stand

as written.

As you know, the U.S. Constitution gives Congress plenary authority over Indian tribes that pass laws for their benefit. Congress

is fully within its rights to pass the legislation directing the Secretary to place lands into trust for particular tribes and does so on

a regular basis. In just the last 108th Congress, at least 10 bills

became law, placed lands into trust for various reasons for various

benefits to Indian tribes.

This may happen for any number of reasons Congress determines is prudent. It may be part of a settlement agreement of land

claims. For instance, in the Pechanga Indian Tribe that is scheduled to testify later today, the desire was to protect certain important lands from possible desecration. In the last Congress, we even

took lands out of a national park and placed it into trust for one

tribe. In the Gila River water settlement law, we were required to

act in Congress to concur to bring lands into trust for the tribe.

In most cases, including the ones I mentioned here, the tribe attempts to go through the BIA process, becomes frustrated for one

reason or another, and comes to Congress to plead its case. In fact,

the highly touted bill with the Lytton provision also included 14

other provisions to take lands into trust for Indian tribes, including

one provision that held the land to be considered in trust as of

1909.

The Lyttons have a special circumstance that I believe distinguishes them from most other tribes in California that necessitated

congressional action. In 1991, the Federal court settlement that restored the Lyttons tribal status and that of numerous other California tribes included one unusual provision pertaining only to

Lyttons. The court order restoring Lytton’s tribal status contained

the unique limitation that precluded the Secretary of the Interior

from taking lands in Sonoma County, the Lyttons ancestral lands,
9

into trust for the benefit of the Lytton Band for any use inconsistent with the Sonoma County general plan. In effect, the limitation

denied the Lyttons any rights to use their ancestral land for gaming.

The order, however, did not put any restrictions on the ability of

Lyttons to pursue other lands to be taken into trust for them for

gaming or other activities. The limitation created a special circumstance when the Lyttons appealed to the Department of the Interior for the exception of the Indian Gaming Regulatory Act. I

think it is fairly clear that under any ordinary circumstances they

would have qualified for exception number four, lands that are

taken into trust for part of a restoration of lands for Indian tribes

that is restored to Federal recognition, but that was not so because

of the prohibition on the Sonoma County general plan.

The lands that the tribe sought were not their ancestral lands,

nor contiguous to their ancestral lands. It is my understanding that

the BIA denied the tribe the exception under IGRA because of the

lands issue, and yet as I explained, the court settlement forbade

the tribes from using their ancestral lands.

The Lyttons are the only tribe in California, perhaps the only

tribe in the United States, that as a condition of restoration of tribal status, was expressly deprived the opportunity to exercise rights

under the Indian Gaming Regulatory Act on its ancestral lands. I

do not believe that the existing law anticipated the unusual circumstances, and therefore Congress, which has the authority to intervene on these matters, appropriately remedied this situation.

This is what the issue boils down to. Through no fault of their

own, the Lytton Tribe was illegally stripped of their status as a

federally recognized Indian tribe and denied their rights for decade

until it was restored to its proper status by our judicial system.

Had the tribe never been illegally terminated, there would have

been no question of the Lyttons ability to operate gaming within

their ancestral area.

I thought that the BIA would except the land under the IGRA

exceptions for restored tribes, but when I was told it would not, I

believe that was a mistake, and even then Assistant Secretary for

Indian Affairs Kevin Gover was quoted at the time about the denial of the Lyttons request, saying it was a ‘‘close call and a good

case could be made that we were wrong,’’ Grover said.

Every tribe’s situation is different and must be evaluated individually. That was what was done in this legislation. But I believed

then and continue to believe now that it was the fair and right

thing to do in this particular case to make the Lytton Band whole

again. Not only do I believe that it was appropriate for Congress

to have acted with the tribe’s behalf, I want to be clear that the

manner in which Congress approved this legislation was entirely

appropriate.

My provision regarding the Lytton Band was added, along with

numerous other tribal issues, as an amendment to H.R. 5528, the

Omnibus Indian Advancement Act in the full House. All of the provisions added were done so with the support of the leadership of

both the House Resources Committee and this committee as a way

to move legislation that for one reason or another had not passed.
10

To make it clear this was a compilation of bills, the omnibus title

was given to the bill. This is the most appropriate way to move legislation near the end of Congress that had been bottled up. The bill

passed the full House on October 26, 2000. H.R. 5528 was referred

to the Senate Committee on Indian Affairs and passed by the Senate by unanimous consent on December 11, 45 days after its referral to the Senate and being sent to both respective cloak rooms for

reviewing and Senate notification.

Section 819 was identified by the heading Lands taken into trust,

and at all times contained the names of the tribes and the location

of the land. Any Senator who questioned or objected to any provision had the opportunity to review the provision, to withhold consent. Under the unanimous consent procedure, no Senator did.

Under the provision, Lytton is subject to all of the provisions of

IGRA including the requirement of California law that any compact

negotiated between the State of California and the Lytton Band is

ratified by the California legislature. A compact was signed in August of 2004 by the Governor and the tribal chair, but has not yet

been ratified by the legislature.

I am on record as opposing the size of this first proposed compact

between the State and the tribe and the revised proposed contract.

I hope that any final resolution of this compact will adhere to the

proposal originally presented to me by the tribe and the city. That

proposal called for a modest casino within the parameters of what

already exists at the card room, not a mega-casino that is now

under consideration. I think this is important for this committee to

understand. This was not a controversial action when it was considered for a modest casino, with strong support in the community

for this economic development.

When it got into the compacting arrangements with California’s

deficit problem, this compact became the object of those who wanted to solve the deficit problem on the backs of the compacts. So

what was proposed as a modest 1,000-slot machine casino now became a 5,000-slot machine casino, larger than the MGM Grand in

Las Vegas.

I have rejected that. The legislature cut it down to 2,500. I still

believe that that is too extensive. I do, however, believe the Lyttons

are still entitled to have a casino on what is now their reservation

land. I think it is important. Loni Hancock, our representative in

the State legislature, can address the question of where this is in

the legislature at this time.

It should be noted, however, that the Lytton Band from the very

beginning went to unprecedented lengths to consult with the local

community and the State of California to forge an agreement with

regard to mitigating potential impacts of the new casino and sharing the benefits of the casino with the community, but the issue of

the compact details is a separate matter.

The issue today is whether or not the tribe has the right to these

lands and whether Congress acted appropriately in conveying the

lands to the tribe. In both instances, I think the answer is clearly

yes. I do not believe that Congress is justified in taking away the

Lyttons rights that Congress gave. Doing so would be a significant

breach of trust between Congress and the Indians, a trust that has

been broken so often in our Nation’s history. It would also greatly
11

undermine the economic development opportunity for an impoverished tribe and an impoverished California city. I believe that S.

113 is unwarranted and harmful. More importantly, I believe that

it would be a dangerous precedent.

Governor Schwarzenegger expressed a similar view when he

wrote to Senator Feinstein on September 20, 2004 about her legislation, that, quote, ‘‘this bill would set a dangerous precedent that

could damage the trust and faith with the Lytton Rancheria Indian

Community.’’ He added, quote, ‘‘passage of this bill will destroy the

trust which has been built up with the Lyttons and other tribal

governments not just in California, but throughout the Nation.’’

Indian gaming in California is clearly a complicated matter and

there are many aspects of the issue to resolve, but using the power

of Congress to take punitive action against the Lytton Band is neither justified nor appropriate.

Thank you, Mr. Chairman, for your time and the consideration

of the members of your committee, and my opportunity to testify

here today on this matter.

I would be happy to answer any questions that you may have.

[Prepared statement of Representative Miller appears in appendix.]

The CHAIRMAN. A 1,000-slot machine casino is a modest gaming

operation?

Mr. MILLER. In the context of where California was, where Indian gaming was at that time, yes, that was about what was taking

place in other sites in the State. It is a big State.

The CHAIRMAN. A 1,000-slot machines is a lot of slot machines.

Senator Dorgan.

Senator DORGAN. Mr. Chairman, I have no specific questions of

Congressman Miller. I have read the statements on both sides and

I think I would like to hear from the other witnesses. I appreciate

your statement, Congressman Miller.

Mr. MILLER. Thank you.

Senator DORGAN. You have in great detail laid out your position

and why legislative action previously was taken and also that you

believe any further legislative action at this point would be punitive. So let us hear from the other witnesses today.

The CHAIRMAN. Thank you very much, Congressman Miller. We

appreciate your coming over today.

Mr. MILLER. Thank you.

The CHAIRMAN. Thank you very much.

Mr. George Skibine, who is the acting deputy assistant secretary

for policy and economic development for Indian affairs at the Department of the Interior. As always, your complete statement will

be made part of the record.

STATEMENT OF GEORGE T. SKIBINE, ACTING DEPUTY ASSISTANT SECRETARY FOR POLICY AND ECONOMIC DEVELOPMENT FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. SKIBINE. Thank you, Mr. Chairman, Mr. Vice Chairman. I

am very pleased to be here to represent the Department of the Interior’s views on S. 113.
12

My statement will be made part of the record. It is a fairly short

statement and my comments now will be probably even shorter.

Essentially, the department has no objections to Senator Feinstein’s bill. The bottomline is that we do not object to it because

we do not believe that it is proper to waive the requirements of section 20 of the Indian Gaming Regulatory Act for any particular

tribe. We believe that section 20 strikes a delicate balance between

the rights of Indian tribes and the rights of local communities and

the rights of the State. It has been implemented very carefully by

the department over the last 17 years. We believe in that sense

that it has worked.

I think that it is true, as Congressman Miller said, that the application to take land in trust and compliance with section 20 is a

slow process and that the department takes its time in weighing

the considerations. We want to make sure that the local community, especially for off-reservation acquisitions, is in support and

that their concerns have been taken care of. In this particular case,

as Senator Feinstein said, this would bypass the requirements of

section 20 of IGRA.

To go back briefly to this particular case, as stated before, the

tribe was terminated and it was subsequently restored through

stipulation of entry of judgment in 1991 in the Scotts Valley litigation. In 1999, the tribe submitted an application to take land into

trust to the BIA, submitted documentation to the regional office,

submitted an environmental assessment, but that process was

overtaken by the enactment of the act that is under consideration

today.

I want to clarify a statement that Congressman Miller stated. I

do not think the tribe was turned down on an application to take

land into trust. We were in discussion with the tribe. I think one

of the issues that we were facing is whether the tribe would qualify

under the restored land for restored tribes exception.

I think we agreed the tribe is a restored tribe, but for restored

land, I think that is a closer question, certainly. Right now, for restored land, I think we look for the tribe to have a geographical,

traditional and historical nexus to the land. So in this particular

case, I think that probably would be problematic. As a result, this

provision was passed that short-circuited the process.

The decision to take the land into trust was made by the BIA on

January 18, 2001. There were subsequent lawsuits in Artichoke

Joe’s v. Norton over our decision, but the injunction was denied in

this case. On August 6, 2003, the court ruled in that case.

The land was subsequently taken into trust. On October 9, 2003

a proclamation of reservation was published in the Federal Register and issued on July 13, 2004. That is where we are today. We

understand, as stated before, that the tribe has submitted, is working on a class III gaming compact. We have not received that compact because of the issues that were raised in the previous testimony. The tribe nevertheless is entitled to do class II gaming on

the site at this point. If the bill is enacted, I think it will probably

require the tribe to close down its gaming activities for class II

gaming because essentially they may not satisfy the requirements

of section 20 of IGRA. So the land would not be Indian lands over
13

which a tribe has jurisdiction and satisfies the requirements of section 20.

This concludes my testimony at this point. I will be happy to answer any questions you may have.

[Prepared statement of Mr. Skibine appears in appendix.]

The CHAIRMAN. Thank you very much. Are you aware of any

other cases in which Congress has retroactively deemed land to

have been taken into trust prior to 1988 in order to relieve a tribe

of having to comply with IGRA?

Mr. SKIBINE. I am not aware of it. That might not mean that

there is not anything out there, but I am not aware of it.

The CHAIRMAN. You indicated that the applicable section of the

Omnibus Indian Advancement Act mandated the secretary to take

the land into trust without consideration of the factors in the land

acquisition regulations. Can you list some of those factors that did

not have to be considered?

Mr. SKIBINE. Sure. Essentially because it was a mandatory acquisition, that means that the decision of the secretary is essentially ministerial. That means that the BIA does not have to comply with the requirements of the National Environmental Policy

Act, NEPA, which the tribe was in the process of complying with

at the time the act was passed. Under our regulations, we require

consultation with the local community that has jurisdiction over

the site. This was therefore bypassed also.

In the decisionmaking process, the acquisition of land is discretionary, but the Secretary follows the criteria in section 151 which

are objective criteria. One of the things we look at is if there is

what is the impact of taking the land off the tax rolls.

Another issue we look at is the need of the tribe for the land,

what the purpose will be for the acquisition. We also look at whether there will be any conflicts in land use and whether there will

be jurisdictional issues raised by taking the land into trust. We

also look at whether the bureau is able to discharge its responsibility with acquiring new land into trust.

The CHAIRMAN. What is the status of the land parcels at issue

here? Are they currently held in trust for the Lytton Rancheria?

Mr. SKIBINE. Yes; they are. As Senator Feinstein pointed out, the

bill does not change that. The land will continue to be held in trust.

The tribe will have to comply with the requirements of section 20

of IGRA because it will be after-acquired lands.

The CHAIRMAN. Do you consider a 1,000-slot machine casino a

small casino?

Mr. SKIBINE. No; I do not think that, in my experience, a 1,000-

slot machine casino can be considered a small casino. It is true that

in California there are casinos with 1,000 or more slot machines,

but I do not think we would consider those small operations.

Senator Dorgan.

Senator DORGAN. Mr. Chairman and Mr. Skibine, the Lytton

Band’s testimony indicates that they believe this would be deemed

an unconstitutional Fifth Amendment taking. Has the Department

analyzed the legislation and determined whether it would result in

a taking and whether that may subject the Federal Government to

some future liability?
14

Mr. SKIBINE. Yes; we have look at this issue and the department

has determined that there would not be taking implications with

this legislation.

Senator DORGAN. I have no further questions.

The CHAIRMAN. Do you agree with Senator Feinstein’s comment

that even though the Lytton Rancheria has decided to only engage

in class II gaming, that at any time they could change that to a

status class III gaming operation?

Mr. SKIBINE. That can change if the tribe successfully enters into

a compact with the State of California and that compact is approved by the Secretary of the Interior and notice of its approval

is published in the Federal Register. Right now, apparently there

are problems with that, but it could happen.

The CHAIRMAN. Thank you very much. Thank you for coming this

morning. It is nice to see you again.

Mr. SKIBINE. Thank you very much, Mr. Chairman.

The CHAIRMAN. Our next panelist is Sharon Brown, who is a

councilmember of the city of San Pablo, CA. She is accompanied by

Brock Arner, the city manager of the city of San Pablo; Margie

Mejia, who is the chairperson of the Lytton Rancheria.

Assemblywoman Hancock, are you still here? Would you like to

join the panel and make a comment? You are certainly welcome to

do so.

Senator DORGAN. Mr. Chairman, I am supposed to be speaking

on the floor of the Senate at 10:15 a.m., so I am going to depart.

I will try to come back before this panel is completed if I am able

to do that. I have reviewed the testimony, however, and appreciate

very much the witnesses being here. I apologize to you, Mr. Chairman, for having to do that, but the schedule on the floor, as you

know, is pretty uncertain and I am called to go over there at this

point.

The CHAIRMAN. Thank you very much, Senator Dorgan.

Ms. Brown, welcome.

STATEMENT OF SHARON J. BROWN, COUNCIL MEMBER, CITY

OF SAN PABLO, SAN PABLO, CA, ACCOMPANIED BY BROCK

ARNER, CITY MANAGER

Ms. BROWN. Good morning. I believe like the rest of the world,

I have a cold. Hopefully my voice will hold out long enough.

Good morning, my name is Sharon Brown. I have been a San

Pablo city council member for 21 years and have served as Mayor

for 4 of those 21 years. I was formerly the chairperson of the Metropolitan Transportation Commission and the Association of Metropolitan Planning Organizations in Washington, DC.

In the early 1990’s, the city of San Pablo faced bankruptcy.

Things were so desperate that the city was forced to borrow $4 million to meet payroll during that year. Our former city manager approached the city council with the idea of attracting a card room

to San Pablo. After a lot of thought, we put the item to a vote for

the constituents and it passed 67 to 33 in a landslide.

During the campaign, as with other gambling situations, there

was also opposition to us, talking about prostitution, drugs, et

cetera. I will tell you that none of that has happened. The proposed

site was a section 8 mobile home park and a bowling alley. In 10
15

years, the crime rate has actually dropped dramatically. The

money generated from the card room has allowed the city to fund

police and recreation programs. We have basically repaved the entire city and we have a major decrease in crime.

The card room has also provided new entry-level jobs to residents

who needed them the most. Many of these people were on welfare

their entire lives. Revenue from the card room to the city decreased

dramatically in 1990’s due to the Asian economy and no smoking

rules in California.

Plus, there is additional development of nearby Indian casinos.

These Indian casinos are as close as a 90-mile or 90-minute drive

from San Pablo, and at least one is within 25 miles of the State

capital. We are referring to the River Rock Casino in Santa Rosa,

the Cache Creek Casino in Yolo County and the Thunder Valley

Casino in Lincoln.

We also wish to point out that the Indian casino in Highland, CA

is situated in an urban-suburban area much like Casino San Pablo.

And please remember, this was a card room at the time that the

Casino San Pablo came into operation.

You have heard about the Federal Government wrongfully terminating the Lytton Band of Pomo Indians in the 1950’s, resulting in

the transformation of their ancestral land into vineyards. In 1988,

the Federal courts ordered that the Government reverse its decision to terminate the tribe and restore the Lytton Band of Pomo

Indians to full tribal status.

Unfortunately, the court also precluded the Lyttons from returning to their ancestral lands. I am sure that there is a lot of nice

wine produced there.

The tribe has previously been rejected by a number of cities closer to their ancestral lands and returned to San Pablo only because

of the existing card room. In 1999, the city council unanimously approved a municipal services agreement with the Lytton Band of

Pomo Indians acknowledging that type-III gaming would be coming

to the city of San Pablo. Following the agreement, both the city and

tribe approached Congressman George Miller and requested he introduce legislation to allow the full Federal Government to take

Casino San Pablo into trust on behalf of the Lytton Band of Pomo

Indians. This was extremely cooperative and a full partnership between the city and the Indian tribe.

In the fall of 2000, Congressman Miller introduced the enabling

legislation which was unanimously supported by the city of San

Pablo city council because it would bring much-needed jobs and

economic growth to the region which were both vitally needed. Congressman Miller’s legislation was part of an Indians appropriation

bill and was published in the Federal Register, as is all legislation.

This bill sat in the committee for 3 months prior to being approved by the House of Representatives, the Senate, and being

signed into law by the President of the United States. This bill received considerable media attention while undergoing the legislative process. Given this process, it is difficult to understand how

anyone can describe this as stealth legislation.

Additionally, after the President signed the bill into law, Nevada

Senator Harry Reid attempted to repeal the San Pablo legislation,

which was unsuccessful in that attempt. Senator Inouye was a par-
16

ticularly strong advocate in opposing Senator Reid’s proposed

amendment.

The committee might ask why San Pablo has embraced Indian

gaming. The reasons are many, but relatively straightforward. San

Pablo had the lowest per capita income of any community in the

San Francisco Bay Area. The per capita income of San Pablo is far

less than the national average, yet housing prices in the Bay Area

and San Pablo are some of the most expensive in the United

States.

Eighteen percent of our residents live below the poverty line as

defined by the Federal Government. The unemployment rate in

San Pablo and West County is 175 percent of the county average.

The city of San Pablo serves more free meals to seniors than any

other location in Contra Costa County; 44 percent of our residents

are Latino, with the remaining 56 percent being Lao, Vietnamese,

African Americans, Cambodians and Anglos; 92 percent of our residents commute outside the city for their employment.

As daunting as these statistics are, many of the neighborhoods

just outside our city limits in the unincorporated county and the

city of Richmond are in even worse financial situations. Job growth

and economic development needs are apparent and the Lytton

Compact is the best opportunity to achieve both.

There is one uncommissioned study on the casino thus far, and

it should be viewed as an objective analysis. The University of California Graduate School of Planning concluded that the proposed

compact negotiated by the tribe and the Governor of the State of

California would provide the residents of San Pablo and West

County with entry-level jobs, that it would increase these employees’ earnings by 350 percent. These earnings are augmented by

health insurance and retirement benefits.

The Lytton Tribe also commissioned an economic analysis of the

proposed compact. This study forecast the creation of more than

3,000 new and permanent jobs at Casino San Pablo if the compact

is ratified by the legislature. The compact before the legislature

would allow up to 2,500 slot machines and 200 gaming tables. The

same study estimates that local agencies in the State of California

would gain $155 million annually to mitigate impacts and provide

much-needed revenue to the State.

The same study also forecast more than $600 million in economic

benefits throughout the region. It is the highest amount of revenuesharing ever offered by a tribe to the State and local governments,

and for the first time ever includes revenues from table games.

The CHAIRMAN. Ms. Brown, you will have to summarize your

statement. We usually like to have 5 minutes. Please go ahead.

Ms. BROWN. Okay. I was looking for a button or something up

there.

We in the city of San Pablo believe the Lytton Band of Pomo Indians have been the best neighbor and partner imaginable. The

Lytton Band, despite being abused by the Federal Government in

the past, has negotiated agreements with the city of San Pablo and

the State of California that ensures that their facility will have a

positive impact on a community most in need.

It is a sad commentary that the State legislature has not approved the proposed compact and a sadder commentary that the
17

Senate would consider legislation that would rob the tribes sanctioned rights. I urge you to reject S. 113.

Thank you.

[Prepared statement of Ms. Brown appears in appendix.]

The CHAIRMAN. Thank you very much.

Chairperson Mejia, welcome.

STATEMENT OF MARGIE MEJIA, CHAIRPERSON, LYTTON

RANCHERIA, SANTA ROSA, CA

Ms. MEJIA. Thank you. Thank you for inviting me here today and

thank you in particular, Senator McCain, for the understanding

and support you have shown to Native Americans.

My name is Margie Mejia and I am the chairwoman of the

Lytton Band of Pomo Indians. To understand why we are here

today, it is important to understand something about the history

of our tribe. Like most California tribes, we are a small group with

about 275 members. Like many other California tribes, most of our

members live in poverty. Many have no or inadequate health care.

Alcoholism and substance abuse is a continuing problem. We have

many families living together in tiny apartments. Only one of our

members is buying a home.

But until the 1950’s, we did have land. That land was in Sonoma

County and today this is the site of some of the most prestigious

wineries anywhere in the world. But the reason that today there

are vineyards on that land instead of our homes is a result of actions taken by the Federal Government. But we never lost our

sense of existence as a community. Many of us continue to live together and to take care of tribal members in need and we do this

even to this day.

Eventually, we sued the United States and the outcome of that

suit was that the Federal Government admitted it had broken

promises it had made in the termination agreement. In 1991, our

tribal status was restored. However, that settlement effectively

barred us from returning to our tribal lands in the Alexander Valley by prohibiting us from operating a gaming facility in that area.

We had no choice but to agree to this condition because otherwise,

with little or no resources of our own, we would have been forced

to fight a protracted legal battle against a group of wealthy

wineries and the county.

After restoration, we reestablished our tribal government, passed

a constitution and elected a tribal council. We also began to look

for a means out of the relentless poverty many of our members face

and to rebuild our tribal community. We turned to gaming because

the government offered that to us as a means of economic development and because it generates enough money to allow us to get a

loan and finance the rebuilding of our tribe and our tribal community.

The 1991 restoration agreement, while barring us from operating

a gaming facility in Sonoma County, did not foreclose our right to

find another community that might welcome us as partners. We

found our road to economic self-reliance in the city of San Pablo,

where with the help of private investors we purchased an existing

card club that had been approved by local voters in 1994.
18

The city and the tribe then negotiated a municipal services

agreement. At that time, such an agreement was unprecedented in

California and was the most attractive agreement between local interests and an Indian tribe in California.

But there were other hurdles to come. Although it was the Government’s wrongful actions which resulted in the loss of our land,

by the time the Government had admitted that and prepared to

make good for our loss, the legal landscape for tribes had changed.

A law had been passed which made it extremely difficult for tribes

to operate gaming on lands taken into trust after 1988 unless Congress made the land eligible. Even though it was not our fault that

we were in this position, and although the law had not been intended for landless tribes, but rather tribes with existing reservations, our efforts to seek help from the Department of the Interior

went nowhere.

Finally, Congress acted to take that land into trust for us as it

has in the case of many other tribes in California and other States.

This was the final option after we had tried everything else.

Thanks to the efforts of Congressman George Miller, that proposal

was introduced in legislative form in October 2000. On December

27 of that year, the President signed that bill into law. There were

newspaper articles about this at the time and subsequently there

were two attempts to repeal this proposal. Neither of those met

with success.

Senator Feinstein’s legislation represents the third time there

has been a proposal to take this land from us. We believe it would

be legally wrong to do that. Section 819 conferred a highly valuable

property right on our tribe by specifically entitling us to acquire

land into Federal trust for Indian gaming. The Feinstein bill would

deprive us of this right to conduct gaming on the land and would

be a taking under the Fifth Amendment of the U.S. Constitution.

That act of taking land into trust for us in San Pablo was not

the beginning of this story. It was the end of a very long story, a

story of poor treatment of our tribe at the hands of the Federal

Government. That was an act of redress, making good the wrong

that had been done to us more than 50 years before. To have simply said we are sorry and offered up a paper apology for the treatment of our tribe would have been wrong. Taking that land into

trust represented a meaningful act of redress. Taking that land out

of trust would make that gesture so many empty words.

That is the background to our proposal for a casino project on our

land in San Pablo. Our initial proposal in 1999 was for a modest

gaming operation, something on the order of 1,000 slot machines.

In the proposed compact that we signed with the Governor last

year, that number was originally 5,000 and was revised down to

2,500 machines. Since there has been some controversy about the

change, let me address that for a moment.

When we made our initial proposal in 1999, no compact, not ours

or any other tribe’s, provided for any revenue sharing with the

State of California, nor did these compacts provide local and State

government opportunities for substantive environmental review,

mitigation of local impacts, or involvement in gaming regulation.

We stepped up to the plate to do just that, reaching an agreement to pay an unprecedented 25 percent of net gaming revenues
19

to the State and local government to pay our fair share of public

services and environmental mitigation. But that commitment also

required more slot machines than originally envisioned.

We have agreed to two exhaustive environmental impact reviews

prior to anything being built. These provisions are modeled on the

California Environmental Quality Act, such as the inclusion of

project alternatives mitigation and citizen participation in the process. But the compact took one further step by requiring the tribe

to complete agreements on mitigation measures with its neighbors

in the city of San Pablo, the local county and the State Transportation Department.

Over and above our compact obligations, the tribe has spent the

past months engaged with the community to hear their hopes and

concerns about our project. As a result, we reduced the size and

scope of our project to make it a better fit for the community, while

still offering the creation of more than 6,000 new jobs. We negotiated and signed that compact with the Governor of California. We

had the strong support of the city of San Pablo where the casino

would be located. We believe that the proposed compact represented a good deal for all parties.

Notwithstanding all that, as you know, the California State legislature has chosen not to act on the compact. As a result, we will

now focus on exercising our rights under Federal law. We will renovate the interior of the existing building to make it more attractive and to offer a wider variety of class II gaming activities, including class II electronic bingo games. These are not the video lottery terminals. They will fall well within the definition of what constitutes class II gaming. We do not intend to push the envelope.

Senator McCain, we did not ask to be in this situation. We did

not ask the Federal Government to take our name and our land,

but that happened. Now, decades later, when this Government has

finally acted to right those wrongs, we believe it would be wrong

to take away our right to pursue economic self-sufficiency, which

is effectively what Senator Feinstein’s bill would do.

If this body wishes to address various issues associated with Indian gaming, so be it. But I respectfully ask you, Senators, not to

go back and retroactively change the rules for us. What this body

did in 2000 was to do the right thing. It was to make good a wrong

the Federal Government had committed against our tribe. I ask

you to let that act of justice stand.

Thank you.

[Prepared statement of Ms. Mejia appears in appendix.]

The CHAIRMAN. Thank you very much.

Assemblywoman Hancock, welcome.

STATEMENT OF LONI HANCOCK, ASSEMBLY MEMBER, 14th

ASSEMBLY DISTRICT, SACRAMENTO, CA

Ms. HANCOCK. Thank you, Senator McCain.

My name is Loni Hancock. I serve as an assembly member in the

California State legislature. My district is in the East San Francisco Bay Area and includes the cities of Oakland, Berkeley, Richmond, and San Pablo.

First, let me thank you, Senator McCain, for having this hearing

today. Senator Feinstein’s legislation would require advocates of
20

Casino San Pablo to follow the two-step process laid out under the

Indian Gaming Regulatory Act. I want to express my support for

Senator Feinstein’s legislation.

Second, I would like to speak about the role of the State legislature and the legislative history regarding Casino San Pablo. As you

know, in order for a tribe to open a casino, they must negotiate a

gambling compact with the Governor. That compact is then subject

to ratification by the State legislature. The Casino San Pablo proposal came to my attention in August of last year when it was submitted to the legislature by the Governor as a package of five compacts in the last week of the State legislative session when the legislature was voting on over 100 bills.

The compact negotiated between the tribe and the Governor authorized 5,000 slot machines in a six-story, 600,000 square foot

building. To put these figures into perspective, the compact would

have made Casino San Pablo the third largest slot machine operator in the country. Only the two casinos in Connecticut would be

larger operations.

In terms of square footage, this casino would have been the size

of six Wal-Marts combined. It would be built in the middle of the

already heavily congested San Francisco Bay Area.

Other provisions in this compact allowed the Governor’s chief financial officer in his or her sole discretion to completely obviate

any or all of the local government mitigations provided in the compact. After sustained legislative opposition, the compact was

amended to reduce the number of slot machines to 2,500.

This amended compact created a casino with as many slot machines as any major casino on the Las Vegas strip. But also included in the revised compact is a provision allowing renegotiation

of the number of slot machines in 2008. In essence, this provision

would make it possible for the casino to go right back to a request

for 5,000 slot machines.

Given the nature of this revised compact, my colleagues in the

State legislature made it clear they would not ratify the compact.

The Casino San Pablo proposal touches on many of the complex

issues surrounding the expansion of Indian gambling in California

and the expansion of off-reservation casinos. In 2000, the voters of

California passed initiative Proposition 1A, amending the State

constitution to provide economic development opportunity by authorizing gambling casinos in rural areas and on traditional tribal

lands. That was the intent of proposition 1A.

What we have seen since proposition 1A’s passage is some tribes

with ambiguous ancestral titles to a land parcel making claims to

that land for the sole purpose of operating a casino.

In the San Francisco Bay Area alone, we face the proposed development of up to five casinos within a 15-miles radius by tribes who

have scant, if any, ancestral connection to those lands. California

is experiencing a proliferation of proposals for Indian gambling casinos that have little to do with self-sufficiency on tribal lands.

These off-reservation casinos in reality are being supported by aggressive out-of-State casino developers who clearly hope to build casinos in every urban area of the State.
21

Keep in mind that in California, Nevada-style gambling is illegal.

Through proposition 1A, it was intended to be legal only for Indian

tribes on their traditional tribal lands.

Finally, I would like to talk briefly about the community opposition to Casino San Pablo. Polls conducted by KPIX, our local TV

station, showed that 57 percent of the respondents opposed the casino. I personally sent a survey to every household with a registered voter in my Assembly district.

The returned survey showed overwhelming opposition. Survey results indicated district-wide, 91 percent opposition to the casino,

and my staff broke down the results by city, and even within the

city of San Pablo, where the casino would be located and where

people had been promised jobs and revenues for the city budget,

over 64 percent of the returned surveys opposed the casino.

Cities like Albany and Berkeley in the surrounding community

who will experience the negative impacts of increased traffic, crime

and gambling addiction have taken positions against the proposed

casino. Other cities are considering similar resolutions, and today

the local county board of supervisors will be considering a resolution against urban gambling and against urban casinos.

Mr. Chairman, I have thousands of letters, e-mails, surveys that

say that Casino San Pablo is a bad economic development strategy

for our community and our State. You have heard that the Lytton

Band of Pomo Indians no longer intends to build a Las Vegas-style

casino. The proponents have said that they will operate only class

II electronic bingo machines, but the 2,500 slot machine compact

is still on the table.

Recently, a letter sent by the tribe to members of the State legislature states that the tribe remains confident that this or a future

legislature will eventually recognize the benefits of the compact negotiated with the Governor. This is a 2,500-slot machine casino

with the ability to negotiate for even more slot machines when the

environment is more politically favorable for them to do so.

So in the final analysis, I believe that the legislation authored by

Senator Feinstein to remove the backdating, and without that legislation the Lytton Tribe will continue to seek a massive gambling

casino at Casino San Pablo. This entrance of tribal casinos on nonancestral land in densely built urban areas would set a precedent

for authorizing off-reservation gambling casinos in California and

in every State where tribal gambling is permitted.

Thank you again, Mr. Chairman, for holding this hearing. I respectfully ask the committee to act in support of Senator Feinstein’s legislation.

[Prepared statement of Ms. Hancock appears in appendix.]

The CHAIRMAN. Thank you very much.

Chairman Mark Macarro, Chairman of the Pechanga Band of

Luiseno Indians. Welcome.

STATEMENT OF MARK MACARRO, CHAIRMAN, PECHANGA

BAND OF LUISENO INDIANS

Mr. MACARRO. Good morning, Mr. Chairman. Thank you for the

opportunity to testify regarding S. 113, a bill to modify the date as

of which certain tribal lands of the Lytton Rancheria of California

is deemed to be held in trust.
22

My name is Mark Macarro. I am the duly elected chairman of

the Pechanga Band of Luiseno Mission Indians. I have been asked

to discuss the Pechanga Tribe’s position with regard to S. 113.

The CHAIRMAN. What is your geographic position as compared

with Councilwoman Mejia’s tribe?

Mr. MACARRO. The Lytton Band is in Northern California in the

Bay Area. We are in Southern California, about 60 miles north of

San Diego, 20 miles inland of Camp Pendleton.

The CHAIRMAN. And does your tribe engage in gaming?

Mr. MACARRO. We do.

The CHAIRMAN. How big a casino do you have?

Mr. MACARRO. We have a 522-room hotel and 2,000 slot machines.

The CHAIRMAN. Please proceed. Thank you.

Mr. MACARRO. Thank you.

The Pechanga believe that each and every federally recognized

tribe is a sovereign and in its own right enjoys all the rights and

privileges that flow from sovereignty, including the right to pursue

economic development opportunities which improve the quality of

life for all tribal members. However, it is our sincere belief that all

Indian tribes also have a responsibility to the larger community

and that the specific instance of the backdating of the fee-to-trust

acquisition of the Lytton Rancheria is contrary to the best interests

of all of Indian country.

The Pechanga Tribe supports S. 113 for two reasons. First, we

believe that the Lytton fee-to-trust acquisition should follow the

same procedure that all other tribes must follow to authorize gaming on what are termed after-acquired trust lands. While the process is not perfect, it allows tribes, States and local communities to

have input and a chance to participate in the process, including the

ability to resolve differences before decisions are made. The manner in which this acquisition was placed into trust deprived those

communities who are most affected by the acquisition a chance to

address important issues before the land was placed into trust.

The other reason we support this legislation is that it will reverse an action which violates a promise that all California Indian

tribes made to the citizens of California when propositions 5 and

1A were considered and approved. During the time those propositions were considered, tribes in California pledged that the passage of those propositions would not result in the proliferation of

urban gaming, but would be confined to a tribe’s existing reservation lands, the vast majority of which are not located in urban

areas.

The legislation which directed the Lytton land acquisition to be

placed into trust status violated that public policy promise to the

citizens of California and denied the citizens affected by the acquisition to play a part in the process which determines whether land

should be placed into trust status.

We believe S. 113, by providing that the trust acquisition of the

Lytton Rancheria, while remaining in trust status, is considered to

be placed in trust as of its actual date of acquisition. It levels the

playing field. It requires the Lytton Rancheria to deal with the

local community and the Governor before it may operate gaming on

the parcel, or it must apply to the BIA before the land can be de-
23

clared meeting one of the exceptions to the prohibition on gaming

on lands acquired after October 17, 1988.

Both processes provide for more detailed, thoughtful consideration on the merits of the application before gaming can be conducted on those lands.

This concludes my testimony. Again, I would like to thank you

for the opportunity to provide our views on S. 113. I would be

happy to answer any questions you may have.

[Prepared statement of Mr. Macarro appears in appendix.]

The CHAIRMAN. Thank you very much.

Ms. Mejia, how do you respond to Chairman Macarro’s comment

that a commitment was made at the time of the passage of the

propositions 5 and 1A that there would not be an expansion of Indian gaming in urban areas?

Ms. MEJIA. As I stated in my testimony, back in 1999, the compacts that were signed with the State of California and 62 tribes

were signed September 9 of 1999. We had already negotiated, were

in negotiations with the city of San Pablo on our municipal services

agreement. We were in every paper and, you know, we were going

into an existing facility in a community that had already passed a

referendum for gaming. We were not hiding anything.

The CHAIRMAN. Why was it that your tribe was not included in

this ballot proposition which gave numerous tribes the opportunity

to engage in a compact with the State?

Ms. MEJIA. Governor Davis said that we could not enter into that

agreement because we did not have the land in trust. When I attended the compact negotiations with the other tribes of California

and asked them to put language in there that would apply to us,

they said no, that they needed to move forward. They had to act

in their tribe’s best interests and that is what they did.

The CHAIRMAN. Ms. Brown, your view of the public support for

this enterprise seems to vary rather dramatically from

Assemblywoman Hancock’s view of the support for this enterprise.

Ms. BROWN. We had 2,000 petitions of support in the last few

months.

The CHAIRMAN. You have to move the microphone closer.

Ms. BROWN. I am sorry.

We had 2,000 petitions of support in the last few months, which

have been submitted.

The CHAIRMAN. Is the tribe currently operating a casino at the

San Pablo site?

Ms. MEJIA. The tribe is currently operating a class II facility.

The CHAIRMAN. And how many members of our tribe are employed there?

Ms. MEJIA. Actually, right now, none, because we have not been

able to. We have been working toward doing this and the card club

is not generating revenue for teaching job skills and addressing

those issues so that they can participate in employment there.

Right now, it is just operating as it was before. Hopefully with the

move to adding the class II machines, we will generate revenue.

We will bring in tribal members to work there.

The CHAIRMAN. Assemblywoman Hancock, do you have objection

that class II gaming be conducted?
24

Ms. HANCOCK. I think that it would be a good idea if it were part

of the two-step negotiations that I understand are required under

IGRA. Certainly, class II gaming, although my understanding,

again, is that the electronic bingo machines look and feel very

much like slot machines and that there would be obviously an impact on the community from that.

I think it would be good to have those impacts discussed, which

is one of the reasons that I support Senator Feinstein’s bill. But in

addition, the fact is that right now the 2,500-slot machine compact

is still before the California legislature. It can be brought forward

at any time that the proponents believe they can get the votes. I

think it illustrates the enormous pressures and problems that we

are facing in California around off-reservation gambling.

So it seems to me that simply as a fairness measure, there ought

to be the community discussion around the traffic impacts and the

social impacts of class II gambling in a very densely built-up region. The city of San Pablo is actually a city of 30,000 people, totally surrounded by the city of Richmond, also a very poor city, that

will benefit in no way from this compact.

The CHAIRMAN. Go ahead, sir.

Mr. ARNER. Senator, you have asked a question about size of casinos and the number of slots previously. I would like to respond

to that. I am Brock Arner, the city manager.

Thunder Valley Casino within 48 miles of the capital of the State

of California has 2,700 slot machines. Cache Creek has 2,500.

The CHAIRMAN. Not much different from the original proposal of

2,500.

Mr. ARNER. No, sir; it is not. What I was trying to show was the

relative request of the Lytton Band of the Pomo Indians in this regard.

I would also like to point out that no local city other than Albany

has opposed. None of our neighbors have opposed this proposal by

the Lyttons. The 3,000 jobs that would be generated by this proposal will greatly benefit the residents of the city of Richmond who

are even poorer than the residents of the citizens of San Pablo. Finally, $150 million would be made available to State and local governments to offset and mitigate issues like traffic raised by this

proposal. That is in the compact negotiated by the Governor with

Tribal Chair Mejia.

I am almost finished. I am sorry for taking your time.

The CHAIRMAN. Go ahead.

Mr. ARNER. We have also received support from the Richmond

Chamber of Commerce, the Rodeo Chamber of Commerce, the San

Pablo Chamber of Commerce, and a variety of other clubs, including the Rotary Club in San Pablo, supporting the job creation and

the economic development in the poorest area of the Bay Area as

a result of Casino San Pablo and the proposed type III gaming.

The CHAIRMAN. Your survey shows that 3,000 jobs, and how

much money would be created by this?

Mr. ARNER. The University of California Graduate School indicates that the jobs are attainable by the folks that we serve. Those

3,000 jobs are identified an economic analysis paid for by the tribe.

The CHAIRMAN. 3,000 jobs and how much money?
25

Mr. ARNER. They estimate $150 million annually to be divided

between the State of California, the county of Contra Costa, the

city of San Pablo, and CALTRANS.

The CHAIRMAN. Chairman Macarro, how many slot machines are

in your operation?

Mr. MACARRO. We have 2,000.

The CHAIRMAN. Have you created anywhere near 3,000 jobs associated with that?

Mr. MACARRO. Actually, yes. We have about 5,000 employees. We

are the second-largest private employer in Riverside County.

The CHAIRMAN. It is interesting to me that many times where

gaming operations take place, there is very little impact on the surrounding community. Has that been your experience,

Assemblywoman Hancock?

Ms. HANCOCK. Well, this is really my first experience with urban

gambling. I have learned more about gambling than I ever thought

I would, since last August, Senator McCain.

The CHAIRMAN. During March Madness, it is appropriate.

Ms. HANCOCK. Really. [Laughter.]

Ms. HANCOCK. One of the things I have learned is that there are

a number of studies indicating other things. A study that was commissioned by a coalition of card rooms, from Professor William

Thompson at the University of Nevada, estimated that the Bay

Area economy would lose $138 million a year as a result of the casino. It is based very much on an analysis that he calls the difference between destination gambling and grocery store gambling.

Destination gambling, meaning when people fly to a place like

Las Vegas, they are on vacation. They know what they can afford

to lose and spend. They leave their money in Las Vegas and they

go home. If you do not have a destination, what you have is grocery

store gambling where he estimates 80 to 90 percent of the customers would come from the adjacent area, a very poor area.

This is where somebody is driving by, they decide to stop. They

just got their paycheck and pull the handle or press the button a

few times, and they leave without the lunch money for the kids.

They leave without the money for clothes or rent. And this is

money that would go back into the local economy, but instead it

goes out, 30 percent or so, to the investors who are typically out

of State gambling casino operators and the rest in various places.

So that the economic impact on the communities may be to move

money around, but it actually can be a very negative economic impact.

The CHAIRMAN. Chairwoman Mejia, would you like to make any

additional comments?

Ms. MEJIA. No; I would just urge the committee, Senator

McCain, yourself, to really look at the impact this is going to have

on my people.

The CHAIRMAN. Thank you.

Ms. Brown.

Ms. BROWN. Basically, the same as Margie Mejia, is that the concerns we have in San Pablo is the impacts for San Pablo.

The CHAIRMAN. Thank you very much. This hearing is adjourned.

[Whereupon, at 10:48 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

(27)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. GEORGE MILLER, U.S. REPRESENTATIVE FROM

CALIFORNIA

Mr. Chairman and members of the committee, thank you for the opportunity to

testify today.

And Senator Feinstein, it is good to be with you. While you and I do not agree

on this particular matter today it is always good to work with you on issues that

affect the State of California. I appreciate what you do for us.

Mr. Chairman, with your permission I would like to submit my written statement

for the record.

I would also like to recognize several constituents and local representatives who

will testify later today.

Assemblywoman Loni Hancock is a strong advocate for her district and. I appreciate her being here.

And Mayor Sharon Brown and City Manager Brock Amer of the city of San Pablo

are here. They are working very hard to stimulate economic development in their

city and I appreciate their efforts on behalf of the resident of San Pablo.

Today’s hearing concerns the Lytton Band of Pomo Indians and the city of San

Pablo in my district and their effort to work together to meet mutual goals of desperately needed economic development. I support their efforts.

My involvement with this matter dates back to 1999 and 2000 when I was approached by the city to discuss its interest in working with the Lytton Band to help

them acquire an existing card room in San Pablo for the purposes of renovating it

and building a modest sized casino.

The tribe made a good faith effort to work through the Department of the Interior

to win the right to acquire this land for the purposes of gaming under the Indian

Gaming Regulatory Act [IGRA] but due to special circumstances affecting the tribe,

it is my understanding that the tribe was told by the Department that they would

be turned down.

After much discussion and a detailed review of the circumstances, I agreed to help

the city and the tribe. I supported their project for several reasons:

• the local community, including the police department,. supported the project;

• the city stood to make significant economic development gains from the project;

• the tribe had a clear need and a legitimate right to pursue lands for the purposes of economic development and made a good faith effort to work through

the Department of the Interior to do so;

• I have a long standing history of supporting the sovereign rights of Indian

tribes.

The issue of whether or not American Indians should be involved in gaming is

not at issue here. There are opponents of gambling for many reasons, some personal, some moral, some simply competitive. And of course there are many proponents of gaming. There are card rooms throughout the Bay Area, an extensive lottery program, and the California constitution allows for Indian gaming. Personally,
28

I am neither a proponent nor opponent of gaming per se. I am, however, a strong

defender of economic development and of Indian sovereignty.

As you will hear in greater detail later today from the Lytton’s tribal chairwoman,

Marge Mejia, the Lytton Band was wrongfully terminated in the 1960’s. A Federal

court restored its tribal status in 1991. The Lyttons are a poor people, many of

whom are homeless. The tribe is concerned about preserving its tribal heritage and

providing economic means for its members.

The city of San Pablo and the Lyttons have much in common.

San Pablo is one of the poorest cities in the Bay Area. A small city with little

economic activity, it has a poverty rate of 18 percent—twice that of the entire Bay

Area and more than twice that of Contra Costa County. Its ‘‘unemployment rate is

higher than that of the Bay Area and the county. More than 90 percent of the city’s

residents work outside of the city, because there are just not enough jobs created

within the city.

The key question before the committee is whether it was appropriate for the Congress to have passed section 819 of the Omnibus Indian Advancement Act in 2000

on behalf of the Lytton Band. I believe that it was appropriate and that the provision should stand as written.

As you know, the U.S. Constitution gives Congress plenary authority over Indian

tribes to pass laws for their benefit. Congress is fully within its rights to pass legislation directing the Secretary of the Interior to place lands into trust for a particular

tribe and does so on a regular basis.

In the 108th Congress, at least 10 bills became law that placed lands into trust

for various reasons to benefit various Indian tribes. This may happen for any number of reasons that Congress determines is prudent. It may be as part of a settlement agreement of a land claim, or in the instance of the Pechanga Indian Tribe,

who are scheduled be testify later, the desire to protect certain important lands

from possible desecration.

Last Congress, we even took lands right out of a national park and had it placed

in trust for one tribe. In the Gila River water settlement law we required an act

of Congress occur to bring some lands into trust for that tribe.

In most cases, including the ones I mention here, the tribe attempts to go through

the BIA process, becomes frustrated for one reason or another, and comes to Congress to plead its case. In fact, the highly touted bill that the Lytton provision was—

in also included 14 other provisions to take lands into trust for Indian tribes, including one provision that held the land be considered in trust as of 1909.

The Lyttons had a special circumstance that I believe distinguished them from

most other tribes in California and that necessitated congressional action.

The 1991 Federal court settlement that restored Lyttons’ tribal status and that

of numerous other California tribes included one unusual provision that pertained

only to the Lyttons.

The court order restoring the Lyttons’ tribal status contained a unique limitation

that precluded the Secretary of the Interior from taking land in Sonoma County the

Lytton’s ancestral lands—into trust for the benefit of the Lytton Band for any use

that was inconsistent with the Sonoma County General Plan. In effect, the limitation denied Lytton any right to use its ancestral land for gaming.

The order however did not put any restrictions on the ability of Lytton to pursue

other lands for gaming or other activities.

This limitation created a special circumstance when the Lyttons appealed to the

Department of the Interior for an exception under the Indian Gaming Regulatory

Act for permission to have lands put into trust and to be allowed to conduct gaming.

The lands that the tribe sought were not their ancestral lands, nor contiguous

with its ancestral lands. It is my understanding that the Bureau of Indian Affairs

[BIA] denied the tribe this exception under IGRA because of this land issue. And

yet, as I explained, the court settlement forbade the tribe from using their ancestral

lands.

The Lyttons are the only tribe in California—and perhaps the only tribe in the

United States—that, as a condition of the restoration of its tribal status, was expressly deprived of the opportunity to exercise rights under the Indian Gaming Regulatory Act on its ancestral land.

I do not believe that existing law anticipated this unusual circumstance and

therefore Congress, which has the authority to intervene in these matters, appropriately remedied this situation.

This is what the issue boils down to. Through no fault of its own, the Lytton Tribe

was illegally stripped of its status as a federally recognized Indian tribe and denied

its rights for decades until it was restored to its proper status by our judicial system. Had the tribe’s status never been illegally terminated, there would have been
29

no question as to the Lytton’s ability to operate gaming on lands within its ancestral

area. I thought that the BIA would accept the land under the IGRA exceptions for restored tribes, but was told it would not. I believed that was a mistake, and even

then Assistant Secretary for Indian Affairs Kevin Gover was quoted at the time

about the denial of Lytton’s request that ‘‘it was a close call. A good case could be

made that we were wrong Gover said.

Every tribe’s situation is different and must be evaluated individually. But I believed then, and continue to believe now, that it was the fair and right thing to do

in this particular case to make the Lytton Band whole again.

Not only do I believe that it was appropriate for Congress to have acted on the

tribe’s behalf, but I want to be clear that the manner in which Congress approved

this legislation was entirely appropriate.

My Provision regarding the Lytton Band was added, along with numerous other

tribal issues, as an amendment to H.R. 5528, the Omnibus Indian Advancement

Act,’’ in the full House.

All the provisions added were done so with the support of the leadership of both

the House Resources Committee and this committee as a way to move some legislation that for whatever reason had not passed. To make it clear this was a compilation of bills, the ‘‘omnibus’’ title was given to the bill. This is a most appropriate

way to move legislation near the end of a Congress that has been bottled up. The

bill passed the full House on October 26, 2000.

H.R. 5528 was referred to the Senate Committee on Indian Affairs and passed in

the Senate by unanimous consent on December 11, 2000—45 days after its referral

to the Senate and its being sent to both respective cloakrooms for viewing and Senate notification.

Section 819 was identified by the heading ‘‘Land to be Taken Into Trust’’ and, at

all times, contained the name of the tribe and location of the land. Any Senator who

questioned or objected to any provision had the opportunity to review the provision

and to withhold consent under the unanimous consent procedure. No Senator did

so.Under the provision, Lytton is subject to all of the provisions of IGRA, including

the requirement under California law that any compact negotiated between the

State of California and the Lytton Band be ratified by the California legislature.

A compact was signed in August 2004, by the Governor and the Tribal Chair, but

it has not yet been ratified by the legislature.

I am on record as opposing both the size of the first proposed compact between

the State and the tribe and the revised proposed compact. I hope that any final resolution on the compact will adhere to the proposal originally presented to me by the

tribe and the City. That proposal called for a modest casino within the parameters

of what already exists at the card room, not a mega casino as is now under consideration.

It should be noted, however, that the Lytton Band from the very beginning went

to unprecedented lengths to consult with the local community and the State of California to forge an agreement with regard to mitigating potential impacts of a new

casino and sharing the benefits of the casino with the community.

But the issue of the compact details is a separate matter.

The issue today is whether the tribe has the right to these lands and whether

Congress acted appropriately in conveying the lands to the tribe. In both instances,

the answer clearly is yes.

I do not believe Congress is justified in taking away from the Lytton’s the rights

that Congress gave to it. Doing so would be a significant breach of trust between

Congress and the Indians, a trust that has been broken so often in our Nation’s history. And it would also greatly undermine the economic development opportunity of

an impoverished tribe and an impoverished California city.

I believe that S. 113 is unwarranted and harmful but more importantly I believe

that it would be a dangerous precedent.

Governor Schwarzenegger expressed a similar view when he wrote to Sen. Feinstein on September 20, 2004 about her legislation that, ‘‘This bill would set a dangerous precedent that could damage trust and faith with the Lytton Rancheria Indian community.’’ He added, ‘‘Passage of [this bill] will destroy the trust which has

been built with the Lytton and other tribal governments, not just in California but

throughout the Nation.’’

Indian gaming in California is clearly a complicated matter, and there are many

aspects of the issue to resolve. But using the power of Congress to take punitive

action against the Lytton Band is neither justified nor appropriate.

Thank you again Mr. Chairman and members of the Committee for the opportunity to testify today.
30

PREPARED STATEMENT OF LONI HANCOCK, ASSEMBLYMEMBER, 14TH ASSEMBLY

DISTRICT CALIFORNIA

Good morning Chairman McCain, Senator Dorgan, members of the committee. My

name is Loni Hancock and I serve as an assemblymember in the California State

Legislature. My district includes most of the East San Francisco Bay Area including

the cities of Oakland, Berkeley, Richmond, and San Pablo.

Let me first say thank you for having this hearing today on S. 113 authored by

Senator Feinstein. This legislation requires the proponents of Casino San Pablo to

follow the process set out under the Indian Gaming Regulatory Act. So let me first

clearly express my support for Senator Feinstein’s legislation.

Second, I would like to speak about the role of the State Legislature and the legislative history regarding Casino San Pablo. As you know, in order for a tribe to open

a casino they must negotiate a gambling Compact with the Governor of that State.

That Compact, negotiated between the tribe and the Governor, is subject to legislative ratification by the State Legislature.

The Casino San Pablo proposal came to my attention in August of last year. The

Compact was submitted to the Legislature by the Governor as part of a package of

5 compacts in the last week of the legislative session when the Legislature was voting on roughly 800 bills.

The Compact—negotiated between the tribe and the Governor—authorized 5,000

slot machines and a 6-story, 600,000-square-foot facility. To put these figures into

perspective, the Compact would have made Casino San Pablo the third largest slot

machine operator in the country. Only the two casinos in Connecticut have larger

operations.

In terms of square footage this casino would have been the size of six Wall Marts

combined. Keep in mind this casino would be built in the middle of the already

heavily congested San Francisco Bay Area. Other provisions in this Compact allowed the Governor’s chief financial officer in his or her sole discretion to completely

obviate any or all of the local government mitigation provided for in the Compact.

After sustained legislative opposition, the Compact was amended to reduce the

number of slot machines to 2,500. This amended Compact created a casino with as

many slot machines as any casino on the Las Vegas strip. Also included in the revised Compact was a provision allowing renegotiation of the number of slot machines in 2008. In essence, this provision made it possible for the casino to go right

back to 5,000 slot machines.

Given the nature of this revised Compact, my colleagues in the California Legislature made it clear they would not ratify the Compact or authorize an expansion of

Las Vegas style gambling into one of the State’s most densely populated urban

areas.

The Casino San Pablo proposal touches on many of the complex issues surrounding the expansion of Indian gambling in California and the expansion of off-reservation casinos. In 2000, the voters of California passed a Statewide initiative—proposition 1A. Proposition 1A amended the State Constitution to provide for economic

development by authorizing casinos in rural areas and on traditional ancestral tribal lands. This was the intent of proposition 1A.

What we have seen since proposition 1A’s passage is some tribes, with ambiguous

ancestral ties to a land parcel, making claims to that land for the sole purpose of

opening a casino. In the San Francisco Bay Area alone we face the proposed development of up 5 casinos within a 15-mile radius by tribes who have scant, if any,

ancestral connection to those lands. In the case of the Lytton Tribe at Casino San

Pablo, the casino’s location is 50 miles from Sonoma County—the traditional ancestral territory of their tribe. In another case, the Koi Nation Tribe is proposing to

build a casino adjacent to the Oakland International Airport. This casino proposal

located in Oakland is nearly 150 miles from the tribe’s traditional lands in Lake

County.

California is experiencing a proliferation of proposals for Indian gambling casinos

that have little to do with self sufficiency on tribal lands. These ‘‘off reservation’’

casinos are, in reality, being supported by aggressive out-of-state casino developers

and their lobbyists who clearly hope to build casinos in every urban area of the

State. Keep in mind that in California, Las Vegas style gambling is illegal. Las

Vegas style gambling was only intended to be legal only for Indian tribes on their

traditional ancestral land.

Finally, I would like to talk briefly about the community opposition to Casino San

Pablo. Polls conducted by KPIX our local TV station showed that 57 percent of the

respondents oppose the casino. I personally sent out a survey to every household

with a registered voter in my Assembly District, which contains 156,000 voters and

the returned surveys showed overwhelming opposition. The survey results indicated
31

that 91 percent of my district is against the casino proposal. My staff has broken

down the results of the survey by city. Even within the city of San Pablo—where

the casino would be located—and where the city has been promised jobs and revenues for the cities budget, 64 percent of the returned surveys opposed the casino.

Cities such as Albany and Berkeley who are in the surrounding community and will

experience the negative impacts of increased traffic, crime, blight and gambling addiction have taken positions against the proposed casino. In addition, other cities

are considering similar resolutions against the Casino and against expanding urban

gambling in general. In fact, tonight, the local county Board of Supervisors, in which

Casino San Pablo resides, will be approving a resolution against urban gambling

and urban casinos. Mr. Chairman and members, I have thousands of letters, e-mails

and surveys that say that Casino San Pablo is a bad economic development strategy

for our community and for our State.

You will hear from the proponents of the Casino that they no longer intend to

build a ‘‘Las Vegas’’ style casino, that they no longer intend to build entertainment

venues, or that the casino now will not feature slot machines. The proponents will

say that they will operate only class II gaming machines that is, electronic bingo

machines.

But the one thing we have learned from this experience is that once land is placed

into trust everything can change.

In a letter to the BIA in 1999, Mrs. Mejia the chairwoman of the tribe told the

BIA that ‘‘No other changes to the physical configuration or internal operation of

the existing facility are proposed.’’ The letter goes on to say ‘‘Based upon the Band’s

review of the physical constraints of the Facility, the Band believes the capacity of

1,200 to 1,500 gaming positions [this means slot machines and poker tables]—will

not increase.

After these statements were made to the BIA, the tribe negotiated with the Governor a 5,000-slot machine casino and 600,000 square foot facility—and they said,

no other changes to the physical facility would be made!

Recently a letter sent by the tribe to members of the State Legislature states that

‘‘. . . the tribe remains confident that this or a future legislature will eventually recognize the benefits . . . that the Compact we negotiated in good faith offers.’’ In

other words, the supporters of the casino intend to continue to put forward this

Compact for a 2,500-slot machine casino and massive gambling complex with the

ability to negotiate for even more slot machines when the environment is more politically favorable for them to do so.

In the final analysis, it is my belief that without the legislation authored by Senator Feinstein, the Lytton Tribe will be able to open a massive casino at Casino San

Pablo. This would be the first urban Las Vegas style casino that was never intended

by the voters of the State of California, and is a direct violation of the Federal regulations outlined in the Indian Gaming Regulatory Act. The entrance of tribal casinos

on non-ancestral land—such as Casino San Pablo—in densely built urban areas

would set a precedent for authorizing off reservation gambling casinos in California

and every state where tribal gambling is permitted.

Thank you again, Mr. Chairman, for holding this hearing. I respectfully urge the

committee to act in support on Senator Feinstein’s legislation a soon as possible.

PREPARED STATEMENT OF MARK MACARRO, CHAIRMAN, PECHANGA BAND OF LUISENO

MISSION INDIANS

Good morning, Mr. Chairman, Mr. Vice Chairman and members of the committee.

Thank you for the opportunity to testify regarding S. 113, a bill ‘‘to modify the date

as of which certain tribal land of the Lytton Rancheria of California is deemed to

be held in trust’’.

My name is Mark Macarro, and I am the chairman of the Pechanga Band of

Luiseno Mission Indians. I’ve been asked to discuss the Pechanga Tribe’s position

with regard to S. 113.

The Pechanga believe that each and every federally recognized tribe is a sovereign

in its own right and enjoys all the rights and privileges that flow from sovereignty,

including the right to pursue economic development opportunities which improve

the quality of life for all tribal members. However it is our sincere belief that all

Indian tribes also have a responsibility to the larger community, and that the specific instance of the backdating of the fee to trust acquisition of the Lytton

Rancheria is contrary to the best interests of all Indian country.

The Pechanga Tribe supports S. 113 for two reasons.

First, we believe that the Lytton fee to trust acquisition should follow the same

procedure that all other tribes must follow to authorize gaming on what are termed
32

‘‘after-acquired’’ trust lands. While the process is not perfect, it allows tribes, States,

and local communities to have input and a chance to participate in the process, including the ability to resolve differences, before a decision is made. The manner in

which this acquisition was placed into trust deprived those communities who are

most affected by the acquisition a chance to address important issues before the

land was placed in trust.

The other reason we support this legislation is that it will reverse an action which

violates a promise that all California Indian tribes made to the citizens of California

when propositions 5 and 1A were considered and approved. During the time those

propositions were considered, tribes in California pledged that the passage of those

propositions would not result in the proliferation of urban gaming, but would be

confined to a tribe’s existing reservation lands, the vast majority of which are not

located in urban areas.

The legislation which directed the Lytton land acquisition to be placed into trust

status violated that promise to the citizens of California and denied the citizens affected by the acquisition to play a part in the process which determines whether

land should be placed into trust status.

We believe S. 113, by providing that the trust acquisition of the Lytton Rancheria,

while remaining in trust status, is considered to be placed in trust as of its actual

date of acquisition, levels the playing field. It requires the Lytton Rancheria to deal

with the local community and the Governor before it may operate gaming on the

parcel, or it must apply to the BIA before the land can be declared meeting one of

the exceptions to the prohibition on gaining on lands acquired after October 17,

1988. Both processes provide for more detailed, thoughtful consideration on the merits of the application before gaming can be conducted on those lands.

This concludes my testimony. Again, I would like to thank you for the opportunity

to provide our views on S. 113. 1 would be happy to answer any questions you may

have.

PREPARED STATEMENT OF MARGIE MEJIA, TRIBAL CHAIRWOMAN, LYTTON BAND OF

POMO INDIANS

Thank you for inviting us today, and thank you in particular, Senator McCain,

for the understanding and support you’ve shown for Native Americans.

My name is Margie Mejia, and I am the chairwoman of the Lytton Band of Pomo

Indians. To understand why we are here today, it’s important to understand something about the history of our tribe.

Like most California tribes, we are a small group, with about 275 members. Like

many other California tribes, most of our members live in poverty. Many have no

or inadequate health care. Alcoholism and substance abuse is a continuing problem.

Living as we do in the San Francisco Bay Area, where housing is very expensive—

we have many families living together in tiny apartments. Only one of our member’s

owns a home.

But until the 1950’s, we did have land. That land was in Sonoma County, and

today this is the site of some of the most prestigious wineries anywhere in the

world. But the reason that today there are vineyards on that land, instead of our

homes—is the result of actions taken by the Federal Government.

In the 1950’s, the Government decided to ‘‘terminate’’ small Native American

bands like ours. The Government gave tribal members individual titles to land and

houses, in exchange for a promise to provide needed infrastructure—water, electricity, roads, and sewage. The tribe was dissolved as a legal entity. But the Government did not fulfill any of its promises to make improvements on our land, and the

Government gave those titles to individuals with no experience of managing either

property or money.

The result was that we lost both our legal identity and our land, which in fact,

was the intended outcome. [As a historical aside, the same Government official who

presided over this policy at the BIA, had also been in charge of the Government’s

policy of interning Japanese-Americans during WWII.]

But we never lost our existence as a community. Many of us continued to live together, and to take care of tribal members in need, as we do to this day. Eventually,

we sued the United States, and the outcome of that suit was that the Federal Government admitted it had broken its promises during termination. In 1991, our tribal

status was restored. However, that settlement effectively barred us from returning

to our tribal lands in the Alexander Valley by prohibiting us from operating a gaming facility in the area. We had little choice but to agree to this condition because

otherwise, with little or no resources of our own, we would have been forced to fight

a protracted legal battle against a group of wealthy wineries and the county.
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After restoration, we re-established our tribal government, passed a constitution

and elected a tribal council. We also began to look for a means out of the relentless

poverty many of our members faced, and to rebuild our tribal community. The tribal

council conducted a needs assessment to determine what alternatives were available

to finance our tribe’s mission of buying the land, building homes, providing roads,

electricity, water, sewer and the other infrastructure necessary for our tribal community.

We turned to gaming because the government offered that to us as a means of

economic development, and because it generates enough money to allow us to get

a loan and finance the rebuilding of our tribe and tribal community.

Let me take a moment to explain the connection between Native Americans and

gaming, and specifically about our tribe, and the gaming business. We are a poor

people with few options for economic development. If we went to a bank and asked

for money to build houses for our people, or a school, or even a business venture—

they would show us the door. We have nothing to guarantee such a loan, and trust

land cannot be used for collateral. Revenues from gaining will help us get members

off welfare and provide them basic health care, education, job training and housing

in a new small community on rural land in Sonoma County.

The 1991 restoration agreement while barring us from operating a gaming facility

in Sonoma County did not foreclose our right to find another community that might

welcome us as partners. We found our road to economic self-reliance in the city of

San Pablo where with help from private investors we purchased an existing card

club that had been approved by local voters in 1994.

The city and the tribe then negotiated a Municipal Services Agreement. At the

time, such an agreement was unprecedented in California, and was the most protective arrangement between city and regional interests and an Indian tribe in California.

But there were other hurdles to come. Although it was the Government’s wrongful

actions which resulted in the loss of our land, by the time the Government had admitted that, and prepared to make good our loss—the legal landscape for tribes had

changed. A law had been passed which made it extremely difficult for tribes to operate gaming on lands taken into trust after 1988 unless Congress made the land eligible. Even though it was not our fault that we were in this position, and although

the law had not been intended for landless tribes, but rather tribes with existing

reservations, our efforts to seek help from the Department of the Interior went nowhere.

Finally, Congress acted to take that land into trust for us as it has in the case

of many other tribes in California and other States. This was the final option, after

we had tried everything else. Thanks to the efforts of Congressman George Miller,

who represents the district which includes our land, that proposal was introduced

in legislative form, as an amendment to a large piece of Indian legislation. That was

October 2000. On December 27 of that year, the President signed the bill into law.

There were newspaper articles about this at the time, and subsequently, there

were two attempts to repeal this proposal. Neither of those met with success. Senator Feinstein’s legislation represents the third time there has been a proposal to

take this land from us. And, as I explained earlier, given the economics of tribal

life, to leave us with the physical earth, but to take away our right to do business

on it—gaming in this case—makes the granting of the land an empty gesture. We

believe it would be legally wrong to do that. Section 819 conferred a highly valuable

property right on our tribe by specifically entitling us to acquire land into Federal

trust for Indian gaming. The Feinstein bill would deprive us of this right to conduct

gaming on the land and would be a ‘‘taking’’ under the fifth amendment of the U.S.

Constitution. And most certainly it would be morally wrong.

That act, of taking land into trust for us in San Pablo, was not the beginning of

this story. It was the end of a very long story—a story of poor treatment of our tribe

at the hands of the Federal Government. That was an act of redress, making good

the wrong that had been done to us more than 50 years before. To have simply said,

‘‘We’re sorry,’’ and offered up a paper apology for the treatment of our tribe would

have been wrong. Taking that land into trust represented a meaningful act of redress; taking that land out of trust would make that gesture so many empty

words—and Senators, whatever you may think of this issue, I am sure you know

our people have heard many empty words from this Government over the years.

That is the background to our proposal for a casino project on our land in San

Pablo.

Our initial proposal in 1999 was for a modest gaming operation with something

on the order of 1,000 slot machines. In the proposed compact that we signed with

the Governor last year, that number was originally 5,000, which was then revised
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down to 2,500 machines. Since there has been some controversy about the change,

let me address that for 1 moment.

When we made our initial proposal in 1999, no compact, not ours or any other

tribe’s, provided for any revenue-sharing with the State of California. Nor did these

compacts provide local and State governments opportunities for substantive environmental review, mitigation of local impacts or involvement in gaming regulation.

We stepped up to the plate to do just that, reaching an agreement to pay an unprecedented [not just in California, but anywhere in the Nation] 25 percent of net

gaming revenues to State and local government to pay for our fair share of public

services and environmental mitigation. But that commitment also required more

slot machines than originally envisioned.

Along with various provisions to pay for mitigation measures required by our

project, we agreed to two exhaustive environmental impact reviews prior to anything being built.

Potential traffic and environmental problems would be identified and addressed.

These provisions are modeled on the California Environmental Quality Act such as

the inclusion of project alternatives and citizen participation in the process. But the

compact took one further step by requiring the Tribe to complete agreements on

mitigation measures identified in this environmental review with its neighbors in

the city of San Pablo, the local county and the state transportation department.

The tribe also agreed to participate in the State workers’ compensation, unemployment compensation and disability benefit systems. The tribe has agreed to

strong state oversight and review of gaining operations, including independent audits, background checks on employees, and prohibitions on gambling by anyone

under 21.

Over and above our compact obligations, the tribe spent the past months engaged

with the community to hear their hopes and concerns about our project. We spoke

with more than 3,000 individuals, met with dozens of elected officials and community leaders, and participated in more than 50 community meetings and forums.

As a result, we reduced the size and scope of our project, to make it a better fit

for the community, while still offering the creation of more than 6,600 new jobs and

generation of an estimated $618 million each year in economic benefits, regionally

and statewide. These jobs were particularly important in the city of San Pablo and

surrounding region, where unemployment is high and there are not other major employers offering good jobs with health and retirement benefits. The tribe also committed to a local preference hiring policy, to help steer jobs to where they were most

needed.

We promised the Bay Area that our project would not include a hotel or nightclub,

convention facility, amusement arcade or other facilities that would generate additional traffic. We also committed to advance $25 million to the state once our project

was approved, to jump start necessary work on the freeway interchange closest to

our facility.

We negotiated and signed that compact with the Governor of California. We had

the strong support of the city of San Pablo, where the casino would be located. We

believe that the proposed compact represented a good deal for all parties. But notwithstanding all that, as you know, California’s state Legislature has chosen not to

act on the compact.

As a result, we will now focus on exercising our rights under Federal law to operate a wider variety of class II gaming activities at Casino San Pablo. We will renovate the interior of the existing building to make it more attractive and to offer

a wider variety of class II gaming activities, including class II electronic bingo

games. These are not video lottery terminals. They will fall well within the definition of what constitutes class II gaming. We don’t intend to push the envelope.

For decades we worked to regain our name and our land. We obeyed the law, even

when it was used against us. We followed the law. When the law allowed us to pursue gaming on our restored land in San Pablo, we did so. But already twice since

then, there have been attempts to undo what you rightfully did. This legislation represents the third attempt to undo that act of justice toward our tribe. I ask you to

say enough.

I know that we are a small group, without much money, power, or influence. We

have received more attention in the last year, over this casino proposal—than anyone paid to us for the decades that went before. I understand that there are many

issues involved here today. I hear the talk about Indian gaming and all the other

questions. What I don’t hear, is any talk about our people, and Senators, this hearing is also about us.

Senator McCain, we did not ask to be in this situation. We did not ask the Federal Government to take away our name and our land. But that happened. Now,

decades later, when this Government has finally acted to right those wrongs—we
35

believe it would be wrong to take away our right to pursue economic self-sufficiency—which is effectively what Senator Feinstein’s bill would do. As I explained

earlier, without the right to operate gaming on our land, which is a right given to

us by both the Federal Government and the State of California, we cannot use that

land to help ourselves.

If this body wishes to address the various issues associated with Indian gaming,

so be it. But I respectfully ask you, Senators, not to go back and retroactively

change the rules for us. What this body did in 2000, was to do the right thing. It

was to make good a wrong the Federal Government had committed against our

tribe. I ask you to let that act of justice stand. Thank you.

PREPARED STATEMENT OF GEORGE SKIBINE, ACTING DEPUTY ASSISTANT SECRETARY,

POLICY AND ECONOMIC DEVELOPMENT FOR INDIAN AFFAIRS, DEPARTMENT OF THE

INTERIOR

Good morning, Mr. Chairman, Mr. Vice Chairman, and members of the committee. My name is George Skibine, and I am the Acting Deputy Assistant Secretary

for Policy and Economic Development in the Office of the Assistant Secretary—Indian Affairs at the Department of the Interior [Department]. I am pleased to be

here this morning to offer the Department’s views on S. 113, a bill to modify the

date as of which certain tribal land of the Lytton Rancheria of California is deemed

to be held in trust by the United States for the benefit of the Lytton Band of Pomo

Indians [Lytton Band]. For the following reasons, the Department does not have any

objections to this bill.

The Bureau of Indian Affairs [BIA] authorized the transfer of several parcels of

land in the city of San Pablo, in Contra Costa County, CA, on January 18, 2001,

pursuant to section 819 of the Omnibus Indian Advancement Act of 2000, Public

Law 106–568, which mandated the acquisition of the parcels, also known as the San

Pablo Casino site, in trust for the Lytton Band. The Lytton Band’s application was

originally made under the authority of section 5 of the Indian Reorganization Act,

25 U.S.C. 465, and was under consideration by the BIA under the authority, procedures, and policies governing the discretionary acquisition of land into trust by the

Secretary contained in regulations at 25 CFR part 151. However, enactment of section 819 of Pubic Law 106–568 mandated the Secretary to take the San Pablo site

into trust without consideration of the factors in the land acquisition regulations.

The fact that the Lytton Band wanted to acquire the San Pablo Casino site for gaming purposes was immaterial to what had become the ministerial decision of the

Secretary to accept the land into trust.

The last sentence of section 819 provides that the San Pablo Casino site ‘‘shall

be deemed’’ to have been held in trust as part of the reservation of the Rancheria

prior to October 17, 1988.’’ This provision permitted the Lytton Band to immediately

operate a class II gaming establishment on the site without having to meet any of

the requirements of section 20 of the Indian Gaming Regulatory Act of 1988 [IGRA]

which contains a prohibition on gaming on lands acquired in trust after October 17,

1988, unless one of several statutory exceptions contained in section 20 of IGRA is

satisfied. The Lytton Band cannot operate a class III gaming establishment under

IGRA unless it negotiates a compact with the State of California, and notice of the

Secretary of the Interior’s approval of the compact is published in the Federal Register. The Lytton Band and the State have not yet submitted such a compact to the

Secretary for approval.

S. 113, if enacted, would strike the last sentence of section 819. The practical effect of removing the so-called ‘‘retroactive’’ clause of section 819 will be to require

the Lytton Band to seek an exception to the gaming prohibition contained in section

20 of IGRA if the Band wants to engage in either class II or class III gaming activities. We believe that the only exception under which the tribe could qualify is the

exception contained in section 20(b)(1)(A) which requires the Secretary to make a

determination that a gaming establishment on the trust land would be in the best

interest of the tribe and its members, and not detrimental to the surrounding community, and is subject to the Governor of the State of California’s concurrence. Unless and until the Secretary makes such a determination and the Governor concurs,

class II or class III gaming activities would not be permitted on the San Pablo Casino site, effectively requiring the Lytton Band to shut down its current class II

gaming operation on the property.

The Department does not object to this bill because we believe that it is inappropriate to waive the requirements of section 20 of IGRA for any particular tribe. Section 20 imposes reasonable restrictions on the right of Indian tribes to engage in

gaming activities on off-reservation lands acquired in trust after the enactment of
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IGRA. The exception in section 20(b)(1)(A) in particular requires consultation with

the local community, consideration of detrimental impacts, and gives the state ultimate veto power over gaming on the off-reservation land. We believe that the standard in section 20(b)(1)(A) has required Indian tribes to negotiate with the State and

affected local governments before a casino is placed on off-reservation land. The Department supports the process of consultation and cooperation between Indian tribes

and affected local communities and sees no reason to exempt any tribe from this

process.

Thank you for the opportunity to testify on S. 113. I will be happy to answer any

questions you may have.
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