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20-969 PS 2005

TRIBAL PROPOSALS TO ACQUIRE

LAND-IN-TRUST FOR GAMING

ACROSS STATE LINES AND HOW

SUCH PROPOSALS ARE AFFECTED

BY THE OFF-RESERVATION DISCUSSION DRAFT BILL.

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

Wednesday, April 27, 2005

Serial No. 109-9

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Barbara Cubin, Wyoming

Vice Chair

George P. Radanovich, California

Walter B. Jones, Jr., North Carolina

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Jim Gibbons, Nevada

Greg Walden, Oregon

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

Jeff Flake, Arizona

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Devin Nunes, California

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Luis G. Fortun ̃ o, Puerto Rico

Cathy McMorris, Washington

Bobby Jindal, Louisiana

Louie Gohmert, Texas

Marilyn N. Musgrave, Colorado

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Grace F. Napolitano, California

Tom Udall, New Mexico

Rau ́l M. Grijalva, Arizona

Madeleine Z. Bordallo, Guam

Jim Costa, California

Charlie Melancon, Louisiana

Dan Boren, Oklahoma

George Miller, California

Edward J. Markey, Massachusetts

Peter A. DeFazio, Oregon

Jay Inslee, Washington

Mark Udall, Colorado

Dennis Cardoza, California

Stephanie Herseth, South Dakota

Steven J. Ding, Chief of Staff

Lisa Pittman, Chief Counsel

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

(III)

CONTENTS

Page

Hearing held on Wednesday, April 27, 2005 ......................................................... 1

Statement of Members:

Kind, Hon. Ron, a Representative in Congress from the State of

Wisconsin ....................................................................................................... 2

Pombo, Hon. Richard W., a Representative in Congress from the State

of California ................................................................................................... 1

Prepared statement of ............................................................................... 2

Statement of Witnesses:

Abrams, Rev. Cynthia J., Director, Alcohol, Other Addictions, and Health

Care Work Area, General Board of Church and Society of the United

Methodist Church ......................................................................................... 42

Prepared statement of ............................................................................... 43

Blackdeer, Hon. Wade, Vice-President, Ho-Chunk Nation ........................... 16

Prepared statement of ............................................................................... 18

Blind, William, Vice-Chairman, Cheyenne and Arapaho Tribes of

Oklahoma ...................................................................................................... 20

Prepared statement of ............................................................................... 22

Brady, Steve, Sr., Co-Chair, Northern Cheyenne Sand Creek Massacre

Site Committee, and President, Northern Cheyenne Sand Creek

Massacre Descendants .................................................................................. 34

Prepared statement of ............................................................................... 35

Response to questions submitted for the record by Otto Braided

Hair on behalf of the Northern Cheyenne Sand Creek Massacre

Committee .............................................................................................. 48

Burzynski, Hon. J. Bradley, State Senator, 35th District, State of Illinois 23

Prepared statement of ............................................................................... 25

Enyart, Charles D., Chief, Eastern Shawnee Tribe of Oklahoma ................ 11

Prepared statement of ............................................................................... 13

Response to questions submitted for the record ..................................... 53

Foltin, Hon. Craig, Mayor, City of Lorain, Ohio ............................................ 27

Prepared statement of ............................................................................... 29

Response to questions submitted for the record ..................................... 59

Jackson, Hon. Jesse L., Jr., a Representative in Congress from the State

of Illinois ........................................................................................................ 7

Prepared statement of ............................................................................... 9

Kindt, John Warren, Professor, University of Illinois ................................... 36

Prepared statement of ............................................................................... 38

Response to questions submitted for the record ..................................... 61

Weller, Hon. Jerry, a Representative in Congress from the State of

Illinois ............................................................................................................ 3

Prepared statement of ............................................................................... 5

(1)

OVERSIGHT HEARING ON TRIBAL PROPOSALS

TO ACQUIRE LAND-IN-TRUST FOR GAMING

ACROSS STATE LINES AND HOW SUCH

PROPOSALS ARE AFFECTED BY THE OFFRESERVATION DISCUSSION DRAFT BILL.

Wednesday, April 27, 2005

U.S. House of Representatives

Committee on Resources

Washington, D.C.

The Committee met, pursuant to notice, at 11:09 a.m., in Room

1324, Longworth House Office Building, Hon. Richard W. Pombo

[Chairman of the Committee] presiding.

Present: Representatives Pombo, Radanovich, Walden, Nunes,

Drake, Fortuno, Kildee, Kind, Inslee, Tom Udall, Bordallo, Herseth

and Costa.

STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

The CHAIRMAN. The Committee on Resources will come to order.

The Committee is meeting today to hear testimony on tribal proposals to acquire land-in-trust for gaming and how such proposals

are affected by the off-reservation discussion draft bill that I proposed.

Under Rule 4(g) of the Committee Rules, any oral opening statements at hearings are limited to the Chairman and Ranking

Minority Member. This will allow us to hear from our witnesses

sooner and help Members keep to their schedules. Therefore, if

other Members have statements, they can be included in the hearing record under unanimous consent.

I ask unanimous consent that my entire opening statement will

be in the record. I am going to just abbreviate my opening statement because of the late beginning of the hearing.

The purpose of today’s hearing is to continue the Committee’s inquiry into off-reservation gaming. Last month the Committee held

a hearing on a discussion draft bill I authored that would restrict

and reform the process by which newly acquired off-reservation

lands are taken into trust for gaming purposes. Committee members and witnesses both provided excellent analysis of the draft

bill. It has also resulted in a tremendous amount of unsolicited

2

input from tribes, local leaders and private citizens across the Nation.

Today’s hearing will focus on one aspect of the discussion draft bill, the provision dealing with tribes seeking trust lands for gaming in States where they don’t reside. There is no official list of

tribes in this situation, but one tribal witness in the last hearing

provided a good list of such proposals.

[The prepared statement of Mr. Pombo follows:]

Statement of The Honorable Richard Pombo, Chairman,

Committee on Resources

The purpose of today’s hearing is to continue the Committee’s inquiry into off-reservation gaming. Last month, the Committee held a hearing on a discussion draft

bill I authored that would restrict and reform the process by which newly-acquired,

off-reservation lands are taken into trust for gaming purposes. Committee Members

and witnesses both provided excellent analysis of the draft bill. It has also resulted

in a tremendous amount of unsolicited input from tribes, local leaders, and private

citizens across the nation.

Today’s hearing will focus on one aspect of the discussion draft bill, the provision

dealing with tribes seeking trust lands for gaming in states where they don’t reside.

There is no official list of tribes in this situation, but one of the tribal witnesses

in the last hearing provided a good list of such proposals. According to this list,

tribes from certain states have attempted to negotiate gaming rights in at least

twelve other states. Although details of the efforts are not always available, it appears that in most if not all cases, the gaming would be conducted under the Indian

Gaming Regulatory Act.

While the Act generally prohibits this type of off-reservation gaming, exceptions

are available depending on the willingness of the Interior Secretary and the governor of the affected state to play ball. It’s just not clear what will happen in every

case.

Regardless, these proposals have stirred up strong feelings among Members of

Congress, governors, tribal leaders, tribal members, city and county leaders, and

private citizens.

The discussion draft bill contains a section intended to bar such efforts to build

casinos across state lines. It would be useful for the Committee to become better

acquainted with several of the proposals and whether such proposals should be

barred or allowed.

Before I recognize the Ranking Member, I want to note that the New York Land

Claim is not the focus of today’s hearing, even though it involves proposals relating

to cross-state gaming. This issue is fairly unique and it would be better focus on

what’s happening in the rest of the United States before turning the committee’s

attention to that situation.

The CHAIRMAN. I would like to introduce our first panel of witnesses. Two of our distinguished colleagues from the State of Illinois, Congressman Jerry Weller of Illinois, 11th District, and Congressman Jesse Jackson, Jr. of Illinois’ 2nd District. Let me take

time to remind all of our witnesses today that under Committee

Rules oral statements are limited to 5 minutes. Your entire statement will appear in the record.

Mr. KIND. Mr. Chairman, may I be recognized for a brief moment?

The CHAIRMAN. Mr. Kind?

STATEMENT OF THE HON. RON KIND, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF WISCONSIN

Mr. KIND. Thank you, Mr. Chairman. Mr. Chairman, first of all,

I want to thank you for holding yet another hearing on this very

important issue and your proposed draft that we have been trying

to work on together. I think this is a very serious issue. I am

3

looking forward to hearing our colleagues’ testimony today as well

as the testimony of the other witnesses on the second panel, one

of whom I just want to especially welcome. He has been a good

friend of mine for many years, but even more importantly, he has

been a great leader of the Ho-Chunk Nation in Wisconsin, a great

community leader. That is Wade Blackdeer, who will be on the second panel. We will look forward to hearing his testimony as well

as the testimony of the other witnesses today.

The CHAIRMAN. Thank you.

Mr. KIND. Thank you, Mr. Chairman.

The CHAIRMAN. We are going to begin with our first panel. Mr.

Weller, we are going to start with you.

STATEMENT OF THE HON. JERRY WELLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Mr. WELLER. Thank you, Mr. Chairman and members of the Resources Committee, for this opportunity to testify on a very important subject.

Mr. Chairman, I want to make it clear I am a supporter of your

legislation, which I believe is good reform legislation. It takes into

consideration the concerns of tribal governments as well as the

States and I want to commend you for working in a bipartisan

manner. I appreciate the time you and your Committee are taking

to examine off-reservation gaming and its impact on tribal and

non-tribal communities alike.

This reform legislation prevents federally recognized tribes from

crossing State lines to set up gaming facilities in a different State

than where they current reside; it prevents federally recognized

tribes from opening gaming facilities outside of their existing lands

in the State where they currently reside; and perhaps most importantly, it gives the Secretary of Interior much clearer guidance

about the limited area where a newly recognized, restored or landless tribe can conduct gaming operations. I believe this is the right

type of reform for this issue, and I am happy to be here in support

of your legislation.

First, let me make it clear that I am a supporter of tribal gaming, with the benefits that it brings to tribal governments and the

communities they serve. I strongly support tribal sovereignty and

self-determination of Native Americans, our first Americans.

As former Chairman of the Congressional Gaming Caucus, I

have supported all forms of gaming, provided they act in accordance with the clearly defined and commonly accepted laws and regulations that govern gaming in the United States.

However, I cannot support attempts to circumvent these established procedures to create opportunities for gaming, tribal or otherwise. It is this aspect upon which I appear before you today.

As you know, Mr. Chairman, Congress passed the Indian Gaming Regulatory Act in 1988, when it was enacted into law. The law

has been successful in many ways. According to the National

Indian Gaming Association there are 354 tribally operated casinos

that employ approximately 400,000 U.S. citizens.

In 2002, tribal governmental gaming revenue was at $14.5

billion, representing one-fifth of all of the nationwide gaming

revenue, benefiting tribes and tribal governments by providing an

4

opportunity for better education for children, health care and housing for elders, and new economic opportunity for all in the tribal

community as well as their neighbors.

The Act laid out the process by which a tribe could lawfully conduct any gaming, but most specifically, Class III gaming of the

type commonly played at casinos such as slot machines, black jack,

craps and roulette.

However, there has been an increase in proposals to create offreservation gaming in extra-legal ways, seriously threatening the

purposes of this Act in several States, including Ohio, California,

Kansas, Minnesota and my home State of Illinois.

In Illinois, the Ho-Chunk Nation of Wisconsin is seeking to establish tribal gaming in Lynwood, located only a few miles away

from my congressional district. Originally, the Ho-Chunk Nation

had publicly stated its interest in two other sites in Illinois. This

is a perfect example of an instance where the process of establishing a casino under IGRA should be adhered to.

The Ho-Chunks have purchased approximately 130 acres of the

260 acres designed for a casino complex. In order to create this

complex, they pursued a dual-track strategy. The first part of the

strategy was to seek legislation in Congress that would put their

project on a ‘‘fast-track,’’ circumventing existing law. I strongly

object to this, and fortunately, no such legislation has bee introduced yet in this Congress.

The other approach was to go through the regular procedures as

provided under IGRA by seeking to place the land in a trust, which

I have been informed the Ho-Chunks are preparing.

I do not believe the Ho-Chunks meet the requirements for having

land placed into trust; yet should they meet them, I have no objections to their establishment of commercial operations.

However, the fact that the Ho-Chunks sought to use a process

outside of IGRA clearly underscores the need to clarify and

strengthen the protections and processes for the establishment of

tribal gaming.

While I am opposed to tribes circumventing the law to establish

gaming, I want to be clear that I am not opposed to current law

which allows for lands taken into trust as part of a land claim settlement to be used for gaming. However, I do want to make certain

that these claims are legitimate.

Perhaps one way to address this problem is to look at the work

of past congresses. For example, I understand the 1982 Congress

directed the Department of Interior to establish a list of all tribal

claims for money damages, which included land claims because of

the associated claim for trespass damages.

In 1983, the Department of the Interior published such a list in

the Federal Register. Because this list predates the Indian Gaming

Regulatory Act, we can feel confident that the tribal claims listed

were not manufactured for the purpose of advancing casino

projects. This list could be used as a bright line test, which communities could look to in determining whether they should be concerned with proposals by tribes or others who might seek to promote a tribal casino in their area.

This is but one suggestion among the many ways that Congress

can act to clarify the legal process by which a tribe may establish

5

gaming. I ask that you consider this as a possibility while you continue to work on the excellent bill you have produced in this

Committee.

By following through on these reforms, Congress can alleviate

the negative image that tribal gaming has taken on as a result of

efforts to establish off-reservation gaming. In doing so, it will allow

Congress to act on issues of importance to the Native American

community such as tax-exempt economic bonding, Indian health

care and appropriate appropriations without fearing backlash resulting from negative publicity and press stories about off-reservation gaming.

Further, under a clearly defined process, tribes will be able to

continue gaming in such a way to boost reservation economies and

better the lives of tribal members.

Again, Mr. Chairman, members of the Committee, thank you for

the opportunity, and I look forward to working with you and moving forward on this important reform legislation.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Weller follows:]

Statement of The Honorable Jerry Weller, a Representative in Congress

from the State of Illinois

Mr. Chairman, Members of the Committee, thank you for inviting me to testify

at this important hearing. I am a supporter of your legislation, good reform legislation that takes into consideration the concerns of Tribal Governments and States,

in a bi-partisan manner, I appreciate the time you are taking to examine off-reservation gaming and it’s impact on tribal and non-tribal communities alike.

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

for the record.

This reform legislation prevents federally recognized tribes from crossing state

lines to set up gaming facilities in a different state than where they currently reside; it prevents federally recognized tribes from opening gaming facilities outside

of their existing lands in the state where they currently reside; and perhaps most

importantly, it gives the Secretary of Interior much clearer guidance about the limited area where a newly recognized, restored, or landless tribe can conduct gaming

operations. I believe this is the right type of reform for this issue, and I am happy

to speak in support of it.

First, I am a supporter of tribal gaming, with the benefits that it brings to Tribal

Governments and the communities they serve. I strongly support tribal sovereignty

and self-determination of Native Americans, our first Americans.

As former Chairman of the Congressional Gaming Caucus, I have supported all

forms of gaming, provided that they act in accordance with the clearly defined and

commonly accepted laws and regulations that govern gaming in the United States.

However, I cannot support attempts to circumvent these established procedures

to create opportunities for gaming, tribal or otherwise.

It is this aspect upon which I appear before you today.

As you know, Congress passed the Indian Gaming Regulatory Act, (IGRA), 1988,

which was enacted into law.

The law has been successful in many ways. According to the National Indian

Gaming Association, there are 354 tribally operated casinos that employ approximately 400,000 people.

In 2002, Tribal Governmental gaming revenue was $14.5 billion (21% of total

gaming industry), which benefited tribes and Tribal Governments by providing better education for their children, health care and housing for their elders, and new

economic opportunity for all in the tribal community.

The Act clearly laid out the process by which a tribe could lawfully conduct any

gaming, but most specifically, Class III gaming of the type commonly played at casinos, such as slot machines, black jack, craps, and roulette.

The Act stated that—Before a Tribe might lawfully conduct Class III gaming; the

following conditions must be met:

(1) The Particular form of Class III gaming that the Tribe wants to conduct must

be permitted in the state in which the tribe is located;

6

(2) The Tribe and the state must have negotiated a compact that has been approved by the Secretary of the Interior, or the Secretary must have approved

regulatory procedures; and

(3) The Tribe must have adopted a Tribal gaming ordinance that has been approved by the Chairman of the Commission.

However, there has been an increase in proposals to create off reservation gaming

in extra-legal ways, seriously threatening the purposes of the Act in several States,

including Ohio, California, Kansas, Minnesota, and my home State of Illinois.

In Illinois, the Ho-Chunk Nation of Wisconsin is seeking to establish tribal gaming in Lynwood, located only a few miles away from my Congressional District.

Originally, the Ho-Chunk Nation had publicly stated its interest in two other sites

in Illinois.

This is a perfect example of an instance where the process of establishing a casino

under IGRA should be adhered.

The Ho-Chunks have purchased approximately 130 acres of the 260 acres desired

for a casino complex, and in order to create this complex, they pursued a dual-track

strategy.

The first part of this strategy was to seek a bill in Congress that would put their

project on a ‘‘fast-track,’’ circumventing existing law. I strongly objected to this and

fortunately, no such legislation has been introduced in this Congress.

The other approach was to go through the regular procedures as provided under

IGRA by seeking to place the land into trust, which I have been informed the HoChunks are preparing.

I do not believe that the Ho-Chunks meet the requirements for having land placed

into trust, yet should they meet them; I have no objections to their establishment

of commercial operations.

However, the fact that the Ho-Chunks sought to use a process outside of IGRA

clearly underscores the need to clarify and strengthen the protections and processes

for the establishment of tribal gaming.

While I am opposed to tribes circumventing the law to establish gaming, I want

to be clear that I am not opposed to current law which allows for lands taken into

trust as part of a land claim settlement to be used for gaming.

However, I do want to make certain that the claims are legitimate.

Perhaps one way to address this problem is to look to the work of past Congresses. For example, I understand that in 1982 Congress directed the Department

of the Interior to establish a list of all tribal claims for money damages, which included land claims because of the associated claim for trespass damages.

In 1983, the Department of the Interior published such a list in the Federal Register. Because this list predates the Indian Gaming Regulatory Act, we can feel confident that the tribal claims listed were not manufactured for the purpose of advancing casino projects.

This list could be used as a bright line test, which communities could look to in

determining whether they should be concerned with proposals by tribes or others

who might seek to promote a tribal casino in their area.

This is but one suggestion among the many ways that Congress can act to clarify

the legal process by which a tribe may establish gaming. I ask that you consider

this as a possibility while you continue to work on the excellent bill that you have

produced in this committee.

By following through on these reforms, Congress can alleviate the negative image

that Tribal Gaming has taken on as a result of efforts to establish off-reservation

gaming.

In doing so, it will allow Congress to act on issues of importance to the Native

American community such as tax-exempt bonding, Indian health care, and regular

appropriations without the fear of backlash resulting from bad publicity and negative news stories about American Indian tribes and tribal gaming today.

Further, under a clearly defined process, Tribes will be able to continue gaming

in such a way as to boost reservation economies and better the lives of tribal members.

Again, Chairman Pombo, and members of the Committee, thank you for your attention to this important issue.

Mr. Chairman, with that I conclude my remarks, and welcome whatever questions

the Committee may have of me.

The CHAIRMAN. Thank you.

Mr. Jackson?

7

STATEMENT OF THE HON. JESSE L. JACKSON, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Mr. JACKSON. Chairman Pombo, Ranking Member Rahall and

members of the Committee, I appreciate the opportunity to testify

this morning on the subject of off-reservation gaming and on the

draft bill intended to restrict it.

Mr. Chairman, I commend you for your efforts to seek input from

all interested parties and to work in a cooperative way to craft sensible policies that improve the lives of Native Americans. I share

your goals and commitment to protect, preserve and strengthen the

sovereignty, self-determination and economic opportunities for all

in the tribal community.

Clearly, the issue of ‘‘reservation shopping’’ in which a tribe

seeks title to prime real estate to which they have absolutely no

connection in order to set up a casino far from their reservation is

both controversial and complicated. It, however, is different from

out of State off-reservation gaming, in which a tribe located in one

State seeks to establish gaming on land in another State where

that tribe has historic, cultural and ethnographic ties. If allowed to

become routine, I believe that reservation shopping has the potential to pit one tribe against another, to erode public support for

Indian gaming and to undermine the economic growth and potential of Indian Country.

In my view, any attempts by an Indian tribe to establish gaming

facilities on land to which they have no historic, ethnographic or

cultural ties is impractical, imprudent and improper. While not

readily apparent to me how prevalent or pressing the practice, I

would support reasonable and precise efforts to prevent reservation

shopping by tribes throughout the country.

However, I strongly oppose provisions of this bill that would bar

a tribe in one State from locating a casino in another State on land

to which the tribe has historic or cultural connections. Without a

doubt there is a clear and sharp distinction to be made between

reservation shopping on the one hand and out of State off-reservation gaming on the other. The former is illegitimate, the latter is

not. Therefore, the prohibition on one should not lead to the preclusion of the other. For the purposes of our discussion and crafting

sound policy, we must resist any temptations or tendencies to

equate the two.

Thus, I believe that imposing an outright across-the-board ban

on out-of-State off-reservation gaming would be too broad, too unfair, too severe, and too punitive. It simply would be wrong. As allowed under current law Indian tribes like the Ho-Chunk Nation

should be allowed to reacquire or recover a portion of their ancestral lands in another State in order to establish a gaming facility.

Based today in Wisconsin, the Ho-Chunks claim a 10,000-year

history in present-day Illinois. In the 17th century, the historic territory of the Ho-Chunks, then known as the Winnebago, included

parts of Illinois, Wisconsin, Minnesota and Iowa. After rich deposits of lead were discovered by European miners under tribal land,

the Ho-Chunks ceded the northwestern territory by the Treaty of

1829, marking the beginning of long and tragic successive relocations, often by force, by the U.S. Government. But now in the

8

words of one of the Nation’s elected representatives, I quote, ‘‘the

Ho-Chunk are knocking at the door and wish to come home.’’

My district, which includes the far south suburbs of Chicago, is

indeed prepared to welcome them back to Illinois with open arms.

Last year, the Ho-Chunk Nation, which runs several casinos in

Wisconsin, announced plans to build a 432-acre family entertainment destination in Lynwood, Illinois. The Ho-Chunk entertainment complex would feature a land-based casino, as well as restaurants, retail stores, a luxury hotel, a water park, a spa, a sports

complex, a Native American museum and Pow Wow grounds.

Amid regional economic stagnation and neglect, the family entertainment facility would serve as a vital economic engine, bringing

millions in revenue and thousands of jobs to an area in the State

that so desperately needs them. Based on projections, the new complex would create 5,000 new jobs with an average salary of

$45,000. That is $16,000 greater than the region’s per capita average. In addition, the massive economic development project would

generate $64 million in wages during construction and $78 million

in payroll taxes each year.

Since the announcement the Ho-Chunk’s proposal has generated

broad civic, business and political support in the south suburbs.

The Village of Lynwood and virtually all of the local community

surrounding it support the Ho-Chunk proposal, including the Villages of Calumet City, Steger, Glenwood, the Township of Bloom,

as well as mayors in nearby communities of Lansing, Thornton,

East Hazel Crest and Sauk Village. In addition, it has the backing

of the Southland Chamber of Commerce, the Illinois AFL-CIO and

the local elected officials in the Illinois General Assembly, including State Senate Majority Leader Debbie Halvorson, as well as

Chairman of the Southland Caucus, State Representative David

Miller.

Mr. Chairman, I ask unanimous consent that the official letters

and resolutions supporting the Ho-Chunk proposal from

surrounding communities be placed in the record immediately

following my testimony.

Under current regulations set forth in 25 C.F.R., the Ho-Chunk

must submit their application to take the Lynwood land into trust

in order to establish the casino complex. As members of the

Committee well know, these regulations require the Department of

the Interior to carefully scrutinize the Indian tribe’s, quote, ‘‘need

for additional land,’’ end quote, purpose for which the land will be

used, the impact on State and local governments, and, quote, ‘‘jurisdictional problems and potential conflicts of lands which may

arise.’’

Revised in 1995, Part 151 regulations explicitly address decisionmaking on applications to take off-reservation land into trust, requiring among other things, that as the distance from the reservation increases, even greater scrutiny, Mr. Chairman, be given to

the tribe’s application and greater weight be given to the acquisition’s potential impacts on the regulatory and taxing jurisdictions

of the local and State Governments.

Mr. Chairman, if I might have just an additional minute, I will

conclude my remarks.

9

Mr. Chairman, if the Ho-Chunk proposal meets the requirements

of 25 C.F.R. Part 151, then the Secretary must make a finding

under a two-part determination exception in Section 20 (b)(I)(A) of

the Indian Gaming Regulatory Act. Specifically, these sections provide that gaming can occur on land if the Secretary, after consultation with Indian tribes and appropriate State and local officials, including officials of nearby tribes, determines that a gaming establishment of the newly acquired lands (1) would be in the interest

of Indian tribe and its members, and (2) would not be detrimental

to the surrounding community. In addition the Governor of the

State must concur with the Secretary’s determination. In fact, since

October of 1988, State Governors have concurred on only 3 positive

determinations of gaming on such tribal lands. Therefore, the statutory and regulatory framework currently in place provides an important, necessary and rigorous process by

which the Ho-Chunk Nation has an opportunity, not a guarantee,

to regain their ancestral land on which to develop the proposed

complex. In my view, 25 C.F.R. Part 151 and IGRA’s 20(b)(I)(A),

taken separately and together, establish and permit appropriate

safeguards, input, checks and balances, and scrutiny among Federal, State and local tribal communities. The existing approval

process is deliberative, it is detailed, it is careful and it is circumspect, and Mr. Chairman, it simply works. Finally, Mr. Chairman, however in its current form, the draft bill would break this process, throwing out the two-part determination

exception under IGRA and eliminating reasonable options by which

tribes such as the Ho-Chunk may take land into trust for gaming

purposes.

Mr. Chairman, I would urge you to keep the existing provisions of IGRA and allow tribes under certain circumstances and thorough scrutiny, an opportunity to acquire land in another State. I thank the Chairman, Ranking Member Rahall, members of the Committee for allowing me the opportunity to testify before you. I

appreciate the Committee’s time and attention and look forward to

working with you to address important matters affecting Native

Americans.

I thank the Chairman and I thank members of the Committee.

[The prepared statement of Mr. Jackson follows:]

Statement of The Honorable Jesse L. Jackson, Jr., a Representative in

Congress from the State of Illinois

Chairman Pombo, Ranking Member Rahall and Members of the Committee, I ap- preciate the opportunity to testify this morning on the subject of off-reservation

gaming and on the draft bill intended to restrict it. Mr. Chairman, I commend you for your efforts to seek input from all interested parties and to work in a cooperative way to craft sensible policies that improve the

lives of Native Americans. I share your goals and commitment to protect, preserve

and strengthen the sovereignty, self-determination and economic opportunities for

all in the tribal community. Clearly, the issue of ‘‘reservation shopping,’’ in which a tribe seeks title to prime real estate to which they have absolutely no connection in order to set up a casino

far from their reservation is both controversial and complicated. It, however, is different from ‘‘out-of-state, off-reservation gaming’’ in which a tribe located in one

state seeks to establish gaming on land in another state, where that tribe has an

historic, cultural or ethnographic tie. If allowed to become routine, I believe that

‘‘reservation shopping’’ has the potential to pit tribe against tribe, to erode public

support for Indian gaming and to undermine the economic growth and potential of

Indian Country.

10

In my view, any attempts by an Indian tribe to establish gaming facilities on land to which they have no historic, ethnographic, or cultural ties is impractical, imprudent and improper. While not readily apparent to me how prevalent or pressing the

practice, I would support reasonable and precise efforts to prevent ‘‘reservation

shopping’’ by tribes throughout the country. However, I strongly oppose provisions in the draft bill that would bar a tribe in one state from locating a casino in another state on land to which the tribe has an

historic or cultural connection. Without a doubt, there is a clear and sharp distinction to be made between ‘‘reservation shopping’’ on the one hand and ‘‘out-of-state,

off-reservation gaming’’ on the other. The former is illegitimate; the latter is not.

Therefore, the prohibition on one, should not lead to the preclusion of the other. For

the purposes of our discussion and crafting sound policy, we must resist any temptation or tendency to equate the two. Thus, I believe that imposing an outright, across-the-board ban on ‘‘out-of-state, off-reservation gaming’’ would be too broad, too unfair, too severe, and too punitive.

It simply would be wrong. As allowed under current law, Indian tribes, like the HoChunk Nation, should be allowed to ‘‘re-acquire’’ or ‘‘recover’’ a portion of their ancestral lands in another state in order to establish a gaming facility. Based today in Wisconsin, the Ho-Chunks claim a 10,000-year history in present day Illinois. In the 17th Century, the historic territory of the Ho-Chunks, then

known as the Winnebago, included parts of Illinois, Wisconsin, Minnesota and Iowa.

After rich deposits of lead were discovered by European miners under tribal land,

the Ho-Chunk ceded the northwestern Illinois territory by the Treaty of 1829, marking the beginning of long and tragic successive relocations, often by force, by the

United States Government. But, now, in the words of one of the Nation’s elected

representatives, ‘‘the Ho-Chunk are knocking at the door and wish to come home.’’ My district, which includes the far south suburbs of Chicago, is indeed prepared to welcome them back home to Illinois with open arms.

Last year, the Ho-Chunk Nation, which runs several casinos in Wisconsin, an- nounced plans to build a 432-acre family entertainment destination in Lynwood, Illinois. The Ho-Chunk Entertainment Complex would feature a land-based casino, as

well as restaurants, retail stores, a luxury hotel, a water park, a spa and sports

complex, a Native American museum and Pow Wow grounds. Amid regional economic stagnation and neglect, the family entertainment facility would serve as a vital economic engine, bringing millions in revenue and thousands

of jobs to an area in the state that so desperately needs them. Based on projections,

the new complex would create 5,000 new jobs paying an average salary of $45,000

annually—that is $16,000 greater than the region’s per capita average. In addition,

the massive economic development project would generate $64 million in wages during construction and $78 million in payroll taxes each year. Since the announcement, the Ho-Chunk’s proposal has generated broad civic,

business and political support in the south suburbs. The Village of Lynwood, and

virtually all of the local communities surrounding it support the Ho-Chunk proposal,

including the Villages of Calumet City, Steger and Glenwood, the Township of

Bloom, as well as the Mayors of nearby communities Lansing, Thornton, East Hazel

Crest and Sauk Village. In addition, it has the backing of the Southland Chamber

of Commerce, the Illinois AFL-CIO and the local elected officials in the Illinois General Assembly, including Illinois State Senate Majority Leader Debbie Halvorson as

well as the Chairman of the Southland Caucus, State Representative David Miller.

Under current regulations set forth in 25 C.F.R. Part 151, the Ho-Chunk must

submit their application to take the Lynwood land into trust in order to establish

the casino complex. As Members of the committee well know, these regulations require the Department of the Interior to carefully scrutinize the Indian tribe’s ‘‘need’’

for additional land, the ‘‘purpose for which the land will be used,’’ the impact on

state and local governments, and ‘‘jurisdictional problems and potential conflicts of

land use which may arise.’’ Revised in 1995, Part 151 regulations explicitly address

decision-making on applications to take off-reservation land into trust, requiring,

among other things, that as the distance from the reservation increases, ‘‘greater

scrutiny’’ be given to the tribe’s application and ‘‘greater weight’’ be given to the acquisition’s potential impacts on the regulatory and taxing jurisdictions of the state

and local governments.

If the Ho-Chunk proposal meets all the requirements of 25 C.F.R. Part 151, then,

the Secretary must make a finding under the ‘‘two-part determination’’ exception in

Section 20 (b)(1)(A) of Indian Gaming Regulatory Act (IGRA). Specifically, this section provides that gaming can occur on the land if the Secretary—after consultation

with the Indian tribe and appropriate State and local officials, including officials of

other nearby tribes—determines that a gaming establishment on the newly acquired

lands would (1) be in the best interest of the Indian tribe and its members, and

11

(2) would not be detrimental to the surrounding community. In addition, the governor of the state must concur with the Secretary’s determination. In fact, since October of 1988, state governors have concurred in only three positive determinations

for gaming on such trust lands.

Therefore, the statutory and regulatory framework currently in place provides an

important, necessary and rigorous process by which the Ho-Chunk Nation has an

opportunity, not a guarantee, to regain their ancestral land on which to develop the

proposed complex. In my view, 25 C.F.R. Part 151 and IGRA’s 20 (B)(1)(A) taken

separately, and together, establish and permit the appropriate safeguards, input,

checks and balances, and scrutiny among federal, state, local and tribal communities. The existing approval process is deliberative, detailed, careful and circumspect. Simply put, it works.

However, in its current form, the draft bill would break the process, throwing out

the ‘‘two-part determination’’ exception under IGRA and eliminating a reasonable

option by which tribes, such as the Ho-Chunk, may take land in trust for gaming

purposes.

Mr. Chairman, I would urge you to keep the existing provisions of IGRA and

allow tribes, under certain circumstances and thorough scrutiny, an opportunity to

acquire land for gaming in another state. I thank you Mr. Chairman, Ranking Member Rahall and Members of the Committee for allowing me the opportunity to testify

before you. I appreciate the Committee’s time and attention and look forward to

working with you to address important matters affecting Native Americans.

The CHAIRMAN. Thank you. I thank both of you for your testimony. I know that both of you have scheduling issues this morning,

and because we started late it made it difficult to stay to those

schedules.

Do any of the members of the Committee have any burning questions that they would like to ask?

If not, I am going to excuse both of you. Thank you for coming

in and testifying on this. It is valuable, and as you said, Mr. Jackson, the process that we are going through is that we are having

an open discussion on this and trying to figure out the best way

to move forward, and I think your input and Mr. Weller’s input is

very important to that process. So thank you.

Mr. WELLER. Thank you.

Mr. JACKSON. Thank you, Mr. Chairman.

The CHAIRMAN. Panel 2 is up next. If you would join us at the

witness table. Chief Charles Enyart, Vice President Wade

Blackdeer, Vice Chairman William Blind, Senator Bradley

Burzynski and Mayor Craig Foltin.

Before you take a seat, if you could just stand and raise your

right hands. It is the custom of the Resources Committee that we

swear in all of our witnesses.

[Witnesses sworn.]

The CHAIRMAN. Thank you. You may have a seat. Let the record

show they all answered in the affirmative.

To begin with, I would like to apologize to the panel for our late

start. It was beyond the Committee’s control, but thank you very

much for being here.

Mr. Enyart, we are going to begin with you.

STATEMENT OF CHARLES D. ENYART, CHIEF,

EASTERN SHAWNEE TRIBE OF OKLAHOMA

Mr. ENYART. Good morning, Chairman Pombo, members of the

Committee. My name is Charles Enyart. I am the Chief of the

Eastern Shawnee Tribe of Oklahoma, a federally recognized Indian

Tribe whose aboriginal homeland encompasses what is the present

12

day State of Ohio. I appreciate the opportunity to be here today to

share our views about Section 20 of the Indian Gaming Regulatory

Act, and to explain the importance of this issue for our people.

I am here for three reasons today: first, to ensure that the Eastern Shawnee have the opportunity to return to our aboriginal

homelands in present day Ohio; second, to ensure that we have the

same opportunity to benefit from the Indian Gaming Regulatory

Act as other Indian Tribes have since its enactment in 1988; third,

to advocate for the right of tribes, States and local communities to

work together for their mutual benefit.

In the interest of time, I will summarize the points contained in

my written testimony which have been submitted in full for the

record.

We understand that this Committee is in the process of determining whether IGRA should be amended to eliminate the two-part

determination process and the land claim settlement provisions.

In our view, these changes will be detrimental to tribes and to

local communities who wish to work together to bring Indian gaming to willing States and will unfairly discriminate against tribes

such as the Eastern Shawnee, who are attempting to settle historical land claims.

As you are aware, the Eastern Shawnee Tribe has been exploring

the possibility of establishing a presence in our aboriginal homeland now the State of Ohio. We wish to do this in cooperation with

local communities. The legitimacy of our historical and cultural ties

to Ohio is undeniable. 150 years ago the tribe was driven out of its

homeland, lands that now comprise the State of Ohio. The historical record is replete with accounts of destructive raids and burning

of Shawnee villages by the United States Army and the unauthorized taking of Shawnee land by encroaching settlers. Our people

were forcibly removed from their villages and relegated to a series

of reservations first in Ohio, then in Missouri, and ultimately Oklahoma. It was an ugly and shameful period in American history in

which our people endured unspeakable fear, intimidation and military violence used by the United States and the early Ohioans.

However, our interest is not about retribution for past wrong.

Rather we seek to establish a mutually beneficial political and economic relationship with the State of Ohio and the communities

that have reached out to us with a vision of what is possible.

We do wish to finally resolve our outstanding land claims, but

not in a manner that will be detrimental to the people of Ohio.

Those with whom we have established a relationship understand

our intentions and have welcomed us into their communities to discuss the potential for tribal economic development. Local communities in the State of Ohio, some of whom you will hear from today,

have actually sought out the tribe and asked us if they could help

bring the Shawnee back to our homeland. We are committed to

working through the appropriate governmental channels in Ohio to

ensure that we are welcomed back to our homeland.

The Eastern Shawnees are not reservation shopping and view

the phrase as wrong. We have a unique situation in Ohio. Each

piece of land has its own history and so it is with each tribe. We

ask for the same opportunity to work with the State of Ohio to reVerDate 11-MAY-2000 13:13 Aug 02, 2005 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6602 J:\DOCS\20969.TXT HRESOUR1 PsN: HRESOUR1
13

gain those lands to bring Indian Gaming to those communities that

welcome us, as other tribes have in their communities.

The land acquisition process in place under current law already constitutes a formidable barrier to tribes seeking to regain historical tribal lands. Since 1988 there has only been three instances in

which land outside of the Indian Reservation has been taken into

trust for purposes of gaming and none of them involved the crossing of State lines. Only 36 gaming regulated trust acquisitions have

been approved since 1988. 30 applications for gaming or gamingrelated acquisitions are pending, only 10 of which involve so-called

off-reservation acquisitions. These numbers are minuscule, even

the fact that there are more than 560 federally recognized tribes

in the United States. The numbers certainly do not justify a major

overall of IGRA.

Only a few tribes have a historic or cultural connection to any given State. The truth is that the only way for a tribe to succeed

in securing off-reservation land into trust for purposes of gaming

is where there are two willing parties, the State and the tribe, with

the addition of local governments and community support. Ohio

has shown this support.

The Ohio State Legislature, years before the Eastern Shawnee began exploring the possibility of gaming in Ohio, anticipated

Indian gaming in the State. The Ohio Legislature enacted legislation effective in 1997 authorizing legislative approval of tribalState gaming compacts negotiated by the Governor. The proposed amendments to IGRA, however, would permanently foreclose the possibility of a gaming compact between the

Tribe and the State of Ohio.

I have one more paragraph, Mr. Chairman.

In closing, I would emphasize that until very recently the historic legacy of the Eastern Shawnee people was one of poverty and isolation. Left virtually landless for over a century and a half, my people have had very little realistic hope that things would ever improve. Like other tribes in similar circumstances, we had no economy and no tax base. The lot of the Eastern Shawnee people is improved. We have a long way to go to achieve the prosperity that

once was ours.

I told you a story. We respectfully urge that Congress not amend IGRA to impede or extinguish the authority of State Governments

to work with tribes to bring Indian gaming to willing communities.

Indian gaming is not out of control. The land acquisition process

is long and difficult, and there are more than adequate safeguards

against the establishment of unwanted gaming operations. Under

IGRA, as it stands today, tribes cannot conduct Class III gaming

in a State that is unwilling to have Indian gaming. States and local

communities that want Indian gaming should continue to be allowed to work for the tribes to bring the highly regulated field of

Indian gaming to their States without Federal interference. Thank you and I appreciate your indulgence.

[The prepared statement of Mr. Enyart follows:]

Statement of The Honorable Charles D. Enyart, Chief,

Eastern Shawnee Tribe of Oklahoma

Good morning. Chairman Pombo, Members of the Committee, my name is Charles

Enyart. I am the Chief of the Eastern Shawnee Tribe of Oklahoma, a federally

14

recognized Indian Tribe whose aboriginal homeland encompasses what is the

present day State of Ohio. I appreciate the opportunity to be here today to share

our views about Section 20 (Section 2719) of the Indian Gaming Regulatory Act

(IGRA) and to explain the importance of this issue for our people. I am here for

three reasons: (1) to ensure that we have the opportunity to return to our aboriginal

homelands in present day Ohio; (2) to ensure that we have the same right as other

Indian tribes to conduct Indian gaming under current law; and (3) to advocate for

the right of tribes, states, and local communities tribes to work together for their

mutual benefit.

We understand that this Committee is in the process of determining whether Sec- tion 2719(b) of IGRA should be amended to alter the manner in which land outside

of an existing reservation or other presently occupied Indian lands could be taken

into trust for purposes of gaming. The current proposal is to replace the entirety

of sub-section (b), thereby eliminating the ‘‘two-part determination’’ process and the

‘‘land claim settlement’’ provisions, and effecting numerous other changes as well. The Eastern Shawnee Tribe respectfully urges the Resources Committee to recon- sider the need for such legislation. One need only review the record to see that the

Indian Gaming Regulatory Act is not broken in this regard. In fact, there have only

been three instances in which land outside an Indian reservation have been taken

into trust for purposes of gaming since IGRA was enacted in 1988 and not one of

them involved the crossing of state lines: (1) in 1990 the Forest County Potawatomi

Community in Wisconsin obtained 15.69 acres of land in trust 250 miles from its

reservation through a two-part determination; (2) in 1997, the Kalispel Indian Community in Washington obtained 40.06 acres of land in trust 60 miles from its reservation through a two-part determination; and (3) in 2000, the Keweenaw Bay

Indian Community in Michigan obtained 22.00 acres of land in trust 70 miles from

its reservation through a two-part determination. Out of over 560 tribes, there are only 33 gaming or gaming related trust acquisi- tions pending at this time. The mere fact that some dozen or so tribes are presently

considering invoking Section 20(b), which is entirely lawful, does not mean that they

will succeed. The process is long and tedious with many barriers at every step along

the way. Even the settlement provision of Section 20(b)(2) does not grant, as a matter of right, the taking of land into trust. First, a settlement must be reached, then

it must be confirmed through Congressional legislation. The so-called two-part determination of Section 20(b)(1) requires a finding by the Secretary of the Interior

that the acquisition is in the best interest of the tribe and not detrimental to the

surrounding community and the governor of the state must concur in the Secretary’s

determination. The truth is that the only way for a tribe to succeed in securing offreservation lands into trust for purposes of gaming is where there are two willing

parties: the state and the tribe, with the addition of local government and community support.

The Ohio State Legislature, years before the Eastern Shawnee Tribe began exploring the possibility of gaming in Ohio, anticipated Indian gaming in the state.

In fact, the Ohio Legislature enacted legislation effective in 1997 authorizing legislative approval of tribal-state gaming compacts negotiated by the governor. Ohio Rev.

Code Ann. § 107.25 (West 2005). It is, therefore, apparent that the State has taken

steps to inform itself about IGRA and tribal gaming, and to pave the way to one

day proceed with a tribal-state gaming compact. The proposed amendment, however,

would permanently foreclose the possibility of a gaming compact between the Tribe

and the State of Ohio.

Some may wonder why a state such as Ohio, or any other, would be receptive to

the establishment of Indian lands and Indian gaming within its borders. Assuming

that a state desires the introduction of gaming for the unquestioned economic benefits that it produces, we would suggest that there are many reasons it might prefer

Indian gaming over other alternatives. Foremost among these, there are natural

controls on the scope of tribal gaming which diminishes the potential for uncontrolled proliferation. Only so many tribes have a historic or cultural nexus to any

given state. Moreover, tribal gaming revenues, as a matter of law, may only be expended for socially beneficial purposes. Commercial gaming only benefits private interests. In stark contrast, tribal gaming lifts entire communities out of poverty, educates children who once had little hope for higher education, builds schools, roads,

bridges, funds law enforcement and emergency services, preserves languages and

cultures, builds clinics and hospitals and provides dialysis and diabetes centers, and

funds charitable activities of every kind.

As to the interests of the Eastern Shawnee Tribe, the benefits of Indian gaming

for the Tribe and Ohioans are obvious and the legitimacy of our historic and cultural ties to Ohio is undeniable. One hundred fifty years ago, the Tribe was driven

out of its homeland: lands that now comprise the State of Ohio. The historical record

15

is replete with accounts of destructive raids and the burning of Shawnee villages

by the United States Army and the unauthorized taking of the Shawnee’s lands by

encroaching settlers. Our people were forcibly removed from their villages and relegated to a series of reservations first in Ohio, then in Missouri, and ultimately

Oklahoma. It was an ugly and shameful period in American history in which our

people endured unspeakable fear, intimidation, and military violence used by the

United States and early Ohioans. Until very recently, our historic legacy was one of poverty and isolation. Left vir- tually landless, for over a century and a half our people had very little realistic hope

that things would ever improve. Like other tribes in similar circumstances, we had

no economy and no tax base. We did not even have the means to fully redress the

wrongs against us, which is why certain of our claims remain outstanding. Indian

gaming has changed our bleak outlook as to our future. The revenues from our modest gaming operation, BorderTown Bingo located in West Seneca, Missouri have provided us the means to make improvements in the lives of our people and to rekindle

the hope for a better life for our children and grandchildren. However, the rural

character of the land we now occupy, combined with the economic conditions in the

surrounding area, severely restrict our economic potential. The lot of the Eastern

Shawnee people is improved, but we have a long way to go achieve the level of prosperity that once was ours. Some press accounts can be read to suggest that our interest in Ohio is to eject people from their homes. This is not true. Our interest is not about retribution for

past wrongs, but rather about establishing a mutually beneficial political and economic relationship with the State of Ohio and the communities that have reached

out to us with a vision of what is possible. The Eastern Shawnee seek to reestablish

a presence in Ohio as part of a welcome and mutually beneficial relationship conducted on a government-to-government basis both with the State and the local governments that may one day be our neighbors once again. We do wish to finally resolve our outstanding land claims, but not in a manner that will be detrimental to the people of Ohio. Those with whom we have established a relationship understand our intentions and have welcomed us into their

communities to discuss the potential for tribal gaming. In fact, local communities

in the State of Ohio, some of whom you will hear from today, have actively sought

out the Tribe and asked us if they can help bring the Shawnee back to our homeland. We are committed to working through appropriate governmental channels in

Ohio to ensure that we are welcomed back to our homeland.

The Eastern Shawnee are not ‘‘reservation shopping’’ and view the phrase as a misnomer. Like every other situation, ours is unique. Each piece of land has its own

history and so it is with each tribe. It is very difficult for a tribe with existing lands

to get new, non-contiguous land for gaming. Since 1988, only 36 gaming or gaming

related trust acquisitions have been approved. Only three tribes have successfully

been able to take land into trust and open Indian gaming facilities on lands that

are outside of their reservation boundaries. Thirty applications for gaming or gaming related acquisitions are pending, only ten of which involve so-called ‘‘offreservation’’ acquisitions. These numbers are minuscule given the fact that there

are more than 560 federally recognized tribes in the United States. These numbers

certainly do not justify a major overhaul of IGRA.

We would also point out that the land acquisition process in place under current

law already constitutes a formidable barrier to these so called ‘‘off-reservation’’ acquisitions. The Office of Indian Gaming Management in the Department of the

Interior has developed a thirteen-page checklist governing acquisitions of land in

trust for gaming purposes. Tribes must comply with the rigors of the Section 151

process and satisfy the requirements established by Congress in Section 20 of IGRA.

This application process requires a thorough environmental review under the National Environmental Policy Act, consultation with all tribes within a 50 mile radius, consultation with all local governments within a 10 mile radius, and local

intergovernmental agreements.

Obviously, there is a great deal of misunderstanding about the procedures required by the Interior Department. However, Indian gaming is not ‘‘out of control.’’

The land acquisition process is long and difficult, and there are more than adequate

safeguards against the establishment of unwanted gaming operations.

We respectfully urge that Congress should not amend IGRA to impede or extinguish the authority of state governments to work with tribes to bring Indian gaming

to willing communities. Under IGRA as it stands today, tribes cannot conduct

Class III gaming in a state that is unwilling to have Indian gaming. States and

local communities that want Indian gaming should continue to be allowed to work

with tribes to bring the highly regulated field of Indian gaming to their states without federal interference.

16

Finally, we assert that the facts do not support the atmosphere that has evolved around this issue. IGRA contains a proper balancing of interests with regard to

trust acquisitions. Congress should not interfere with the rights of states and tribes

to enter into agreements that promote economic development and benefit tribal,

state, and local economies.

Thank you.

The CHAIRMAN. Thank you. Mr. Blackdeer?

STATEMENT OF THE HON. WADE BLACKDEER,

VICE PRESIDENT, HO-CHUNK NATION

Mr. BLACKDEER. Good morning, Mr. Chairman and members of the House Resources Committee. I am Wade Blackdeer, Vice president of the Ho-Chunk Nation. I want to thank you for giving me

the opportunity to offer testimony on behalf of the Ho-Chunk Nation on off-reservation gaming and the draft legislation now before

the Committee.

I would like to begin my testimony today by stating that the Ho- Chunk Nation is opposed to the present legislation as drafted. Fundamentally, the Nation supports the idea of permitting Indian

tribes to engage in off-reservation gaming including gaming in

more than one State. Having said that, I want to emphasize that

the Nation is sympathetic to many of the goals of the legislation,

because we too believe that there must be restrictions on off-reservation gaming. We believe that those restrictions should be based

on two principles. First, tribal gaming should be only conducted in

areas to which an Indian tribe has specific historical connection,

and second, tribes should not be permitted to enter the established

gaming markets of other tribes without their consent. The Nation’s

opposition to the present draft of the legislation is based in large

part of the perception that the legislation is designed to address

problems that do not even exist.

Headlines and political grand-standing notwithstanding, tribes

are not, for all intents and purposes, able to engage in off-reservation gaming at the present time. The Section 20 approval process

has also created so many roadblocks for approving the taking of

land into trust for gaming purposes, that it is almost impossible to

establish off-reservation gaming unless it is done based on Federal

legislation, specifically granting trust status to land for gaming

purposes. And even there, as we have seen with the Lytton Band

in California, public resistance can be so intense that legislation

may not be enough to ensure that such gaming ever will take

place. The resistance to off-reservation gaming is so great in fact

that the Nation has been unable to conduct gaming on its pre-1988

trust land in Madison, Wisconsin. The development of gaming on

that land has been blocked by the IGRA compact negotiation

process.

Because the IGRA provides that the location of gaming is an appropriate topic of Tribal-State compact negotiations, the Governor

of Wisconsin was able to refuse for years to agree to Class III gaming on pre-1988 trust land. When the present Governor finally

agreed to negotiate over the Madison site, he insisted that the

issue of gaming on our pre-1988 trust land be put to a public referendum which was subsequently defeated.

17

It is simply unrealistic to believe that off-reservation gaming will

ever take place without the support of State and local government.

We do not need any more roadblocks such as the provisions of the

draft legislation requiring the approval of many more local governments entities. What we need and what legislation can provide are

restrictions on off-reservation gaming that will eliminate the actual

problems faced by gaming tribes and that will address the concerns

of non-Indian communities.

The Nation believes in order to resolve the problem surrounding

off-reservation gaming at least three restrictions should be applied

to the Secretary’s approval of trust transfers of land for gaming

purposes.

First, all reservation gaming should be conducted on land to

which the tribe seeking gaming has a historical connection. That

connection could be established by evidence that the land in question was ceded by the tribe in a treaty. The land was once the

tribe’s reservation, or the land was once within the aboriginal territory of the tribe. Aboriginal territory could be established through

the determinations of the Indian Claims Commission and the

Indian Court of Claims.

Second, approval should not be given to requests to have land

taken into trust that is within 50 miles of an existing gaming facility without that tribe’s consent. This restriction would provide

tribes with some steady market security and would ensure some

stability of tribal revenues that pay for essential Government programs for tribal members. An exception to this consent provision

would be that if the land in question is within 5 miles of a reservation of the tribe seeking to enter the gaming market. In that case

the tribe seeking to acquire trust land for gaming would not need

to obtain the consent of the tribe with the existing gaming operations.

Third, tribes should not be permitted to leapfrog over another

tribe in order to establish a gaming operation closer to a population

center that is a primary market for the existing gaming facility of

another tribe.

These restrictions are designed to prevent strife among tribes

and ensure that the tribal economies remain stable. The Nation

has developed these restrictions in response to its own experience.

Right now, a number of Wisconsin tribes are attempting to develop

gaming operation in the Nation’s existing markets, despite the fact

that they have no historic connection with those areas. They are

simply reservation shopping. This in turn creates a vicious cycle of

efforts to steal markets.

Right now, because of the efforts of other tribes to move into the

Nation’s markets, the Nation is forced to seek new markets that

are in some cases outside of the Nation’s historic territory. The Nation will be compelled to do so as long as its markets are under

threats from other tribes. So long as the Nation’s market can be

undercut as the result of approval of new gaming operations by the

Secretary, the Nation has no choice but to do precisely what it does

not wish to do, attempt to establish gaming markets in areas to

which it may have no historic connection with the potential effect

of reducing the market of an established gaming facility and the

disturbance of a surrounding non-Indian population.

18

If the restrictions suggested by the Nation are part of the present

legislation, the Nation would have no reason to seek sites for new

gaming facilities in an area other than its own historic lands, lands

such as the Illinois site. Until they are adopted, however, the

scramble for markets will continue.

I hope that the Committee will consider these proposals in the

spirit in which they are offered. We are trying to stabilize gaming

markets while ensuring that the search for new markets do not result in the disturbance of the local non-Indian communities. This

will benefit the tribes, their members and those members of the

non-Indian communities who are concerned about the prospect of

uncontrolled expansion of Indian gaming in our shared communities.

I want to thank you for your attention.

[The prepared statement of Mr. Blackdeer follows:]

Statement of Wade Blackdeer, Vice-President, Ho-Chunk Nation

Good morning Mr. Chairman and members of the House Resources Committee.

I am Wade Blackdeer, Vice President of the Ho-Chunk Nation. I thank you for giving me the opportunity to offer testimony on behalf of the Nation on the subject of

off-reservation gaming and the draft legislation addressing off-reservation gaming.

I would like to begin my testimony today by stating that the Ho-Chunk Nation

is opposed to the present legislation, as drafted. Fundamentally, the Nation supports the idea of permitting Indian tribes to engage in off reservation gaming, including gaming in more than one state. Having said that, I want to emphasize that

the Nation is sympathetic to many of the purposes of the legislation, because we,

too believe that there must be restrictions on off-reservation gaming. We believe

that those restrictions should be based on the concept that tribal gaming should

only be conducted in areas to which an Indian tribe has a specific historical connection, so long as there is a stipulation that tribes should not be permitted to interfere

with the established gaming markets of other tribes without their express consent.

Headlines and political grandstanding notwithstanding, tribes are not, for all intents and purposes, able to engage in off-reservation gaming. The Section 20 approval process has already created so many roadblocks for approving the taking of

land into trust for gaming purposes that it is almost impossible to establish off-reservation gaming unless it is done based on legislation specifically granting trust status to land for gaming purposes. And even there, as we have seen with the Lytton

Band in California, public resistance can be so intense that legislation may not be

enough to ensure that such gaming will ever take place. The resistance to off-reservation gaming is subject to so many barriers, in fact, that the Nation has been

unable to conduct gaming on its pre-1988 trust land in Madison, Wisconsin, which

does not even fall under the Section 20 approval process. The IGRA provides that

the location of gaming is a topic of tribal-state compact negotiations and, on that

basis, the Governor of Wisconsin refused to even negotiate over Class III gaming

on the pre-1988 trust land, where Class II gaming is already being played. When

the present Governor finally agreed to negotiate over the Madison site, he insisted

that the issue of Class III gaming on our pre-1988 trust land be put to a public

referendum, which was subsequently defeated.

Thus, this legislation appears to be designed to resolve a problem that does not

exist. It is simply unrealistic to believe that off-reservation gaming will ever take

place without the support of state and local government. We do not need more roadblocks to approval, such as the provisions of the draft legislation requiring the approval of many more governmental entities. This is found in proposed Section 2719

(e)(2)(C) and (3)(C). What we need, and what this legislation can provide, are restrictions on off-reservation gaming plans that eliminates the actual problems faced

by gaming tribes and the basic concerns of the non-Indian communities and governmental entities.

The Nation believes that, in order to resolve the problems surrounding off-reservation gaming, a number of basic restrictions should be applied to the Secretary’s

approval of trust transfers of land for gaming purposes. We do not believe that any

changes need to be made to the provisions of the IGRA that related to the restored

lands and newly recognized tribes exceptions found in Section 2719. First, all offreservation gaming should be conducted on land to which the tribe seeking gaming

19

has a historical connection. That connection could be established on the basis that

the land was ceded by the Tribe in a treaty, the land was once a reservation of the

tribe, or the land was the aboriginal territory of the tribe. Aboriginal territory could

be established through the determinations of the Indian Claims Commission and

the Indian Court of Claims, and thus aboriginal territory would provide a meaningful and easily determined standard. The Nation is a useful example of this historical connection concept. Although the Nation has no reservation, it has it has maintained a governmental, social and political presence throughout the Midwest, including the State of Illinois. The headquarters for the Nation’s government is located in Black River Falls, Wisconsin, and

it operates governmental offices throughout Wisconsin, including Minneapolis and

Chicago. The Chicago Office has been in existence since the early 1980’s, providing

services to a thriving population of Ho-Chunk tribal members who live in the Chicago metro area. In fact, the Nation’s ties to the Chicago area are so strong that

they have been recently endorsed by a Federal Agency. In March 2005, the U.S. Department of Housing and Urban Development recognized the Chicago area and surrounding counties of Cook, Kane, Lake and Du Page as part of the service area for

the Ho-Chunk Nation for purposes of the Section 184 Indian Housing Loan Guarantee Program. The Ho-Chunk Nation’s Housing and Community Development

Agency was approved by H.U.D. for the Section 184 Program accordingly. In addition, we know that the Nation’s tribal members have been in the Chicago area so long that The Winnebago Club has existed in the area since the 1950’s. The

Nation was formerly known as the Wisconsin Winnebago, and a group of tribal

members in the Chicago area formed the Club as a social organization. The Nation’s ties outside of Wisconsin, and particularly in Illinois, are more than social or governmental in nature. The Nation has aboriginal connections throughout

the area that would establish our historical connection to the State. I have provided

a map of the Nation’s aboriginal territory for the Committee’s review and consideration. It shows the Nation’s historical connections to Wisconsin, Minnesota and Illinois. Clearly, the Nation has a historical connection with the states of Wisconsin,

Illinois and Minnesota.

Second, approval should not be given to requests to have land taken into trust that is within the geographical proximity of an existing gaming facility of another

tribe without that tribe’s consent. This provides tribes with some market security

and ensures some stability of tribal revenues that pay for essential governmental

programs for tribal members. An exception to this consent provision would be if the

land in question is within five miles of the reservation of the tribe seeking to enter

the market of the other tribe, the tribe would not need to obtain the consent of the

tribe with the existing gaming operation. In considering this factor, the Nation’s experience is instructive. The Nation is facing precisely this situation in Wisconsin. Right now, a number of tribes like the

St. Croix Band of Lake Superior Chippewa, the Bad River Band of Lake Superior

Chippewa and the Menominee Nation are attempting to move into the Nation’s existing markets. This is purely an attempt to capture market share, and is based on

no present historical connection. Under our proposal, a tribe that wishes to enter

into such a market would have to receive the approval of the tribe that has the existing facility, which would force tribes to communicate on matters that shared communities should address.

Third, tribes should not be permitted to leapfrog over another tribe in order to

establish a gaming operation closer to the population center that is the primary

basis for an existing gaming facility of another tribe. The Nation is facing precisely

this situation. For example, the aforementioned Wisconsin tribes do not have a

fourth gaming site provision in their present Tribal-State Gaming Compacts, yet the

Ho-Chunk Nation does. However, those tribes seem to ignore this preserved ability

by one tribe (the Nation) that negotiated for such a contractual right and prefer to

move forward with their own agendas.

These provisions are designed to prevent strife among tribes and to ensure that

tribal economies remain stable. Here, again, the Nation’s situation is instructive.

Right now, because of the efforts of other tribes to move into the Nation’s markets,

the Nation is forced to seek new markets that are, in some cases, outside of the Nation’s historic territory. The Nation is compelled to do so, so long as its markets are

under threat from other tribes. The Nation has an extensive tribal government that

provides its members with a variety of benefits and programs. Those benefits and

programs are dependent on a predictable income stream. So long as the Nation’s

market can be undercut as a result of approval of new gaming operations approved

by the Secretary, the Nation has no choice but to do precisely what it does not wish

to do: attempt to establish gaming in areas to which it may have no historic connection, with the potential effect of reducing the market of an established gaming

20

facility. If the restrictions suggested by the Nation are made part of the present legislation, the Nation would have no reason to seek sites for new gaming facilities in

any area other than its own historic lands. Until they are adopted, the scramble for

markets will continue.

I hope that the Committee will consider these proposals in the spirit in which

they are offered: Communication. The Nation wishes to assist this Committee in creating legislation that will stabilize Indian gaming, so that all communities can adequately address their concerns. This will benefit the tribes, their members and those

members of the non-Indian communities who are concerned about the unplanned expansion of Indian gaming in our shared communities. Thank you.

The CHAIRMAN. Thank you. Mr. Blind?

STATEMENT OF WILLIAM BLIND, VICE CHAIRMAN,

CHEYENNE AND ARAPAHO TRIBES OF OKLAHOMA

Mr. BLIND. Thank you. Chairman Pombo and members of the Re- sources Committee, I thank you for inviting me here today. I consider it a great honor and a privilege. My name is William Blind. I am the Vice Chairman of the

11,000-member Cheyenne and Arapaho Tribes of Oklahoma. I

understand that the purpose of my testimony is to discuss the perceived problem of the Land Settlement Exception of Section 20 of

IGRA, and more specifically, situations where the land may be

hundreds of miles away from the tribe’s current reservation. I say

that it is a perceived problem since in 17 years it has never occurred. There has never been a single case of land being taken into

trust under this rule.

Regardless, the Land Settlement Exception is an important part

of IGRA because it acknowledges that some tribes may have genuine land claims due to unfortunate past treatment. This is important both historically and practically. The practical value of this

rule is substantial and does not only benefit the tribes, which it obviously does, but it benefits everyone, States, taxpayers, business

owners, homeowners, schools and even the Federal Government, all

benefit. We offer New York as an example of how the Land Settlement Exception can work. There the Land Settlement Exception

may become an essential piece in solving a complex and expensive

problem. With this tool there is a quick and easy no-cost path to

settle a land claim recognized by the Supreme Court. Without this

tool various alternate settlement proposals could hurt businesses

and homeowners, the New York State budget, local budgets, and

perhaps the Federal budget as well as the tribes the settlement is

intended to help.

Additionally, the Land Settlement Exception is based on the

American principle of fairness. Simply, it says that if you can prove

that your land was unlawfully taken, we will treat settlement

lands the same way as the original lands to try to right an historic

wrong. That is fair.

By no means is the Land Settlement Exception being abused or

easy. As the numbers show, in 17 years no one has achieved it yet.

In practice the Land Settlement Exception is a lot like the Section

20 two-part test, but with the extra requirement of getting explicit

congressional approval. That is to say that in practice we need to

get local support, the Governor’s approval, the Secretary of the

21

Interior’s approval and Congress’s approval. In our case we also

had to get the support of the full Tribal Council of the Cheyenne

and Arapaho Tribes of Oklahoma. I would like to submit into the

record the Tribal Council Resolution which shows the overwhelming support given to the Homecoming Project. As far as I

know, other than in New York, and as we proposed for Colorado,

there are no other tribes pursuing this very difficult path.

The Cheyenne and Arapaho Tribes of Oklahoma believe that the

Homecoming Project is the model for how the Land Settlement Exception should work in practice, as a balance of interests. First,

and this is very important, we believe that we have unusually

strong legal claims relating to our history in Colorado. I would like

to submit into the record a short history of the Cheyenne and

Arapaho in Colorado. Recognizing the cost and time it takes to resolve these issues, we felt all parties would be best served if we

proposed a settlement under the Land Settlement Exception. We

offered a market-based, privately funded, omnibus settlement that

would have no cost to the Federal Government, no cost to the State

Government and no cost to the local communities. We offered an

approach where we would closely coordinate with the State and

local communities to mitigate any negative local impacts and maximize the positive impacts. In short, we proposed a solution that is

fast, free, based on cooperation and good for everyone.

The proposal was discussed in detail with all levels of Federal

and Colorado representatives, from Congress to the Governor, local

officials and back over to the Department of Interior. Draft legislation was presented and discussed, and eventually unfortunately rejected through this process. The vast majority of people that have

taken the time to understand our claims and our proposal have received it warmly. However, our experience illustrates that the Land

Settlement Exception, as drafted, works very effectively to balance

the interests of all parties and through debate and compromise.

I am aware of another speaker on the panel here to speak out

against our efforts. In the past, Mr. Steve Brady succeeded in confusing Senators, Congressmen and the press regarding his relationship to this project. Mr. Brady is not a member of our Tribe. He

has no stake whatsoever in the status of our tribal claims or the

claims of any individual member. While he represents that he is an

authority on the history of the Sand Creek Massacre, which may

or may not be true, I believe he has no qualifications to speak on

the matter of Section 20 of IGRA, nor on the matter of a Cheyenne

and Arapaho economic development effort.

I would like to submit for the record a letter of support from the

Sand Creed descendants.

In the past, Mr. Brady has attacked our project for utilizing nonnatives in the development group. That is a deliberate misrepresentation. Our developer, the Native American Land Group, includes nearly 15,000 Native Americans. While it is true that the

developer does have non-native participants, if it were a disqualifying factor, there would probably no Indian economic development

anywhere. The simple fact is that the Government urges private

businesses to assist in tribal economic development. Most tribes

who do not already enjoy the benefits of Class III gaming do not

have the resources or expertise necessary to pursue a project

22

through the expensive, time-consuming process spelled out under

IGRA.

This illustrates what we came here to discuss today. IGRA, as it

stands, is a notable success for reducing Indian poverty. While I

cannot speak to each aspect of the law, I can say from unsurpassed

experience that the Land Settlement Exception, in practice, requires tremendous cooperation between Federal, State, local and

tribal governments. Clearly, with zero applications of this rule in

17 years, it is clearly not a run-away problem. However, it remains

important as an acknowledgment of our sad history, a glimmer of

hope for those seeking justice, and as a practical tool for providing

a no-cost device to settle any claims if and where they should arise.

However, should you choose to amend IGRA, we say that basic

fairness suggests that those who have filed with the Secretary be

allowed to complete their undertaking according to the current

rules.

We thank you for your time and interest in this matter very

much. Thank you.

[The prepared statement of Mr. Blind follows:]

Statement of William Blind, Vice-Chairman,

Cheyenne and Arapaho Tribes of Oklahoma

Chairman Pombo and members of the Resource Committee, I thank you for inviting me here today. I consider it a great honor and a privilege.

My name is William Blind, I am the vice-chairman of the 11,000-member Cheyenne and Arapaho Tribes of Oklahoma. I understand that the purpose of my testimony is to discuss the perceived problem of the Land Settlement Exception of Section 20 of the Indian Gaming Regulatory Act, or IGRA, and more specifically, situations where the land may be hundreds of miles away from the tribes’ current reservation. I say that it is a ‘‘perceived problem’’ since in 17 years, it has never occurred. There has never been a single case of land being taken into trust under this

rule.

Regardless, the Land Settlement Exception is an important part of IGRA because

it acknowledges that some tribes may have genuine land claims due to unfortunate

past treatment. This is important both historically and practically. The practical

value of this rule is substantial and does not only benefit the tribes, which it obviously does, but it benefits everyone: states, taxpayers, business-owners, homeowners, schools, and even the federal government. All benefit. We offer New York

as an example of how the Land Settlement Exception can work. There, the Land

Settlement Exception may become an essential piece in solving a complex and expensive problem. With this tool, there is a quick, no-cost path to settle a land claim

recognized by the Supreme Court. Without this tool, various alternate settlement

proposals could hurt businesses and homeowners, the New York State budget, local

budgets and, perhaps, the federal budget, as well as the Tribes the settlement is

intended to help.

Additionally, the Land Settlement Exception is based on the American principle

of fairness. Simply, it says that if you can prove that your land was unlawfully

taken, we will treat settlement lands the same way as the original lands; to try to

right an historic wrong. That’s fair.

By no means is the Land Settlement Exception being abused or easy. As the numbers show, in 17 years, no one has achieved it yet. In practice, the Land Settlement

Exception is a lot like the Section 20 two-part test, but with the extra requirement

of getting explicit Congressional approval. That’s to say that, in practice, we need

to get local support, the Governor’s approval, the Secretary of the Interior’s approval

and Congress’ approval. In our case, we also had to get the support of the full Tribal

Council of the Cheyenne and Arapaho Tribes of Oklahoma. I would like to submit

into the record the Tribal Council Resolution which shows the overwhelming support given to the Homecoming Project. As far as I know, other than in New York,

and as we proposed for Colorado, there are no other Tribes pursuing this very difficult path.

The Cheyenne and Arapaho Tribes of Oklahoma believe that the Homecoming

Project is the model for how the Land Settlement Exception should work in

23

practice—as a balance of interests. First, and this is very important, we believe that

we have unusually strong legal claims relating to our history in Colorado. I would

like to submit into the record a short history of the Cheyenne and Arapaho in Colorado. Recognizing the cost and time it takes to resolve these issues, we felt all parties would be best served if we proposed a settlement under the Land Settlement

Exception. We offered a market-based, privately-funded, omnibus settlement that

would have no cost to the federal government, no cost to the state government and

no cost to the local communities. We offered an approach where we would closely

coordinate with the State and local communities to mitigate any negative local impacts and maximize the positive impacts. In short, we proposed a solution that is

fast, free, based on cooperation and good for everyone. The proposal was discussed

in detail with all levels of federal and Colorado representatives, from Congress to

the Governor, local officials and back over to the Department of Interior. Draft legislation was presented and discussed, and eventually unfortunately rejected through

this process. The vast majority of people that have taken the time to understand

our claims and our proposal have received it warmly. However, our experience illustrates that the Land Settlement Exception, as drafted, works very effectively to balance the interests of all parties and through debate and compromise.

I am aware of another speaker on the panel, here to speak out against our efforts.

In the past, there has been some confusion on the part of some Senators, Congressmen and the press regarding his relationship to this project. Mr. Steve Brady is not

a member of our tribe. He has no stake, whatsoever, in the status of our tribal

claims or the claims of any individual member. While he represents that he is an

authority on the history of the Sand Creek Massacre, which may or may not be true,

I believe he has no qualifications to speak on the matter of Section 20 of IGRA, nor

on the matter of a Cheyenne and Arapaho economic development effort. In the past,

Mr. Brady has attacked our project for utilizing non-natives in the development

group. That is a deliberate misrepresentation. Our developer, the Native American

Land Group, includes nearly 15,000 Native Americans. While it is true that the developer does have non-native participants, if it were a disqualifying factor, there

would probably be no Indian economic development anywhere. The simple fact is

that the government urges private businesses to assist in tribal economic development. Most tribes who do not already enjoy the benefits of Class III gaming do not

have the resources or expertise necessary to pursue a project through the expensive,

time-consuming process spelled out under IGRA.

This illustrates what we came here to discuss today. IGRA, as it stands, is a notable success for reducing Indian poverty. While I cannot speak to each aspect of the

law, I can say from unsurpassed experience that the Land Settlement Exception, in

practice, requires tremendous cooperation between federal, state, local and tribal

governments. Clearly, with zero applications of this rule in 17 years, it is clearly

not a run-away problem. However, it remains important as an acknowledgment of

our sad history, a glimmer of hope for those seeking justice and as a practical tool

for providing a no-cost device to settle lands claims, if and when they should arise.

However, should you choose to amend IGRA, we say that basic fairness suggests

that those who have filed with the Secretary be allowed to complete their undertakings according to the current rules.

We thank you for your time and interest in this matter.

The CHAIRMAN. Thank you.

Senator Burzynski?

STATEMENT OF THE HON. J. BRADLEY BURZYNSKI,

STATE SENATOR, 35TH DISTRICT, ILLINOIS STATE SENATE

Mr. BURZYNSKI. Thank you, Chairman Pombo, members of the

Committee, for the opportunity to be here today to address some

of the issues that we have already heard spoken about.

I would like to indicate to you that I am here today as an individual representing my Senate District, the 35th Senate District in

the State of Illinois, and not necessarily the Illinois General Assembly. So I want to make that perfectly clear as we go through

this testimony this morning.

I also want to put it into perspective the fact that my district has

been targeted by the Prairie Band of the Potawatomi Indians as a

24

site for gaming operations in the 35th Senate District, and I also

serve on the Senate Appropriations Committee in Illinois and I

wanted to give you a little bit of perspective of what is occurring

right now with gambling proceeds from the gaming that is already

there. Also, I would like to indicate that as I understand, and with

my limited understanding of the draft bill that is in front of you,

I would support it conceptually. I think it is a great step and applaud your efforts for working on this issue.

Illinois is a State that legalized gaming many years ago beginning with the State run lottery, passed with the promise that proceeds would benefit our local school districts. Illinois the passed

legislation to issue 20 riverboat licenses in the State of Illinois to

be primarily located in areas that are depressed, in depressed communities throughout the State. Obviously, since the advent of the

riverboats, lottery proceeds have grown somewhat stagnant but

have also decreased the past few years to about $570 million per

year in revenue to the State of Illinois.

Also, and because of the huge success of the riverboat casinos

and the inability of our Legislature to slow spending, a new tax

structure was placed on the boats, with the most successful paying

as much as 70 percent on their adjusted gross revenues. Increased

revenues have driven the riverboat casinos into higher tax brackets, obviously. This has had an impact on the growth of our existing boats, on the gaming in the State, the State’s revenue, local

government’s revenue.

Boats have reduced staff. They have cut their hours. They have

established entrance fees, parking fees that they did not have before. Consequently, Illinois patrons have responded by traveling

across our State borders to gamble in other States to avoid paying

some of these additional fees.

We have seen market share go up in our neighboring States,

where market share in Illinois has continued to decrease. Our admissions are down tremendously. I think in your packet you have

some of that information.

Obviously, it is my opinion that if off-reservation gaming were allowed in Illinois, it would have a tremendous impact not only on

the existing licensees but also on our State revenue. And our State

has not begun an economic recovery at this point.

Additionally, in our State many not-for-profits have begun to

have a strong reliance on charitable games to help fund their services. Further growth of casino gaming could be devastating to their

operations.

Currently, there are several that would like to expand gaming in

Illinois, and believe that this would enable our State to dig itself

out of our deficit. But at the same time we do have legislation to

abolish all gaming in the State of Illinois that has passed out of

a House committee on a vote of 9 to 1, and is pending in the Illinois House of representatives.

In recent years, Illinois has been the target of various tribal entities either trying to claim properties as reservation sites, or trying

to establish off-reservation gaming. At this time no reservations

are located in Illinois, and to the best of my knowledge, there is

no concentration of tribal members in Illinois in any single location.

25

In 2000, the Miami Tribe of Oklahoma filed suit in Illinois

against landowners in 15 central Illinois counties in an effort to

gain control of 2.6 million acres of land. The case was eventually

dismissed, but only after it was revealed that the suit was being

funded by a New York developer. And I think this begs the issue

of your resolution, of your draft, about who is gaining from some

of these things. As you are well aware now, the Ho-Chunk Nation has been nego- tiating for status in Illinois to establish a casino complex near suburban Lynwood or south suburban Lynwood. I noticed that Congressman Jackson did indicate that there was General Assembly

support. Well, there are members of the General Assembly that

support that complex, but certainly the General Assembly in its entirety does not. In my district, the Prairie Band of the Potawatomi Tribe has been trying to claim properties in northern Illinois. By the way,

this is also Speaker Hastert’s Congressional District. They have

been willing to purchase options on certain properties in the area,

and the latest last week, decided not to exercise an option on that

property. But the fact of the matter is they hired representatives

who came in and presented this as a done deal. They are in the

process of trying to reclaim that property. It is not a done deal.

There is no Federal ruling recognizing this or any other claim to

the property. Just very quickly in closing, in response to that particular pro- posal, I introduced Senate Bill 2460 last year in the Illinois General Assembly. It created the Native American Gaming Compact

Act in Illinois. Very simply, before the Governor can enter into a

compact, a request for authority to enter the compact, along with

a copy of it, must be presented to the General Assembly for dialog.

We have seen too many things going on in dark rooms, I guess is

the way I will put it, and certainly we were just trying to provide

sunshine on the process.

Again, I just want to thank you for the opportunity to be here with you today to present some testimony. I will be more than

happy to answer any questions. Thank you, sir.

[The prepared statement of Mr. Burzynski follows:]

Statement of The Honorable Bradley Burzynski, State Senator, Illinois State Senate

The Honorable Chairman Pombo and members of the House Resources Committee:

My name is Brad Burzynski, and I am Senator of the 35th District in the State of Illinois. Thank you for allowing me the opportunity to present testimony today

on the topic of off-reservation gaming, and in particular, the potential impact to the

State of Illinois. Additionally, I want to take a few moments to make you aware of

legislation passed during the last session of the Illinois General Assembly regarding

tribal gaming. While I am not necessarily an expert on the topic of tribal gaming, I have some understanding of certain aspects of Indian gaming. My district has been targeted

by the Prairie Band of the Potawatomi as a site for gaming operations. As a member

of the Senate Appropriations Committee I also have some knowledge relative to the

income our state receives from existing non-tribal gaming operations.

Illinois is a state that legalized gaming many years ago, beginning with a staterun lottery passed with the promise that all proceeds be utilized to fund education.

Illinois then passed legislation to issue 10 licenses for riverboat gambling on waterways in depressed communities throughout the state. Since the advent of the

26

riverboats, lottery proceeds have not only grown stagnant, but have decreased the

past few years to $570 million per year. Because of the huge success of the riverboat casinos and the inability of the Legis- lature to slow spending, a new tax structure was placed on the boats, with the most

successful paying as much as a 70 percent tax on adjusted gross revenues. Increased

revenue drives the riverboat casinos into higher tax brackets. This has had an impact on the growth of the existing boats because in order to make up their tax

share, they have implemented entrance fees, reduced hours and cut staff. Illinois

patrons have responded by traveling across state borders to Missouri, Iowa, Wisconsin and Indiana to avoid paying entrance fees and to access greater gaming opportunities.

Obviously, if off-reservation gaming were allowed in Illinois, it would have a tre- mendous impact not only on the existing licensees, but also on state revenue, in a

state which has not even begun a strong economic recovery. Additionally, many not-for-profits have begun to have a strong reliance on chari- table games to help fund their services. Further growth of casino gaming could be

devastating to their operations. Currently, there are those who would like to expand gambling in Illinois believing that this would enable the state to dig itself out of a multi-billion dollar deficit. But

at the same time, legislation to abolish gambling in the state has passed out of committee and is pending in the Illinois House of Representatives. In recent years, Illinois has been the target of various tribal entities either trying to claim properties as reservations or trying to establish off-reservation gaming. At

this time, there are no reservations in Illinois, and to the best of my knowledge,

no concentration of tribal members in any location in Illinois. In 2000, the Miami Tribe of Oklahoma filed suit in Illinois against landowners in 15 central Illinois counties in an effort to gain control of 2.6 million acres of land.

The case was eventually dismissed, but only after it was revealed that the suit was

being funded by a New York developer who said he was in hopes of gaining the contract to build and operate a casino and resort for the Miami Tribe. Additionally, the

state was allowed to intervene in the suit in order to protect the interests of all Illinois citizens.

As you are well aware, the Ho-Chunk Nation has been negotiating for status in Illinois to establish a casino complex near Chicago, in the south suburban community of Lynnwood. While many in the community seem to be receptive to the idea,

it is my understanding that there have been no community forums or public hearings to date on the proposal. And as a state legislator, I can tell you for certain that

we have not had the opportunity to discuss this proposal or the role the state would

play in such a development. Finally, the Prairie Band of the Potawatomi Tribe has been trying to claim prop- erties in my district in northern Illinois. Some land owners have been convinced by

tribal representatives, including former state officials hired by the Tribe, that they

had a valid claim to the property. They have been willing to sell options on their

property to the tribe. When asked ‘‘why,’’ they comment that they felt no other recourse existed. The Potawatomi Tribe and its representatives have presented this

as if there is no doubt to their claim and that it’s a ‘‘done deal.’’ At this time, there

is no federal ruling recognizing this or any other claim on the property. In addition

to private properties, the Tribe laid claim to property owned by the state consisting

of a several-hundred-acre man-made lake, camping facilities and a small forest preserve. Many unanswered questions remain as to whether they have any legal claim

to the property.

Preliminary plans by the Potawatomi Tribe call for an approximate 1,200-acre development including a casino, two hotels, a 75,000-square-foot convention center, a

bingo hall, a ‘‘Las Vegas-style’’ theater and several restaurants. Consequently, as

with other proposals, these amenities beg the question as to who pays for the necessary infrastructure improvements to accommodate them, such as roads, sewer &

water, and police.

Constituents in my largely-rural district have been adamantly opposed to this proposal, but have found little opportunity for their concerns to be heard. They feel a

casino development would significantly impact and negatively change their quality

of life, including hurting property values and causing uncontrolled population influx

and development. I would suspect residents in the Lynwood area in suburban Chicago have many of the same concerns, feeling they have little recourse due to the

political nature of this issue.

In response to the Potawatomi’s proposal in my district, I introduced Senate Bill

2460 last year. I recognize that the Federal Government at some time may provide

either land title or authority for tribal gaming in Illinois and that statute requires

the Governor of the state to enter into a gaming compact in such cases. But I feel

27

that such a compact should be negotiated in good faith and in public view in order

for local and state interests to be protected.

Senate Bill 2460 (now Public Act 93-1051) created the Native American Gaming

Compact Act in Illinois. Very simply, before the Governor can enter into a compact,

a request for authority to enter the compact along with a copy of the proposed compact must be submitted to the General Assembly. The General Assembly would hold

hearings to gather public input from those impacted by the proposal and would

make recommendations to ensure that all concerns are addressed. The bill passed

both chambers, the Governor vetoed the bill, and his veto was overridden in the

Senate by a vote of 52-4, and a House vote of 106-8-2, therefore becoming law.

In conclusion, I realize that tribal gaming is a very volatile topic at this time. I

am encouraged that this committee and Chairman Pombo are seeking to resolve this

issue in the best interests of all. It appears to me that outside interests have begun

to play a larger role, sometimes outweighing the intent of the Indian Gaming

Regulatory Act. In Illinois, we have taken steps to best protect all of the citizens

of our state. We hope that this committee and Congress will also take action to protect all of the citizens of the United States.

Thank you again for the opportunity to present input on this discussion draft.

ATTACHMENTS: 2002-2004 Gaming Comparison Chart; Illinois Riverboat Gaming Adjusted Gross Revenue Graph; Illinois Riverboat Gaming Admissions History

Graph; Synopsis and Full Text of Senate Bill 2460

[NOTE: Attachments have been retained in the Committee’s official files.]

The CHAIRMAN. Thank you.

Mr. Foltin?

STATEMENT OF THE HON. CRAIG FOLTIN,

MAYOR OF LORAIN, OHIO

Mr. FOLTIN. Thanks for the invite, Mr. Chairman.

I am serving my second term as the elected Mayor of Lorain,

Ohio. We are right on Lake Erie. We are about 30 miles west of

Cleveland, but we are in a suburb. We are a stand-alone city of

68,000 people.

We are a heavily Democrat, urban, blue-collar union steel town.

We call ourselves the International City because of our diverse culture, and we take our name from the town in France because the

French were the first white men to come to the area to trade with

the Indians. Lorain is a textbook example of the decline of manufacturing in America. However, we have a tremendous asset in our

city with the undeveloped formerly industrial waterfront and a

deep water harbor.

We have 120 years of manufacturing history in our city. At one

time our steel mill employed 14,000 people. American Shipbuilding,

which is where George Steinbrenner built his fortune in the City

of Lorain, once employed 5,000 people in the city. We have a long

history with Ford Motor Company in Lorain, which also employed

5,000 people at one time. We were certainly instrumental in the

victory of two world wars with our steel and ship building manufacturing, and we have literally helped build America in the City

of Lorain.

But those times have changed though, and changed for the

worse. All those jobs that I have just told you about are all but

gone. I think I brought some articles that I submitted for the

record, but you could read the headlines from here that paint a picture of what has been going on in our community for the last two

decades. ‘‘Say It Ain’t So,’’ headlines when Ford Cougar and Thunderbird first announced their departure. ‘‘Ford Days Are Numbered

for the Econoline Van.’’ ‘‘Ford to Close at the End of This Year.’’

28

We make all the Econoline vans in the country for Ford, but we

will not be making them in Lorain any more at the end of this

year.

‘‘Republic Steel Halts its Operations.’’ ‘‘Republic Defaults on

Debt, Shuts Down.’’ Also didn’t pay our property taxes, which hurt

us very badly as well.

The bottom line is Lorain’s population has decreased by 20,000

over the last two decades. Average salary, employment rates and

quality of life have suffered immensely. Unemployment rate remains near the highest of the State, and by the way, Ohio’s unemployment rate is near the highest in the Nation. As the Mayor, we

don’t know how to provide city services any more. We are already

down 100 employees, which is 20 percent of our workforce. The

State has cut another 5 percent of our budget in our share of our

local government revenue, and now with Ford leaving at the end

of the year, we don’t know how we are going to be able to provide

adequate police and fire protection in our city.

That is why we want the opportunity to redefine ourselves because the manufacturing jobs are just not being created in Ohio,

and basically technology of other business jobs aren’t being created.

But we have a tremendous plan with the Eastern Shawnee Nation

that includes not only gaming but it has business, retail, restaurants, a tremendous maritime museum and plenty of activity

which takes advantage of our waterfront, including things like excursions to the lighthouse that we have, a historic restored lighthouse.

We have submitted all those details to you for your review, but

our plan not only develops, but it preserves and restores land to

the beauty that has not been seen for over 150 years because of the

industrial use. For the first time we have had good headlines in the

paper, and we have community wide support. Our council, the

county commissioners and even the councils of the surrounding

communities have all supported this. Keep in mind our city currently owns this land and we want to put it into public trust. We

sought out the Shawnee Nation, not the other way around. We

have researched this. We have researched them. We know them

well, and we are confident that this deal will benefit both parties.

We feel that this will add and help preserve and bring more people to this land that currently is not available right now, aside

from bringing the economic dollars that obviously our city needs.

We are not building just a box with slot machines. We have the

whole 9 yards of a destination resort. And Ohio is currently surrounded by gambling, and the buses leave our town every day,

sometimes taking my mother and wife with them, to go gamble in

other States and even in the State of Ontario, which Windsor is

about 2 hours and 15 minutes.

Mr. Representative, Mr. Chairman, I know your record on jobs

and families and budget, and I am a conservative Republican guy

like you except I am in a sea of Democrats in Lorain, and I understand the fact that you want to restore the intentional—original intent of the Indian Regulatory Gaming Act. I know your concern for

reservation shopping, and I understand your concern for tribes

sharing percentages of their money with debt-ridden cities like Lorain or States like Ohio, and I applaud what you have done for the

29

economic opportunities for tribes and strengthening the

sovereignty, and I know there’s loopholes, I know there’s greedy developers, but don’t paint every deal with the same brush. We have

a deal that is fair to both parties in the City of Lorain. It gives our

city a chance to rebuild itself and gives the Shawnee the needed

money to improve their education, housing, and health care.

So I disagree with the blocking of all tribes to requires land-intrust across State lines, at least for communities like Lorain that

are welcoming them. The Shawnee have a great history in Ohio,

and we are welcoming them into Lorain. I know maybe some regulation may be necessary. I don’t know enough of the laws and details to say what, but what I do know is this, Mr. Chairman, we

want to have the ability to do this and to have the option to work

with the Shawnee. It gives us alternatives and more opportunities.

Please don’t take this choice away from us to form partnerships

with the Shawnee Nation.

I thank you very much for the invitation and opportunity to do

this, and please, as you move forward and refine this legislation,

please keep in mind situations like we have in Lorain, Ohio.

[The prepared statement of Mr. Foltin follows:]

Statement of The Honorable Craig Foltin, Mayor,

City of Lorain, Ohio

Introduction

• Background on Lorain

Æ Right on Lake Erie, 30 miles west of Cleveland, not suburb

Æ 68,000—Heavily Democrat—Urban—Blue Collar—Union Steel town

Æ International City—diverse culture

• Lorain is text book representation of Manufacturing Decline in America

• However we have a tremendous Asset with our undeveloped (formerly industrial) waterfront and deep water harbor

120 years manufacturing

• Ford, Amship, Steel

Times Have Changed Though

• Those jobs are all but gone.

• Unemployment remains near top of the state which is near the top in the Nation. We rank 45 out of 50 states in employment.

City Operations

• Lorain cannot continue to provide basic services to citizens. With Ford leaving

it also takes 7% of our budget. The state has dramatically cut its funding of

local governments. Already inadequate police, fire, park and street services will

be decimated. 20% of our workforce is gone.

Lorain deserves the opportunity to redefine our self

• Manufacturing jobs just aren’t being created in Ohio

• Technology and other business jobs also are not being created

• For 25 years jobs in our city have been on decline. Nobody has been able to find

the panacea

• We have a tremendous plan with the Shawnee that includes not only gaming,

but business, retail, restaurants, a tremendous museum and plenty of activity

which take advantage of our waterfront, like excursions to our historic lighthouse. (Submitted the details) Our plan develops, but preserves and restores

the land to a beauty that has not been seen for 150 years because of its industrial use. (Journal front section)

• Ohio is surrounded by gambling in Michigan, Indiana, Ontario, New York,

Pennsylvania, and West Virginia. Busses leave every day from Lorain from’’..

Our citizens want it in the worst of ways.

Specific appeal against restricting off-reservation gaming

• We have a deal in Lorain that it fair and just to all parties. It gives our City

a chance to rebuild itself and take advantage of our waterfront, while allowing

the tribe to improve education, housing, and health care for its members.

In Closing

30

• Maybe some regulation is necessary, I do not know enough to make that call.

But what I do know is we want the ability to do this. Allow us this option. It

gives us additional alternatives and more opportunities. Do not take the choice

away from us or the Indians to form these partnerships. • I thank you for the opportunity to speak before you today. And as you move

forward, please keep in mind situations like we have in Lorain Ohio.

The CHAIRMAN. Thank you. I thank the entire panel for their testimony. Senator Burzynski, in your senatorial district, obviously you walk around and talk to people and get an idea of how people feel

and what their opinions are. With the proposals of Indian gaming

being brought to Illinois, what is the general feeling amongst the

people you talk to at home about Indian gaming right now?

Mr. BURZYNSKI. Thank you, Chairman Pombo. My district is still relatively rural in nature. When I talk to most of the individuals

in my district they’re very concerned about their way of life as it

exists now. They’re very concerned about changes that would be

detrimental to that. They’re very concerned about a tribe coming

in, having a casino, and someone having to help pick up the bills

to fund the infrastructure. What we saw occur with the efforts in

recent years in my district is the fact that there was very little discussion ongoing with the community itself as to what would be necessary. There was no discussion with us as legislators until just recently when we were contacted by lobbyists who were working for

the tribe.

So I think the key is, is there are people that would support

some sort of operation, there are those that don’t. But we certainly

want to have an ability to have a voice in the process. And in addition to that, you know, we want to make sure that there are viable,

there are legitimate claims. I mean that’s one of the things that—

you know, if under the IGRA if it’s found that the tribes do have

claim to the area, then that’s another issue all together, but certainly when we talk about off-reservation gaming, it opens up a lot

of issues for us in my district.

The CHAIRMAN. The draft that I put together on this, one of the

things that was included in that was the prohibition on going

across State lines, on a tribe having the ability to go across State

lines. If we were to allow some regulated way or some controlled

way that tribes still could go across State lines, if the communities

that you represent felt that they would have the ability to have

some control over what gaming went on, if they felt they had some

guarantee that they would at least be part of the process, do you

think that the fear they currently have would change?

Mr. BURZYNSKI. I don’t believe their fear would change. I think

they would still see a change in their quality of life, what they’re

accustomed to, what they’re used to having. I think their fears

might be alleviated if there was better oversight of what would

occur on those—you know, that promises made are promises kept.

I think that’s a real concern that people have. I believe that from

my standpoint and also from my constituents’ standpoint in the

long run, as I’ve indicated to you, our State does rely somewhat

heavily on gaming right now for our State’s coffers and particularly

for education. We receive about $705 million a year in proceeds

from our gaming already, from our boats, another $570 million

31

from the lottery that go into our State’s general education fund.

And I believe that from that perspective we would see diminished

returns in that area.

And again, our State has not even begun an economic recovery

at this point with the several billion dollar deficit that we’re facing.

The CHAIRMAN. Mayor Foltin, listening to your testimony, it

strikes me that Lorain is the kind of community that we were actually looking at in terms of setting up what we call an Indian Economic Opportunity Zone, where you had a community that welcomed the gaming, that wanted to work with the tribes to establish

something like that as part of their economic activity for the

future.

And it appears from what you have testified to here today that

you would fit that kind of a situation in moving forward and that

that would be a possibility if we proceed with this draft legislation,

that you would obviously be one of the possibilities that the Secretary would look at within your State and that is kind of what we

were going for in terms of listening to your testimony here today.

Let me ask you if things were different and the people in Lorain

were opposed to establishing a gaming facility there, would that

change the way that you look at the draft legislation?

Mr. FOLTIN. No, I don’t think so. If Lorain was a very financially

sound community and the citizens didn’t want that, I would still

think that communities who did want them should be able to have

that kind of gaming available to them.

But I do point out that the City of Lorain has a long history of

wanting gambling. They tried it in a private sector fashion and

voted it in in the late ’90s before there was any gaming outside of—

in the early ’90s before there was gaming outside of Atlantic City

and Las Vegas. It passed by about a 3 to 1 margin. Unfortunately,

it failed statewide in the State of Ohio, and thus it was not approved for places like the City of Lorain. So we have a long history

of wanting it, and there’s been three attempts throughout the ’90s

and each time our city has overwhelmingly wanted it, even when

economic times were a little better, when Ford was humming along

a little stronger, when our steel mill was thriving a little better.

So I just want to make sure that places like us are—and I know

the last part of your draft bill, it does say notwithstanding the

crossing State lines which is the deal that we have with the Shawnees. We want to make sure that there are provisions for communities like ourselves.

Aside from Lorain, if they didn’t want it, I don’t see why that

should not be allowed if the overwhelming community and surrounding communities want it. I think that’s capitalism in America. Let it happen.

The CHAIRMAN. Thank you. My time has expired.

Mr. Kildee?

Mr. KILDEE. Thank you very much, Mr. Chairman. First of all,

again I want to commend you for using the draft method of presenting this proposed legislation. I think it is fair both to the

Committee and fair to the public out there, and it is not done very

often, and I commend you for doing that.

I am really conservative—that probably surprises you—I am conservative on the use of the exceptions written into IGRA on land

32

acquired after October 17th, 1988. But I think that the present language in IGRA—which by the way, I helped write, I was on the

Committee then, probably one of the few left on the Committee—

I think the present language of IGRA adequately protects my conservative position on this. I don’t see the proliferation of casinos because of the exceptions we wrote into IGRA here. There has been

no proliferation.

There have only been three tribes that have used the two-step

process, that is the Forest County Potawatomi of Wisconsin, the

Kalispel Tribe of Washington State, and the Keweenaw Bay of my

State of Michigan. Only three have used that two-step. And I

would say one, maybe not completely yet, but one settlement of

land claim. Congress settled the land claim. The Interior gave them

permission to game, but I don’t know if they completed their compact yet. So it is really three or four who have used these exceptions, so I don’t think there has been a proliferation by using these

exceptions which we wrote into the law when we passed this. So

I am really trying to figure what we are trying to solve here when

there is no clear and present danger, no record of proliferation.

I do know that in California—and I know this has to play greatly

in your mind—there are so many small tribes, all of them are trying to get into this right to game, but it may be you are isolated

and you are trying to create some opportunities for them, and I

think that that is very understandable.

May I ask any one of the tribes, you have pretty well reiterated

that you think the present language safeguards against proliferation of gaming.

Mr. ENYART. I will speak for the Eastern Shawnee. We agree

with you. We have a saying in the area that I come from, and that

is, if it ain’t broke, don’t fix it, and we don’t feel like it’s broke.

Mr. KILDEE. Any other of the sovereign nations?

Mr. BLACKDEER. Yes. The Ho-Chunk Nation also has the feeling

that the present language does adequately preserve communities

from proliferation of gaming. It is very hard to establish a new

gaming market under the present language.

Mr. BLIND. For the Cheyenne-Arapaho Tribes of Oklahoma, they

feel the same way, that the present language of IGRA is sufficient

and workable, and that it’s not broke.

Mr. KILDEE. Thank you very much.

Again, Mr. Chairman, I have no further questions. I do again

commend you for this process that you are using. I think it is going

to be helpful to all. Thank you.

The CHAIRMAN. Thank you.

Mrs. Drake?

Mrs. DRAKE. Thank you, Mr. Chairman.

Mayor, I would certainly like to welcome you. I am originally

from Elyria, and so I know Lorain very well, and I know Lorain’s

had some ongoing problems and that things are very, very serious

for you. However, I am extremely concerned that—it’s my understanding Ohio has had two referendums and gambling has been

voted down. So it concerns me that it seems like a way around if

you get a Governor that is agreeable to gaming, but I thought I

heard from a couple people on the panel that there is some sort of

State or local oversight in this process, that they wouldn’t be able

33

to come if—did I misunderstand that? With the legislation the way

it is now, with the approval of the Governor and the Secretary, the

Shawnee Indians would be able to come regardless of the referendum in Ohio?

And I would like to welcome you too, Chief. I know a lot of history and a lot of legend in northern Ohio, Indian legends.

Mr. FOLTIN. I think I will handle that if it’s OK. Yes, with—if

the Governor or Legislature agree to compact with a tribe——

Mrs. DRAKE. Does it have to be the Legislature too or just the

Governor?

Mr. FOLTIN. Well, the Governor, or the Legislature can force the

Governor to compact with a simple majority vote. Right now, in the

State of Ohio, to have private sector gaming you would need to

amend the constitution which would take two-thirds, a supermajority vote of our Legislature, plus a statewide vote. And in a

way this does have the opportunity to sidestep that procedure, but

again I point to a situation like Lorain, where Cincinnati is 20 minutes away from a gambling casino, but they are 6 hours away from

the City of Lorain. How will a casino impact those places that vote

against it? In our county, we’re not against any home rule vote. We

are very confident that it would pass. We just don’t think the people down in southern Ohio, where it’s a bit more conservative,

should tell us that we cannot do that.

With that being said, we also, because of the plan we have with

the Shawnee, has created a great deal of talk around the whole

State, and is now talking about pushing for a constitutional amendment, and we’re having kind of separate but congruous talks with

the Legislature. In fact, tomorrow in Columbus we are going to be

down there talking about how to proceed.

One of the things that we’ve never had in the State of Ohio is

had all the parties at the same table, which mean the Indian gaming, the racetracks, the private sector interests. When it failed in

the last few times—the last time I think it was in ’96—the racetracks were aboard. But prior to that the racetracks two years

prior campaigned and lobbied and spent $12 million in 1992 dollars

to campaign against gambling coming to Ohio.

So the Legislature right now, some proponents of gambling, are

bringing the two sides together and trying to go that route. However, with the Indian gaming route, with the Indian history that

we have of northern Ohio that you are aware about, and the great

want for and the open arms that not only our community but surrounding communities have had, it gives us an additional opportunity which we may not have because of some people that are 5,

6 hours drive from us.

Mrs. DRAKE. One last question for the chiefs. Your tribes are

only interested in coming to these locations if you are allowed to

do gambling. You’re not interested—I mean that’s the impression

I got, is you’re not interested in going to any of these tribal lands

unless you have the ability to have gaming?

Mr. ENYART. That is true. We want to come home. Ohio is our

homeland and we want to come home. And I would just make one

further comment, and that is, we believe very much in working

with the community, so we don’t want to go into a community that

34

does not have support. So we work very diligently on that and have

all the time we’ve been in Ohio.

Mrs. DRAKE. Thank you.

Thank you, Mr. Chairman. And I am very sorry that I have to

leave.

The CHAIRMAN. Ms. Bordallo, did you have any questions?

Ms. BORDALLO. I do not have any questions.

The CHAIRMAN. Mr. Nunes, any questions?

Mr. NUNES. No.

The CHAIRMAN. Well, I want to thank the panel for their testimony, and it has been very helpful, I think, to the Committee in

our efforts to continue to deal with this issue. As we move forward

with this draft legislation and look at things that need to be

changed or amended within the legislation, I think your testimony

will be very helpful to that, so thank you very much. Dismiss this

panel

The CHAIRMAN. Call up our next panel. Mr. Steve Brady, Mr.

John Kindt, the Reverend Cynthia Abrams, if you could join us at

the witness table and remain standing. If I can have you raise your

right hand.

[Witnesses sworn.]

The CHAIRMAN. You can be seated. Let the record show they answered in the affirmative.

Mr. Brady, we are going to begin with you.

STATEMENT OF STEVE BRADY, SR., CO-CHAIR, NORTHERN

CHEYENNE SAND CREEK MASSACRE SITE COMMITTEE AND

PRESIDENT OF THE NORTHERN CHEYENNE SAND CREEK

MASSACRE DESCENDANTS

Mr. BRADY. When we start late like this, back home we call it

Indian time.

[Laughter.]

The CHAIRMAN. I guess we are on Indian time today then. We

have another name for it around here, but I won’t say it out loud.

[Laughter.]

Mr. BRADY. I want to thank the Committee for allowing me to

testify here today, and I also want to thank the Chairman for the

invitation to provide testimony here today.

First of all, I want to make it explicitly clear that I am not here

to establish a position for the Northern Cheyenne Tribe in terms

of the proposed legislation by Chairman Pombo, but I am here to

make some remarks on the proposal by Counciltree with regard to

the Cheyenne-Arapaho Tribes of Oklahoma.

Probably first and foremost the Cheyenne-Arapaho Tribes of

Oklahoma is an independent sovereign nation, and what they do

with Steve Hilliard and his gaming proposal is entirely up to them.

However, when it comes to treaty rights like the 1851 Fort

Laramie Treaty, and situations like the Sand Creek Massacre of

November 29th, 1864, which I just testified on here a couple of

weeks ago, it affects us in the north as Northern Cheyenne, Montana.

We are legally intertwined with the Cheyenne-Arapaho Tribes of

Oklahoma in the 1851 Fort Laramie Treaty. We are also culturally

and historically connected with the Southern Cheyenne through

35

our traditional cultural way of life, both language and our religious

beliefs. So needless to say, the proposal that Steve Hilliard has

been working with the Cheyenne-Arapaho on is indeed very pernicious and divisive.

The Northern Cheyenne Tribe, as a government, rejected Steve Hilliard’s proposal about a year or so ago through a lengthy nondisclosure agreement, and at the conclusion of the non-disclosure

agreement the Northern Cheyenne Tribe, after a subsequent independent review, rejected his proposal. Steve Hilliard stood to gain

enormously, profit enormously from his proposal and the tribe

would be left holding the bag for quite some time. Apparently, the

Northern Arapaho did not even entertain Hilliard’s proposal at all.

They had other concerns. And with regard to petition for a land claim in exchange for a casino in Colorado, the Northern Cheyenne Tribal Council has

passed a resolution requesting for the full file of what was submitted by Cheyenne-Arapaho Tribes to the Secretary of Interior.

However, the Northern Cheyenne Tribe has not formally requested

from the Secretary of the Interior the file. They just have passed

a council resolution. The Tribal Council Resolution No. is 3305.

And at the same time, the Secretary of Interior has not informed the Northern Cheyenne Tribe of this petition for a land claim, and

there’s a question of whether or not our treaty rights are going to

be affected or impacted as Northern Cheyenne. As I said earlier the

Northern Cheyenne and the Southern Cheyenne are interconnected

with treaty rights, we are legally intertwined. The Hilliard proposal has the potential to undermine and erode

any trust or relations that exist or that may exist between the

Northern and Southern Cheyenne, and as I said earlier, it’s pernicious and very divisive, and that concludes my statement here

today. If you have any questions, I’ll be open to them.

Thank you for allowing me to testify.

[The prepared statement of Mr. Brady follows:]

Statement of Steve Brady, Co-Chair of Northern Cheyenne Sand Creek Massacre Site Committee, and President of the Northern Cheyenne Sand

Creek Massacre Descendants

I would like to thank the Committee for allowing me to provide testimony and especially, The Honorable Richard Pombo, Chairman of the Committee for the invitation to testify on issues that remain profoundly significant, the Sand Creek Massacre of November 29th, 1864, as well as our treaties with the United States of

America.

The Cheyenne signed a series of treaties during the 19th Century, beginning with the Cheyenne Treaty of 1825 and then Fort Laramie Treaty of 1851. Among the conditions in the Ft. Laramie Treaty of 1851, the Cheyenne and Arapaho agreed to the

boundaries of their first reservation. The area of this reservation encompassed

approximately 51 million acres from the Rocky Mountains in Colorado to the Plains

in parts of Wyoming, Nebraska and Kansas. While Western-Europeans had forced the Cheyenne and Arapaho out of their trea- ty territory, apparently the boundaries of the 1851 Treaty remained in effect until

the mid-twentieth century when the U.S. Indian Claims Commission offered to compensate the Cheyenne and Arapaho Tribes for their treaty territory.

In the early 1960’s, the Northern Cheyenne Tribe of Montana, the Northern Arapaho Tribe of the Wind River Reservation of Wyoming and the Cheyenne & Arapaho

Tribes of Oklahoma (sometimes referred to as Southern Cheyenne and Southern

Arapaho), among other conditions to the treaty settlement, these Cheyenne and

Arapaho Tribes agreed to the compensation settlement of the Claims Commission.

The Treaty, however, does not distinguish between the Northern Cheyenne and the

36

Southern Cheyenne nor does it distinguish between the Northern Arapaho or the

Southern Arapaho, the Treaty merely says Cheyenne and Arapaho. Therefore all of

the tribes had to agree to a settlement one could not opt out they were all legally

intertwined, it was the settlement of the 1851 Treaty boundaries of the Cheyenne

and Arapaho Tribes.

Apparently, during the 1851 Ft. Laramie Treaty settlement with the Indian

Claims Commission, there was an attempt to include the Article 6 provision of the

Cheyenne and Arapaho Treaty of Little Arkansas River of 1865, in which U.S. Congress admits responsibility to the atrocities committed at the Sand Creek Massacre

of November 29th, 1864 by Col. Chivington and his troops and promises reparations.

However, the Indian Claims Commission rejected this claim by the Cheyenne and

Arapaho Tribes, due to the fact that the claim was a descendant’s claim, not a tribal

claim. The Indian Claims Commission said that the descendants of the Sand Creek

Massacre would have to file the claim, not the tribes, because Article 6 specifies

‘‘certain bands of Cheyenne and Arapaho,’’ and not the entire tribe(s). Again, the

Cheyenne and Arapaho Treaty of Little Arkansas River of 1865 does not distinguish

between the northern or the southern tribes, it just says Cheyenne and Arapaho

and for that matter there are descendants of the Sand Creek Massacre with the

Cheyenne & Arapaho Tribes of Oklahoma, the Northern Cheyenne Tribe of Montana

and the Northern Arapaho Tribe of Wind River Reservation of Wyoming.

The Northern Cheyenne Tribe rejected Steve Hilliard’s (Counciltree) proposal for

a casino in or near Denver in exchange for treaty lands the tribe may still have and

for the atrocities committed the Sand Creek Massacre and for the tribe to view the

proceeds from the casino as reparations. After a closer analysis, Hilliard stood to

gain an enormous amount of profit while the tribe would be steeped in debt for quite

some time, there was a question of whether the tribe would ever get out of debt.

At the conclusion of a non-disclosure agreement with Counciltree, the Northern

Cheyenne Tribe refused to get involved in the shady arrangement. The Northern

Arapaho Tribe apparently did not even entertain the idea from Counciltree, the

Northern Arapaho had concerns elsewhere.

In the meantime, the C&A Tribes of Oklahoma apparently are continuing to entertain the notion of some business proposal with Counciltree entitled the ‘‘Homecoming Project.’’ This proposal by Hilliard is extremely pernicious and divisive between all of the tribes mentioned herein. The Hilliard proposal has the potential to

undermine and erode any trust or relations that may exist between any or all of

these tribes.

Moreover, while the Northern Cheyenne Tribal Council recently passed a resolution for the Secretary of the Interior to provide the file in its entirety of the Petition

submitted by C&A Tribes of Oklahoma, for a land claim in exchange for a casino

operation in Denver, the Northern Cheyenne Tribe have yet to file a formal request

with the Secretary of Interior. Apparently, the Secretary of Interior, thus far has

rejected the land claim filed by C&A Tribes of Oklahoma.

Again, thank you for allowing me to provide testimony today.

The CHAIRMAN. Thank you.

Mr. Kindt?

STATEMENT OF JOHN WARREN KINDT, PROFESSOR,

UNIVERSITY OF ILLINOIS

Mr. KINDT. Thank you, Mr. Chairman. Thank you, Mr. Vice

Chairman. Thank you Members of the House Resources Committee. I’m Professor John Kindt from the University of Illinois. I

apologize—I’m told that technologically they could not put my

overheads up for the Committee. But they are in your packets and

they are attached to my testimony. I will go through those

overheads or those attachments one by one.

Several issues involving my home State of Illinois have come up,

and so I’d like to start off by talking about the National Gambling

Impact Study Commission, which completed its report in 1999. I’m

sure several members of the Committee here voted in favor of this

commission report, or to get it established. And it calls for a moratorium on the expansion of any type of gambling anywhere in the

37

United States—and for a large reason; those are economic types of

reasons.

Also, in Illinois, I believe we are the first State which, after hearing the economic testimony, has passed out of committee basically

unanimously, with only one dissenting vote, a bill, House Bill 1920

out of the House Administration Committee, to recriminalize the

casinos—or I should say to eliminate the casinos in Illinois.

There has never been a statewide vote in Illinois as well. If there

were, the polls, which we have monitored for about 15 years now,

indicate that the vote would be 2-1 against gambling or against the

expansion of gambling. The most recent poll is from the Chicago

Tribune in 2004. But if you look at your attachments, you’ll see the

first one is a headline from the Omaha World-Herald, which says

‘‘40 Economists Side Against More Gambling.’’ Now, can you get 40

economists to agree about anything? Well, here are 40 economists

who come out and say that the costs are likely higher than the benefits. And this was back in 1996. This is basically an Economics

101 type of problem, if you look at it from an economic-social standpoint.

A notable quote from Donald Trump, a casino owner: ‘‘People will

spend a tremendous amount of money in casinos, money that they

would normally spend on buying a refrigerator or a new car. Local

business will suffer because they’ll lose customer dollars to casinos.’’ Basically, what happens with gambling is that you have consumer dollars coming out of the consumer economy which then go

into the gambling economy. And primarily we are talking slot machines at this point, because 80 to 90 percent of all the money

that’s going into the casinos is going into slot machines.

If you look at the circle diagram attached to my testimony—it is

out of the Michigan State DCL Law Review—and it shows the 35-

mile feeder market around casinos. Now, when an analysis of what

was happening in this feeder market was done of the Wisconsin

tribal casinos, one of the results was that people were spending 10

percent less on food, 25 percent less on clothing, and 37 percent

had raided their bank accounts in order to put the money into gambling.

In this same area, we found that initially in these feeder market

areas around casinos, that you weren’t creating net new jobs. And

in fact, more recent data coming out indicates that you’re probably

losing one job per year for every slot machine that is located in the

feeder market area. So if you have a thousand slot machines within

that 35-mile feeder market, you’re probably losing a net of 1,000

jobs per year. Well, why is that? Well, you’re bringing in $100,000

on average to each slot machine per year. That translates into

$300,000, more or less, in lost economic multiplier effect. That

translates into a lost job out of the consumer economy.

Also, we find that the taxpayer social costs are $3 for every $1

in benefits. And that ratio has held up for many years.

We also find that crime in the feeder market area goes up 10

percent the third year after the casinos open, and then increases

after that.

Business and personal bankruptcies, in a report done by the

American banking industry, increases 18 to 42 percent as the conVerDate 11-MAY-2000 13:13 Aug 02, 2005 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6602 J:\DOCS\20969.TXT HRESOUR1 PsN: HRESOUR1
38

sumer dollars are lost into these casino establishments. Drive-by

businesses, in one study, are down 65 percent. The citations for all of this may be found attached to that circle chart.

There’s also a Table 2 here, which indicates the social costs—

analyzes all nine academic studies across the country of the costs

of $3 for every $1 in benefits. I also have a Table 18, which shows the net economic impact of

the Indian casinos in Wisconsin. It’s Table 18. As you can see, this

is not my study, this is someone else’s study. It shows that it’s a

net loss of between $200 million and $500 million to the State of

Wisconsin.

Two final tables. One shows the percentage of expenditures in the casinos, showing that 25 percent to 75 percent of all the money

going into the casinos is coming out of pathological and problem

gamblers. And then a bankruptcy cost table is included for your perusal, as well as some of my law review articles which you may

wish to review.

Thank you, Mr. Chairman. Thank you, Mr. Vice Chairman. Thank you members of the House Resources Committee. It is a

pleasure being here today. I’ll take questions when you wish. [The prepared statement of Mr. Kindt follows:]

Statement of John Warren Kindt, Professor,

University of Illinois

This Statement will address the following issue areas, as requested by the Committee.

1. U.S. National Security and the Strategic Economic Base: The Business/ Economic Impacts of Legalized Tribal Gambling Activities; 2. Solutions: Transform Tribal Gambling Facilities into Educational and Practical Technology Facilities; 3. The Feeder Market Impacts of Tribal Casinos;

4. Tribal Gambling Activities: The Issues Involving Market Saturation; and

5. Are Tribal Games and Slots ‘‘Fair’’ to Patrons?

In this testimony I have cited to my own work only as introductions to the hundreds of source materials cited in the footnotes. These sources can be referenced by

researchers. This Committee has my permission (and the permissions which I have

already received from the publishers of my articles and the attachments herein) to

reprint and distribute any or all of the articles authored by myself on gambling

issues.

1. U.S. National Security and the Strategic Economic Base: The Business/Economic

Impacts of Legalized Tribal Gambling Activities

During the 1990s, the international economic and diplomatic ramifications of the

spread of U.S. gambling technologies throughout the United States and the world

were outlined in an article written at the suggestion and under the auspices of

former Secretary of State Dean Rusk. The article was: John W. Kindt, U.S. Security

and the Strategic Economic Base: The Business/Economic Impacts of Legalized

Gambling Activities, 33 St. Louis U.L.J. 567-584 (1995), reprinted in National Gambling Impact and Policy Comm’n Act: Hearing on H.R. 497 before the House Comm.

on the Judiciary, 104th Cong., 1st Sess. 519-27, 528-45 (1995).

U.S. tribal gambling issues are larger than myopically trying to help the selective

impoverished. The U.S. tribal model is being marketed around the world as economic development to Third World countries, but their economies just become poorer, and their infrastructures and financial institutions become destabilized.

As commonly utilized by U.S. State Department analysts, the McDougal/Lasswell

methodology for policy-oriented decision-making highlights these strategic problems

with the spread of U.S. gambling technologies. See, e.g. John W. Kindt & Anne E.C.

Brynn, Destructive Economic Policies in the Age of Terrorism: Government-Sanctioned Gambling as Encouraging Transboundary Economic Raiding and Destabilizing National and International Economies, 16 Temple Int’l & Comp. L.J. 243

(2002-03) (lead article).

39

2. Solutions: Transform Tribal Gambling Facilities into Educational and Practical Technology Facilities

Instead of legalizing a casino/slot machine establishment at a failing racetrack in 1997, the Nebraska Legislature bulldozed the racetrack and made it into an extension of the University of Nebraska and a high-tech office park. John W. Kindt,

Would Re-Criminalizing U.S. Gambling Pump-Prime the Economy and Could U.S.

Gambling Facilities Be Transformed into Educational and High-Tech Facilities? Will

the Legal Discovery of Gambling Companies’ Secrets Confirm Research Issues?, 8

Stanford J.L., Bus. & Fin. 169-212 (2003) (lead article).

Thereafter, as pro-gambling interests returned to Nebraska, they were repeatedly rebuffed by the academic community, which was exemplified in one instance by 40

economists publicly rejecting new gambling proposals that would ‘‘cannibalize’’ the

consumer economy. Robert Dorr, 40 Economists Side Against More Gambling, Signers: Costs Likely Higher than Profits, Omaha World-Herald, Sept. 22, 1996, at B1. In a unanimous vote (except for one dissent by a representative from a casino dis- trict) on March 17, 2005, the Illinois House Government Affairs Committee favorably reported H.B. 1920 to the House for a vote to re-criminalize Illinois casinos. Similarly, suggestions have been made to re-criminalize gambling facilities in other states and transform the gambling facilities into educational and high-tech assets—instead of giving the gambling industry tax breaks. Casinos and gambling

parlors would generally be compatible with transformations into educational and

high-tech resources. For example, the hotels and dining facilities could be natural

dormitory facilities. Historically, facilities built for short-term events, such as various World’s Fair Expositions, the 1996 Olympic Village (converted to facilities for

the Georgia University system), and other public events have been transformed into

educational and research facilities.

Given the allegations of misuse, non-accounting, and even malfeasance involving gambling revenues in Native American operations, various legislative personnel in

the late 1990s considered potential legislation that would place Native American

gambling revenues in trust for the benefit of all Native Americans, not just a few

senior tribe members. This policy was to be combined with the partial use of trust

monies to convert Native American gambling facilities into educational, cultural,

and business facilities. For a historical summary of issues, see Bruce Orwall, Gaming the System: The Federal Regulator of Indian Gambling is Also Part Advocate,

Wall St. J., July 22, 1996, at A1. For concerns by the 1999 U.S. National Gambling Impact Study Commission, see, for example, Nat’l Gambling Impact Study Comm’n, Final Report 7-9 (June 1999).

‘‘Again, the unwillingness of individual tribes as well as that of the National Indian

Gaming Association (the tribes’ lobbyists) and the National Indian Gaming Commission, (the federal agency that regulates tribal gambling), to provide information to

this Commission, after repeated requests and assurances of confidentiality, limited

our assessment...’’ Id. With only one dissenting vote by Commissioner Robert W.

Loesher who was unduly protecting Native American gambling interests, the 1999

U.S. National Gambling Impact Study Commission voted eight to one to subpoena

information from the U.S. National Indian Gaming Commission in 1999. However,

use of its subpoena power was thereafter deemed largely ineffectual by the Commission and was not pursued.

3. The Feeder Market Impacts of Tribal Casinos

The Final Report of the Congressional 1999 National Gambling Impact Study

Commission called for a moratorium on the expansion of any type of gambling anywhere in the United States. Although tactfully worded, the National Gambling Commission also called for the re-criminalization of various types of gambling, particularly slot machines convenient to the public.

Some of the negative impacts of casinos and slot machines are detailed in the appendix to the article, Diminishing Or Negating The Multiplier Effect: The Transfer

of Consumer Dollars to Legalized Gambling: Should A Negative Socio-Economic

‘‘Crime Multiplier’’ be Included in Gambling Cost/Benefit Analyses?, 2003 Mich. St.

DCL L. Rev. 281-313 (lead article). The circle ‘‘feeder market’’ chart and sources documentation follow this written testimony.

The most authoritative and specific example involving tribal casinos is a 1995

Wisconsin report which concluded that ‘‘[w]ithout considering the social costs of

compulsive [addicted] gambling, the ‘‘rest-of-the-state’’ areas lose-or, transfer in-

$223.94 million to the local gaming areas. Considering the lowest estimated social

costs of problem gambling, the rest of—[Wisconsin] loses $318.61 million to gambling.’’ This report also concluded that without casino gambling, many local citizens

would have increased participation in other ‘‘outside’’ activities. ‘‘More than 10% of

the locals would spend more on groceries if it were not for the casino, while nearly

40

one-fourth would spend more on clothes. Thirty-seven percent said that their savings had been reduced since the casino had opened...’’ William Thompson, Ricardo

Gazel, & Dan Rickman, The Economic Impact of Native American Gambling in Wisconsin (Wis. Policy Res. Inst. 1995). From the business perspective, businesses are not naive. For example, ‘‘in a rare

public stand on a controversial political issue, the Greater Washington Board of

Trade’s 85-member board voted unanimously against’’ Mayor Sharon Pratt Kelly’s

initiative to bring casino-style gambling to Washington, D.C. Liz Spayd & Yolanda

Woodlee, Trade Board Rejects D.C. Casino Plan, Wash. Post, Sept, 25, 1993, at A1,

A8. With the exception of the cluster services associated with gambling, new businesses tend not to locate in areas allowing legalized gambling because of one or

more of the aforementioned costs. In areas saturated with legalized gambling activities, pre-existing businesses face added pressures that push them toward illiquidity

and even bankruptcy.

4. Tribal Gambling Activities: The Issues Involving Market Saturation

In his classic book entitled Economics, Nobel-Prize laureate Paul Samuelson summarized the economics involved in gambling activities as follows: ‘‘There is—a substantial economic case to be made against gambling. First, it involves simply sterile

transfers of money or goods between individuals, creating no new money or goods.

Although it creates no output, gambling does nevertheless absorb time and resources. When pursued beyond the limits of recreation, where the main purpose

after all is to ‘‘kill’’ time, gambling subtracts from the national income. The second

economic disadvantage of gambling is the fact that it tends to promote inequality

and instability of incomes.’’ Paul A. Samuelson, Economics 245 (10th ed.). Furthermore, Professor Samuelson observed that ‘‘[j]ust as Malthus saw the law of diminishing returns as underlying his theory of population, so is the ‘‘law of diminishing

marginal utility’’ used by many economists to condemn professional gambling.’’ Id.

at 425.

The concern of the legalized gambling interests over ‘‘market saturation’’ is largely

a non-issue. From the governmental perspective, focusing on this issue misdirects

the economic debate, because fears of market saturation are predicated upon the unwarranted assumption that legalized gambling operations constitute regional economic development—which they do not. In reality, legalized gambling operations

consist primarily of a transfer of wealth from the many to the few—accompanied

by the creation of new socio-economic negatives. It is well-established that the societal and economic costs to the taxpayers are $3 for every $1 in benefits.

These issues should first be examined from the strategic governmental perspective. In this context, the inherently parasitic manner in which legalized gambling

activities must apparently collect consumer dollars to survive is frequently described

as ‘‘cannibalism’’ of the pre-existing economy—including the pre-existing tourist industry. According to the skeptics of legalized gambling activities, this industry-specific phenomenon means that in comparison with most other industries, legalized

gambling activities must a fortiori not only grow as rapidly as possible, but also

grow as expansively as possible. John W. Kindt, Legalized Gambling Activities: The

Issues Involving Market Saturation, 15 N. Ill. U.L. Rev. 271-306 (1995). See also

John W. Kindt, The Negative Impacts of Legalized Gambling On Businesses 4 U.

Miami Bus. L.J. 93-124 (1994) (lead article).

In California and Nevada: Subsidy, Monopoly, and Competitive Effects of Legalized Gambling, the California Governor’s Office of Planning and Research highlighted in December of 1992 ‘‘the enormous subsidy that Californians provide to

Nevada through their gambling patronage’’ and concluded that ‘‘Nevada derives an

enormous competitive advantage from its monopoly on legal gambling.’’ The report

summarized that ‘‘[g]ambling by Californians pumps nearly $3.8 billion per year

into Nevada, and probably adds about $8.8 billion—and 196,000 jobs—to the

Nevada economy, counting the secondary employment it generates— and that this

was ‘‘a direct transfer of income and wealth form California to Nevada every year.’’

Thus, the Nevada economy appears to constitute a classic example of a legalized

gambling economy ‘‘parasitically’’ draining or ‘‘cannibalizing’’ another economy (primarily Southern California). Cal. Governor’s Off. Plan & Research, California and

Nevada: Subsidy, Monopoly, and Competitive Effects of Legalized Gambling ES-1

(Dec. 1992).

The gambling interests argue that the dollars they take in are ‘‘entertainment dollars’’ or ‘‘recreational dollars.’’ This observation is valid with regard to approximately 35% of the ‘‘gambling dollars,’’ but it is invalid with regard to the remaining

65%. Opponents of legalized gambling argue that there are also differences because

the entertainment dollars spent on a movie, for example, largely generate more

movies, and recreation dollars spent on a speedboat, for example, largely generate

41

orders for more speedboats. Accordingly, while most entertainment or recreational

dollars contribute to a positive multiplier effect legalized ‘‘gambling dollars’’ result

in a net negative multiplier effect. This negative impact apparently occurs, in part,

because approximately two-thirds of the gambling dollars are not recreationally-oriented, but are spent by a compulsive market segment reacting to an addictive

activity—probable or possible pathological gambling—as delimited by the American

Psychiatric Association. Am. Psychiatric Ass’n Diagnostic and Statistical Manual of

Mental Disorders, 615-18 § 312.31 (4th ed. 1994). Opponents also note that gambling

dollars spent in a legalized gambling facility are usually reinvested in more gambling facilities—which just intensifies the socio-economic negatives associated with

gambling activities and ‘‘reduces the national income’’ even further.

5. Are Tribal Games and Slots ‘‘Fair’’ to Patrons?

Issues have arisen involving how ‘‘slot machines’’ are programmed and whether the astronomical odds are ‘‘fair’’ to patrons. ‘‘The Insiders’’ for Gambling Lawsuits:

Are the Games ‘‘Fair’’ and Will Casinos and Gambling Facilities be Easy Targets

for Blueprints for RICO and Other Causes of Action?, 55 Mercer L. Rev. 529-593

(2004) (lead article). See also Subpoenaing Information from the Gambling Industry:

Will the Discovery Process in Civil Lawsuits Reveal Hidden Violations Including the

Racketeer Influenced and Corrupt Organizations Act?, 82 Oregon L. Rev. 221-294

(2003) (lead article). Coupled with pandemic regulatory failures, these issues of

‘‘fairness’’ have been exacerbated. The Failure to Regulate the Gambling Industry

Effectively: Incentives for Perpetual Non-Compliance, 27 S. Ill. U.L.J. 221-262

(2002) (lead article). See also Follow the Money: Gambling, Ethics, and Subpoenas,

556 Annals of the Am. Academy of Political & Soc. Sci.,85-97 (1998) (invited article).

The Office of the Inspector General reported in 1993 to the U.S. Department of

the Interior (DOI) that 32 percent of Native American gambling operations were

being conducted in violation of federal statutes/regulations. Office of the Inspector

General, U.S. Dep’t of Interior, Audit Report: Issues Impacting Implementation of

the Indian Gaming Regulatory Act (1993). Thereafter, the National Indian Gaming

Commission (NIGC) arguably suppressed numbers that indicated in November 1996

that 84 percent of Native American gambling facilities were openly operating illegally or in violation of federal statutes/regulations. Nat’l Indian Gaming Comm’n,

Report to the Secretary of the Interior on Compliance with the Indian Gaming Regulatory Act (Nov. 1996). Other reports suggested that there were more than just isolated instances of crime and corruption caused by Native American gambling activities.

Furthermore, the implicit goals of the 1988 Indian Gaming Regulatory Act (IGRA)

to enhance the lives of all Native Americans were not being realized, as the large

majority of Native Americans remained in grinding poverty as the 21st century

began. See, e.g., U.S. General Accounting Office, Indian Programs: Tribal Priority

Allocations Do Not Target the Neediest Tribes 1 (1998). Accordingly, policymakers

have suggested that future legislation should not disproportionately enrich isolated

tribes. Instead, Native American gambling should operate for the benefit of all Native Americans, if not all of the U.S. public. This could be achieved via federal administration of a Gambling Proceeds Trust Fund financed by Native American gambling operations while they are phased out to become educational and technological

facilities.

In 2000, it was reported that ‘‘[d]espite an explosion of Indian gambling revenuesfrom $100 million in 1988 to $8.26 billion a decade later [1998]-an Associated Press

[AP] computer analysis of federal unemployment, poverty and public-assistance

records indicates the majority of American Indians have benefited little.’’ Between

1988 and 1998 ‘‘poverty and unemployment rates changed little,’’ as exemplified by

the Fort Mojave Indian Reservation, where despite two casinos, the Native American ‘‘unemployment rate climbed from 27.2 percent in 1991 to 74.2 percent in

1997.’’ This development was attributed to the fact that ‘‘among the 130 tribes with

casinos, a few near major population centers have thrived while most others make

just enough to cover the bills.’’ In addition, any ‘‘new jobs [created by the Indian

gambling facilities] have not reduced unemployment for Indians.’’ David Pace, Casino Boom a Bust for Most Members of Indian Tribes, News-Gazette (Champaign,

Ill.), Sept. 2, 2000, at A1. According to the National Indian Gaming Association, the

lack of net new jobs for Indians was because ‘‘75 percent of jobs in tribal casinos

are held by non-Indians.’’ Unexpectedly, the 55 tribes with casinos before 1992 had

their 1991 unemployment rate of 54 percent even increase somewhat to 54.4 percent

by 1997. For an extensive investigative report highlighting the problems of Native

American gambling activities, see Donald L. Bartlett & James B. Steele, Look Who’s

Cashing In At Indian Casinos: Wheel of Misfortune, Time, Dec. 14, 2002, at 44

(cover story).

42

These situations were exacerbated by illusory accounting standards that resulted in some tribal members with exorbitant wealth while most Native Americans remained disenfranchised. The tribes also claimed to have sovereign immunity from

general federal statutes like those involving labor rules, sexual harassment, equal

employment opportunity, and tortious acts. As reported in the Wall Street Journal

and as most disconcerting to Congressional leaders were the indications involving

alleged organized crime activities. The concerns among the U.S. Representatives

were exemplified by Representative Chris Shays (R-Conn.) and Representative

Frank Wolf (R-Va.) who highlighted these in a letter to President Clinton. NOTE: Attachments to Professor Kindt’s statement have been retained in the

Committee’s official files.

The CHAIRMAN. Thank you. Rev. Abrams?

STATEMENT OF REV. CYNTHIA J. ABRAMS, DIRECTOR,

ALCOHOL, OTHER ADDICTIONS AND HEALTH CARE WORK

AREA, GENERAL BOARD OF CHURCH AND SOCIETY OF THE

UNITED METHODIST CHURCH

Rev. ABRAMS. Good morning, Chairman Pombo and honorable

members of the House Resources Committee. I want to thank the

Committee for this opportunity to testify on behalf on the General

Board of Church and Society of the United Methodist Church.

The United Methodist Church has for many years expressed its

opposition to gambling. Our doctrinal statements, known as The

Social Principles, state that gambling is a menace to society, deadly

to the best interests of moral, social, economic, and spiritual life,

and destructive of good Government. As an act of faith and concern, we call Christians to abstain from gambling and to minister

to those victimized by the practice. Furthermore, we call the church

to promote standards and personal lifestyles that would make unnecessary and undesirable the resort to commercial gambling as a

recreation, as an escape, and as a means of producing public revenue or funds for support of charities or Government.

We are alarmed at the expansion of gambling and, more specifically, the proliferation of off-reservation casino and casino proposals. We believe that off-reservation casinos are having a negative effect on inter-tribal relations, as you have seen here today between two tribes, and between tribal and community relations. In

addition, the United Methodists’ historic opposition to gambling is

coupled with a very clear and strong support of self-determination

of American Indian people, and we continue to support good legislation that supports American Indian people in their long-term best

interest.

Gambling and legislation to expand it is a grave moral concern.

Because of the United Methodist public witness on gambling, we

are on countless mailing lists for groups opposed to gambling. We

believe that off-reservation casinos have fostered an anti-sovereignty climate, which is growing. Furthermore, the proposals cast

a shadow over legitimate applications for Federal tribal recognition. And we find the increase in anti-sovereignty and anti-Indian

racist rhetoric by some of these groups alarming. And we do our

best on behalf of the United Methodist Church to counteract the

positions of these groups at every opportunity. But the careless disregard for communities and children in promoting off-reservation

casinos, some in the poorest of areas, makes this very difficult. It

43

is simply unacceptable and contrary to the long-term best interests

of the sovereignty and welfare of American Indian people as a

whole that tribes continue to propose to build casinos with little or

no regard for the social costs to the communities. I am a United Methodist, and I want to tell my personal story because I am also a Seneca.

These proposals are antithetical to my tribe’s traditional beliefs. My grandmother taught me that I am a member of an immediate

family, I am a member of an extended family and a tribal family,

and I am also a member of a global family. This concept is not foreign to most American Indian people. Yet, I ask the question,

When did we stop caring about the rest of the world and only care

about ourselves and our own best interests alone?

It is not in the best interest of gamblers to gamble away their hard-earned dollars. The numbers of people who gamble are disproportionately poor, lower-income, or seniors on fixed incomes.

Gambling takes away money from the people who need it the most.

Is this the way States, communities, and tribes want to balance

their budgets? And furthermore, is this good stewardship of the

gifts that God has given us? Moreover, there are other American Indian people who are opposed to gambling both on-reservation and off-reservation, but they

fear retribution. And this has happened in my own family. Our

family opposed casinos that our tribes proposed. And in approving

the casinos, the Senecas gave away historic sovereign rights to sign

a State compact. Yet, all during this time of opposition, my family

endured death threats, bodily harm, intimidation tactics, and outright ostracization for our public stand. The struggle of our tribe is not unique from other tribes. The split between pro- and anti-casino groups splits the tribal community. It divides churches on the reservation and it even divides

families on the reservation. In my own home church on the

Cattaraugus Reservation, it has even physically split the church.

When we worship, the anti-casino people sit on one side of the

church and the pro-casino people sit on the other side. Is it any

wonder that American Indian people opposed to Indian gambling

are afraid to speak up?

The United Methodist Church believes that American Indian

people bring gifts to the world. They have taught people who have

come to this country how to live, how to survive, and how to care

for the Earth and its people. And it is critical at this time that

American Indian people, tribes, not allow the temptation of greed

to overwhelm the gifts that have allowed American Indians the

ability to survive and maintain their traditions. Thank you.

[The prepared statement of Rev. Abrams follows:]

Statement of The Reverent Cynthia J. Abrams, Director, Alcohol, Other Addictions, and Health Care Work Area, General Board of Church and

Society of the United Methodist Church

I thank the Committee on Human Resources for this opportunity to testify on be- half of the General Board of Church and Society of the United Methodist Church.

The United Methodist Church has for many years expressed its opposition to gambling. Our doctrinal statements known as The Social Principles state that ‘‘Gambling is a menace to society, deadly to the best interests of moral, social, economic,

and spiritual life and destructive of good government. As an act of faith and concern

44

we call Christian to abstain from gambling and to minister to those victimized by

the practice.’’ Furthermore, we call ‘‘The Church to promote standards and personal

lifestyles that would make unnecessary and undesirable the resort to commercial

gambling as recreation, as an escape, or as a means of producing public revenue or

funds for support of charities or government.’’ (United Methodist Social Principles

162G)

We are alarmed at the expansion of gambling and, more specifically, the proliferation of off-reservation casinos and casino proposals. We believe that off-reservation

casinos are having devastating effect on intertribal relations, tribal to community

relations.

In addiction, to our historic position on gambling we have strongly supported the

self-determination of American Indian people and continue to support good legislation that supports American Indian people. Gambling and legislation to expand it

is a grave moral concern. Because of the United Methodist’s public witness on gambling we are on countless mailing lists for groups opposed to gambling. We believe

that off-reservation casinos have fostered an anti-sovereignty climate, which is

growing. We find the increase in anti-sovereignty and anti-Indian racist rhetoric by

some of these groups alarming. We do our best to counteract the positions of these

groups at every opportunity, but, the careless disregard for communities and children in promoting off-reservation casinos, some in the poorest of areas, makes this

very difficult. It is simply unacceptable that tribes propose to build casinos with little or no regard for their social cost on a community.

I am a United Methodist and also a Seneca. These proposals are antithetical to

my tribe’s traditional beliefs. My grandmother taught me that I am a member of

an immediate family, I as a member of an extended and tribal family, and I am

a member of a global family. This concept is not foreign to most American Indian

people. Yet, when did we stop caring about the rest of the world, and only care

about ourselves and our best interests alone? It is not in the best interest gamblers

to gamble away their hard-earned dollars. The numbers of people who gamble are

disproportionately poor, lower income, or seniors on fixed incomes. Gambling takes

money away from the people who need it the most. Is this the way states, communities, and tribes want to balance budgets. Is this good stewardship of the gifts God

has given us?

Furthermore, there are other American Indian opposed to the off-reservation and

even on-reservation casinos but they fear retribution. This has happened in my own

family. Our family opposed the casinos our tribe proposed. My family endured death

threats, bodily harm, intimidation tactics and outright ostracization for our public

stand. The struggle of our tribe is not unique from other tribes. The split between

pro and anti-casino groups splits the community, divides churches on the reservation, and even divides families. In my own home church it has even physically split

the church. When we worship, anti-casino people sit on one side of the church and

the pro-casino people sit on the other side of the church. Is it any wonder that

American Indian people opposed to Indian gambling are afraid to speak up?

The United Methodist Church believes that American Indian people bring gifts to

the world. They have taught people who came to this country how to live, how to

survive, how to care for the earth and its people. It is critical, at this time, American

Indian people/tribes not allow the temptation of greed overwhelm the gifts that have

allowed American Indians the ability to survive and maintain their traditions.

The CHAIRMAN. Thank you.

I am going to start with Mr. Brady. Can you explain to the

Committee why the Northern Cheyenne Tribe rejected the casino

proposal near the Denver airport?

Mr. BRADY. It was based upon their legal counsel as well as independent business analysis. Steve Hilliard stood to gain enormously

while the tribe would be left in debt for quite some time.

The CHAIRMAN. Professor, in looking at your testimony, the analysis that was done, just so I understand, the economic analysis

that you did, does that—when you talk about money being taken

out of the economy, does it also factor in the jobs that are created

and the money that is generated by that casino itself?

Mr. KINDT. Yes, sir, Mr. Chairman. Now, my area is interdisciplinary analysis, or one of my areas. So what I am doing here is I’m

45

citing to the most authoritative reports, academic reports across

the country. And the one to which I believe you are referring is the

Table 18——

The CHAIRMAN. Yes.

Mr. KINDT.—done by Professor William Thompson, Ricardo

Gazel, and Dan Rickman. Ricardo Gazel was formerly at the University of Illinois; William Thompson at UNLV, University of

Nevada, Las Vegas; and they did factor in those types of considerations. And you can see down at the bottom of the page that—the

table is on itself in the attachment—it does talk about the benefits

of investment and self-sufficiency. So we reviewed these to make

sure that they’re balanced reports. And even though this report

was done in 1995, it’s the most authoritative still, the best report

out there about the impact of tribal casinos on a State and regional

economy.

You may wish to bring Ricardo Gazel, by the way. I believe he’s

now at the World Bank. He’s right here in town. You may wish to

bring him before the Committee. He’s done follow-up studies, and

I’m sure he could shed light on these numbers.

The CHAIRMAN. There are other studies that I’ve seen that show

a net positive economic impact. Did you look at any of those

studies?

Mr. KINDT. We try to review all the studies from all across the

country—industry studies, academic studies, Government studies—

that come forward. And you will see from some of my writings that

they’re very straightforward in our analysis, or in my analysis, of

some of those studies, and they’re very pointed at times. Sometimes

what is occurring by the industry studies is they can be perfectly

valid, but they don’t go far enough. They’re just impact studies, or

what we call benefit-benefit studies. They’re not cost-benefit studies. And unless you have a real cost-benefit study on the proper

scale, you really miss what is happening in the regional and State

economy.

And that’s why you have such a backlash going on. And the people of Illinois are obviously getting it. After the State Committee

on Administration, for whom I testified along with Professor Earl

Grinols, and other people were there testifying about these impacts, the legislators already knew it. They had it, and they voted,

with just one dissent, to report out a bill that would eliminate the

riverboat casinos—which are now land-based casinos—in Illinois

because of the negative social-economic effects and the negative tax

effects that were occurring.

Now, that’s not to say that the people who own the casinos are—

they’re cash cows. They bring in a lot of money. But on a statewide

or regional basis, they are taking enormous numbers of consumer

dollars out of the consumer economy, and that translates, on a

regional basis in the feeder market, into lost jobs and these socioeconomic problems that are outlined in the tables.

The CHAIRMAN. Did you look at the difference between more of

a neighborhood casino that generates most of its money locally and

what would be described as more of a destination casino? Did you

look at the difference on the impact of economies between those?

Mr. KINDT. Yes. We’ve reviewed that over time. I could just make

some general observations. A destination area would generally be,

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like, Las Vegas. However, in my testimony, I give a California report, done in 1992 by the California Governor’s Office, that shows

the number of jobs and the number of dollars that were being lost

out of the Southern California economy to Las Vegas. Well, it’s

really sort of Basic Economics 101. You’re just moving dollars

around when you take them out of the consumer economy and you

put them into gambling. But when you put them into gambling,

you’re creating very large social costs, what are called the ABC’s

of gambling—new addicted gamblers, new bankruptcies, and new

crime.

Now, we can debate the extent of these negatives. But one of the

tables that I’ve provided for this Committee summarizes, I believe,

the nine leading reports on the socioeconomic costs, and they all,

over the last 15 years, are still coming out at about $3 in costs for

every $1 in benefits.

So on a strategic level—and that’s why I sort of started my written testimony with a strategic concept—on a strategic level, this is

not helping the U.S. economy and there are other strategic problems involved with the expansion of gambling. And I would again

reference the National Gambling Impact Study Commission, which

had many gambling members on it—several gambling members on

it—and it still came out asking for a moratorium on the expansion

of any type of gambling anywhere in the U.S.

The CHAIRMAN. Finally, in regard to the draft legislation, is it

your opinion that we would be better off if we just stop the expansion of Indian gaming altogether?

Mr. KINDT. Well, I would have to speak from an academic standpoint. I know that—with a natural sympathy to the concerns that

are expressed here today. And from an academic standpoint, I

would have to agree with the National Gambling Impact Study

Commission’s call for a moratorium on the expansion of any type

of gambling anywhere in the U.S.

The CHAIRMAN. What about existing facilities?

Mr. KINDT. Well, I have indicated what the economic and social

negatives are with regard to gambling activities and I think that

the policy decisions should be made on the academic facts. And so

I would leave that to the policy decisionmakers. I would, however,

make one comment, and that is that when one of the proposals

here from the earlier panel for a tribal expansion for a casino in

Madison, Wisconsin, proposed by the Ho-chunks, I was up there

along with other academics when that came—a few days before

that came to a vote. And despite the fact that, I believe, about $1.5

million was spent by the tribe, by the interests who wanted to have

this pass and have this casino in that area, the academic community at the University of Wisconsin came out en masse. The campus newspapers both editorialized against this casino. Despite the

natural sympathy for the plight of Native Americans and their interests, they knew academically that this would be a drain on their

community. And I believe the vote was about 55 percent against allowing this casino to come to that area.

The CHAIRMAN. Reverend, I guess I just put basically the same

question to you. In regard to legislation, would you support the notion that we stop the expansion of Indian gaming altogether?

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Rev. ABRAMS. I would speak only on the position of the United

Methodist Church, which would then say that—would agree that

expansion of any type of gambling, be it Indian or otherwise, would

be something that we would want to work against because it’s contrary to good Government.

The CHAIRMAN. And in regard to existing facilities?

Rev. ABRAMS. In regard to existing facilities, the United Methodist Church has a position on self-determination and sovereignty

and so they would not comment on those that are already existing.

The CHAIRMAN. Thank you.

Ms. Bordallo?

Ms. BORDALLO. No questions.

The CHAIRMAN. Mr. Nunes?

Mr. NUNES. I have a quick question for Professor Kindt. Your

testimony is very much appreciated, and I think this is an ongoing

battle we have between gambling or non-gambling. But I would

like you to comment a little bit on the fact that Las Vegas is the

fastest-growing area of the country and has been for nearly a decade. I would like to know your thoughts on this issue. Because obviously it has been a very successful economy. Every time I go

there, there is a new subdivision, or 20 new subdivisions. And I

would like for you to comment on the growth of gambling there and

how you see the economy that’s been built there.

Mr. KINDT. Yes, sir. Basically, and I did address this in my written testimony, and I would refer back to the California report that

I mentioned that talks about how basically the dollar just being

transferred in from outside the area. Now, the one thing Las

Vegas—So basically you’re taking consumer dollars out of Southern

California and much of the rest of the country, and that’s spurring

the growth in Las Vegas. You’re transferring those into gambling

dollars. But those are lost dollars to the consumer economy, and

that translates into lost jobs. And then people take their social

problems that have been outlined here in these tables and take

them back to their host communities, so Las Vegas doesn’t have to

bear the expense of much of the socioeconomic problems. But when

you bring the casino to the person’s backyard, then you have that

35-mile feeder market and the State having to absorb all these socioeconomic negatives, and that’s a drain on the taxpayer dollars.

The one other thing I would mention about Las Vegas is they do

appeal to an Asian Pacific market, they do appeal to an overseas

market. But that’s not what we’re talking about with all of these

other—and Atlantic City also, to some extent. But these other casinos aren’t really doing that. They’re basically—and the casinos

themselves call them feeder markets. They’re feeding off of that regional economy. And as Senator Burzynski indicated, and I think

if you brought in many other legislators they would indicate that

we’re feeling these negatives, which we predicted years ago, as

socioeconomists and interdisciplinary analysts, would happen.

And I would also reference in my testimony Economics 101, the

basic, probably the most used textbook in the United States by a

Nobel Price laureate, economics winner Paul Samuelson. He simply

says they’re just sterile transfers of wealth when you take the

money out of the consumer economy and you dump it into gambling. But you’re creating all these social problems at the same

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time—the increased addicted gamblers, which has been parallel to

drug addiction; the increased bankruptcies as people lose their

money; and the increased crime. And there’s a definitive analysis

on the crime which was done by Professors Grinols and Mustard,

and it’s even better than what the National Gambling Impact

Study Commission did. It took every community, every county,

every feeder market before and after it brought in the gambling,

and it showed that crime goes up 10 percent, not the first or second

year, but the third year after these establishments open as people

lose their money, some people resort to crime, and then that crime

continues to increase afterwards.

So there are real costs that are associated with this trend toward

more and more gambling.

Mr. NUNES. Thank you, Professor. Thank you, Mr. Chairman.

The CHAIRMAN. Well, thank you. I want to thank the panel for

their testimony. And again, it will be very valuable in our efforts

to move forward on this issue.

I remind this panel and the previous panels that there may be

additional questions that Members have. I know Mr. Kildee had

another appointment and had to go out, but I know he had additional questions he wanted to ask. Those will be submitted to you

in writing, and if you could answer them in writing so that they

could be included as part of the hearing record, it would be appreciated. The hearing record will be held open for those responses.

Again, I want to thank this panel and the previous panels and

apologize to you for the delay in starting the hearing.

If there is no further business before the Committee, again I

thank the members of the Committee and our witnesses. The

Committee now stands adjourned.

[Whereupon, at 12:52 p.m., the Committee was adjourned.]

[Responses to questions submitted for the record follow:]

Response to questions submitted for the record by Otto Braided Hair for

the Northern Cheyenne Sand Creek Massacre Committee

A follow-up response on questions from Representative Jim Gibbons, a result from

the oversight hearing regarding draft legislation proposed by Chairman Richard

Pombo to amend the Indian Gaming Regulatory Act (IGRA) ‘‘Tribal proposals to acquire lands-in-trust for gaming across state lines; and how such proposals are affected by the off-reservation discussion draft bill’’ before the House Resources Committee held on April 27, 2005.

Question 1. This Committee has held hearings on legislation that would

allow a tribe to go hundreds of miles off their reservation and open

a casino in the ancestral lands of another tribe.

a. Do you have any specific suggestions on how Congress should

proceed in this regard?

Comments:

One of the most perplexing problems throughout the westward expansion of the

United States was determining where the exact boundaries between United States

and the Indian Nations existed. Most boundaries were descriptions of landmarks,

for example, rivers, mountaintops, ridges, a road, etc. The ‘‘boundary problem’’ was

further exacerbated by future treaties that redrew the boundary lines which can be

characterized as very difficult to discern and constantly changing. Even more so,

some Indian nations ceded lands claimed by other Indian nations. The statements

and commentary that follow are made partially in response to Eurocentric historians whose mental constructs and ideologies unconsciously, and usually, view people different than themselves as obstructions to a process of human perfection or

achievement of a higher level of civilization. A focus on property rights and

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commerce appears to lie at the core of many of the conflicts between Indian nations

and the U.S. government and its citizenry. The questions at hand, concerning expanded Indian gaming, are the same of genre of causation of conflict between Indian

nations and the American government and public it represents. In 1834, the U.S. Congress admitted the multiplicity of Indian treaties made it very to ascertain what, at any given period, was the boundary or extent of the

Indian country (Report of Commissioner of Indian Affairs Samuel S. Hamilton, November 26, 1830; and, Report Commissioner of Indian Affairs Elbert Herring, November 19, 1831, in The American Indian and the United States, comp. By Wilcomb

E. Washburn, 1:16-17, 21:House Report 474 (ser. 263), 10). An obvious historical fact

is that the U.S. government’s unilateral policy of Indian removal beginning in 1834

considerably simplified the boundaries leaving very small areas in the east in

Indian hands and larger tracts of land west of the Mississippi designated as Indian

country. In the ensuing historical events from the time of the overt genocidal ‘‘Indian Removal’’ policy the government-to-government relations between Indian nations and the U.S. government has been a story of betrayal, usurpation and rapine

as it became desirable to denigrate the native peoples, even the faithful Indian allies, as subhuman.

In the unmistakable spirit of fairness and moral consciousness, it appears that

the subtle underlying intent by certain members of the U.S. Congress to ‘‘right’’

some of the wrongs done to Indian nations has been to introduce favorable amendments to the Indian Gaming Regulatory Act (IGRA) that could potentially create an

‘‘economic bonanza’’ for rural poverty-stricken Indian Tribes whose homelands are

primarily situated in the western United States. An extensive document search and

analysis of Indian claims on a comprehensive scale would, in all probability, establish a measure of historical and legal continuity and consistency of what constitutes

ancestral lands of an Indian Tribe. Competing ancestral claims would perhaps require usage of the principles of International law wherein Federally recognized

Indian Tribes would potentially be afforded a forum to assert what has been described as the right of occupancy which has been frequently referred to as ‘‘aboriginal title’’ or ‘‘Indian title.’’ The quest to clarify ancestral Indian lands would most

certainly be within the parameters of western law since the ‘‘oral tradition’’ of the

surviving Indian nations has often been discounted in the established system of

American jurisprudence. Allowing Indian nations, miles away from a urban area, the opportunity negotiate with another Indian Tribe with claims to ancestral lands near a standard metropolitan statistical area (SMSA, an area with a population of 500,000 or more) would

most certainly become a long drawn out process steeped in bureaucratic regulation

and unquestionable opposition from states and citizens opposed to the expansion of

Indian gaming. If indeed the goals and objectives of the U.S. Congress is to establish

Indian gaming law allowing a Tribe to go hundreds of miles off their reservation

to open a casino in the ancestral lands of another Tribe, then it would be proper

to allow all potential stakeholders the opportunity to provide commentary in the

American tradition of consent of the governed.

The compelling public interest in the arena of Indian gaming can only be

strengthened by focusing the national spotlight on the continuing plight of the economically depressed Indian nations, who are significant in number, whose dependence on Federal largesse and unabated socio-economic realities has added to a ‘‘social malaise’’ that permeates a majority of Indian country. Expansion of Indian gaming is not a panacea for the depressed economies of Indian Tribes or the answer to

improving the quality of life for Indian people, yet, it is reasonable to state that if

afforded the opportunity to develop and open a casino in a metropolitan area most

Indian Tribes would in all probability pursue such an economic opportunity.

b. Also, with over 300 tribes seeking recognition and presumably

gaming, please comment on the impact that a policy permitting

‘‘reservation shopping’’ and ‘‘off-reservation gaming’’ will have

on communities across the country.

The U.S. Congress has the responsibility to set the criteria to determine whether

or not a group of people claiming to be an aboriginal people within the United

States should be federally recognized. The standard of recognition should be at a

standard where there exists incontrovertible evidence that the group of people seeking recognition is beyond dispute. Presumptions that a ‘‘newly—recognized tribe intend to develop gaming operations should not be the most weighted factor when congress considers federal recognition.

Reservation shopping immediately creates a negative image of native people and

intentionally or unintentionally diminishes the sacredness, culture and history of an

unrecognized Indian nation that has survived countless attempts to destroy them.

True Indian leaders, in their unique tribal tradition, seeking rightful federal

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recognition of their people, in this writer’s opinion, will not focus solely on Indian

gaming and they, and their predecessors, may in fact have been dedicated their lives

to achieve federal recognition for their people decades before the advent of the

IGRA. The potential opportunity to develop Indian gaming in this modern era could

be characterized as a historical artifact similar to the shift in the American economy

from heavy industry to the high tech industry.

The impact on communities with an off-reservation gaming establishment would

vary depending on the state of the economy and cultural values in an identified

area. In a depressed metropolitan area a high tech modern casino operation would

undoubtedly create thousands of jobs and create opportunities for local entrepreneurs to provide goods and services to a large casino operation. Negotiated partnerships between Indian tribes and state and local governments would certainly improve the quality of life for the citizens of communities where Indian gaming would

be allowed to flourish. On the other hand, off-reservation gaming in rural areas may

not be viable. Today, professional operators of Indian gaming facilities have accumulated a considerable amount of data and expertise to sufficiently determine whether

or not a gaming location will be economically feasible and whether or not a selected

community is the ‘‘right fit’’ for a casino operation.

Question 2. When tribes seek to enter already established gaming areas,

doesn’t that create an uneven playing field since tribes are not subject

to state regulations; are not subject to the restrictions placed on other

gaming establishments; do not pay state taxes; etc?

Indian nations with little or no economic development have almost always entered

into negotiations to develop economic projects on an uneven playing field whether

on or off established reservations especially with the lack of access to investment

or financial capital . In the area of Indian gaming, states have become intransigent

in the required negotiations process for State/Indian gaming compacts. The scenario

presented by the possibility of off reservation gaming, including in another state,

would raise issues of taxation of gaming operations and more regulation by the National Indian Gaming Commission. Current Indian gaming operations are in most

instances more heavily regulated than state sanctioned gaming operations. A detailed comparison of the various State gaming versus NIGC generated regulations

would suggest ‘‘more’’ regulation is applicable to Indian gaming operations.

Question 3. What criteria should be used by the Department of the Interior

in it’s determination of land-into-trust?

a. Should there be a requirement of substantial historical connection between the tribe and the parcel to be taken into trust?

Why/why not?

A key point to take into consideration would be the timeframe when western

trained historians and ethnologists began documenting the geographic areas occupied by various Indian nations when ‘‘first’’ contact was made with sovereign Indian

nations. If one is a proponent of the southerly migration theory by Indian tribes,

often presented by historians and also by native oral tradition, the vast areas south

of Hudson bay and extending south into the United States could be identified as

ancestral homelands of many of the eastern, southern, great plains and southwestern tribes.

Requiring a substantial historical connection between a tribe and a parcel of land

being considered in a land-into-trust process would be a logical method of determining if a compelling argument by an Indian tribe is sufficient to grant trust status to off reservation real estate. Indian tribes would need to demonstrate connection to the land in question in the form of identified sacred sites, burial sites, village

or camp sites, or any other empirical evidence (including treaties) that would pass

the scrutiny of ‘‘expert’’ scientific and legal analysis. Aforementioned, a comprehensive document search and analysis of Indian land claims would be probably necessitated and a ‘‘cut off’’ date determined in order to reasonably identify and settle

competing land claims by the various Indian nations.

b. How recent should the historical connection be?

Congress, with the plenary power it maintains over Indian affairs, and the body

of U.S. Supreme Court case law may have already unilaterally determined the historical connection between Indian tribes and parcels of land be considered for landinto-trust. Each application for land-into-trust whether for gaming or any other purposes would need to be deliberated upon on a case-by-case basis by the Department

of Interior. Special legislation enacted by congress taking land-into-trust would also

need to utilize precedent case law and previous legislation, bypassing the Department of Interior, as an established guide for taking land-into-trust.

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The recent land-into-trust transactions appear to be reduced to considerations of

national interests, state rights and individual landowner rights. In addition, the federal government appears cautious in allowing condemnation of land in the land-intotrust process. Conversely, when the federal government favors energy development

in environmentally sensitive areas (e.g. The Arctic National Wildlife Refuge, Powder

River Basin, etc.) it has the propensity to take unilateral action completely disregarding the interests of native people and the resultant selective application of environmental and nation historic preservation laws and regulations has occurred. c. What about distance from the tribe’s current service area?

Most tribes are very familiar with issues of distance from tribal programs and other government service delivery programs for tribal members (often inter-tribal)

through the special considerations and flexibility of service delivery in urban areas

with a relatively large Indian population (e.g. Urban Indian Centers, I.H.S. clinics,

etc.). The delivery of basic services to Indian people would need to be considered in

the overall planning of Tribal casinos, at whatever distance from the reservation,

and Tribal governments would meet this responsibility as a matter of protecting the

health and general welfare of tribal members. Modern communications technology

and transportation systems have lessened the issues of distance in nearly all aspects

of American society including Indian reservation lifestyles. Modern Tribal governments have the capacity and capability to address the needs of their membership and when necessary to collaborate with other Tribal governments to provide for the basic needs of Indian people, especially areas with a concentrated Indian population, residing at varying distances from the reservation.

Tribal trust lands at short and long distances from the reservation would not diminish the responsibility of Tribal governments and the Bureau of Indian affairs (Trustee) to properly manage the real estate, the attendant resources, Tribal people and

others living or doing business on trust lands.

d. Do you believe that the farther away the casino site is, the less

likely tribal members will be able to take advantage of employment opportunities with a casino? (Alternatively, if the tribal

members move near the casino to get jobs, then will the traditional community/service area be disrupted?)

This is a leading question and requires the responder to speculate on future

events without proper analysis that would assuredly be part of a comprehensive

planning strategy by Tribal governments and associated gaming developers. A responsible Tribal government, without question, would investigate in detail the advantages and drawbacks of developing a casino at any location within the United

States. It is common sense human resource issue when speculating on farther distance and employment opportunities for Tribal members. Issues of housing, health

care, schools, fire protection, law enforcement, etc. undoubtedly require appropriate

government-to-government relations between the Tribe and local officials to ensure

that the area being considered for gaming operations would benefit the existing local

community and Tribal members desiring to transplant their families where employment opportunity would be available.

The inclusion of the local citizenry, business enterprises, and government officials

in the process of developing a casino in a traditional/service area is an expectation

Tribes would in probability be considered a priority in the formulation of a comprehensive gaming development scenario. Disruption of a traditional community/

service area denotes a negative development rather than a progressive economic development initiative by an Indian Tribe. The overall benefits to a local economy may

well outweigh the issues associated with ‘‘disruption.’’

Question 4. If landless, shouldn’t land-into-trust be restricted to the area

where the tribe is located? Where they live, need jobs, need health

care and services?

a. Designation as a Landless Tribe has the obvious implication that

they have not attained the status of a federally recognized tribe

with all associated government-to-government experience and

network of formal relations with existing Tribal governments,

local communities, and other entities in the various geographic

areas across the United States. Upon attainment of federal recognition, it would seem appropriate to locate landless Tribes on

land-into-trust lands on or near current established communities

or land specified in acts of Congress federally recognizing applicant Indian Tribes.

Landless applicant Tribes granted federal recognition is a monumental achievement in their respective history and is usually the culmination of years persistence

to officially restore their honor and dignity in the family of Indian nations. It is

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unimaginable that a prospective Tribal applicant for federal recognition would neglect or overlook issues related to jobs, health care and any other type of services

that are required to allow a community to develop and flourish. Applicant Tribes

would most certainly have developed an extensive and rich knowledge base of the

full range of issues intricately and necessarily associated with status of federally

recognized ‘‘Indian Nationhood.’’ Consulting directly with ‘‘newly’’ established Indian

nations would be in accordance to long history of progressive developments in the

area of federal Indian policy with an emphasis on Indian self-determination, self

sufficiency and sovereignty as guideposts to government-to-government relations.

Question 5. If some tribes are permitted to select the ‘‘best gaming’’

locations, wouldn’t all tribe want to do that?

It is incomprehensible that the general American public and U.S. Congress would

authorize some Tribes to select the ‘‘best gaming’’ locations in an arbitrary manner

or to the advantage of some Tribes over others. To enact legislation with a process

where one Tribe is allow significant advantage over other Tribes has the appearances of ‘‘conquer and divide the Indian nations.’’ A probable ‘‘backlash’’ against Indian gaming would assuredly ensue and a disruption in intertribal relations would

become common place.

An overwhelming compelling argument by some Tribes to be allowed an advantage of a ‘‘best location’’ for a gaming operation would need strong general consensus

by all impacted stakeholders, especially Indian Tribes in the area of taking landinto-trust. Opportunists of every type would initiate contacts with Tribes seeking

‘‘gaming riches’’ near metropolitan areas in the United States. Of course the above

commentary is directed toward the theoretical scenario of allowing some Tribes an

advantage.

a. What about tribes that played by the rules and have their casino

on their reservation land, even though it may not be the best

gaming location?

Commenting on a theoretical scenario of allowing Tribes to shop for a best location for a casino has an element of fear and distrust that is unmistakable. Indian

nations over time and with the evolution of federal Indian policy has, in general,

not strengthened the sovereignty of Indian nations; has not satisfactorily met the

seemingly elusive goals of Indian self-determination and self-sufficiency; and, has

not raised the quality of life, in western standards of living, for the majority of Indian people especially when poverty indicators suggest that Indian people: Have

shorter life spans; have higher rates of infant mortality, suicides, accidental deaths

related to substance abuse, incarceration in jails/prisons, unemployment, etc.; and,

the capital expenditures for education, healthcare, fire protection, law enforcement

services, and other necessary services is declining in proportion to one the fastest

growing ethnic groups in the most recent U.S. Census.

The past cannot be relived and starting point for a scenario of allowing Tribes a

best location must begin with an extensive and open dialogue with Indian Tribes.

Tribes that have played by the rules and operate casinos on their current reservation lands, with not so good of a gaming location, need to express their concerns

at each available opportunity in order add their legitimate interests into cauldron

of concerns and opinions from a wide array of individuals and organization both private and public.

Question 6. Please comment on how the federal campaign contribution

laws apply to tribes and the fact that tribes are exempt from overall

donor limits and can give directly from their treasuries. No other organization is similarly situated.

Tribal governments may need to be subject to the federal campaign contribution

laws, if it is demonstrated that Tribes are violating applicable law, and since some

Tribes have become highly successful and have discretionary funding to advance

their interests at various governmental levels, they have become an added factor in

arena of partisan politics. The Tribal leaders of Indian nations have the responsibility of enacting Tribal law to regulate the levels of campaign contributions also,

this is the essence of Indian self-determination and self-government. Most Tribal

governments have very limited financial resources and Tribal leaders need to be

conscientious of the levels of funding resources in their respective Tribal treasuries.

During the oversight hearing before the House Resources Committee, Chairman

Pombo posed a question to me, as a witness on a panel, ‘‘why did the Northern

Cheyenne Tribe reject Steve Hilliard’s proposal?’’ in reference to a similar proposal

for a land claim settlement in exchange for a casino operation in Denver filed by

the Cheyenne-Arapaho Tribes with the Secretary of the Interior. While I did

respond during the hearing that ‘‘Hilliard stood to profit enormously from the

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proposed casino operation and that the Northern Cheyenne Tribe would be in debt

for long period of time,’’ I felt that I needed to expound on my response to the question.

Steve Hilliard, represented Counciltree and the Native American Land Group (NALG) during the deliberations with the Northern Cheyenne Tribe for the purpose

of proposing a 27 million acre land claim settlement with the United States under

the Ft. Laramie Treaty of 1851 with Cheyenne and Arapaho in exchange for a 500

acre lot near the Denver International Airport to establish a casino operation and

that, among other things, the tribe should also view this settlement as a form of

reparations for the atrocities committed at the Sand Creek Massacre of November

29th, 1864.

The Northern Cheyenne Tribe rejected Steve Hilliard’s proposal because Hilliard proposed that the Northern Cheyenne Tribe circumvent the seven (7) year provision

of IGRA pertaining to the length of management agreements and that NALG would

have total control and that NCT would more or less be just a ‘‘rubber stamp.’’ Moreover, that Hilliard would handle the political end of things through Senator Ted Stevens from Alaska and that the NCT would not have to notify Senator Ben

Nighthorse Campbell of Colorado or any other political contacts. Moreover, I responded to Hilliard during a session with the Northern Cheyenne Tribal Council in Billings that the Ft. Laramie Treaty of 1851 had already been settled by the Northern Cheyenne Tribe, Northern Arapaho Tribe and the Cheyenne—

Arapaho Tribes of Oklahoma with U.S. Indian Claims Commission in the 1960’s.

Secondly, a casino operation can in no way be viewed as a form of reparation for

the atrocities committed at Sand Creek and that only Congress can provide the reparation as promised in Article 6 of Cheyenne and Arapaho Treaty of Little Arkansas

of 1865 and not from proceeds through some ‘‘fly-by-night’’ casino operation. Having already been rejected by the Northern Cheyenne Tribe and the Northern

Arapaho Tribe apparently did not even entertain his proposal, Steve Hilliard again

made his pitch (this time with Cheyenne-Arapaho Tribes of Oklahoma) at a staff

briefing facilitated by Paul Moorehead, Chief of Staff, Senate Indian Affairs Committee held on September 8, 2004 that was attended by the Congressional Delegation from Colorado, Bill Owens, Governor of Colorado and Senator John McCain.

Again, I responded to Hilliard that ‘‘He was doing his best to exploit the pain and

misery of the Cheyenne people (in reference to the Sand Creek Massacre, other acts

of genocide and the desperate economic conditions of the Northern Cheyenne Reservation) and that the Northern Cheyenne Tribe had not been notified as to the filing of the Land Claim Settlement before the Secretary of the Interior,’’ to date to

the Northern Cheyenne Tribe still have not been notified.

Answers to the questions were prepared by William Walks Along, Northern Cheyenne Tribal Council and Steve Brady, Co-Chair, Northern Cheyenne Sand Creek

Massacre Site Committee.

For any further questions please contact Otto Braided Hair at the Northern Cheyenne Sand Creek Office @ Ph (406)477-8026 or e-mail sandcreek@rangeweb.net.

Response to questions submitted for the record by The Honorable

Charles D. Enyart, Chief, Eastern Shawnee Tribe of Oklahoma

Chairman Pombo, thank you for your letter dated May 17, 2005. It was my privilege and honor to present the story of the Eastern Shawnee people and our desire

to return to our aboriginal homeland in Ohio to the Committee in April. As requested, below please find my responses to the specific written questions asked by

Congressmen Jim Gibbons and Dale E. Kildee.

A. Responses to Questions Submitted by Congressman Jim Gibbons

Question 1. You already operate a Bingo and Casino in Oklahoma, sited on

top of the Missouri border yet you are attempting to acquire a tribal

casino in Ohio. It is my understanding that the Governor of Ohio opposes your proposal, is that correct? How will a casino located in Ohio

employ tribal members in Oklahoma?

• In your Chief’s Report available on your web site, he wrote regarding your efforts to acquire tribal gaming in Ohio, declaring

that ‘‘If we are successful, this Tribe will be a very wealthy

Tribe.’’ If you believe your casino proposal is good for the Ohio

community and your tribe, why not build a commercial casino

and compete on a level playing field—under the same labor, wage

and safety rules, anti-corruption oversight and local, state and

federal taxes as other private casinos?

54

Answer to Question 1.

You are correct that the Tribe currently operates an Indian gaming operation. The revenues from our gaming operation, BorderTown Bingo located near West Seneca,

Oklahoma have provided us the means to make improvements in the lives of our

people and to rekindle the hope for a better life for our children and grandchildren.

However, the rural character of the land we now occupy, combined with the economic conditions in the surrounding area, severely restrict our economic potential. However, I disagree that we ‘‘are attempting to acquire a tribal casino in Ohio.’’ The Eastern Shawnee are seeking to return to our aboriginal homeland in Ohio.

One hundred fifty years ago, the Tribe was driven out of its homeland: lands that

now comprise the state of Ohio. The historical record is replete with accounts of destructive raids and the burning of Shawnee villages by the United States Army and

the unauthorized taking of the Shawnee’s lands by encroaching settlers. Our people

were forcibly removed from their villages and relegated to a series of reservations

first in Ohio, then in Missouri, and ultimately Oklahoma. It was an ugly and

shameful period in American history. We want to return to Ohio because Ohio is

our aboriginal homeland. You also assert that ‘‘the Governor of Ohio opposes your proposal.’’ We do no know whether this is the case. Press reports indicate that the Governor is generally opposed to an expansion of gaming in the state. We have not spoken with the Governor, and, to date, we do not know whether he has taken any formal position on

our valid land claims. We do know that many local officials support Shawnee claims

in Ohio.

A casino in Ohio would greatly benefit the Tribe and all Ohioans. As you know,

under the Indian Gaming and Regulatory Act (‘‘IGRA’’), tribal governments determine how gaming proceeds are to be spent. However, IGRA requires that all revenues from tribal gaming operations be used solely for the following purposes: (1) to

fund tribal government operations or programs; (2) to provide for the general welfare of the Indian tribe and its members; (3) to promote Tribal economic development; (4) to donate to charitable organizations; or (5) to help fund operations of local

government agencies. In addition, the Eastern Shawnee may agree to pay local municipalities where gaming will take place to assist them with local costs. Moreover,

Indian gaming is a major catalyst for community growth and economic development,

generating revenues for tribes and local communities like no federal stimulus effort

ever has before. Indian gaming also creates jobs, increases economic activity and

generates tax revenue for local communities. Finally, Eastern Shawnee gaming will

increase tourism in Ohio and reduce the number of persons who travel to West Virginia, Michigan, or Indiana for gaming, keeping more money in Ohio.

You also suggest that the Tribe should ‘‘build a commercial casino and compete

on a level playing field.’’ We are interested in competing on the level playing field

for all tribes already provided for by the Congress in the Indian Gaming Regulatory

Act. Indian gaming, originally part of tribal ceremonies or celebrations, existed long

before Europeans came to America. In 1987, the U.S. Supreme Court recognized a

tribe’s right to conduct certain kinds of gaming on Indian land without state supervision. In 1988, Congress affirmed the right of Indians to conduct gaming operations

with the passage of the Indian Gaming Regulatory Act. IGRA allows tribes to do

exactly what the Eastern Shawnee are seeking—to conduct Indian gaming which

benefits the entire tribal community and surrounding non-Indian communities. In

contrast, commercial gaming only benefits few private individuals. Indian gaming

is the most heavily regulated form of gaming in the United States. Tribal gaming

is regulated on three separate and distinct levels, in contrast to the single level for

other commercial gaming.

We simply seek to ensure that we have the same right as other Indian tribes to

conduct Indian gaming under current law.

Question 2. What criteria should be used by the Department of the Interior

in it’s determination of land-into-trust?

• Should there be a requirement of substantial historical connection between the tribe and the parcel to be taken into trust? Why/

why not?

• How recent should the historical connection be? 100 years? 200

years?

• What about distance from the tribe’s current service area? 10

miles? 20 miles? 70 miles?

Answer to Question 2.

The Department of the Interior should determine which criteria should be considered as part of the land into trust process through the normal process of publishing

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proposed changes to 25 C.F.R. pt. 151 in the Federal Register and soliciting comments. The Tribe reserves its right to make comments concerning changes to the

land-to-trust regulations until such time as the Department of the Interior may

choose to amend those regulations. However, we have the following comments on

your concerns: a. Should historical connections be required? The Congress has already de- termined that tribes can have land taken into trust in settlement of land

claims. Obviously, such lands might be other than those that a tribe has

an historical connection. Requiring a parcel to be one with ‘‘a substantial

historical connection’’ to the tribe would limit the flexibility of all concerned to settle a claim. It could force affected parties to transfer land

into trust which no one preferred. It is hard to see what benefit this

would be to anyone. b. How recent should the historical connection be? Again, we do not agree that only land with a ‘‘historical connection’’ should be available for a

land-to-trust transfer.

However, the legitimacy of our historic and cultural ties to Ohio is undeniable. The facts do not support changing the law. There have only been three instances

in which land outside an Indian reservation have been taken into trust for purposes

of gaming since IGRA was enacted in 1988: (1) in 1990 the Forest County Potawatomi Community in Wisconsin obtained 15.69 acres of land in trust 250 miles

from its reservation through a two-part determination; (2) in 1997, the Kalispel

Indian Community in Washington obtained 40.06 acres of land in trust 60 miles

from its reservation through a two-part determination; and (3) in 2000, the

Keweenaw Bay Indian Community in Michigan obtained 22.00 acres of land in trust

70 miles from its reservation through a two-part determination. IGRA and the landto-trust process are not broken. There is no problem that Congress needs to address.

Question 3. This Committee has held hearings on legislation that would

allow a Tribe to go hundreds of miles off their reservation and open a

casino in the ancestral lands of another Tribe. Do you have any specific

suggestions on how Congress should proceed in this regards?

Also, with over 300 tribes seeking recognition and presumably gaming, please comment on the impact that a policy permitting ‘‘reservation shopping’’ and ‘‘off-reservation gaming’’ will have on communities across the country.

Answer to Question 3.

The Tribe believes that, like every other tribal nation, our situation is unique.

Each tribe and piece of land has its own history. It is very difficult for a tribe with

existing lands to get new, non-reservation contiguous land for gaming. Since 1988,

only 36 gaming or gaming related trust acquisitions have been approved. Only three

tribes have successfully been able to take land into trust and open Indian gaming

facilities on lands that are outside of their reservation boundaries. Each particular

situation must be considered on its own merits. The best way for a tribe to succeed

in securing off-reservation lands into trust for purposes of gaming is where there

are willing parties: with state, tribal, local government, and community support.

The Eastern Shawnee are not ‘‘reservation shopping’’ and view that phrase as a

misnomer. We also do not agree that the ‘‘over 300 tribes seeking recognition’’ are

doing so to conduct gaming, as you suggest. We do not know why certain tribes are

seeking recognition or why certain tribes seek land into trust. However, there are

many important sovereign rights that hinge on federal recognition. Numerous factors come into play—we suggest that gaming is often not one of them. As for the

Eastern Shawnee, we are already a federally recognized tribe. We are pursuing

claims in Ohio because Ohio is our aboriginal homeland.

Question 4. If landless, shouldn’t land-into-trust be restricted to the area

where the tribe is located? Where they live, need jobs, need health care

and services?

Answer to Question 4.

We believe the current exception in IGRA dealing with land acquisitions for ‘‘landless’’ tribes is sufficient and does not need to be amended. However, ‘‘landless’’ tribes

should be consulted on this matter. The Eastern Shawnee is fortunate not to be a

landless tribe. Therefore, we do not feel as though it would be appropriate to comment on statutory changes that do not affect the Tribe. Needless to say, however,

economic development and economic diversification for Tribes and tribal communities are critically important regardless of where that economic engine is located.

The only way for tribes to break the cycle of poverty and achieve self-governance

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is through economic development. Indian gaming has been a crucial and successful

means of providing such a means to achieve tribal self-sufficiency and tribal economic development. It can produce revenues that can be used for jobs, health care

and services for tribal members wherever they reside.

Question 5. If some tribes are permitted to select the ‘‘best gaming’’ locations, wouldn’t all tribes want to do that? What about tribes that played

by the rules and have their casino on their reservation land, even

though it may not be the best gaming location?

Answer to Question 5.

We do not know what tribe you are referring to when you speak of tribes seeking

the ‘‘‘best gaming’ locations.’’ We cannot speak for other tribes. The Eastern Shawnee seek to return to our aboriginal homeland in Ohio. We are not seeking ‘‘some

abstract ‘‘best gaming’’ locations.’’ We are not pursuing claims in New York, for instance. We are seeking to settle our claims to aboriginal lands we once occupied.

One way to do that is to accept lands in settlement of those claims that might be

suitable for gaming.

We disagree with your suggestion that certain tribes may not be ‘‘playing by the

rules.’’ To our knowledge, all tribes are playing by the rules as set out by Congress.

Since 1988, only 36 gaming or gaming related trust acquisitions have been approved. Only three tribes have successfully been able to take land into trust and

open Indian gaming facilities on lands that are outside of their reservation boundaries. Thirty applications for gaming or gaming related acquisitions are pending,

only ten of which involve so called ‘‘off reservation’’ acquisitions. These numbers are

minuscule given the fact that there are more than 560 federally recognized tribes

in the United States. All these tribes have played by the rules as created by Congress and implemented by the Department of the Interior. We are simply seeking

to ensure that we have the same right as other Indian tribes to conduct Indian gaming under current law.

Question 6. Please comment on how the federal campaign contribution

laws apply to tribes and the fact that tribes are exempt from overall

donor limits and can give directly from their treasuries. No other organization is similarly situated.

Answer to Question 6.

We do not see how this question is relevant to scope of the April 27, 2005, hearing

on ‘‘Tribal Proposals to Acquire Land in Trust for Gaming Across States Lines, and

How Such Proposals are Affected by the Off Reservation Discussion Draft Bill’’ or

my testimony before the Committee. Nevertheless, we answer generally as follows.

Indian tribes engage in a government-to-government relationship with the United

States and represent a number of tribal people, thus they are defined as an unincorporated entity according to the Federal Election Commission (‘‘FEC’’). This relationship makes tribes unique. As such, Indian tribes are generally able to donate to

election funds assuming that each donation does not exceed the limits set by the

FEC.

A tribe may use its general treasury funds to contribute directly to federal candidates (and to Indian PACs which will give to federal candidates), under the following conditions: (1) the tribe is unincorporated and its primary purpose is not to

make political contributions; (2) the tribe, or any business operated within the tribal

structure, is not a federal contractor with procurement contracts; (3) any revenues

from a tribal corporation must not be commingled with tribal treasury funds to be

used to make contributions to federal candidates; and (4) the federal funds the tribe

receives under Pub. L. 638 contracts and federal grants must be kept separate from,

and not commingled with, general treasury funds to be used for federal contributions. If the above conditions are met, the tribe may use its general treasury funds

to contribute ‘‘hard’’ money, subject to the same federal limits that apply to any person’s contributions. ‘‘Hard’’ money contribution limits apply to tribes because a tribe

is treated as a ‘‘person’’ under federal election law, but not as an ‘‘individual’’ for

the purposes of the applicable federal aggregate limits.

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B. Responses to Questions Submitted by Congressman Dale E. Kildee

Question 1. Please explain whether you believe the current federal admin- istrative process for taking land into trust and those requirements of

the Indian Gaming Regulatory Act are sufficient to prevent a tribe

from building a gaming facility on land far away from its existing reservation where the tribe may not have an historical or ancestral connection to the land?

Answer to Question 1.

We believe the current law and the current process work as intended. The Tribe

further believes that, like every other situation, ours is unique. Each piece of land

has its own history and so it is with each tribe. Each particular situation must be

considered on its own merits. This process works.

Question 2. Do you believe a tribe should have an historical connection to the land on which it seeks to building a gaming facility?

Answer to Question 2.

Again, we believe that like every other situation, ours is unique. Only so many tribes have a historic or cultural connection to any given state. Each piece of land

has its own history and so it is with each tribe. Each particular situation must be

considered on its own merits.

For the Eastern Shawnee, there is no question that Ohio is our homeland. The

Eastern Shawnee seek to reestablish a presence in Ohio as part of a welcome and

mutually beneficial relationship conducted on a government-to-government basis

both with the State and the local governments that may one day be our neighbors

once again. We do wish to finally resolve our outstanding land claims, but not in a manner that will be detrimental to the people of Ohio. Those with whom we have established a relationship understand our intentions and have welcomed us into their

communities to discuss the potential for tribal gaming. In fact, local communities

in the state of Ohio have actively sought out the Tribe and asked us if they can

help bring the Shawnee back to our homeland. We are committed to working

through appropriate governmental channels in Ohio to ensure that we are welcomed

back to our homeland. We do not believe a tribe need have a historical connection

to the specific parcel of land on which a gaming facility is sited. To so require, would

tie the hands of all those involved in attempting to settle claims. It might require

the displacement of current owners of historical land rather than allowing flexibility

in choosing land to settle the claims.

Question 3. What would you recommend as the standard for determining whether a tribe has an historical connection to the land?

Answer to Question 3.

We do not believe we are in a position to suggest a ‘‘standard’’ for determining whether a tribe has ‘‘an historical connection to the land.’’ Many factors may come

into play. For instance, issues such as whether a tribe had a reservation, villages,

or hunting and fishing rights in a particular state may be relevant. Each particular

situation is unique must be considered on its own merits.

Question 4. Should a tribal land claim resolved by the Indian Claims Commission, Court of Claims, Congress or other forum involving land in a

state where a tribe once occupied, but is no longer situated, prevent a

tribe from claiming that it has an historical connection to that land for

purposes of building a gaming facility there?

Answer to Question 4.

‘‘Land claims’’ per se were not resolved by the Indian Claims Commission. The

Indian Claims Commission had limited jurisdiction. The Commission was created by

the Indian Claims Commission Act of 1946, 25 U.S.C. § 70 et seq., in order to resolve

claims for compensation for lands that were taken by the United States from tribes

without just payment. Tribes, and the persons who advanced claims on behalf of

tribes, had to present evidence of aboriginal use and occupancy of lands that were

normally memorialized in findings of fact of the Commission. If the Commission

found evidence of exclusive use and occupancy for a certain period of time, the Commission would normally award some nominal compensation. However, the Indian

Claims Commission’s final orders only dealt with compensation, not determinations

of unresolved land claims, land title or use rights.

For instance, the Indian Claims Commission was not empowered to resolve claims

concerning violations of the Nonintercourse Act, 25 U.S.C. § 177, or claims

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concerning trespass or wrongful possession. There is no federal statute of limitations

governing federal common-law actions by Indians to enforce property rights. Therefore, we do not believe that the Indian Claims Commission should be used as a vehicle to deny an ‘‘historic connection’’ to land. However, Commission findings of fact

concerning use and occupancy of lands by tribes may be considered as a factor,

among others, that Congress or the Department of the Interior may wish to consider

as evidence of historical connection to a particular place.

Question 5. Please describe any tribal claims against the federal government that have been initiated by your tribe or resolved by the Indian

Claims Commission, Court of Claims, Congress or any other forum arising in the state in which you propose to build a gaming facility?

Answer to Question 5.

Because the Tribe may end up in litigation concerning its claims in Ohio, we do

not believe it would be appropriate for the Tribe to discuss these matters in detail

at this time. However, some claims were initiated by persons acting as representatives of the Eastern Shawnee, the Absentee Shawnee, and individual members of

the Shawnee Tribe. See generally, ICC Docket No.64, 64-A, 335 and 338. As discussed below, in that litigation the Indian Claims Commission did determine that

the Shawnee aboriginally used and occupied vast areas of what is now the state of

Ohio. Additional research also supports that determination.

The areas found to be Eastern Shawnee lands included what is know as Central

Royce Area 11. This area is bounded on the east and the south by the Ohio River,

on the west by the drainage between the Scioto River and the Great Miami and little Miami Rivers (which may be described as a north/south line from northeastern

Logan County on the Greenville Treaty line to the southeastern corner of Brown

County on the Ohio River), and on the north by the Greenville Treaty line from a

point in northeastern Logan County east to the northeast corner of Knox County.

Strong v. United States (Dkt. Nos. 64, 335 & 338), 31 Ind. Cl. Comm. 89, 157 n.

6 (1973), Strong v. United States, 518 F.2d 556 (Ct. Cl. 1975), cert. denied, 423 U.S.

1015 (1975). The predominant topographical feature of this region is the Scioto

River which flows into the Ohio River at present-day Portsmith and the Scioto’s

tributaries. Id. In central Royce Area 11 ‘‘the Shawnees were predominant.’’ Id. at

98. ‘‘[T]he Shawnees continuously used and occupied [central Royce Area 11] from

the late 1730s until they were forced to abandon these lands in the late 1770s.’’ Id.

at 122. Until they were forced out in the late 1770s, the Indian Claims Commission

concluded that ‘‘the Shawnees had established Indian title to the area bounded on

the north by an east-west line running along the 40 north latitude and on the south

by a straight line running from the City of Athens in Athens County west to the

town of Highland in northern Highland County, and bounded on the east and west

by the lines described in the aforementioned footnote as the east-west boundaries

of central Royce Area 11.’’ Id. at 123, 136.

In addition, the Indian Claims Commission noted that the Shawnee were known

to have hunted extensively in this area and had ‘‘as many as sixteen villages on

the upper Great Miami River and its tributary, the Mad River.’’ Id. at 123. The

Indian Claims Commission also acknowledged that the ‘‘Shawnees are also known

to have hunted extensively in western Royce Area 11. Id. at 125. Moreover, the

Indian Claims Commission noted that archaeological evidence from sites around

Cincinnati indicates the possible presence of Shawnee or Shawnee-related Indians

at an early date in the area (approximately 1660). Id. at 153 n.2. In Docket No. 64-

A, the Indian Claims Commission affirmed Shawnee aboriginal possession and determined that the Shawnee held an undivided one-tenth interest in Royce Area 87

(northwest Ohio). Strong, 43 Ind. Cl. Comm. at 331.

Question 6. Please provide the details if your tribe has shared a judgment

award granted by the Indian Claims Commission, Court of Claims, Congress or any other forum with other bands, tribes or groups for tribal

claims arising in the state in which you propose to build a gaming facility. And, please explain whether you believe those bands, tribes, or

groups, if federally recognized as an Indian tribe, should have the same

opportunity to build a gaming facility in the same area where your

tribe proposes to build a gaming facility?

Answer to Question 6.

Please see answer to Question 5 above. The plaintiffs in the Strong litigation accepted $1,745,146.86, a little more than one dollar an acre, for compensation of the

Shawnee’s exclusive ownership of 1,667,496 acres in present-day Ohio. Strong v.

United States, Findings of Fact On a Compromise Settlement, 40 Ind. Cl. Comm.

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161, 161, 173 (1977) (Dkt. Nos. 64, 335, and 338). The plaintiffs were generally descendants of five ‘‘Shawnee’’ groups, known as ‘‘septs’’. The five septs are as follows:

Chillicothe (Calaka, Chalaakaatha, Chalahgawtha); Hathawekela (Oawikila,

Thaawikila, Thawegila); Kispoko (Kiscopocoke, Kispokotha, Spitotha); Mequachake

(Maykujay, Mekoce, Mekoche); and the Piqua (Pekowi, Pequa). We note that this

settlement has nothing to do with the lands or other claims at issue in our present

claim. The three plaintiff groups involved in the ICC case included the Eastern

Shawnee, Absentee Shawnee, and Cherokee Shawnee. Of these, only two (i.e., Eastern Shawnee and Absentee Shawnee) are federally recognized tribes.

No other tribes have made a claim for lands in Ohio and no other tribe has a similar history of such gross injustice in the state. In addition, the state of Ohio and

the Eastern Shawnee may enter into a compact to limit Indian gaming to just the

Eastern Shawnee on lands that the Tribe may obtain in settlement of its claim. We

do wish to finally resolve our outstanding land claims, but not in a manner that

will be detrimental to the people of Ohio.

Thank you for the opportunity to answer the Committee’s questions.

Response to questions submitted for the record by Craig Foltin,

Mayor, City of Lorain, Ohio

Thank you for your letter of May 17, 2005 seeking my responses to Representative

Gibbons’ questions in follow-up to the Committee’s recent hearing on ‘‘off-reservation’’ gaming. It was a privilege to testify before the House Resources Committee

to present our view that the Indian Gaming Regulatory Act should not be amended

to preclude tribe’s from establishing ‘‘off-reservation’’ gaming facilities. We hope that

our testimony was useful in establishing that there are many good reasons to leave

the door open to Indian gaming in cities such as ours that would welcome a tribe

such as the Eastern Shawnee to re-establish a presence in its aboriginal homeland.

In our view, the complete elimination of such opportunity benefits neither tribal or

state and local governments. As the law stands today, the opportunity exists, but

may only be realized if the ends are desired by tribal, local and state governments.

Accordingly, it is my pleasure to respond to the questions posed by Congressmen

Gibbons.

1. This Committee has held hearings on legislation that would allow a tribe

to go hundreds of miles off their reservation and open a casino in the

ancestral lands of another Tribe. Do you have any specific suggestions

on how Congress should proceed in this regards?

In our view, the law as currently in place, is appropriate and should not be

changed. We believe that it is important for Congress to understand that the proposed changes in the legal framework not only restrict opportunities for Indian

tribes, but also those of state and local governments. In addition to the economic

benefits that a distressed city such as ours would derive from the establishment of

a gaming operation generally, Indian gaming provides certain advantages that are

absent in the context of commercial gaming.

From a public policy perspective, a major issue in relation to commercial gaming

is the question of how to limit proliferation. While some communities might embrace

the establishment of a gaming destination, many of these same communities would

not approve of multiple sites or the introduction of gaming machines in every bar

or restaurant. Moreover, the greater the number of gaming locations, the greater

the regulatory burden and the potential for abuses. However, it is more difficult to

place legislative parameters on the proliferation of commercial gaming given Constitutional and other legal constraints.

If you were to proceed with changes, I would suggest an allowance for off reservation gaming if approved by the local government or even a vote of the citizens of

a local government.

• Also, with over 300 tribes seeking recognition and presumably

gaming, please comment on the impact that a policy permitting

‘‘reservation shopping’’ and ‘‘off-reservation gaming will have on

communities across the country.

Use of the term ‘‘reservation shopping’’ presumes that tribes are unilaterally seeking to establish gaming operations outside of their present geographic locations. In

the case of the Eastern Shawnee, it was the City of Lorain that made the initial

contact with the Tribe. The fact that the law provides a means for a tribe to return

to its aboriginal homeland also provides a means for cities and states to reach out

to tribes to establish political and economic relationships of mutual benefit to both

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parties. I again would suggest allowing the local government to have a choice in the

matter.

2. When tribes seek to enter already established gaming areas, doesn’t that

create an uneven playing field since tribes art not subject to state regulations; are not subject to the restrictions placed on other gaming establishments; do pay not state taxes; etc.?

As there are no federally recognized Indian tribes located within the State of

Ohio, the issue of having a tribe enter an established gaming market of another

tribe is not applicable to our particular situation. Ohio state law, however, does provide for a state lottery, horse racing, and charitable gaming. Since the establishment of Class III tribal gaming requires a tribal-state compact, however, the state

has a means to work with the Tribe to resolve any issues that may arise in relation

to competition among the various gaming interests in Ohio. As to state regulation,

the requirement for a tribal-state gaming compact in the IGRA serves as a mechanism for the tribe and a state to mutually agree upon the scope of state regulation,

hence IGRA does provide a mechanism for state regulation in relation to tribal gaming. On the tax issue, it is true that tribes may not be taxed by state and local governments, but tribes as a routine matter compensate state and local jurisdictions

for the delivery of governmental services by means of payments in lieu of taxes and

IGRA permits revenue sharing with states to off-set the regulatory costs associated

with tribal gaming facilities pursuant to mutual agreement through the compacting

process. Moreover, tribes and states and local governments routinely enter into additional compacts to address other taxation issues, such as the collection and remittance of state taxes on employees of tribal gaming operations as tribal employees

are not exempt from state and federal income taxes as a general rule. In our case,

we have addressed these concerns with the Eastern Shawnee Tribe to our mutual

satisfaction.

3. What criteria should be used by the Department of the Interior in it’s

determination of land-into-trust?

We understand that the Interior Department has a longstanding regulatory

framework for taking land into trust for tribes and has issued a proposed rule governing the taking of land into trust for tribes for purposes of gaming under Section

20 of IGRA. We believe that the policies reflected in the existing regulatory framework as well as in the proposed Section 20 regulation adequately address concerns

in this regard.

• Should there be a requirement of substantial historical connection between the tribe and the parcel to be taken into trust? Why

or why not?

We understand that the Interior Department at least informally already requires

such a connection and can readily address this issue through the rulemaking process.

• How near in time should the historical connection be? 100 years?

200 years?

Our view is that any specific requirement for a historical connection should not

be subject to an arbitrary timeframe, but rather be focused on whether the area constitutes the aboriginal territory of the tribe. We understand that the Indian Claims

Commission decades ago established a map demarcating the aboriginal territories

of tribes based on archeological and anthropological data. This information could be

used as a basis for determining an historic nexus between tribes and particular

sites.

• What about distance from the tribe’s current service area? 10

miles? 20 miles? 70 miles?

Such a limitation on distance would preclude the Eastern Shawnee Tribe from establishing a gaming facility in the City of Lorain or any other site in Ohio. Accordingly, we would not be supportive of a distance restriction.

• Do you believe that the farther away the casino site is, the less

likely tribal members will be able to take advantage of employment opportunities with a casino? [Alternatively, if the tribal

members move near the casino to get jobs, then will the traditional community/service area be disrupted?]

In our view, it is true that the City of Lorain would likely derive greater direct

benefits from the establishment of an Eastern Shawnee tribal gaming facility than

will the Eastern Shawnee Tribe in terms of increased employment, jobs, related

business development, increased tourism, and the income tax on employees of the

facility. However, the benefit to the Tribe is that the revenue potential from a facility in the City of Lorain or any site in Ohio is vastly greater than possible if the

61

Tribe were restricted to gaming in its current largely rural and underdeveloped location.

While the City would welcome members of the Tribe and anticipate that some may desire to relocate to work at the facility, we view it as highly unlikely that the

entire general membership would relocate to Ohio. Our view is that the Tribe will

more likely invest its revenues so as to improve the quality of life and economy of

its members residing in Oklahoma. Moreover, we believe that achieving a higher

level of prosperity will strengthen, not weaken the tribal community.

4. If landless, shouldn’t land-into-trust be restricted to the area where the

tribe is located? Where they live, need jobs, need health services?

See previous answer. We believe the Eastern Shawnee have an opportunity not only to dramatically improve its own economic conditions, but those of non-tribal

communities in both Oklahoma and Ohio. Therefore, we believe such restrictions

would not be good and prevent Lorain from improving its own condition.

5. If some tribes are permitted to select the ‘‘best gaming’’ locations, wouldn’t all tribes want to do that?

In our view, all communities want to maximize their economic potential. Such desire, however, is not determinative of whether a tribe will succeed in establishing

an ‘‘off-reservation’’ gaming site. The IGRA contains checks and balances that restrict the capacity of tribes to establish off-reservation facilities where such facilities

are not welcome by the state and local community. The question, thus, is not one

of what a tribe may wish, but rather whether it is able to meet all the legal requirements and establish the political relationships essential to the establishment of an

off-reservation gaming site. Under existing law both tribes and states have the opportunity to establish mutual beneficial relationships; but there is no guarantee that

such opportunity will be realized in the absence of willing parties to the relationship.• What about tribes that played by the rules and have their casino

on their reservation land even though it may not be the best gaming location? All tribes must comply with the law and implementing regulations. The IGRA does not restrict the opportunity for tribes with existing on-reservation sites from

seeking to establish off-reservation gaming sites as well. Again, however, it does not

guarantee any particular tribe success in such endeavor. We feel an Indian Casino

in Lorain, Ohio would not negatively impact any gaming facilitates on any reservations.

6. Please comment on how the federal campaign contribution laws apply to tribes and the fact that tribes are exempt from overall donor limits

and can give directly from their treasuries. No other organization is

similarly situated.

We respectfully decline comment as we are unfamiliar with the law in this regard.

Thank you again for the opportunity to provide additional comments.

Response to questions submitted for the record by John Warren Kindt, Professor, University of Illinois

Question 1: This Committee has held hearings on legislation that would allow a tribe to go hundreds of miles off their reservation and open a

casino in the ancestral lands of another Tribe.

• Do you have any specific suggestions on how Congress should

proceed in this regard?

• Also, with over 300 tribes seeking recognition and presumably

gaming, please comment on the impact that a policy permitting

‘‘reservation shopping’’ and ‘‘off-reservation gaming’’ will have on

communities across the country.

Response: The honorable Member raises salient questions concerning the extensive and rapid spread of tribal gambling facilities and their negative impacts upon

the U.S. economy and population. One option for Congress is to enact legislation

eliminating land-into-trust and prohibiting reservation shopping. Experts have

maintained that eliminating land-into-trust is the only workable solution.

Another option which would eliminate the many abuses of the Indian Gaming

Regulatory Act (IGRA) would be to repeal this problematic legislation. For a recent

example, the case of Dalton v. Pataki,——N.E.2d——, 2005 WL 1017641 (N.Y. Ct.

App., May 3, 2005) is currently scheduled for appeal to the U.S. Supreme Court,

because it apparently held that IGRA preempted and superseded the ban on

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gambling mandated in the New York Constitution (see N.Y. Const., Art. I, sec. 9).

Congressional hearings on the option of repealing IGRA would also provide opportunities to delimit practical alternatives to IGRA.

Jointly and severally to acting on eliminating land-in-trust and/or IGRA, Congress

should enact the National Tribal Gambling Impact Study Commission as proposed

by U.S. Representatives Christopher Shays, Frank Wolf, et alia.

Economics codifies that a nation cannot gamble itself rich. Furthermore, summary

analyses of the socio-economic costs of gambling have continued over the years to

conclude that the cost/benefit ratios for gambling activities are $3 in costs for every

$1 in benefits (see Table of Studies from 22 Manag. & Decision Econ. 143, 153

(2001) which is attached to Prof. Kindt’s testimony of April 27, 2005). In this context, proposals to spread tribal casino gambling would be rejected by objective analysts.

Activities which are commonly termed ‘‘reservation shopping’’ and ‘‘off-reservation

gaming’’ coalesce as attempts to locate close to major population areas with as many

slot machine/electronic gambling devices (slots/EGDs) as can be negotiated. These

machines constitute 70 to 100 percent of casino gambling revenues—except most notably in Las Vegas where this percent has had traditional limits (e.g., 50 percent)

to keep card games with a viable market share. The Final Report of the 1999 National Gambling Impact Study Commission noted that these machines were delimited by the psychological community as the crack-cocaine of gambling addiction (see,

e.g., NGISC Final Report at 5-5) and recommended that these machines not be located convenient to the public and that states ‘‘should cease and roll back existing

operations’’ (NGISC recommendation 3.6).

The honorable Member notes that there are currently ‘‘over 300 tribes seeking

recognition and presumably gaming,’’ but these 300 tribes would only be the first

wave of off-reservation gambling. Accordingly, reservation shopping and off-reservation gambling would be extremely detrimental to the host communities in the casinos’ feeder markets and to the entire U.S. strategic economy.

Question 2: When tribes seek to enter already established gaming areas,

doesn’t that create an uneven playing field since tribes are not subject

to state regulations; are not subject to the restrictions placed on other

gaming establishments; do not pay state taxes; etc.?

Response: This question lists only some of the competitive advantages which

tribal gambling establishments have over nontribal gambling establishments and

also over nongambling businesses trying to compete for consumer dollars. Regarding

one topic of the Committee’s April 27 hearing, local business and community opposition was evidenced by 9,000 petitions against the Ho-Chunk casino proposal for the

Lansing/Lynnwood area of Illinois (Chicago Tribune, Oct. 16, 2004, at 16). On February 17, 2004, a similar Ho-Chunk casino proposal was defeated by a 65 to 35 percent vote of the University of Wisconsin academic community in Madison, Wisconsin—despite a $1.3 million Ho-Chunk campaign against little organized opposition (see, e.g., Judith Davidoff, Defeated, Ho-Chunk to Refocus, Capital Times

(Madison, Wis.), Feb. 18, 2004, at A1).

Tribal leaders with gambling operations have been outspoken about protecting

these competitive advantages via expanding the scope of tribal sovereignty. States

such as Minnesota have experienced difficulties and friction in their dealings with

tribes over their casinos and the practical inability to adjust compacts. The National

Gambling Impact Study Commission complained about the ‘‘unwillingness of individual tribes, as well as that of the National Indian Gaming Association (the tribe’s

lobbyists) and the National Indian Gaming Commission (the federal agency that

regulates tribal gambling), to provide information to this Commission, after repeated requests and assurances of confidentiality, ‘‘.’’ (NGISC Final Report at 7-9).

If enacted, the proposed legislation for a National Tribal Gambling Impact Study

Commission could address these issues.

Question 3: What criteria should be used by the Department of the Interior

in it’s determination of land-into-trust?

• Should there be a requirement of substantial historical connection between the tribe and the parcel to be taken into trust? Why/

why not?

• How recent should the historical connection be? 100 years? 20

years?

• What about distance from the tribe’s current service area? 10

miles? 20 miles? 70 miles?

• Do you believe that the farther away the casino site is, the less

likely tribal members will be able to take advantage of

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employment opportunities with a casino? [Alternatively, if the

tribal members move near the casino to get jobs, then will the

traditional community/service area be disrupted?]

Response: This question poses many of the issues which arise involving the Department of Interior’s determination of land-into-trust. One option for serious consideration would be legislatively to eliminate land-into-trust because it is an unworkable concept when linked with gambling. Each of the honorable Member’s questions raises definitional issues which have inherent ambiguities, such as: What constitutes a ‘‘substantial historical connection’’? The lobbying power of tribal gambling

interests vis-a ́-vis social welfare groups almost guarantees that the ambiguities inherent in land-into-trust issues will be decided in favor of expanding tribal gambling

to the public detriment. Legislatively eliminating land-into-trust (or at least, prohibiting gambling on any land-into-trust properties) would appear to eliminate these

issues.

With regard to jobs for Native Americans via tribal gambling facilities, a study

sponsored by the Associated Press has raised significant doubts about job benefits

to most Native Americans (see, e.g., Assoc. Press, Casino Boom a Bust for Most

Members of Indian Tribes, News-Gazette (Champaign, Ill.), Sept. 2, 2000, at A1).

The issue of a tribal casino’s distance from the tribe’s main population base would

argue for less impact on tribal unemployment, particularly since middle and upper

management positions reportedly tend to be filled by nontribal employees. However,

the main job impact involves lost jobs in the consumer economy ‘‘feeder markets.’’

These lost jobs to the pre-existing consumer economy significantly outnumber the

jobs created by the tribal casino (because of the reliance of tribal casinos, in particular, on slots/EGDs). These lost jobs in the consumer economy correlate to the

numbers of slots/EGD machines.

It has also been postulated that absent tribal gambling, none of the aforementioned definitional issues is really an issue. These concerns argue for the enactment

of the proposed National Tribal Gambling Impact Study Commission.

Another legislative option would be to repeal the Indian Gaming Regulatory Act

and transform the existing gambling facilities into educational and practical technological facilities. Such an option may have to survive a challenge to the U.S. Supreme Court, but given the many abuses linked to IGRA and the socio-economic arguments, California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) may

be ripe to be overturned. Since IGRA was drafted and enacted on a fast track the

year after Cabazon, IGRA’s multiple defects should have been expected. Congress

should consider repealing IGRA in anticipation of new legislation tempered by two

decades of problematic experience.

Question 4: If landless, shouldn’t land-into-trust be restricted to the area

where the tribe is located? Where they live, need jobs, need health care

and services?

Response: It would seem logical that land-into-trust should be restricted to

where the tribe is located if the tribe is landless, but how is the ‘‘location’’ of a landless tribe initially to be delimited? Given the historical roaming of many tribal

bands, it would be unusual if a band could not find some historical connection to

one or more of today’s population centers.

The more important problem with landless tribal members is that tribal members

can claim that individual bands should have tribal status or that even individual

Native Americans should be recognized as a tribe.

Theoretically, numerous Native Americans could eventually claim distinctions

under their tribal law that argued for tribal status as separate bands, and it would

be reasonable to anticipate new landless small bands or even individuals involved

in future reservation shopping. Prodding this trend would be millions of dollars in

incentives to establish Native American gambling facilities as close as possible to

population centers. Tribes with three members or a few dozen members have already been recognized (see, e.g., Donald L. Barlett & James B. Steele, Look Who’s

Cashing In At Indian Casinos: Hint: It’s Not The People Who Are Supposed To Benefit, Time, Dec. 16, 2002, at 46 (cover story)).

In the instance of the Ione Band of Miwok Indians, the Bureau of Indian Affairs

(BIA) reportedly opened the membership roles in 2004 and ‘‘Among the new members are several BIA employees and dozens of their relatives.’’ (Don Thompson,

Assoc. Press, Seattle Times, Feb. 23, 2004).

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Question 5: If some tribes are permitted to select the ‘‘best gaming’’

locations, wouldn’t all tribes want to do that?

• What about tribes that played by the rules and have their casino

on their reservation land, even though it may not be the best

gaming location?

Response: From the perspective of the operators of tribal gambling facilities, the

U.S. population centers constitute the prime gambling locations. By whatever justification or rationale, the ‘‘fairness’’ of allowing one tribe vis-a ́-vis another tribe to

conduct gambling in the U.S. population centers needs to be weighed against the

overall detriment to the consumer economy and increased criminal costs (summarized previously as $3 in costs for every $1 in benefits).

Related problems involve many tribes with gambling who are diverting their surplus cash (or even cash which should be used to benefit their own members) to seek

out and use other tribes as conduits for reservation shopping. For example, the Iowa

tribe of Kansas and Nebraska, a small Kansas tribe with a few hundred members,

is proposing to move their casino 236 miles from their reservation in northeast Kansas to Park City, which borders Wichita, the largest city in Kansas. Approximately

700,000 people live within the 50-mile feeder market of the proposed casino. However, the Mashantucket Pequot tribe of Foxwoods, Connecticut, will provide the necessary $270 million financing and operate the casino. To date, the Kansas legislature, the Wichita City Council, and the Sedgwick County Commission have shown

no interest in this proposed casino. Kansas Governor Kathleen Sebelius has therefore refused to engage in compact negotiations with the tribe—despite the efforts of

the casino promoter retained by the tribe, a former Wichita mayor (see generally,

Glenn O. Thompson, Casino Plan a Threat to Community, Wichita Eagle (Kan.),

May 12, 2005).

Question 6: Please comment on how the federal campaign contribution

laws apply to tribes and the fact that tribes are exempt from overall

donor limits and can give directly from their treasuries. No other organization is similarly situated.

Response: The honorable Member notes ‘‘that tribes are exempt from overall

donor limits and can give directly from their treasuries.’’ The potential abuses have

increased exponentially since the article in 556 Annals of the Am. Acad. of Political

& Soc. Sci. 85 (1998). See also, e.g., Editorials, N.Y. Times, Mar.1, 2002 & Apr. 4,

2002; Susan Schmidt, Wash. Post, Feb. 22, 2004. These types of concerns argue further for the need for a National Tribal Gambling Impact Study Commission and for

the elimination of land-into-trust gambling acquisitions.

NOTE: Responses to questions from Wade Blackdeer, Vice-President, Ho-Chunk

Nation, and William Blind, Vice-Chairman, Cheyenne and Arapaho Tribes of

Oklahoma, have been retained in the Committee’s official files.

Æ