S. HRG. 109–92

TRUST LANDS

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

OVERSIGHT HEARING ON TAKING LANDS INTO TRUST

MAY 18, 2005

WASHINGTON, DC

(
TRUST LANDS
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21–427 PDF 2005

S. HRG. 109–92

TRUST LANDS

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

OVERSIGHT HEARING ON TAKING LANDS INTO TRUST

MAY 18, 2005

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman

BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

MICHAEL D. CRAPO, Idaho

RICHARD BURR, North Carolina

TOM COBURN, M.D., Oklahoma

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

DANIEL K. AKAKA, Hawaii

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

JEANNE BUMPUS, Majority Staff Director

SARA G. GARLAND, Minority Staff Director

(II)
(III)

C O N T E N T S

Page

Statements:

Crosby, David, Santa Ynez, CA ....................................................................... 18

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

Committee on Indian Affairs ....................................................................... 2

Inouye, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 2

Jandernoa, Mike, 23 Is Enough ...................................................................... 16

Martin, James T., executive director, United South and Eastern Tribes,

Inc. ................................................................................................................. 14

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

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

Skibine, George T., acting deputy assistant secretary for policy and economic development, Office of Indian Affairs, Department of the Interior .................................................................................................................. 4

Sprague, David K., chairman, Gun Lake Tribe ............................................. 12

Shagonaby, John, tribal council treasurer, Gun Lake Tribal ....................... 12

APPENDIX

Prepared statements:

Cowlitz Indian Tribe ........................................................................................ 33

Crosby, David (with attachment) .................................................................... 41

Friedman, Robert H., general counsel, Empire Resorts (with attachment) 121

Jandernoa, Mike (with attachment) ................................................................ 51

Jandreau, Michael B., chairman, Lower Brule Sioux Tribe (with attachment) .............................................................................................................. 367

Kildee, Hon. Dale E., U.S. Representative from Michigan ........................... 27

Martin, James T. (with attachment) ............................................................... 185

Santa Ynez Valley Concerned Citizens, Preservation of Los Olivos, and

Preservation of Santa Ynez .......................................................................... 368

Skibine, George T. ............................................................................................ 28

Sprague, David K. (with attachment) ............................................................. 218

Toledo, Jr., Michael, Governor, Pueblo of Jemez, New Mexico .................... 30

(1)

TRUST LANDS

WEDNESDAY, MAY 18, 2005

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The committee met, pursuant to notice, at 9:30 a.m. in room 216,

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

Present: Senators McCain, Dorgan, and Inouye.

The CHAIRMAN. Good morning.

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

ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

In 1934, the Indian Reorganization Act provided broad discretionary authority to the Secretary of the Interior to take land into

trust for Indian tribes. This authority was given the Secretary to

counter the devastating effects of the General Allotment Act under

which Indian tribes lost over 90 million acres of land between 1887

and 1934. Once held in trust by the United States, the property is

considered Indian country, subject to Federal and tribal law, and

in most circumstances State and local laws and regulations do not

apply, including zoning and tax laws.

One particular application of the authority to take land into trust

that is unclear to many is how the process is applied to land that

is outside reservation boundaries. When the purpose of that off-reservation trust land will be the establishment of a gaming facility,

the impacts on surrounding communities are even greater and the

need for clarity is at its highest.

Under the Indian Gaming Regulatory Act, trust lands outside of

a reservation are generally not eligible for gaming if acquired after

October 17, 1988, the date IGRA was enacted. However, IGRA provides four exceptions to the ban on gaming on post–1988 lands. In

recent years, this committee has been informed of numerous attempts to use these exceptions, including the exceptions for settlement of land claims and for initial reservations, to obtain casinos

far from Indian reservations, sometimes in other States.

Many Indian tribes are finding that concerns about whether

lands should be taken into trust for gaming purposes is impacting

all land decisions of the BIA, with many applications for non-gaming purposes taking years to be approved.

I believe it is time this committee reviewed these exceptions to

determine if they are being used as we originally intended in 1988.

Today, the committee will hear from a variety of witnesses to in-
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form us on how the land-into-trust process works and how IGRA

impacts that process.

Vice Chairman Dorgan.

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

NORTH DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN

AFFAIRS

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

Often when people are unfamiliar with these issues, think of

land-into-trust, they think immediately of gaming. That is the case

in some circumstances, but not in most circumstances. In most circumstances, gaming has almost nothing to do with land-in-trust,

and I think the Chairman described accurately that we ought to be

interested and concerned with respect to land-into-trust for gaming

and make sure we understand what the circumstances are in that

situation. But we also need to understand there are legitimate reasons for tribes to take land into trust for economic development

and other reasons, and the interminable delay that often exists

now is very troublesome.

During a 15-year period, 46,000 acres of land were taken out of

trust in the Aberdeen area, which is our area, and 18,000 acres

placed in trust. So the fact is, more land is taken out of trust than

in trust in our region for many reasons: interstate landowners with

non–Indian heirs and members selling lands to pay unexpected

medical bills. The list goes on and on. But the fact is, many of the

fee-to-trust applications are for essential government services these

days, for housing, for education issues, and other purposes.

I just think when we look at reservations in my State and others,

we see conditions that exist in Third World countries. Whether it

is housing, health care or education, we need to provide the tribes

the tools with which to address these issues. In some cases, those

tools represent the ability to take land into trust, that is exclusive

of gaming.

When gaming is involved, there is another set of issues, but I

really hope that with this hearing we will understand that much

of this issue deals not with gaming, but with opportunities and

needs of tribes for economic development and for other things that

would address the circumstances of their daily living and the circumstances of the economies that their citizens face.

I think this is an important hearing being held at an important

time. I hope that we will be able to glean some very good information from some excellent witnesses today, Mr. Chairman.

The CHAIRMAN. Thank you.

Senator Inouye.

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

HAWAII

Senator INOUYE. I thank you very much, Mr. Chairman. I commend you for holding this hearing because this hearing is about

more than trust applications. It is about the Federal Government’s

obligation to Native America.

The Secretary of the Interior was purposely vested with the authority to take land into trust to reverse the negative consequences

of the Allotment Act and other Federal and State actions which
3

stripped Indian tribes and individuals, as noted by the chairman,

of over 90 million acres of land.

Unfortunately, the stripping of Indian lands has not stopped. According to the Department’s own documents, more land is being

taken out of trust for individuals than is being placed in trust for

tribes. It is sad to note that there is no opposition to this movement.

Indian tribes, as we have noted, must go through a very lengthy,

rigorous process to place lands into trust, including the granting of

an opportunity to State and local governments to insist upon the

application of strenuous environmental regulations. This can and

has taken years, requiring the tribes to pay taxes on governmentowned lands. Sometimes tribes are required to repeatedly update

environmental reports because of our government’s delay in processing the application.

But no such process exists for taking land out of trust. Critics

argue that a more stringent process is necessary because State and

local regulations will not apply to the land being taken out of trust.

But those same critics ignore that generally applicable Federal

land regulations apply to those lands, as do the laws and regulations of the tribe.

History has shown that tribes are and want to be good neighbors.

They want to provide governmental services to their members and

neighbors, while ensuring that their land will be there for future

generations. Although I do not personally support gaming, I served

as the primary sponsor of the Indian Gaming Regulatory Act because of the matter of sovereignty. Congress anticipated the taking

of lands into trust for gaming purposes and imposed even more

stringent requirements. But I also would like to note that there are

those tribes who are still waiting for a decision and those applications were submitted long before Cabazon.

A most recent example of this process is the Gun Lake Tribe,

which is testifying here this morning. The tribe has complied with

a lengthy and exhaustive Federal administrative process for placing lands within the tribe’s long-time aboriginal homeland into

trust for gaming purposes. After four years, the Department indicated its intent to place the land into trust for the tribe, and now

there is a 30-day public comment period.

I hope that as this issue is addressed, the committee also addresses the continued loss of trust lands, and considers the potential cost to tribes because of the delay in processing applications.

I believe the native peoples of this land have given enough.

I thank you, Mr. Chairman, for scheduling this hearing. I appreciate it.

The CHAIRMAN. Our first witness is George Skibine, an old friend

of the committee’s, who is the acting deputy assistant secretary for

policy and economic development in the office of Indian affairs in

the Department of the Interior. Welcome back, sir.
4

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

INTERIOR

Mr. SKIBINE. Good morning, Mr. Chairman, Mr. Vice Chairman,

Senator Inouye. I am George Skibine. I am the acting deputy assistant secretary for policy and economic development for Indian affairs in the Department of the Interior.

I am also the director of the office of Indian gaming. I am pleased

to be here today to discuss the role of the Department in taking

land into trust and the procedures used when the land is for gaming purposes.

My testimony will be part of the record. I will essentially summarize a few points in a few minutes that we make in the testimony.

I think, Mr. Chairman, you gave a good background on the IRA,

so I am going to skip over that. The IRA, the Indian Reorganization Act, is essentially the fundamental authority that we use to

take land into trust for Indians. We have promulgated regulations

in 25 CFR Part 151 that implement the Indian Reorganization Act,

Section 5.

Essentially, let me quote from Justice Ginsburg, who stated in a

recent opinion in City of Sherrill v. Oneida Indian Nation regarding the regulations, who said:

The regulations implemented, 25 U.S.C. 465, are sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over

territory. Before approving an acquisition, the Secretary must consider, among other

things, the tribe’s need for additional land, the purposes for which the land will be

used, the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls, jurisdictional problems, and potential conflicts

of land use which may arise.

That is a good summary that the court made of our process for

taking land into trust under the 151 regulations.

In addition, let me point out that the BIA must also determine

whether it is equipped to discharge its additional responsibilities

resulting from the acquisition of land into trust. We must also comply with the requirements of the National Environmental Policy

Act.

The authority to approve land into trust on reservations for nongaming purposes is delegated to regional directors of the BIA.

When a tribe seeks to have, or an individual Indian seeks to have

land taken into trust under the Indian Reorganization Act, it will

submit an application to the BIA and that application will be processed by the regional office or the agency that is responsible for

this process, and appropriate State and local officials will be consulted regarding their views on the potential effects of this acquisition. So there is a consultation process.

We try to encourage the process to be very transparent so that

the affected communities will be given ample opportunity to comment. If the application is for gaming, then the authority has been

reserved since 1990 when Secretary Lujan issued an order saying

that the central office, essentially the assistant secretary for Indian

affairs, would have the authority to approve gaming-related acquisitions. In 2001, we extended that to not only gaming acquisitions,

but gaming-related acquisitions.
5

What happens then is when an application is submitted, it is still

processed by the regional office. They will do compliance with

NEPA. They will do the consultation required, but if gaming is a

stated purpose of the acquisition, then they will eventually have to

consider whether section 20 of the Indian Gaming Regulatory Act

has been complied with.

As you know, section 20 is a prohibition on gaming on lands acquired in trust after October 17, 1988, but it contains several exceptions. The major exception is if the land is on or contiguous to

the reservation. But it contains other exceptions that essentially include whether the land is acquired for the settlement of a land

claim; whether the land is a restored land for a restored tribe; or

whether the land selected is the initial reservation of an Indian

tribe pursuant to the Federal acknowledgment process.

When that happens, we will make a determination as to whether

the land that is sought to be acquired that is off-reservation qualifies under one of these exceptions. Depending on whether it qualifies or not, then we will advise the regional office on how to proceed. If none of the specific exceptions apply, then there is an exception that authorizes gaming on the land that is acquired in

trust after October 17, 1988 if the secretary after consultation with

appropriate State and local officials and tribes, makes a determination that the gaming establishment is in the best interest of the

tribe and its members and is not detrimental to the surrounding

community.

We have in this Administration approved I think nine gaming

applications altogether under all of these exceptions, including onreservation. I think they are listed in my testimony. And then we

have, I think, about 10 applications pending for off-reservation acquisitions under gaming that do not qualify under any of the specific exceptions, but have to go through two-part determination.

I think this Administration has approved two such two-part determinations. In both cases, the Governor must concur in the determination and has refused to do so, so in fact that has not happened

in this Administration. Overall, since 1988 only three tribes have

qualified under that section of IGRA, the section 20(B)(1)(a) exception.

To help the regional office implement gaming acquisition, we

have issued a checklist for gaming acquisition back in 1994. We updated this checklist in 1997. We updated it again in 2001. We did

a recent update in 2005 in March. That essentially is informal

guidance to our regional offices on how to implement the regulations in part 151 and the two-part determination process when the

acquisition is for gaming.

Let me briefly mention that there has been an issue that we

have when a tribe submits an application for non-gaming purposes

and changes the use to gaming. We are aware that when a tribe

submits an application for, let’s say, a truck stop, then essentially

the acquisition will be considered by the regional office. If it is not

for gaming, it will not be sent to our office in Washington and it

will not be approved by the assistant secretary.

Under the law, the tribe subsequently, and this is 2 years down

the road, because there are no title restrictions on the deed, the

tribe can change the use of the property. We have been advised by
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the Department of Justice that the title requirements prohibit us

from imposing deed restrictions on the title. That has sometimes

been an issue when the local public has a proven application, let’s

say if it was for Indian housing, and down the road has been made

aware that the use has been changed to gaming. I think that is an

issue that we are looking at.

We have not found yet a solution on how to deal with that particular problem. We certainly do not want to hamstring the tribes,

especially if they have an economic venture that does not remain

profitable, they should be able to change the use of the property.

So we are tackling that issue because we are unhappy with the fact

that when there is a change to gaming that the local population

has not contemplated, it is creating a lot of tension within the community. I think some of the local communities feel that they have

been duped into buying into a process when the ultimate aim was

different. So we are looking at that issue.

Now, I mentioned that we have about 10 applications for off-reservation gaming pending. There are many, many more that are rumored. I receive delegations every week from mostly non-Indian

communities that essentially come and talk about the fact that

there is a potential Indian casino that is going to pop up in their

community, even though there is no application.

What I tell them is that under our regulations and under IGRA,

there is nothing that prohibits a tribe from getting involved with

someone and essentially trying to move off-reservation. They have

to go through the process, and the process is lengthy and very seldom successful, but they have the right to do that under the IRA,

under our regulations and under IGRA. We just implement the law

at this point. I think they feel that there is a question of cost if

they are opposed to the application on the local community, and

that is certainly an issue.

And then also we get communities who are all in favor of tribes

moving into their communities because it will revitalize the economy and they think it is going to happen tomorrow. Then when

they come to talk to us, they realize that it is a very lengthy process. We take very seriously our obligation to take land into trust,

but we are really concerned about the effect on local communities.

Finally, I want to point out that in terms of delays, it is true that

our regulations do not include time lines. So that once an application is submitted, there is no time line for the BIA to act on the

requests. I think with respect to gaming, it is very long. It is processed at the regional office and usually takes about 6 months to 1

year, especially to comply with the environmental documentation

that is required. Then it comes to our office where it will take at

least a couple of other months before it is ready for approval.

So overall, gaming acquisitions take well over 1 year, and that

can impose some hardship on tribes that rely on financing and on

options to buy land on which they are interested. Plus, final comment, once we make a positive determination to take land into

trust for any purpose, we have to publish, especially for gaming, we

publish a notice in the Federal Register that gives tribes, that gives

the public 30 days to challenge the decision of the secretary.

With respect to gaming, in the last 5 years, maybe even before,

I think we have been ending up in court in almost all instances ex-
7

cept for a couple of ones. And that essentially will really delay the

process.

This concludes my comments. I am here to answer any questions

you may have. Thank you very much.

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

The CHAIRMAN. Thank you very much.

Maybe for the record you could describe to us how and why land

is going out of trust.

Mr. SKIBINE. I think that land is going out of trust, that land

that is owned by individual Indians. I think it goes out of trust

through probate; if there is a debt that results in foreclosure and

for a variety of other issues. I am not aware that land is going out

of trust that is in trust by the United States for the benefit of a

tribe. My understanding was

The CHAIRMAN. These are individuals who own land in trust.

Mr. SKIBINE. Yes.

The CHAIRMAN. So there is a difference here when we say all this

land is going out of trust. It is not as if tribes are giving up land.

It is individuals who are for one reason for another, including wills.

Mr. SKIBINE. That is correct. Right.

The CHAIRMAN. That give land to non-Indians, which is their

right to do, to give their land to whoever they want to. So I think

that is an important item here because, in all due respect to my

colleagues, the impression was created that somehow we are depriving Indian tribes of their land by taking land out of trust and

I do not think that is the case, at least that is the information that

I have.

Would you agree, Mr. Skibine, that there are significant problems today with perception, to a large degree, and to some degree

reality, with this process? People hear that an Indian tribe is willing to give up its claim to most of a State in return for a small couple of acres in a downtown metropolitan area that they can engage

in gaming. Is that really what we think of Native Americans trying

to obtain land, to return to their tribal ways and their tribal customs?

Now we see, and one of the reasons why we are having this hearing today is I keep hearing bitter complaints from people who live

near Indian tribes or live near land that they hear is being taken

into trust solely for the purpose of gaming. Do you agree that there

is a perception out there that this is a serious problem, at least in

some communities?

Mr. SKIBINE. Yes; I agree with that. I think that the one instance

I can think of was not too long ago I testified at a hearing in Colorado at the Western Governors Association, where essentially there

is a tribe in Oklahoma that was seeking to settle its alleged land

claim in Colorado, on millions of acres in Colorado, with a casino

at the airport. The Governor was very much opposed to that.

I think we advised the tribe that we did not think the claim was

valid in this particular instance. So there was no application submitted, but it certainly has created an uproar in the State of Colorado.

The CHAIRMAN. I know you do not follow closely the workings of

this committee, but I am sure you saw the entire Connecticut delegation show up in the last hearing we had over their concern and
8

the Attorney General’s concern about this whole issue of additional

recognition of tribes for gaming purposes.

But also on the other hand, isn’t it true that in most of these

cases if there is land taken into trust that it requires the approval

of the Governor of the State under IGRA?

Mr. SKIBINE. For land that is off-reservation and subject to the

two-party determination, then it requires the Governor. If it is for

the settlement of a land claim, then it is one of the exceptions that

essentially goes around the Governor’s concurrence. I think that is

one of the issues.

The CHAIRMAN. How many of those are exceptions, roughly?

Mr. SKIBINE. On the settlement of a land claim, we have approved one acquisition under that exception.

The CHAIRMAN. Out of 10?

Mr. SKIBINE. No; since the beginning.

The CHAIRMAN. Since the beginning?

Mr. SKIBINE. Right, since 1988.

The CHAIRMAN. So generally speaking, then we would expect disgruntled citizenry to contact their Governor and their State government to ‘‘protect’’ them if they feel they need it.

Mr. SKIBINE. Yes; that is right, under the two-part determination

or under the settlement of the land claim. Settlement of a land

claim, we have determined it will require a judicial settlement.

Usually, it will require the legislature of the State to pass legislation regarding the settlement. And then it will require congressional legislation, so that this body will have to pass a law and the

President will have to sign it.

So by the time one of the settlement legislations is enacted, I

think it has gone through an incredibly rigorous process. For instance, I met with a delegation from a town in Ohio not too long

ago regarding a potential Oklahoma tribe moving into Ohio. They

were very much in favor of this, and they thought it would happen

this year because when the tribal developer of this project wanted

to generate

The CHAIRMAN. Could I interrupt?

Mr. SKIBINE. Yes.

The CHAIRMAN. This movement would be based on the concept of

aboriginal lands, is that right?

Mr. SKIBINE. No; I think it would have been based on a land

claim of that tribe in the State of Ohio. If that happens

The CHAIRMAN. Because the tribe was moved from Ohio to Oklahoma?

Mr. SKIBINE. Yes, right; essentially, what I told them is that because it would require congressional settlement legislation, the

chance of this happening is essentially down the road a year or two

at the very best, if that is the exception that they seek to qualify

on. They can always use a two-part determination for that because

neither IGRA nor our regulations, nor the IRA, imposes a test that

is based on whether there are state lines in between the tribe and

the proposed acquisition.

Although we have never approved at Interior a proposed gaming

establishment for a tribe that seeks to have gaming in a State in

which it is not currently located.
9

The CHAIRMAN. If a tribe commits not to acquire land for purposes of Indian gaming, it is free after acquiring that land to

change its mind. Is that correct?

Mr. SKIBINE. Yes; that is what I said.

The CHAIRMAN. How often has that happened?

Mr. SKIBINE. That apparently has happened a number of times.

I do not know exactly, but I think the Inspector General found at

least 10 instances when he testified here, where this has happened.

We are aware that this has happened in the State of Oklahoma,

for instance. But the change of the use of the land to gaming cannot occur unless there is compliance with the requirements of the

Indian Gaming Regulatory Act.

So for instance, if a tribe acquires land in trust off-reservation,

say in the State of Oklahoma. That will not work too well in Oklahoma. Let’s say the State of Texas. Well, that is not good either.

[Laughter.]

The CHAIRMAN. How about Arizona?

Mr. SKIBINE. Arizona, yes. That is a good one. [Laughter.]

Then essentially the tribe will not be able to game on the land

unless it meets the requirements of IGRA. In this particular case,

it will have to submit a request for a two-part determination under

section 20(B)(1)(a). So we will have to go through the process of

consulting with appropriate State and local officials, and of doing

environmental documentation. If we make a positive two-party determination for this tribe, then it will be subject to the Governor’s

veto.

The CHAIRMAN. So State governments in general, and Governors

in particular are seduced by the prospect of sharing in Indian gaming revenues, and the concerns of the local citizenry are therefore

overridden?

Mr. SKIBINE. Well, I think that for the two-part determination

process, we in the Department, we have to find where there is a

detrimental impact to the surrounding community. To do that, we

do extensive consultation with the appropriate State and local officials. In our checklist, I think we say it is a flexible standard, in

more or less 10 miles.

The CHAIRMAN. But we keep hearing from local officials who say

they were not consulted. Do you have any recommendations at this

time for amendments to IGRA or legislation that may help in reducing this problem?

Mr. SKIBINE. I did not come prepared with legislative solutions,

but we certainly recognize that there is certainly a perception

issue, and that we are working on this issue, and we will contact

the tribes and Congress if we have any solutions to offer to some

of these issues.

The CHAIRMAN. We would be very eager to hear.

Senator Dorgan.

Senator DORGAN. Mr. Skibine, thank you very much.

How many land-into-trust applications are now pending?

Mr. SKIBINE. Land-into-trust for all purposes?

Senator DORGAN. Yes; for all purposes.

Mr. SKIBINE. I do not have that figure at my fingertips. However,

I think we are in the process or we are trying to essentially do a

data-call to find this information right now.
10

Senator DORGAN. Dozens, thousands, millions?

Mr. SKIBINE. I think it would probably be hundreds.

Senator DORGAN. Hundreds?

Mr. SKIBINE. Hundreds throughout the country. That is for all

purposes?

Senator DORGAN. Yes.

Mr. SKIBINE. Okay.

Senator DORGAN. The trust applications, the land-into-trust applications you have been discussing with the chairman center on

gaming. I think in my opening statement, I acknowledged, Mr.

Chairman, that the land that is taken out of trust is often as a result of wills and someone selling the land. We are hearing cases

of people selling the land to pay medical bills, and so on and so

forth. I acknowledge that that is not the tribal land, the trust that

belongs to the tribe. This is land that inures to the individual.

But is it the case that a majority of the applications of land-intotrust are non-gaming issues?

Mr. SKIBINE. Absolutely, yes.

Senator DORGAN. So you are describing in your discussion with

the chairman the circumstances for those that deal with gaming,

which is a separate and serious and significant set of issues. I

agree with the chairman that they should be dealt with in a different way.

Let me ask about, in 2001 the Department issued proposed revisions to the regulations. As you know, there was an extended comment period following that, and then the proposed regulations were

withdrawn. Is there intention by the Department to attempt to propose new regulations? What are you thinking about in that area?

Mr. SKIBINE. We have been pondering this question for some

time. I think this is something that we are discussing internally.

No decision has been made yet on whether to reissue proposed regulations or to go another route, but we are looking at what was

done back in the previous Administration and what we can do to

essentially facilitate the process.

Senator DORGAN. Would you provide us, then, an update on the

number of pending applications, the timing, and proposed use status, so that we can get a sense of what that inventory would show?

Mr. SKIBINE. Yes; absolutely.

Senator DORGAN. That would be helpful.

What is the process the Department uses to take lands out of

trust?

Mr. SKIBINE. If it is tribal land, it cannot be taken out of trust.

Senator DORGAN. Non-tribal.

Mr. SKIBINE. Which is non-tribal, I am not sure there is a process

that I am aware of. It just goes naturally out of trust.

Senator DORGAN. So there are no impediments to the movement

on that side?

Mr. SKIBINE. I do not think so, but I stand to be corrected because I am not really involved in these individual acquisitions.

That is my impression.

Senator DORGAN. I think if you can give us the inventory of applications and the status, that will be very helpful. Again, I acknowledge, as the chairman indicated, I think that there is no

question in my mind that if I were an Indian tribe, I would try to
11

see if I could find the most desirable parcel of property in the biggest city available to me, and see if I could take that land into trust

and see if I could do some gaming on it.

I understand that. That is an urge that tribes that are located

in very remote areas would likely have. Perhaps some North Dakota tribes would like to have a piece of ground in downtown Phoenix. In fact, they would probably serve most of our North Dakota

customers in the winter. [Laughter.]

Mr. SKIBINE. I want to point out that I think that the Department does have serious concerns about the acquisition of far-flung

lands for tribes for essentially reservation shopping. I think our

discretion is to constrain under section 20(B)(1)(a), but we have serious concerns.

One of these concerns essentially is the fact that in some States

it tends to de-stabilize what is the status quo, where tribes are

gaming on their reservation. But if one decides to leave and is authorized to do that and come close to a very proper urban area,

well, then the other ones that have for years been gaming on their

reservation with the support of the State community, that may

change. Essentially, we are not sure that this is in the best interest

of Indian gaming overall.

Senator DORGAN. And I think those are serious issues. The backdrop of all of that is an understanding that we have taken a lot

of land from Indian tribes, Native Americans over many, many

years. Many of those tribes would like to have some of that land

back for jurisdictional and sovereignty purposes, and it has nothing

to do with gaming at all. So that is a separate set of issues that

we also have to be concerned about and be knowledgeable.

Mr. Chairman, on the third floor of the building behind us, Senator Domenici is marking up the energy bill. I am a member of

that committee and they are turning to an amendment of mine. So

I will be gone for about 15 minutes to discuss my amendment, and

then I will rejoin you.

The CHAIRMAN. Thank you very much, Senator Dorgan.

Mr. Skibine, one of the things that we did in Arizona and it was

approved by the voters, a compact, was a revenue-sharing proposal,

as you know, so remote tribes would be able to at least have some

share of the gaming revenues. That seems to me one of the attractive aspects of the compact that was overwhelmingly approved by

the voters of Arizona. Do you think that there should be more

referenda of that type?

Mr. SKIBINE. Yes; we think that the Arizona compacts are very

successful, and we approve those and we feel that it was very productive. I think that the compacts or the law that provides for revenue-sharing between wealthy tribes and tribes that may elect not

to game, I think are something that should be encouraged.

The CHAIRMAN. Thank you very much. It is good to have you

back before the committee. We look forward to some recommendations that you might have that we can use. This problem is perception and reality both. We cannot legislate perception, but there

may be something we can do to correct some of the realities.

I thank you, sir.

Mr. SKIBINE. Thank you very much.
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The CHAIRMAN. Our next panel is David K. Sprague, chairman,

Gun Lake Tribe, Dorr, MI; James T. Martin, executive director,

United South and Eastern Tribes, Nashville, TN; Mike Jandernoa,

23 Is Enough, Grand Rapids, MI; and David Crosby, Santa Ynez,

CA and other spots around the Earth. Please come forward.

Chairman Sprague, we will begin with your testimony. We would

like to try to keep opening statements to 5 minutes if possible.

Your complete statements will all be made part of the record without objection.

Chairman Sprague, welcome.

STATEMENT OF DAVID K. SPRAGUE, CHAIRMAN, GUN LAKE

TRIBE, ACCOMPANIED BY JOHN SHAGONABY, TRIBAL COUNCIL TREASURER

Mr. SPRAGUE. Good morning, Chairman McCain, Vice Chairman

Dorgan and members of the committee. My name is David K.

Sprague, and since 1992 I have had the honor of serving as chairman of the Match-E-Be-Nash-She-Wish Band of the Pottawatomi

Indians, also known as the Gun Lake Tribe. With me is John

Shagonaby, our tribal treasurer.

Chairman McCain, we have provided the committee with supplemental materials that I ask be submitted to the record.

The CHAIRMAN. Without objection.

[Referenced documents appear in appendix.]

Mr. SPRAGUE. These are primarily charts that I will quickly explain as I move through my testimony this morning. There is also

a statement from Congressman Dale Kildee.

Today, we come before the committee as a federally recognized

tribe, but we are also a landless tribe, in the final stages of the administrative land-into-trust process where ultimately the United

States will accept title to approximately 147 acres of industrial

land in Allegan County, MI on behalf of our tribe.

The Gun Lake Tribe was federally acknowledged in 1999 after

petitioning through the Bureau of Indian Affairs [BIA] branch of

acknowledgment and research. Our tribe has a long history with

the United States, and our tribe also had treaties with the United

States. As a result of our playing by the rules, the restoration of

a homeland for our tribe has been delayed longer than any other

federally recognized Indian tribe in Michigan.

We voted to investigate the economic development option that Indian gaming provides under the Indian Gaming Regulatory Act to

help us exercise self-reliance. We negotiated agreements with our

business partners and moved forward through the process governed

under the IGRA to establish a casino.

If I may return to the map showing the location of local groups

who publicly support our tribe. The red star in the map shows

where our site is located, halfway between Kalamazoo and Grand

Rapids in rural Michigan. I am sure you are familiar with West

Michigan, Chairman McCain, and easily recognize that this location is not in an urban or suburban area. In fact, the site we selected is about three miles from our ancient burial grounds and is

within our aboriginal lands.

Now, the area is zoned industrial. The existing structure is a vacant factory building that sits between a highway and railroad
13

tracks. You will notice that as shown on this map, the tribe is completely surrounded by supportive local governments and community groups.

Here are a few of those key groups: the city of Wayland, the city

of Allegan and the Allegan County Board of Commissioners,

Wayland township, Dorr township, Kalamazoo Chamber of Commerce, Kalamazoo County Convention and Visitors Bureau,

Wayland Area Chamber of Commerce, Plainwell Chamber of Commerce, Barry County Area Chamber of Commerce.

My other chart, the bar chart, shows the long process and significant amount of time between the submission of the fee-to-trust application to the publication of BIA’s final notice of determination to

place the land in trust. It has been over 4 years, from August 12,

2001 until last Friday, May 13, 2005.

As part of the fee-to-trust application, the tribe and the BIA conducted an environmental assessment as required by the National

Environmental Policy Act. Over a 3-year period beginning in early

2002, the tribe worked closely with the regional office of the BIA

environmental resources experts to produce a final EA.

Chairman McCain, we are highly sensitive to our environment.

That is why we made every effort to be extraordinarily cooperative

and responsive to the BIA during the agency’s determination of

whether our casino project might pose a significant impact on the

environment of West Michigan. In fact, the tribe prepared several

revisions of the EA following comments from both the BIA and the

public.

The fourth bar shows the extensive and unusually long 75-day

public comment period as compared to the normal 30-day comment

period. During this period, Michigan citizens and local government

officials submitted many letters to the BIA.

In addition, since such great scrutiny is placed on casino projects,

the EA examined the affects of secondary development over a period of time resulting from the casino and its operations, and examined whether the tribe should explore alternatives to this project.

After an exhaustive review of the evidence and the extensive public

comment, the BIA concluded that a finding of no significant impact

or FONSI was appropriate.

As the second-to-last bar shows, the BIA issued the FONSI on

February 27, 2004, over 14 months ago. From February 2004 to

May 2005, the tribe has been waiting for the BIA to issue a notice

of final determination to take the land into trust; 14 months from

the FONSI until the notice to take our land in trust is a very long

delay.

We believed our notice to take our land in trust would be signed

in July 2004. We were provided no reason for the delay of the signing. Finally, last Friday, May 13, 2005, the BIA finally published

in the Federal Register its intent to place the land in trust.

As I mentioned earlier, there is great support from the neighboring communities. We have worked hard to meet with the local governmental bodies, Chamber of Commerce and other community

leaders. This last chart shows that we do have a lot of supporters.

We also have over 6,000 West Michigan residents supporting the

project. These kind of numbers in favor of our self-determination

is surely gratifying and greatly welcomed.
14

It also shows our MOUs with the local fire and law enforcement

departments. The BIA received letters supporting the tribe’s proposed land acquisition and development from the groups and individuals noted on this last chart. This comes as no surprise since

the Gun Lake casino will bring 4,300 new jobs to the area, as well

as local supplier purchases, local and State revenue sharing, a

proven recreational attraction and other economic development to

a very economically depressed area.

As a final note, we have looked at the success of casinos in Arizona and in other places around the country. We simply want to

replicate that success for our tribe.

Chairman McCain, this has been a long road and many of our

elders who worked hard to obtain acknowledgment and tribal selfsufficiency are beginning to walk on. They may not live to see the

results of all of the hard and dedicated work. I sincerely want those

who are still with us to see the day when this long process is completed.

I wish to express my appreciation for the honor and privilege of

having been invited to present testimony today. I am happy to answer any questions.

Thank you, sir.

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

The CHAIRMAN. Thank you very much.

Mr. Martin.

STATEMENT OF JAMES T. MARTIN, EXECUTIVE DIRECTOR,

UNITED SOUTH AND EASTERN TRIBES, INC.

Mr. MARTIN. Good morning, Chairman McCain and members of

the committee. My name is James T. Martin. I am the executive

director of the United South and Eastern Tribes. I am a member

of the Poarch Band of Creek Indians.

Thank you for inviting USET to participate in this important

oversight hearing regarding taking lands into trust. My testimony

will focus on the most controversial aspects of the land-into-trust

activities, which involves off-reservation land-into-trust applications for gaming.

As I will explain, gaming considerations are driving much of today’s off-reservation land-into-trust activities. Non-Indian casino

developers are responsible for much of what is currently wrong

with these pursuits.

Congress enacted IGRA to promote tribal economic development,

tribal self-sufficiency, and strong tribal governments. The act, for

the most part, has accomplished those goals. USET, however, has

become increasingly concerned with the small number of Indian

tribes and wealthy non–Indian developers that are seeking to establish Indian casinos far away from their existing reservation in

different States from where the tribes are currently located.

In at least 12 States, most recently in New York, Ohio, Illinois,

and Colorado, Indian tribes are seeking to move across State lines

and often across multiple States to take advantage of lucrative

gaming markets. In most cases, these efforts are being funded by

shadowy developers who underwrite the litigation expense, the lobbyist fees and even the cost of land in exchange for a cut of the

profits.
15

This kind of reservation shopping runs contrary to the intent of

IGRA and well-established Federal-Indian policies. Indian gaming

is not being used as a tool for tribes for economic opportunity on

their lands. Rather, it is being used as a tool by developers who

simply need Indian tribes as window dressing to make their casino

deals work.

We recognize that this is a controversial and complex issue. My

organization has spent several years studying, deliberating all aspects of this debate. We have been criticized from some corners

that we should not open this can of worms.

However, after several years of thoughtful, respectful and often

pointed deliberation, we thought that this issue demands action.

Over the last 2 years, we have taken the following measures. In

February 2003, USET was the first American Indian organization

to adopt a resolution voicing its opposition to reservation shopping.

The resolution called for the United States Department of the Interior to clarify its policy against this activity.

Later that same year, October 2003, USET passed a second resolution that called upon Congress to oppose the efforts of out-ofState tribes to govern land or establish casinos in different States.

This year, USET adopted a third resolution opposing reservation

shopping. The resolution includes a call to Congress to prohibit an

Indian nation from acquiring trust land and exercising governmental jurisdiction in a State other than the State where they are

located, or remote locations to which they have no aboriginal connection. Copies of these resolutions have been submitted to the

committee. In addition, we have submitted a summary of tribal migration proposals we know are taking place around the country.

The committee should also understand that much, if not all, of

the reservation shopping activities are developer-driven, sometimes

with little or no direct involvement of the tribe on whose behalf the

developer is purported working.

Let me give you a typical scenario for how developers work.

First, the developer will extend a carrot to the State and local governments, arguing that an Indian casino will benefit the State by

creating jobs and economic activities. The developer will offer the

State a cut of the proceeds of Indian casinos in exchange for State

support. In most cases, these offers violate IGRA’s clear prohibition

against taxing Indian casinos.

Developers also are willing to agree that the out-of-State tribe

will waive most aspects of sovereignty. The out-of-State tribes are

willing to make these concessions as a price for obtaining the casino because they do not impact the tribe’s current reservation. Unfortunately, when there are other tribes located in those same

States, where out-of-State tribes are seeking the casino, the offer

to submit to State jurisdiction and pay hefty taxes on their gaming

facility severely undermines the in-State tribe’s continued effort to

defend their sovereignty.

If the carrot approach does not work, the developer typically

raises the prospect of claims of litigation or a stick to compel the

State to negotiate with the tribe. In fact, there seems to be a handful of developers who have created this new business model that

relies on tribes with existing or potential land claims as a means

to establish lucrative casinos in geographically attractive locations.
16

Attached to my testimony is a report from one of our USET

tribes, the Oneida Nation of New York, which underscores the need

for Congress to provide greater scrutiny to these developer-driven

deals. It appears from this report that in some cases the developers

purportedly construct their arrangements with the tribes to circumvent the profit-sharing limitations in IGRA.

In addition, it also appears that some of the developers would not

be able to survive a Federal background check if they were required to submit one. We have received information from Indian

nations, Governors and other groups around the country who report similar experiences with these non-Indian developers.

USET believes that the political activities and financial interests

of these non-Indian developers need to be fully disclosed to the

public. USET also supports the enactment of legislation which bars

out-of-State tribes from exercising governmental jurisdiction in

more than one State. This would likely require an amendment to

section 20 of IGRA prohibiting approval of land-to-trust applications for land in States other than the States where the tribe is

currently located or in remote locations to which the tribe has no

aboriginal connection.

We appreciate the opportunity to testify today before this Committee on this most important issue, and we will be happy to answer your questions.

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

The CHAIRMAN. Thank you very much.

Mr. Jandernoa.

STATEMENT OF MIKE JANDERNOA, 23 IS ENOUGH

Mr. JANDERNOA. Thank you, Senator, and good morning. I am

Mike Jandernoa, former chairman and CEO of the Perrigo Company, and also chairman of a grassroots group called 23 Is Enough.

I commend your leadership and your interest in addressing this

issue. I think it has been long ignored. It is an issue that has affected in terms of Indian gaming the productivity and the manufacturing productivity of many companies, especially in our State.

IGRA has not been amended since its passage in 1988. That is

17 years ago. It is one of the few things that has not really changed

in that timeline. Since 1988, the Native American casino business

has exploded in the United States from $100 million to $18.5 billion, and controls 25 percent of gambling in this country. My message is that IGRA is outdated and it is broken, and it is open to

manipulation by special interests, as just described, and is in desperate need for reform as it relates to gaming.

The NGIC is underfunded and understaffed. My plea is that your

committee take time to study in depth and impose an immediate

moratorium on any Indian gaming activities until the expansion

and the understanding related to its impact is concluded; 23 casinos in Michigan is enough. We are among one of the States with

the top number of Native American casinos.

The tribal casinos are booming. They are doing very well, but our

State economy is among the worst. It is due to the impact of

globalization, the China impact, India outsourcing. We have skyrocketing legacy costs and health care costs. Michigan is in a job

crisis.
17

Also, we are tops in the Nation unfortunately for the unemployment rate. Our manufacturing job losses account for 25 percent of

all the job losses in manufacturing across the country in just our

State of Michigan. If this trend continues, we cannot handle more

casinos at this time with the job losses we are incurring.

Also in Michigan, discretionary spending, that is down. Bankruptcies are up and we are financially strained in many of our cities. The Government has been blinded by bright lights, big numbers, big promises that have not been able to be kept. If you look

at the Detroit example, we brought three casinos in. They promised

new hotels. They promised new restaurants, new entertainment,

new jobs and more tourists from outside the area. It has not happened. The vast majority of dollars that come into the casinos are

from a 50-mile radius around Detroit. Many of these people cannot

afford it.

Bankruptcies have more than doubled. Crime has risen substantially. The Detroit police force and Mayor have indicated that the

budget is exceeding their allocation by $1.2 million just for the

crimes related to bankruptcy and crimes in the immediate area.

The Michigan experience has been one of empty promises or broken

promises.

Further, we have noted that research has demonstrated the negative impact on manufacturing. This is at a time that our country

needs productivity. Absenteeism, tardiness, and bankruptcies have

accelerated the job loss in our State and across the country. Our

personal journey here in the State shows that we need urgent and

swift and decisive action to stop this proliferation.

In 2001, as has been pointed out, the Gun Lake Tribe filed for

land-in-trust application. The Chamber in Grand Rapids commissioned the Andersen Economic Group to conduct an independent

economic study of the impact to assess what it would mean to our

West Michigan community.

The study was surprising. It indicated that for every job that would be created, two jobs would be lost. There would be an $880

million economic hemorrhaging to the surrounding counties. Gun

Lake will siphon off jobs and money from the economy and vitality

in the surrounding areas, and bring it to the local area here.

In February 2003, the Chamber objected to the finding of the

Gun Lake environmental assessment and urged the BIA to complete a full-scale EIS. The BIA refused the EIS, and as just noted,

it was put into the Federal Register.

The Gun Lake Tribe’s environmental assessment was an incomplete and inaccurate reflection of the regional impact. We talked

about and the Administration focused on only a 10-mile radius. The

impact is significantly greater than the 10 miles. Now what Congress has in mind as adopted in terms of IGRA is almost 20 years

old, and the rules do not a require comprehensive regional impact

study. Instead, it only has this small pinpoint study which is not

far-reaching enough to see the impact on all the families and the

jobs in the area.

In addition, IGRA ignores all the voter sentiments and the elected officials’ sentiments and the State legislature’s action. First, the

State and Federal officials oppose this new facility. Second, Proposal 1 passed in Michigan with 58 percent of the voters suggesting
18

that we limit casino expansion and require votes. Third, the State

Senate rescinded the support. And fourth, polling results show that

85 percent say that 23 casinos is enough, and 64 percent oppose

the expansion of the casino.

This is important meaningful information that should bear on

the decisions made here in Washington, but don’t. There is something wrong when wealthy out-of-State special interests like Stations Casino from Vegas can come in and override the will of our

people.

In summary, again IGRA is broken and outdated and after 17

years needs to be reviewed and updated. A few recommendations:

No. 1, mandatory regional economic environmental and social impact statements; mandatory casino management disclosures; local

and State government approval; voter support; clarification of class

II gaming to eliminate the abuses and loopholes, especially related

to electronic bingo games.

In closing, I reiterate my plea and urge you to make immediate

action to impose a moratorium to save jobs in Michigan and to not

put more families at risk.

Thank you.

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

The CHAIRMAN. Mr. Crosby, welcome.

STATEMENT OF DAVID CROSBY, SANTA YNEZ, CA

Mr. CROSBY. Mr. Chairman, Senator Dorgan, and members of the

committee, I am honored to be here today to speak with you.

The issue that brings me here today is one of fairness, of justice,

and of unintended consequences. In an effort to correct injustices

done to the Native American tribes in the early days of our country, the Government gave tribes the right to have gaming. Smart

lawyers saw the opportunity to get around State laws against gaming and found financing to build Indian casinos.

Whether you think gambling is an addiction or just a minor vice,

casinos are not good neighbors. They say they put money into local

economies, but the truth is that almost all of it goes out of town,

out of State and offshore. They use our schools, roads, hospitals,

firemen and police and they are not subject to our tax laws.

They inevitably bring crime to a community. A 20-year veteran

in law enforcement where I live estimated that 75 to 80 percent of

all the crime in our valley was casino-related. I believe him.

As disturbing as all this is, it is not my main issue here. The reason I come before your committee is the question of taking land

into trust, particularly large tracts of land that are not contiguous

to the reservation. We are now in a situation where the laws intended to give Indians a break are doing unfair and unjust harm

to communities all over the country.

At the center of this is zoning. I expect you can guess how completely alien a subject like zoning was to a singer-songwriter, but

circumstances forced me to learn. At the core of it, zoning is a compact between all the people in a town or a county to agree on what

kind of place it will be to live and especially what kind of place it

will be to raise our children. We in the Santa Ynez Valley through

our elected officials voted to keep the agricultural and rural character of our valley, and that is the main reason we live there.
19

Now, there are about 10,000 of us in the Santa Ynez Valley. The

current laws make it possible for about 180 tribal members to circumvent this zoning agreement as well as the building codes and

the taxes completely, for profit. We have a developer named Fess

Parker who sees this as a wonderful opportunity to partner with

the tribe and thereby evade land-use restrictions and build a very

large and completely inappropriate resort destination, a giant hotel

and golf course complex, and although they deny it, we believe another casino.

I believe the tribes have every right to buy any property they

want with their money, just like any American. But if they are allowed to take these lands into the reservations, into trust, then developers will be speed-dialing casino operators all over the country

to take advantage of this loophole in the laws.

How can this be fair? How can it be fair to give them rights we

do not have, to exempt them from laws that we must obey? We ask

you, please, to look at this nationwide problem and try to find a

fair and just way to let the tribes invest and grow, but not destroy

the surrounding communities in the process as they are doing in

Santa Ynez.

Thank you very much.

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

The CHAIRMAN. Thank you very much, Mr. Crosby.

Chairman Sprague, did you decide where you wanted the land

taken into trust for your initial reservation, or did the Department

tell you that there was a certain area where it would take land into

trust for your reservation?

Mr. SPRAGUE. No, sir; we as a council decided where we would

take land into trust. We were not dictated by the Bureau.

The CHAIRMAN. Under normal procedures, your tribe’s engaging

in gaming would require the approval of the Governor, is that correct? Under normal procedures, I am talking about under IGRA.

Mr. SPRAGUE. We are a newly federally acknowledged tribe and

we are going to use

The CHAIRMAN. So this is an exception?

Mr. SPRAGUE. This is an exception.

The CHAIRMAN. This does not require the approval of the Governor.

Mr. SPRAGUE. Right.

The CHAIRMAN. Would you care to respond to Mr. Jandernoa’s

comments that actually gaming is not helpful economically to the

region? Would you identify yourself again, sir, for the record?

Mr. SHAGONABY. My name is John Shagonaby. I am the tribal

council treasurer.

The CHAIRMAN. Okay, thank you. Please proceed.

Mr. SHAGONABY. Yes; I would like to respond to that. We are the

12th recognized tribe in the State. There are 11 tribes with compacts. They are operating casinos. We took a page from tribes on

what their economies were in the State.

It is demonstrated that their economies were gaming-related, so

naturally we saw what they have done with their proceeds and

what they have done for their communities. So that was a natural

fit. After we polled our membership, they voted overwhelmingly to

support it. I feel that we have worked as demonstrated by the
20

board with the local communities and they are very supportive of

our project.

The CHAIRMAN. My question was that Mr. Jandernoa asserts

that there has been an actual decline in the economy, increase in

crime, increase in bankruptcies, et cetera. Would you care to address that?

Mr. SHAGONABY. We did a study for the record and it showed

that it will have a positive economic impact in the area. I think the

Bureau agreed with us.

The CHAIRMAN. Would you submit that for the record?

Mr. SHAGONABY. Yes.

The CHAIRMAN. Thank you.

Mr. Martin, your testimony is critical of so-called ‘‘reservation

shopping’’ through assertion of land claims. Yet several tribes that

are members of your organization were able to successfully negotiate land claims that resulted in lands that were subsequently

used for casinos. How do you distinguish between these situations?

Mr. MARTIN. In those instances, Mr. Chairman, those were related to land claims and to land taken into trust were in their aboriginal lands in the State into which they were currently occupying.

The CHAIRMAN. So you feel there is a significant difference in

some of the practices you see going on between that that you see

ongoing today, as opposed to the way that tribal members of your

organization, tribes that are members of your organization were

able to take land into trust and engage in gaming?

Mr. MARTIN. Yes, sir.

The CHAIRMAN. And repeat to me again how that is different?

Mr. MARTIN. The individual tribes of our organization had land

claims and they took land into trust associated with those land

claims in the State into which they were occupied at that given

time. They did not jump across State lines or even across multiple

States to take this land into trust. It was associated with their aboriginal lands.

The CHAIRMAN. What about if a tribe has aboriginal land in another State?

Mr. MARTIN. In those areas, it would have to be judged on a

case-by-case basis. Our point in those particular areas is that many

times, and as you talked earlier with Mr. Skibine, it is also perception as much as reality. We are trying to assist the committee and

offer suggestions on areas to curtail the perception.

A few tribes, and I am not saying it is just running rampant all

over, but you come to a few tribes that are being I believe misused

by developers that create false expectations to those tribes, and try

to look for loopholes and the stick of potential litigation. And then

they are being encouraged even by Governors in States to want to

look for revenue sharing and those types of things.

We believe that it should be judged on a case-by-case basis, but

there should be some clarity brought to the regulations, and if not

enough clarity to those regulations, then legislation that would

bring a systematic and much more thorough review of these landinto-trust applications, particularly just for gaming.

The CHAIRMAN. Mr. Jandernoa, Chairman Sprague showed a

pretty impressive display of local support for his tribe and their entering into gaming activities. How do you respond to that?
21

Mr. JANDERNOA. I think, Senator, the big issue comes around

what you call the local community or the regional area. In the slide

that was shown there, and it will, and we acknowledge, and the

economic study clearly states there will be jobs added in that small

area, within that 10-mile radius, that will affect and add jobs.

But the economic studies show and the facts show those jobs are

going to come from surrounding areas. It will come into Allegan.

We have 2,500 employees in Allegan at Perrigo Company, my company. And the jobs will come from Kalamazoo and Holland and

Allegan itself and Grand Rapids into the Wayland area. We do not

dispute that there will be jobs added, but they are not new incremental jobs to the entire area.

The other study shows and the impact shows in Detroit particularly, which is where they did a lot of the analysis, that the expectation and the profits

The CHAIRMAN. Those were non-Indian casinos.

Mr. JANDERNOA. Two were non-Indian and one was an Indian,

but again it is a casino. Again, we do not have anything against

the tribal casinos themselves, or the tribes. It is the issue of a casino and its impact, unfortunately, on many people.

The CHAIRMAN. Look, I do not pretend to be an expert on the

Michigan economy, and I know to at least some degree you are, but

everybody I talk to says that the reason why the State’s economy

is in trouble is because they are experiencing the most wrenching

transition from a manufacturing-based economy to trying to grapple with a world global manufacturing situation which is putting

many of them out of business or in serious difficulty. I had never

heard that Indian gaming impacted the State’s economy either

way.

Go ahead.

Mr. JANDERNOA. Yes; I think you are absolutely right. We are

suffering a crisis in Michigan in jobs in our area, both from the

automotive industry and particularly in our area, the furniture industry. China has had an incredible affect on us, and Japan is

making more of the auto parts. So if you look at the United States

big three share of cars, our jobs, which have been in Michigan, are

going to Japan for the most part making those parts.

So we are affected, but it is our productivity. Our company,

Perrigo, has grown from 200 to 2,500 right in Allegan, and we have

done that because we are the most productive and we have the best

quality. We cannot afford to have our employees tardy or absent in

keeping up that quality because we are competing with China and

India now. We need the jobs we have. We cannot afford to put

those employees at risk of doing a great job for us. We want to create opportunities for them to be successful, not to be distracted.

The CHAIRMAN. Mr. Crosby, the BIA testified that local communities are able to participate in the land-into-trust process. Did you

or any of your neighbors participate, have the opportunity to participate and have your comments considered?

Mr. CROSBY. We participated in town meetings.

The CHAIRMAN. With the BIA?

Mr. CROSBY. Well, BIA has been present at some of them. These

were called by members of our board of supervisors, and representatives from the BIA came. We have unanimously expressed our dis-
22

approval and pretty clearly. The impact on towns is an interesting

subject and you will hear testimony on both sides of it.

I think it would help a great deal if you called to witness here

some of the law enforcement people from towns where casinos are

and asked them what the truth is. I think they will tell you. Casinos are not good neighbors.

The CHAIRMAN. Did the BIA indicate that lands recently taken

into trust would be eligible for gaming?

Mr. CROSBY. Yes; the lands that we were talking about were specifically for that.

The CHAIRMAN. You state that, and I quote from your statement,

‘‘land should be taken into trust only when truly needed to promote

tribal self-sufficiency.’’ I think I agree with that statement. Would

you consider the need for additional housing or a health clinic

needed to promote tribal self-sufficiency?

Mr. CROSBY. Yes; I think those are legitimate. I even think that

their wanting to have a casino is legitimate. What disturbs us is

the idea that they can take large tracts, in particular in this case

the center of our valley, into trust, off of the tax rolls, and out of

zoning. Zoning is critical to this. Zoning is a compact between all

of us who live there as to what kind of place it will be and how

we can raise our kids.

If they can absent themselves from these rules and laws, it is unfair to all of the other people who live there. I think that is blatantly obvious.

The CHAIRMAN. I am sure that some of our tribal leaders would

respond to that by saying if they were subject to local zoning, it

would be an infringement on tribal sovereignty, but also because

of local situations, they might not do too well under it. This gets

into the issue of tribal sovereignty, which is of course one which

remains fraught with controversy.

Finally, let me just say that the problem and dilemma that we

face here on the committee as regards to Indian gaming, we can

have our personal opinions as to the morality or immorality, as you

mentioned, whether it is addictive or not. I leave that up to experts. I do not in any way feel that I am a judge of that.

But we do know that Native Americans have been deprived for

400 years of their rights. They have been discriminated against.

They have been underfunded. We have never complied with our

treaty obligations.

Finally, at least some tribes, through engaging in Indian gaming,

have been able to profit and be able to take care of their tribal

members. So this is a dilemma that we face, but I also agree with

Mr. Martin, in particular, and other witnesses that it is time we

reviewed a 17-year old piece of legislation and profited from the experiences that we have undergone, and make whatever necessary

changes in order to deal with an $18.5-billion and continuing to

grow industry that, as I have repeatedly said, none of us ever anticipated would reach this size when we passed the act in 1988.

It is going to be a delicate proposition, but for us not to go back

and review and revise the legislation in light of how it has evolved

I think would be an abrogation of our responsibilities. I agree with

you, Mr. Crosby and Mr. Jandernoa, that there is some way that

we have to try to get more local participation in the decisionmaking
23

process because I have seen the impact on local communities. Some

of it is good, job creation. Some of it is bad, as we have seen in

other aspects of social impact.

So I thank the witnesses today and I thank you for being here.

This is a very tough issue.

Senator Dorgan.

Senator DORGAN. Mr. Chairman, thank you.

Again, I regret I missed several of your presentations. I have

read them, but I am going to get called away again for the markup

that we are doing just downstairs on energy.

I am with all my might trying not to respond to the question of

competition with China and India. It is considered old-fashioned

and somehow out of favor for us to provide benefits to workers and

that sort of thing. I will save that for another hearing, Mr. Chairman.

Let me talk just for 1 moment, or let me just ask a couple of

questions about this issue. First of all, I think I have said, and I

think we acknowledge there is a very big difference in taking land

into trust for beneficial use of tribes who live, in many cases, in

third world conditions in this country.

I know the names of people who have died in bed because they

froze to death on Indian reservations. I know the names of kids

who have been severely beaten because there were not enough social workers to put them in a foster home where they were going

to be cared for safely. I can go through the whole litany of education, health care, housing, and the crisis that exists on reservations in this country.

So the ability to take land into trust for beneficial use of tribes

is very important. It is a very different issue than the question of

a tribe wishing to find a parcel of land on which to build a casino.

Now, the issue of Indian gaming is also an issue of sovereignty.

That was dealt with by the courts and then we passed legislation

dealing with it. We are continuing to discuss the conditions of all

of that. Of course, at this table now we have examples of local disputes about the subject. Let me ask Chairman Sprague, why did

the tribe when you decided to engage in gaming and build a casino,

decide to choose an outside investor?

Mr. SPRAGUE. Sir, we chose an outside investor because the tribe

has no money.

Senator DORGAN. Short answer, isn’t it? [Laughter.]

And, Mr. Jandernoa, so we know a bit about the financial capabilities of what you are trying to do based on the outside investor

you chose, Mr. Jandernoa, who are the people who have contributed to your effort to attempt to stop this casino?

Mr. JANDERNOA. It is a grassroots effort, mainly people in West

Michigan, Allegan, Grand Rapids, Ottawa County. Mainly in that

area, and Kalamazoo County.

Senator DORGAN. Mr. Crosby, you talked about the 6.9 acres of

land, and then apparently there is another 5.8 acres. So 6.9 acres

is in trust now; another 5.8 acres is being requested to be taken

into trust. Yet in your testimony, you also talk about Fess Parker.

Is that the Fess Parker that I remember?

Mr. CROSBY. Yes.
24

Senator DORGAN. Fess Parker wanting to develop 745 acres of

land by transferring it to an Indian tribe. Is that your biggest concern, the potential development of the 745 acres if that land is

taken into trust?

Mr. CROSBY. Yes, sir; it is. The other two serve as precursors,

though, and would set a precedent, and we are appealing them,

and we are trying to slow them up if we possibly can. We feel helpless, and I think you will find this in communities all around the

country that are trying to deal with this. We feel helpless. We feel

powerless. We feel that they have in the case of the people that we

are up against, they have $200 million a year. For a citizen to

stand up against that is a really difficult thing.

Senator DORGAN. I am not a big fan of gaming because I have

never been a big fan of doing something at which you are destined

to lose. The odds are always against you, not those who run the

gaming, but against those who show up on a Saturday afternoon

for the purpose of the sport of gaming. The odds are against them.

Having said that, I am not somebody who believes that we ought

to stop it or believes it is immoral to have a gaming facility somewhere. So the question is not whether it should be conducted, the

question is where and how, and especially with respect to Native

Americans, I believe there are problems with respect to addiction

and there are problems with people gaming who should not be

gaming.

But I know that there are revenues that are now coming from

Indian gaming facilities that are going into the social service structure of tribes and that are being helpful to invest in the lives of

tribal members, many of whom are living in third world conditions.

So as the chairman indicated in his conclusion, this is a difficult

issue. You heard the opening testimony today by the official from

the Department of the Interior. These are difficult questions. We

would all like to see expeditious judgments by governmental bodies

on questions that are presented to it, and yet somehow in not just

this hearing, but in previous hearings, we always see that these

things stretch out and take forever. But in many cases, they take

a long time because they are just enormously complicated.

This committee is paying attention to this because we think it is

important. Mr. Chairman, I appreciate the opportunity today, even

though I have had to bifurcate my presence here a bit.

Thank you very much for coming and presenting your testimony

today as witnesses. It will give us an opportunity to further consider many of these issues as we proceed with our agenda this

year.

The CHAIRMAN. Thank you, Senator Dorgan.

Would the witnesses care to make any final comments? Chairman Sprague?

Mr. SPRAGUE. No final comments, Chairman McCain.

The CHAIRMAN. Mr. Martin?

Mr. MARTIN. Yes, sir; Senator McCain and Senator Dorgan,

USET stands ready to work with this committee to try to assist in

bringing about some recommendations that could bring some clarity to this issue, that strikes a balance between protecting individual Indian rights of self-determination while protecting those same
25

individuals from some shady and unscrupulous types of individuals.

The CHAIRMAN. Thank you very much.

Mr. Jandernoa?

Mr. JANDERNOA. Senator McCain, I appreciate your giving us the

opportunity to talk with you. I know this jobs issue is one you are

hearing about a lot, but it has got to be important to all of us in

our country, and particularly in saving manufacturing jobs. That

has been my life in the manufacturing segment, and I just want

to save more manufacturing jobs.

So I think we have to continue to look at that. That is why I

would ask that if you could, as a committee, take a look at this information; take the time to study it; and put a moratorium on expanding Indian gaming until you understand it. Because if we go

along a few more years, that is more jobs that are lost and you cannot get them back.

One other aspect that has the job and economics is another issue

that I think needs to be investigated before you go further and

allow more land in trust for gaming is the environmental issue.

You have a Clean Air Act. We are in West Michigan. We have 14

counties in violation of the Clean Air Act, and none of it is because

of what we do in West Michigan.

Unfortunately, we are just a little bit east of Chicago and Gary,

Indiana, and the clean air gets spoiled here. You have a Clean Air

Act and a sovereign nation, and the 1988 act did not include that;

when IGRA was passed, you did not consider how that would affect

businesses and local communities. I really think it is imperative

that, and it is another reason that for communities that needs to

be re-looked at now.

The CHAIRMAN. Thank you.

Mr. Crosby?

Mr. CROSBY. I believe you said at the outset that our written testimony was going to be taken into the record.

The CHAIRMAN. Yes.

Mr. CROSBY. I have an ad here, the Silk Group:

We are a substantial organization, an investment group with casino and real estate interests, and are actively seeking opportunities in the Native American casino

area. We have immediate availability of funds for investment in casino resort development in the California area. If you are qualified with a tribal compact and/or land

in trust, please contact us for confidential discussion of your development plans.

This was in the Desert Sun newspaper. So we are talking about

a pretty rampant situation in terms of trying to get this money.

I would like to include it in the record if it is all right. We have

also maps and other supportive data. There are three very, very

strong articles that were in the L.A. Times that make many of

these points for us.

The CHAIRMAN. That will be included in the record. Thank you.

Mr. CROSBY. I thank you, Senator, very much for allowing me to

come. Thank you, sir.

The CHAIRMAN. Without objection, I thank the witnesses.

The hearing is adjourned.

[Whereupon, at 11 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

(27)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. DALE E. KILDEE, U.S. REPRESENTATIVE FROM

MICHIGAN

Mr. Chairman, I want to thank you for giving me the opportunity to submit a

statement to the Senate Committee on Indian Affairs for today’s hearing on taking

land into trust. I want to acknowledge one of your witnesses from the great State

of Michigan: Chairman D.K. Sprague of the Gun Lake Tribe, an honorable man who

served in our country’s combat military in Vietnam.

Mr. Chairman, like you, I am an ardent supporter of furthering the policy of Indian self determination, providing justice to our country’s first Americans, and

against the past policies of the United States designed to terminate tribal nations

and their culture.

Like so many tribes before them, the Gun Lake Tribe was a victim of those deplorable policies. For several years the tribe fought to reclaim their Federal status

as an Indian tribe. Having petitioned the Bureau of Indian Affairs for Federal acknowledgment in 1992, the tribe was finally recognized through the very difficult

administrative process of the Bureau of Indian Affairs in 1999.

Even though the tribe administers Federal programs and provides services to its

citizens, the tribe still does not have a land base over which to exercise governmental authority.

Congress passed the Indian Reorganization Act of 1934 to, among other things,

help tribes rebuild a land base on which they can build houses for their citizens,

provide employment opportunities, maintain a justice system, and support an educational system for their children. The Department of the Interior implements that

law through its regulations at 25 CFR Part 151.

The Gun Lake Tribe has complied with the Federal requirements for taking land

in trust. Just last week, the Department of the Interior published a notice in the

Federal Register of its intent to take 147 acres of land into trust for the tribe. The

land, located in western Michigan, is part of the tribe’s aboriginal lands. In addition,

the Department of the Interior determined that the tribe meets the requirements

of the Indian Gaming Regulatory Act exception at 25 USC 2791 (b)(1)(13)(ii) that

allows gaming on land acquired after October 17, 1988.

Mr. Chairman, the tribe has painstakingly complied with every Federal law and

requirement in order to achieve Federal Acknowledgement, Land into Trust, and the

opportunity to operate a gaming facility.

I Also point out that the tribe has worked diligently at building strong local community and governmental support.

I commend the tribe for playing by the rules we established.

Thank You
28

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

OF THE INTERIOR

Good morning, Mr. Chairman and members of the committee. My name is George

Skibine, and I am the Acting Deputy Assistant Secretary for Policy and Economic

Development for Indian Affairs at the Department of the Interior. I am pleased to

be here today to discuss the role of the Department in taking land into trust and

the procedures used when the land is for gaming purposes.

The Department manages approximately 46 million acres of land held in trust for

Indian tribes. The basis for the administrative decision to place land into trust for

the benefit of an Indian tribe is established either by a specific statute applying to

a tribe, or by section 5 of the Indian Reorganization Act of 1934 [IRA], which authorizes the Secretary to acquire land in trust for Indians ‘‘within or without existing reservations.’’ Under these authorities, the Secretary applies her discretion after

consideration of the criteria for trust acquisitions in our ‘‘151’’ regulations [25 CFR

Part 151], unless the acquisition is legislatively mandated.

The regulations, first published in 1980, provide that upon receipt of an application to acquire land in trust the Bureau of Indian Affairs [BIA] will notify state and

local governments having regulatory jurisdiction over the land of the application

and request their comments concerning potential impacts on regulatory jurisdiction,

real property taxes, and special assessments. In reviewing a tribe’s application to

acquire land in trust, the Secretary considers the: need; purposes; statutory authority; jurisdictional and land use concerns; the impact of removing the land from the

tax rolls; the BIA’s ability to manage the land; and compliance with all necessary

environmental laws.

The regulations impose additional requirements for approval of tribal off-reservation acquisitions. The Secretary is required to consider the: location of the land relative to state boundaries; distance of the land from the tribe’s reservation; business

plan; and state and local government impact comments. In doing so, the Secretary

‘‘shall give greater scrutiny to the tribe’s justification of anticipated benefits from

the acquisition . . . [and] greater weight to the concerns raised’’ by the local community the farther the proposed acquisition is from the tribe’s reservation.

When the acquisition is intended for gaining, consideration of the requirements

of the Indian Gaming Regulatory Act of 1988 [IGRA] are simultaneously applied to

the decision whether to take the land into trust. Section 20 of IGRA does not provide authority to take land into trust for Indian tribes. Rather, it is a separate and

independent requirement to be considered before gaming activities can be conducted

on land taken into trust after October 17, 1988, the date IGRA was enacted into

law. Specifically, Section 20 provides that if lands are acquired in trust after October 17, 1988, the lands may not be used for gaming, unless one of the following statutory exceptions applies:

(1) The lands are located within or contiguous to the boundaries of the tribe’s reservation as it existed on October 17, 1988;

(2) The Indian tribe has no reservation on October 17, 1988 and the trust lands

are located in Oklahoma and (i) are within the boundaries of the Indian tribe’s

former reservation, as defined by the Secretary, or (ii) are contiguous to other land

held in trust ort restricted fee status for the Indian tribe in Oklahoma;

(3) The tribe has no reservation on October 17, 1988, and ‘‘the lands are located

. . . within the Indian tribe’s last recognized reservation within the state or states

where the tribe is presently located;’’

(4) The ‘‘lands are taken into trust as part of: (i) the settlement of a land claim;

(ii) the initial reservation of an Indian tribe acknowledged by the Secretary under

the Federal acknowledgment process; or (iii) the restoration of lands for an Indian

tribe that is restored to Federal recognition.’’

During this Administration, the Secretary has approved eight applications to take

land into trust that have qualified under these various exceptions to the gaining

prohibition contained in section 20 of IGRA. Of these eight, three were on-reservation acquisitions (Suquamish, Picayune, and Skokomish), three were acquisition of

restored lands for restored tribes (Little Traverse Bay Band, Ponca Tribe of Nebraska, and United Auburn of California), one was for a newly federally acknowledged tribe under the acknowledgment process (Nottawaseppi Huron Potawatomi),

and one was for lands acquired in trust as part of the settlement of a land claim

(Seneca Nation of New York).

Finally, an Indian tribe may also conduct gaming activities on after-acquired trust

land if it meets the requirements of section 20(b)(1)(A) of IGRA, the so-called ‘‘twopart determination’’ exception. Under section 20(b)(1)(A):
29

(1) Gaming can occur on the land if the Secretary, after consultation with appropriate state and local officials, and officials of nearby tribes, determines that a gaming establishment on newly acquired land will be in the best interest of the tribe

and its members, and would not be detrimental to the surrounding community, but:

(2) Only if the Governor of the State in which the gaining activities are to occur

concurs in the Secretary’s determination.

Since 1988, State Governors have concurred in only three positive two-part determinations for off-reservation gaming on trust lands: The Forest County Potawatomi

gaining establishment in Milwaukee, WI; the Kalispel Tribe gaming establishment

in Airway Heights, WA; and the Keweenaw Bay Indian Community gaining establishment near Marquette, MI. During this Administration, the Secretary has made

two such affirmative determinations: One for three Wisconsin tribes seeking a gaining establishment in Hudson, WI, and the other for the Jena Band of Choctaw seeking a gaining establishment in Logansport, LA. In both cases, the Governors of the

affected States have refused to concur in the Secretary’s determinations.

Currently, there are 11 applications for two-part determinations under section

20(b)(1)(A) pending with the BIA for sites in New York, Wisconsin, Michigan, California, and Oregon. Of these, only one concerns the proposed acquisition of land in

a State other than where the tribe is currently located. However, more applications

are rumored to be in development for cross-State acquisitions, including potential

applications in Ohio, Colorado, Illinois, and New York. It is within the context of

this emerging trend that Secretary Norton has raised the question of whether Section 20(b)(1)(A) provides her with sufficient discretion to approve or disapprove gaming on off-reservation trust lands that are great distances from their reservations,

so-called ‘‘far-flung lands.’’ We have spent substantial effort examining the overall

statutory scheme that Congress has formulated in the area of Indian self-determination and economic development. This includes a careful examination of what Congress intended when it enacted Section 20 (b)(1)(A). Our review suggests that Congress sought to establish a unique balance of interests. The statute plainly delineates the discretion of the Secretary, limiting her focus to two statutory prongs.

Also, by requiring that the Governor of the affected state concur in the Secretary’s

determination, the statute acknowledges that in a difference of opinion between a

sovereign tribe and an affected State, the State prevails. Further, at least on its

face, Section 20(b)(1)(A) does not contain any express limitation on the distance between the proposed gaming establishment and the tribe’s reservation, nor is the

presence of state boundaries between the proposed gaining establishment and the

tribe’s reservation a factor.

Our review indicates that the role of the Secretary under section 20(b)(1)(A) is

limited to making objective findings of fact regarding the best interests of the tribe

and its members, and any detriment to the surrounding community. Therefore,

while the trust acquisition regulations provide broader discretion, Section

20(b)(1)(A) does not authorize the Secretary to consider other criteria in making her

two-part determination, thus limiting her decisionmaking discretion to 3 that degree. It should be noted that neither this Administration, nor previous ones, have

ever approved a two-part determination under Section 20(b)(1)(A) of IGRA that

would authorize a tribe to engage in gaming activities on land located in a State

other than where the tribe is presently located. Although off-reservation acquisitions

for gaining under Section 20(b)(1)(A) are subjected to a very lengthy approval process, potential ventures between tribes and their financial partners keep emerging

because neither IGRA nor the main land acquisition authority in the Indian Reorganization Act, or regulations promulgated thereunder, close the door on these

projects. In our view, Section 20 of IGRA reflects Congressional intent to impose a

prohibition on gaming on lands acquired in trust after enactment of the statute. Section 20 does contain a series of exceptions discussed above, but we do not believe

that it was the intent of Congress that the exceptions swallow the rule.

In addition, there have been instances where an Indian tribe submitted an application to take land into trust for a non-gaming purpose, and subsequently attempted

to change the use of the property to gaming. While this practice is discouraged, it

is possible because the United States does not permit deed restrictions to be attached to land owned by the Government, and trust lands are lands owned in fee

by the United States for the benefit of an Indian tribe. It should be stressed that

Section 20 prohibits all Indian gaining on land acquired after October 1988, and this

prohibition applies regardless of the original purpose for which the land was acquired. Absent an exception under Section 20(b), a tribe would still be required to

secure a favorable two-part determination including concurrence by the State Governor in order to legally engage in Indian gaming on that land. It is also important

to emphasize that before trust land can be used for gaming, even if acquired for another purpose, it must meet other requirements of IGRA, which include a deter-
30

mination that the land in question is ‘‘Indian land’’ over which the tribe exercises

jurisdiction and over which it exercises governmental power; receive approval of a

gaming ordinance by the Chairman of the National Indian Gaming Commission;

and receive approval of a tribal/state gaming compact by the Secretary if the tribe

is seeking to engage in class III gaining activities on the land.

Taking land into trust is an important decision not only for the tribe seeking the

determination but for the local community the land is located in. The regulations

seek to ensure that the local community is kept informed and allowed to participate

in the process. Any community comments received are considered before a determination is made whether to take the land into trust. The tribe and the public are

also given an opportunity to appeal to Federal court.

In addition, the Department recognizes the growing concerns about land venue

shopping by tribes, especially for gaining purposes, and the concerns some have expressed about efforts to take developed (or land with development potential) land

into trust. We are evaluating closely the expansion of tribal interests in filing feeinto-trust applications for sites ever more distant from current geographic locations

or for sites with significant implications for State and local jurisdictions.

Under 25 C.F.R. parts 151.10 and 151.11 the Department is required to consider,

when determining whether to take land into trust, whether the BIA is equipped to

discharge the additional responsibilities resulting from the acquisition of land in

trust status. The Department is also evaluating the implications of taking land into

trust on other issues such as land fractionation. For example, the Department and

Congress have been actively engaged in efforts designed to reverse the negative effects of fractionation on individual Indian allotments. As such, it may be prudent

to consider whether steps should be taken to limit, or eliminate, efforts to take land

into trust for individual Indians as one additional means of preventing future fractionation.

While the Department has not made any decisions to alter the status quo, we recognize serious concerns exist. The Department will, of course, communicate and

work with Congress and other affected parties if significant changes are proposed

for the fee-into-trust program.

This concludes my remarks. I will be happy to answer any questions the committee may have. Thank you.

PREPARED STATEMENT OF MICHAEL TOLEDO, JR., GOVERNOR, PUEBLO OF JEMEZ,

NEW MEXICO

Mr. Chairman and members of the committee:

I am Michael Toledo, Jr., Governor of the Pueblo of Jemez in New Mexico. Thank

you for the opportunity to submit testimony for the record.

The Pueblo of Jemez is located 45 miles northwest of Albuquerque in rural northern New Mexico with a resident tribal population of approximately 3,200 members.

The Pueblo is 90,000 acres located in a remote area near no major population centers. The Pueblo’s current reservation lands are not conducive to establishing a

gaming facility for several reasons. There are no major interstate highways traversing the Pueblo lands and the markets for gaining by seven neighboring Pueblos who

already have gaming facilities in operation have saturated the potential market.

The other Pueblos are building hotels, golf courses, and other amenities that would

make it impossible for us to entice people to drive by these facilities to come to remote Jemez. Their locations are on the Interstate and much closer to Albuquerque

and Santa Fe. Our reservation is on a two-lane road. There are only 6,000 people

within a 20-mile radius of the Jemez Pueblo.

We first explored whether we could open a casino on our current lands. We were

told that any type of casino would be a financial failure. We were essentially told,

‘‘Don’t waste your time.’’ To quote the GVA Marquette Economic Feasibility Study

on Gaming at the Pueblo of Jemez, New Mexico dated August 2004: ‘‘. . . we suggest

that you seek an alternative location.’’ We also received several letters from potential Wall Street firms who specialize in financing casino. They confirmed that trying

to open a casino on our tribal lands was an impossibility.

In December 2004, our Pueblo filed its section 20 application for land into trust

so that we could have a casino and a revenue stream to make possible some very

basic human needs for our Pueblo. We have spent countless hours in the development of the application. The filing of our application was a milestone for us which

represented our hope for the future. For the first time, we have an opportunity of

achieving economic self-sufficiency.

Having recently filed our trust application, we’ve learned that the existing section

20 process isn’t easy. It has several, very high thresholds. Consequently, only four
31

applications have been approved by the Department of the Interior and only three

casinos have been built under the process. We think the process could be improved,

however. We would welcome any steps to make the process more transparent. We

would also welcome changes to the section 20 process that make it more deadlinedriven. The BIA, the Office of Indian Gaming and other offices involved should be

given adequate time to review applications, but it would be immensely helpful if

hard deadlines for completing internal reviews and for making decisions were part

of the process.

Mr. Chairman, we are in the middle of the application process, and even without

a change in IGRA, we see the process getting harder. The EIS requirement is one

example. Since the beginning of last year, it has been the Department of Justice’s

recommendation that every casino application include an EIS regardless of the environmental impact. This requirement imposes cost and delay not contemplated when

IGRA was enacted. It was a cost and delay that we did not fully expect when we

started our project. The EIS process is long and is an open invitation for the opposition to abuse the process.

To our Pueblo, the off-reservation gaming provisions of the Indian Gaming Regulatory Gaming Act [IGRA] are the ‘‘Equal Opportunity Provisions’’ of the law. IGRA

was designed to encourage better, stronger tribal governments, self-determination

and economic opportunity. These provisions are also our best hope to meet our tribal

needs-needs that have gone unmet for decades—needs that have not been provided

funding by the Federal Government because of budget cuts. The provisions of section 20, gives a tribe like the Pueblo of Jemez with a remote location an opportunity

to be part of the process. There is no equal opportunity under IGRA if consideration

is being given to changing section 20.

We are a poor tribe with a remote location and with little economic development

on our reservation. Our economic development is a convenience store with eight gas

pumps on a two-lane road. Our Pueblo is 3,200 member strong and continuously

growing. The growth of the Pueblo creates a heavy burden and puts a real strain

on the Pueblo’s infrastructure such that we are unable to provide adequate governmental services. With the recent trend in Federal budget cuts resulting in less

money being available for the tribe we have no place else to turn but to look for

opportunities like developing a casino outside our reservation. We do not have a casino.

In designing our project, we gave careful thought to not encroach upon the primary market of other federally recognized tribe’s who are eligible to game. We have

selected a location in our home State, as close to our reservation as possible, taking

into account economic viability for the casino. We want to game in our state, but

do not want to encroach on other gaming tribes’ primary market. In order to accommodate this objective, our proposed site is in Anthony, NM, 293 miles from our reservation. Dona Ana County is the closest population center sufficiently large enough

to support a successful casino. The Pueblo believes that partners with similar needs

and goals are the best partners. Anthony, NM is an unincorporated area with strikingly similar demographics, infrastructure and community needs as the Pueblo of

Jemez.

The 293 miles between the Pueblo’s reservation and Anthony, NM, our proposed

site, may sound like a long distance, but the geography and demographics should

be more important than the odometer. Between the Pueblo of Jemez and our proposed site, there is a lot of open space, a lot of Federal land, some great ranches

and farms, some oil and gas fields, some potash mines, and very few people. It is

a sparsely and scattered population. Most of the towns are as small as the Pueblo

of Jemez, and few are larger than 20,000. Anthony is the closest location to our

Pueblo that would support a viable a casino based on our GVA Marquette Advisers

Study.

Our project enjoys tremendous local support. Our casino project enjoys 76 percent

strong support based on an objective poll conducted in December 2004. The support

for our casino is evidenced by 11,000 signatures on a petition circulated in Anthony.

We found our local community very reasonable, but not every tribe may have the

same experience. We were asked about giving a percentage of the casino business

equal to the State’s share to one faction of a local group. We were also asked to

fund some unrelated pet economic development projects of some of the people with

which we met. We did neither because we did not believe IGRA allowed it, or that

the Secretary of the Interior would approve it. We did however enter into an Intergovernmental Agreement with Dona Ana County to pay for governmental services

that would be impacted by our proposed casino. Coming into a community like Anthony we know that the casino would create additional burdens for the community.

Given the growing pains that we are experiencing at our Pueblo, we felt that it was

only fair and reasonable to pay for some of these services such as police, fire and
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emergency medical services. We want to be a good neighbor, and a welcome addition

to the community.

In selecting our site, we insisted upon a county that already had gaming. Dona

Ana County, New Mexico has a racetrack and slot machines. The slot machines are

often three-deep with people waiting for a turn to play. We did not want to introduce gaming into a county that had not already allowed it. There are 2.2 million

people and 700 slot machines in our projected market area. This compares to

786,000 people near Albuquerque, 7 casino/resorts and 7,250 slot machines. Our

market study concluded that the Anthony, NM area was underserved for gaming.

As I am sure you remember, when Congress passed IGRA the ‘‘cooperative federalism’’ of the Equal Opportunity provisions of section 20 were carefully crafted

and designed to allow off-reservation gaming under circumstances, if and only if, all

levels of government were consulted. Local governments are consulted to make sure

there is no local detriment. The Secretary of the Interior also has to carefully evaluate the best economic interests of the tribe applying for the land and the gaining.

The State legislatures were given the authority to set the general rules for entering

into compacts and for gaming in the State. Congress wisely did not give them a role

in micromanaging every application, second guessing the experts or overly politicizing the process. This past legislative session in New Mexico a bill was introduced

to require a case-by-case approval of off-reservation applications, second guessing

the Secretary of the Interior and tying the hands of the Governor. Your committee

might consider clarifying State legislatures’ roles. Under current law the States’ interests and power to approve or not approve an application was vested with the

Governor because he represents the entire state and stands for election among all

the people not just certain special interests.

Several weeks ago the CBS affiliate in El Paso aired a special edition on our

project. I would like to make the transcript of that video part of the record. The

video link, should you like to see it, it is available at AnthonyCasinoFacts.Com.

Click on ‘‘Latest Press Information’’ Click on ‘‘Who are the Jemez? A Tale of Two

Communities and Two Cultures.’’ There is a little video camera icon. Click on it to

watch the video.

Off-reservation gaming is an important option for Jemez Pueblo. The Pueblo

struggles with the need to bring in revenues to provide basic governmental services

ranging from health care, law enforcement, water and sewer, housing, emergency

medical services, education and others. The tribal administration has relied heavily

on Federal grants and State and Federal appropriations to try to meet the needs

of the Pueblo in providing the essential governmental services. Even with the funds

received the Pueblo still has shortfalls. The grants and appropriations the Pueblo

receives is always decreasing sometimes not available. The Pueblo itself has very

limited financial resources.

We very carefully began this journey to open a casino and to be able to use the

revenue to help our people. Our project is justified under current law. If there is

to be any changes to IGRA as a result of the committee’s oversight hearings, we

hope that you will take steps to make sure that the processing of applications does

not stop while Congress considers legislation. We hope that you will consider an

amendment which provides that applications started under the section 20 process

can be completed under that process.

Thank you for providing an opportunity for us to comment and to tell you about

our application.
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PREPARED STATEMENT MICHAEL B. JANDREAU, CHAIRMAN, LOWER BRULE SIOUX

TRIBE

I respectfully submit the following statement to the Senate Committee on Indian

Affairs with regard to the Oversight Hearing on Taking Land into Trust. I request

that my statement be made a part of the written record.

I am Michael Jandreau, chairman of the Lower Brule Sioux Tribe. I have been

chairman for over 25 years. During my tenure I have overseen countless land transactions and dealings involving every kind of land possible from private non-Indian

owned property within the boundaries of our reservation to land held in trust by

the Federal Government. Of all the types of transactions, taking land into trust is

by far the most burdensome and cumbersome of all; indeed I believe that it is a

flawed process. Let me illustrate with an example that has been plaguing our tribe

for 15 years.

The reservations of South Dakota are among the poorest in the Nation. Lower

Brule, which has an unemployment rate of 30 percent is actually considered to be

one of the most prosperous in South Dakota. One of the main reasons for the severe

poverty is the Pick-Sloan water development project, authorized by Congress in

1944 through the Flood Control Act. As a result of this act, over 22,000 acres, approximately 10 percent of the entire reservation and our best bottom-land was flooded. In addition, it required resettlement of nearly 70 percent of the resident population. To date, we have still not received fair monetary compensation from the Federal Government for the loss of this land. Even worse are the deep spiritual and

cultural losses, which can never be repaid. Since the flooding we have struggled to

spur economic development. However, several of our attempts have proved quite

successful, including our tribal farm, which is among the most successful of its kind.

In 1990 the Lower Brule Sioux Tribe acquired 91.7 acres of land in Oacoma, SD.

The land is where the original Lower Brule Agency was located, is within the territorial boundaries of the original Lower Brule Sioux Reservation, and is within the

territorial boundaries of the Great Sioux Reservation as defined by the Ft. Laramie

Treaty of 1868. There is a clear and undeniable aboriginal connection to the land.

The land is also on Interstate 90, which is the main east-west highway through

South Dakota.

The tract of land is an ideal location for economic development projects utilizing

our unique culture and can serve not only our tribe, but the entire Sioux Nation

as well. The tribe is currently using the land as the Southern Gateway to the Native

American Scenic Byway, a cultural tourism enhancement project. The Byway not

only benefits the tribes of South Dakota, but many non-Indian communities as well,

including Oacoma, Chamberlain, Ft. Pierre, and Pierre.

The tribe applied for trust status on 1990 and we are still in limbo. Governor

Janklow (R) supported our efforts to take the land into trust as he saw it as a beneficial to all of South Dakota (see attached letter). It is placing the land in trust, and

maintaining full jurisdiction over that land that is most important to our tribe.

In 1991 the Bureau of Indian Affairs issued a notice of intent to take the land

into trust. An appeal was filed by the city of Oacoma, but dismissed. In July 1992

the land was taken into trust for the Lower Brule Sioux Tribe. The city of Oacoma

continued legal action, joining with the Attorney General of South Dakota (notwithstanding the Governor’s position) in filing suite against the Department of the Interior, citing that the Man Reorganization Act was unconstitutional, and hence, the

taking the land into trust for the tribe was unconstitutional. In 1995 the State and

Oacoma won their case. It was vacated and remanded by the Supreme Court, and

the Secretary of the Interior was directed to reconsider his decision to put the land

into trust. On May 14, 1997 the Department published notice in the Federal Register that the land was no longer in trust. As a result of the decision, the rules for

taking land into trust were altered. The new rules made it easier for city, county,

and State governments to delay decisions by the Federal Government to take land

into trust.

In 2000 Lower Brule reapplied for the land to be taken back into trust and the

process was repeated, with the State of South Dakota and the city of Oacoma filing

suit yet again. Currently, we are awaiting another decision from the Eight Circuit.

We intend to take whatever steps are necessary to see that this land once again

becomes part of the Lower Brule Sioux Reservation. The process has dragged on for

15 years, through multiple Administrations and Congresses. Something must be

done.

The entire land into trust process must be scrutinized and changes made accordingly. I would propose the following changes, which would serve to expedite the

process and make relations between various parties more amicable.
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• Procedural Timelines: Currently, there are no timelines for the Department to

issue decisions concerning land into trust applications. Reasonable timelines

should be set by Congress so that the process does not go on indefinitely.

• Report to Congress: The Congress should require the Department to send to

Congress an annual report on the status of all pending trust applications. Perhaps this attention would serve to expedite the process.

• Arbitration: When a land into trust application is challenged the Department

should be required to bring together all parties for arbitration consistent with

treaty rights, principles of sovereignty and the unique Federal-tribal government-to-government relationship.

I applaud the committee’s leadership and hard work in taking on this very important issue, and I hope that it becomes more of a priority. I am confident that with

your leadership Mr. Chairman and Ranking Member Senator Dorgan that land into

trust issues will be addressed in a thoughtful and meaningful manner and that will

be fair to all parties involved. I stand ready to assist the committee in any way possible.

Thank you for the opportunity to share my thoughts with the committee.

STATE OF SOUTH DAKOTA,

December 15, 1998.

Hon. BRUCE BABBITT,

Secretary, Department of the Interior,

Washington, DC.

DEAR MR. SECRETARY: The Lower Brule Sioux Tribe currently owns 92 acres of

land in Oacoma, SD. The tribe has asked you to take this land into trust.

Based upon their new business plan and assurance that the tribe will not conduct

gaming at this location, we are pleased to support the tribe’s application for trust

status.

Sincerely,

WILLIAM J. JANKLOW, Governor

PREPARED STATEMENT OF SANTA YNEZ VALLEY CONCERNED CITIZENS, PRESERVATION

OF LOS OLIVOS, AND PRESERVATION OF SANTA YNEZ

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

submit this testimony on the important subject of the legal requirements and procedures for decisions by the Bureau of Indian Affairs [BIA] on taking land into trust

for Indian tribes. This is an issue that has generated considerable controversy

throughout the Nation for many years, and it recently has become a significant

issue in our local area. The problems with the trust land acquisition process are

being brought home to the Santa Ynez Valley as a result of the actions of the Santa

Ynez Band of Chumash Indians. As discussed in our testimony, the problems we

are currently confronting in the Valley are the direct outgrowth of the lack of adequate legal controls over the procedures used to consider trust land acquisition requests and the criteria that govern BIA decisions. We are grateful for this Committee’s timely consideration of the trust land acquisition issue, and we pledge our support and cooperation to your efforts to bring reform to the tribal trust land process.

The three organizations submitting this testimony, Santa Ynez Valley Concerned

Citizens, Preservation of Los Olivos, and Preservation of Santa Ynez, have been established in recent years in response to concerns regarding the manner in which

tribal activities could affect the environment and quality-of-life in the Santa Ynez

Valley. In 2004, our organizations became focused on the way that the tribe was

seeking to use the trust land acquisition process to develop land in Santa Ynez Valley in contravention of the local land use plans. Our organizations are comprised

of residents, businesses and environmental interests united in the goal to protect

the Santa Ynez Valley from unfettered tribal development.

The tribe has already engaged in considerable development activity in Santa Ynez

Valley. It currently possesses approximately 111 acres of designated reservation

land on which is constructed a highly successful 190,000 square-foot casino. The casino houses 2,000 slot and video machines, 40 table games, 14 poker rooms, a bingo

room seating 1,000 patrons, four restaurants, and a gift shop. In 2002, the Chumash

Indians financed a $150-million expansion of its casino and hotel, which was completed 1 year ago and is open for operation. The tribe also operates an oversized,
369

expandable wastewater treatment plant capable of handling significant additional

development.

As the tribe itself has acknowledged, in the very short period of time the

Chumash Casino has been open, it has become economically self-sufficient. In fact,

each tribal member reportedly receives $360,000 annually from casino revenues.

The tribe has been able to use casino revenues to support the Chumash tribal government, an education program paying for a portion of members’ education beyond

high school, a health clinic, and numerous other tribal purposes.

Despite this high degree of success, the tribe continues to request to have more

land placed in trust for development. In January of this year, BIA announced its

intent to accept 6.9 acres of land in trust. This land is located outside of the reservation boundaries, and it is supposed to be used for a commercial retail facility, parking lot, offices, and museum/cultural center. Our organizations decided to appeal the

BIA decision because of numerous factors, including the other development plans

which the tribe appears to be submitting to the BIA in a piecemeal manner. The

BIA ignored the concerns expressed by our organizations and others regarding the

tribe’s plans for development, including our request that the BIA facilitate the development of a cooperative agreement between the county and the Tribe to protect

local interests.

Within a few months of the BIA’s decision on the 6.9-acre parcel, the tribe filed

another request to have an additional 5.8-acre parcel of land placed in trust immediately adjacent to the 6.9-acre parcel. The reason for this trust acquisition is not

clear, since the tribe indicated on its application that it does not intend to change

the use of the land in any way. A look at a map suggests that the tribe is attempting to connect all of these and possibly other parcels to establish a contiguous

stretch of trust land free from local control. It also may be trying to connect its current reservation to a large tract of property it seeks to develop with a local landowner, Mr. Fess Parker.

Over the last year, the tribe has engaged in negotiations with Mr. Parker to acquire an additional 745-acre parcel located about 1.5 miles from the 6.9-acre parcel

and almost 2 miles from the tribe’s reservation. In those negotiations, the tribe

planned to develop this large, and exceptionally beautiful, tract of land cooperatively

with its current owner, Mr. Parker, has a luxury housing development, two golf

courses, and other commercial development. Mr. Parker proposed the plan to the

tribe because he had for years been unable to develop the land commercially himself

due to existing and accepted county land use restrictions. By having the land placed

in trust, Mr. Parker and the tribe can evade local land use restrictions, which currently designate the land for rural uses only. In addition, there also may have been

a plan under consideration to build a casino on this property. If that is the case,

having the land connect to its reservation could possibly allow the tribe to evade

other review requirements under the Indian Gaming Regulatory Act [IGRA]. The

current status of their plans for the Parker parcel is unclear.

Regardless of whether the tribe intends to develop another casino on Mr. Parker’s

land, its efforts to acquire additional land in trust are undermining the land use

plans in the Valley and will adversely impact the environment and quality of life

in the region. We do not believe that Congress ever intended for the trust land process to become an evasion of community land use or environmental rules that would

otherwise be applicable. In particular, we are concerned with the tribe’s apparent

desire to add parcels together that it argues are ‘‘contiguous’’ to each other to gain

the benefit of more permissive BIA trust acquisition standards for such properties.

Rather than reveal its overall plans, the tribe appears to be following a pattern of

simply adding one parcel to another, piece-by-piece, in a gradual effort to expand

its trust lands without ever undergoing full disclosure or review. Further, the

Chumash request to have land placed in trust for no apparent reason would establish dangerous precedent to allow a successful tribe to take advantage of a process

intended to help economically disadvantaged tribes attain self-sufficiency and effective self-governance.

The factual situation described above demonstrates the problems with the BIA’s

approach to trust land acquisition. The procedures and standards for making decisions on trust land requests are weak and ineffective, and they do not provide an

adequate role for public participation. The combined effect of these deficiencies is

to make it possible for tribes to have land removed from State and local control and

taxation to the detriment of local communities without adequate justification or

public interest review. Each of the principal problems with the trust land process

is discussed below.

Need for Clear Standards. The current BIA trust land acquisition regulations are

set forth in 25 C.F.R. Part 151. These standards predate the Indian gaming era that

came into effect in 1988 with the enactment of the Indian Gaming Regulatory Act
370

[IGRA]. With the establishment of Indian casinos and the generation of incredible

wealth for some Indian tribes, the potential for abuse of the trust land process has

grown significantly. When the regulations were first promulgated, it was generally

the case that tribes would seek to have land taken into trust for the purpose envisioned under section 5 of the Indian Reorganization Act of 1934 [IRA], where the

statutory authority comes from. These were circumstances where additional land

was truly needed by a tribe to achieve governmental and economic self-sufficiency.

The regulations appear to have been generally adequate for evaluating most trust

land requests in that context. Indian gaming has changed all that, however, because

not only do many tribes now have the financial wherewithal to buy virtually any

land in any place for any purpose, there is strong incentive to add to the wealth

generated by Indian casinos by taking more land into trust, escaping the requirements of local land use planning which may prohibit casino-related development,

and avoiding the need to pay any taxes or other government fees on the use of that

land. This is a virtual bonanza for casino interests and developers. The problems

presented by a procedure that allows sovereign tribal governments and their developer partners to escape all state and local regulation become even more apparent

when real world situations are considered, as demonstrated by the situation we now

confront in the Santa Ynez Valley.

The problem with the current regulations is that they are far too general and

vague. There are seven criteria under the BIA regulations in 25 C.F.R. Part 151 for

taking land into trust, and only three of these—purpose of trust land request, tribal

need for putting land into the status, and impact on local governments—are of any

real significance. Unfortunately, the regulations do not spell out in any way what

these standards mean, and the BIA has developed no useful guidance over the years

on how to apply them.

It has been over 70 years since Congress addressed the circumstances under

which land should be taken into trust as a general proposition through the IRA. It

is now time to revisit that question by providing specific standards as to the acceptable purposes for taking land into trust, the circumstances under which tribal need

can be demonstrated, and how the concerns of local governments, and the represented public, would be taken into account.

In this regard, we believe it is particularly important to return to the basic purposes of land in trust. The purpose of the IRA was ‘‘to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a century

of oppression and paternalism.’’ H.R. Rep. No. 1804, 73d Cong. 2d Sess., 1 (1934).

The act encouraged ‘‘tribes to revitalize their self-government through the adoption

of constitutions and bylaws and through the creation of chartered corporations, with

power to conduct the business and economic affairs of the tribe’’ so that ‘‘a tribe taking advantage of the act might generate substantial revenues for the education and

the social and economic welfare of its people.’’ Mescalero Apache Tribe v. Jones, 411

U.S. 145, 151 (1973).

These principles should continue to apply. In circumstances such as those we are

confronting in the Santa Ynez Valley, wealthy tribes that have achieved an extraordinary level of success and economic self-sufficiency should not be able to apply to

have land taken into trust for vague and generalized purposes such as self-determination and consolidation of land holdings. At the very least, when such circumstances exist, Federal law should prohibit land from going into trust unless the

tribe involved has entered into an inter-governmental agreement with the affected

local government that provides for consistency with local standards and ensures

that compensation is provided to cover the impacts associated with the development

that is likely to occur on such lands. Most importantly, such agreements must be

required to include a waiver of sovereign immunity and an agreement on judicial

enforcement. They also should be subjected to public review. Unless standards such

as this are developed, there will be no limit on placing land into trust; tribes will

always be able to meet the test, and local community interests will be lost.

Limitation on Development to Proposed Uses. Another major problem with the

trust land acquisition process is that it does not impose limitations on the use that

can be made of such land once it is taken into trust. As a result, there is strong

concern that tribes will identify one purpose, or claim only a very general intent for

the use of such land, until the trust land decision is made. Then, once the land is

in trust, the tribe will change its use to something entirely different that is objectionable to the local community, violates local standards, and should have been the

subject of far more detailed Federal environmental review.

The Federal Government takes the position that it cannot impose deed restrictions on land titles held by the United States. While we do not necessarily agree

with this concern, such a problem can be readily addressed by Congress in the con-
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text of trust land acquisition. We believe it is critically important that tribes be held

to their intended uses of the land that serve as the basis for BIA and public review.

Improved Public Review. The current trust land process does not provide for adequate public review. As demonstrated by the strong public controversy over many

trust land requests, the effect of such action by the BIA has a very strong impact

on local communities. Yet, BIA regulations have no provision that provides for public comment, they only provide for local governments with jurisdiction over the subject lands to submit information on tax loss and jurisdictional conflicts. The only

way public comment occurs is through related legal requirements, such as the National Environmental Policy Act [NEPA]. When tribes develop proposals that are not

addressed through a NEPA process involving public comment, such as an EIS, then

there is no opportunity for such input at all.

We currently are confronting such a situation in the Santa Ynez Valley, where

the Chumash Band is seeking to have the 5.8-acre parcel taken into trust on the

theory that there will be no change in land use. Obviously, a parcel of land in this

location, in a prime commercial location, will not go undeveloped. Yet, by arguing

for no change in use the tribe could make an effort to avoid NEPA review entailing

public comment. The California Environmental Quality Act does not apply because

there is no State action. Obviously, any Federal decisionmaking process is improved

by public input, especially one that has such a significant impact on local communities. The BIA trust acquisition process must be reformed to provide expressly for

such public comment.

BIA Trust Land Checklist. The practice of BIA to avoid public review is amply

illustrated by the recently released ‘‘Trust Land Acquisition Checklist.’’ This checklist contains numerous provisions that are of concern to the public. It is focused primarily on trust land acquisitions in the gaming context, and includes things such

as geographic limitations on the applicability of the critically important section 20

of IGRA, which prohibits gaming on post-1988 trust land except in narrow circumstances. The checklist also covers issues such as procedural limitations on how

consultation under section 20 would occur, definitions of what constitutes gaming

on contiguous lands, and other very important provisions. Many of these provisions

are of considerable concern to us, yet BIA unilaterally issued this checklist as internal guidance to govern its actions and public involvement in trust land reviews

without even seeking outside comment. Indeed, many of these provisions were included in proposed regulations issued in the past. This demonstrates that the provisions of a checklist qualify as rulemaking, yet the BIA has simply forged ahead in

issuing this guidance on trust land issues of great importance to the public without

any notice or comment.

The Need for Intergovernmental Agreements. Experience has demonstrated that

many of the concerns associated with trust land acquisition can be addressed

through the development of inter-governmental agreements between tribes and local

communities. There is a strong record in this regard, and the possibility of such an

agreement being developed in the Santa Ynez Valley for the 6.9-acre parcel is now

under consideration. Our organizations strongly support the use of such agreements,

provided they are developed with adequate public input, fully address local concerns, and are made enforceable in the appropriate court through waivers of sovereign immunity. We understand that the BIA generally supports the use of this

approach, but far more needs to be done to develop these agreements and support

their use. The BIA should be playing a more active role and encouraging parties

to trust land disputes to pursue such agreement, and it should be developing prototype agreements that contain the provisions which are typically necessary for things

such as sovereign immunity waivers. Successful use of intergovernmental agreements can help avoid trust land conflicts, and BIA should play a leading role in promoting their use.

It is clear that the trust land acquisition process is broken. The situation that is

now emerging in the Santa Ynez Valley is a perfect example of this problem. Unfortunately, we do not believe that the BIA is doing enough to solve these problem

areas. We encourage the committee to become actively involved in this issue and

to use circumstances such as those occurring in the Santa Ynez Valley as the basis

for oversight and reform. Thank you for considering these comments, and please let

our organizations know what they can do to assist in your review and reform efforts.

Æ