U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

20-127 PS 2005

DRAFT LEGISLATION TO AMEND

THE INDIAN GAMING REGULATORY ACT TO RESTRICT

OFF-RESERVATION GAMING.

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

Thursday, March 17, 2005

Serial No. 109-5

Printed for the use of the Committee on Resources

(

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

or

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

(II)

COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

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

Don Young, Alaska

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Barbara Cubin, Wyoming

Vice Chair

George P. Radanovich, California

Walter B. Jones, Jr., North Carolina

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Jim Gibbons, Nevada

Greg Walden, Oregon

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

Jeff Flake, Arizona

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Devin Nunes, California

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Luis G. Fortun ̃ o, Puerto Rico

Cathy McMorris, Washington

Bobby Jindal, Louisiana

Louie Gohmert, Texas

Marilyn N. Musgrave, Colorado

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Grace F. Napolitano, California

Tom Udall, New Mexico

Rau ́l M. Grijalva, Arizona

Madeleine Z. Bordallo, Guam

Jim Costa, California

Charlie Melancon, Louisiana

Dan Boren, Oklahoma

George Miller, California

Edward J. Markey, Massachusetts

Peter A. DeFazio, Oregon

Jay Inslee, Washington

Mark Udall, Colorado

Dennis Cardoza, California

Stephanie Herseth, South Dakota

Steven J. Ding, Chief of Staff

Lisa Pittman, Chief Counsel

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

(III)

CONTENTS

Page

Hearing held on Thursday, March 17, 2005 .......................................................... 1

Statement of Members:

Kildee, Hon. Dale, a Representative in Congress from the State of

Michigan, Prepared statement of ................................................................ 53

Miller, Hon. George, a Representative in Congress from the State of

California ....................................................................................................... 2

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

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

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

Statement of Witnesses:

Forster, Richard, Chairman, Amador County Board of Supervisors ............ 4

Prepared statement of ............................................................................... 6

Response to questions submitted for the record ..................................... 9

Jaimes, Lori, Chairwoman, Greenville Rancheria of Maidu Indians ........... 12

Prepared statement of ............................................................................... 14

Response to questions submitted for the record ..................................... 18

Leecy, Kevin, Chairman, Bois Forte Band of Chippewa Indians of

Minnesota ...................................................................................................... 28

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

Response to questions submitted for the record ..................................... 35

Luger, J. Kurt, Executive Director, Great Plains Indian Gaming

Association ..................................................................................................... 62

Prepared statement of ............................................................................... 65

Response to questions submitted for the record ..................................... 69

Martin, James T., Executive Director, United South and Eastern Tribes,

Inc. ................................................................................................................. 71

Prepared statement of ............................................................................... 73

Response to questions submitted for the record ..................................... 81

Quan, Jean, Council Member, City of Oakland, California .......................... 42

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

Response to questions submitted for the record ..................................... 45

Stevens, Ernest L., Jr., Chairman, National Indian Gaming Association,

Prepared statement of .................................................................................. 92

Response to questions submitted for the record ..................................... 99

Van Norman, Mark, Executive Director, National Indian Gaming

Association ..................................................................................................... 90

Additional materials supplied:

List of miscellaneous letters and statements submitted for the record

that have been retained in the Committee’s official files .......................... 121

(1)

OVERSIGHT HEARING ON DRAFT LEGISLATION TO AMEND THE INDIAN GAMING

REGULATORY ACT TO RESTRICT OFFRESERVATION GAMING, AND FOR OTHER

PURPOSES.

Thursday, March 17, 2005

U.S. House of Representatives

Committee on Resources

Washington, D.C.

The Committee met, pursuant to notice, at 2:05 p.m., in Room

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

[Chairman of the Committee] presiding.

Present: Representatives Pombo, Radanovich, Gibbons, Walden,

Hayworth, Pearce, Nunes, Brown, Kildee, Faleomavaega, Pallone,

Christensen, Kind, Tom Udall, Costa, Miller, DeFazio, and

Herseth.

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

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

The Committee is meeting today to hear testimony on offreservation Indian gaming and more specifically on a discussion

draft bill I wrote to address this issue.

Under Rule 4(g) of the Committee Rules, any oral opening

statements at the hearings are limited to the Chairman and the

Ranking Minority Member. This will allow us to hear from our witnesses sooner and help Members keep to their schedules. Therefore, if other Members have statements, they can be included in the

hearing record under unanimous consent. The Indian Gaming Regulatory Act (IGRA) prohibits gaming on

off-reservation trust lands acquired after October 17, 1988. A

number of exceptions were made, but it was thought that offreservation gaming would be rare. So far, only a handful have been

approved. However, there is a growing number of tribes claiming

one of the several exceptions to the off-reservation gaming ban. The

locations of the proposed casinos are most often chosen for their

favorable markets as opposed to any ancestral connection to the

land. In some cases, the proposed sites are within the aboriginal

territory of other tribes. This seems to turn the notion of Indian

gaming as a sovereign government revenue tool on its head. This

2

is a troubling development to a number of tribal leaders I have consulted with in the last 2 years. It is also a source of distress for

city and county officials who have been contacting their Representatives in Congress with increasing frequency to seek help.

The draft bill I have authored is meant to protect the integrity

of Indian gaming. It prohibits Indian gaming outside a tribe’s reservation except in certain Indian economic development zones,

which are subject to approval from State and local governments

and from the affected tribal governments. The purpose of the zones

is to consolidate gaming where it is welcome by all affected governments and to offer an alternative to tribes that are stuck in bad

locations.

By distributing a discussion draft bill, I want to emphasize that

it is a work in progress. It introduces new concepts, and I welcome

input in what will be a deliberative process of crafting a bill that

Congress can pass and that will put the off-reservation controversies to rest.

With that in mind, I want to hear from today’s witnesses about

the severity of the problems posed by off-reservation casinos and

what they think of the discussion draft. I would like to at this time

recognize Mr. Miller.

[The prepared statement of Mr. Pombo follows:]

Statement of The Honorable Richard W. Pombo, Chairman,

Committee on Resources

The Indian Gaming Regulatory Act prohibits gaming on off-reservation trust

lands acquired after October 17, 1988. A number of exceptions were made, but it

was thought that off-reservation gaming would be rare. So far, only a handful have

been approved.

However, there is a growing number of tribes claiming one of the several exceptions to the off-reservation gaming ban. The locations of the proposed casinos are

most often chosen for their favorable markets as opposed to any ancestral connection to the land.

In some cases, the proposed sites are within the aboriginal territory of other

tribes. This seems to turn the notion of Indian gaming as a sovereign government

revenue tool on its head.

This is a troubling development to a number of tribal leaders I have consulted

with the last two years. It’s also a source of distress for city and county officials,

who have been contacting their Representatives in Congress with increasing frequency to seek help.

The draft bill I have authored is meant to protect the integrity of Indian gaming.

It prohibits Indian gaming outside a tribe’s reservation except in certain Indian Economic Development Zones, which are subject to approval from State and local governments, and from the affected tribal governments.

The purpose of the zones is to consolidate gaming where it is welcomed by all affected governments, and to offer an alternative to tribes that are stuck in bad locations.

By distributing a discussion draft bill, I want to emphasize that it’s a work in

progress. It introduces new concepts, and I welcome input in what will be a deliberative process of crafting a bill the Congress can pass and that will put the offreservation controversies to rest.

With that in mind, I want to hear from today’s witnesses about the severity of

the problems posed by off-reservation casinos, and what they think of the discussion

draft.

STATEMENT OF THE HON. GEORGE MILLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. MILLER. Thank you, Mr. Chairman, and I want to begin by

commending you for making this effort, and I appreciate your

3

emphasis on the fact that this is a discussion draft, and I think it

has wisely been presented as that because, clearly, this will help

us formalize those discussions. There have been ongoing discussions all across this country on this very subject and the best way

and manner to handle the questions of remote reservations, landless tribes, and off-reservation gaming, and then, of course, all of

the questions of competition, local impact, community impact, and

who should have a say and who should not have a say in these decisions.

As we all know on this committee, because of past treatment and

policies by the Federal Government, we find Indian tribes and

bands in very varied situations with respect to their standing before the Government. And we have used a number of different

means by which to provide for recognition of those tribes, to provide for a land base for those tribes. Many of those tribes which

had a rather significant land base at one time, that land base was

terminated or for other reasons was dissipated wrongfully and

without much control by those tribes, and now they are trying to

reconstruct that land base, trying to provide housing, trying to provide economic opportunity for their tribes.

That has raised the question, obviously, within IGRA, and I

would say for the most part IGRA probably is working about as it

was intended. And it does, however, continue to raise the questions

of whether or not either on-reservation or off-reservation gaming

would be viable or not. And I think it is certainly worth our attention to understand that.

I also think that there is a fair amount of this that is being—

certainly in our State that is causing this activity, there is a significant number of private parties now that have engaged with various tribes, hoping to be able to promote their restoration of lands

or development of the land base, either off-reservation or a land

base for the first time, restored lands, if you will, and then trying

to use that as an economic lever to locate an Indian casino at various locations—there is no end to the locations suggested—in California.

A lot of that I think is promotion that is beyond the realities of

the law. People are suggesting that if you have the land base and

you can go to an area that it is almost automatic you are going to

get a casino. That is not very likely. There have only been three

tribes, I think, that have made it through the IGRA process for

that purpose. But hope does spring eternal both in the eyes of the

investors and in the eyes of the tribes who are trying to find a way

to provide for that economic development of their lands and of their

people.

So I think this is an important discussion. I think it is a very

difficult one. I think the bill raises almost as many issues as it

seeks to answer. I have some concerns. At some point, I would hope

that the hearings would invite individuals that have been working

very hard on maintaining, and the concern over the erosion of, sovereignty as to exactly how many people get to make decisions with

these sovereign nations and override these sovereign nations. That

may or may not be an issue that the Indian nations are concerned

about, but I think it is certainly raised in this legislation.

4

I also would raise the question of, as you anticipate in this legislation, the designation of these areas. What is that process? Is that

a Federal action? Is that an action that requires serious review before it can take place? And which entities would it be that would

have a veto over that? It is quite conceivable that by the time you

have satisfied all the parties, there would be no revenues left for

the Indian tribes. If they ever did get the casino, there would be

so many people with their hand out.

So I look forward to hearing from the witnesses in the panels

that you have assembled today. Unfortunately, I am going to have

to leave at 2:30 for a leadership meeting. I have read some of the

testimony that has been submitted, and I will read the rest of the

testimony, and thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you.

I would like to introduce our first panel of witnesses representing

several elected officials. They are Richard Forster, Chairman of the

Amador County Board of Supervisors; Lori Jaimes, Chairperson of

the Greenville Rancheria; Kevin Leecy, Chairman of the Bois Forte

Tribe; and Jean Quan, Council Member of the City of Oakland.

I would like to take a minute to remind all of today’s witnesses

that under Committee Rules oral statements are limited to 5 minutes. Your entire statement will appear in the record. If I could

have all of you rise and raise your right hand.

[Witnesses sworn.]

The CHAIRMAN. Let the record reflect that they all answered in

the affirmative. Welcome to the Committee. Thank you very much

for being here, and we are going to start with Mr. Forster.

STATEMENT OF RICHARD FORSTER, CHAIRMAN,

AMADOR COUNTY BOARD OF SUPERVISORS

Mr. FORSTER. Thank you. Chairman Pombo and distinguished

members of the House Resources Committee, my name is Richard

Forster, and I am the Chairman of the Amador County Board of

Supervisors. Chairman Pombo, first I would like to thank you for

providing the opportunity to address this very important issue of

off-reservation Native American gaming and the direct ramifications this activity is having on our small, rural county.

In addition to representing Amador County, I have been asked

by the California State Association of Counties, which represents

all 58 counties, to address their recently adopted policy that is consistent with the intent of your draft bill. Their policy statement

reads: ‘‘CSAC opposes the practice commonly referred to as

‘reservation shopping’ where a tribe seeks to place land into trust

outside its aboriginal territory over the objection of the affected

county.’’

CSAC plans to present detailed written testimony to the

Committee within the week.

Through my testimony today, I will attempt to provide you an

understanding of the impact of Indian casinos on Amador County.

Chairman Pombo, we believe our circumstances support your initiative to provide local government with the ability to have significant input in the approval process of Federal Indian gaming on

land that otherwise would be within its jurisdiction. Amador

County and CSAC view your draft legislation as a serious effort to

5

balance local and State concerns regarding reservation shopping

with the economic development needs of tribes.

Amador County is a rural county of approximately 35,000 people

located on the western slope of the Sierra Nevada, roughly midway

between Sacramento and Lake Tahoe. There are three separate

federally recognized Bands of Miwok Indians that are either operating or seeking to operate casinos within the county.

Currently, two separate tribes are proposing to open large Indian

gaming facilities within 12 miles of each other and the existing

Jackson Rancheria casino. The county is very concerned about the

harmful impacts of multiple casinos on the quality of life for our

small, rural community. The following is a brief summary of the

status of the proposed casinos and information on the position of

the county.

The Jackson Rancheria Band of Mi-Wuk Indians opened the

Jackson Rancheria casino in 1997 and has entered into a local

partnership through which it pays the local governments for services delivered to the casino property. The county has worked to

build a positive working relationship with the Jackson Rancheria

Band in the past on various issues of mutual interest and anticipates a continuation of this good working relationship. We appreciate the efforts of Tribal Chairperson Margaret Dalton and the

Tribal Council in fostering a mutually beneficial partnership with

the county.

The Ione Band of Miwok Indians has notified the Secretary of

the Interior of its intent to have non-tribal lands placed in Federal

trust for the purpose of constructing a casino, hotel, and other facilities on the trust acquisition property. This land is within and

partially adjacent to the City of Plymouth.

The county opposes the Band’s proposal to acquire the Plymouth

site for the stated purpose of constructing and operating a casino.

Of the 227 acres proposed to be acquired for the casino project, 11

acres are within the city and 216 acres are adjacent to the city and

in the unincorporated areas of Amador County. It is anticipated

that the amount of traffic will vastly increase on narrow State

routes, city roads, and county roads and escalate the danger to

public safety. In addition, the project fails to identify a long-term

drinking water supply and an adequate wastewater treatment and

disposal facility for the casino.

The City of Plymouth entered into a Municipal Services Agreement with the Ione Band for delivery of municipal services. The

county challenged that Municipal Services Agreement and won

that lawsuit, which the city is now appealing.

Chairman Pombo, your draft legislation would provide precisely

the kind of protection and participation which a rural county such

as ours desperately needs. The Ione Band’s project is wrong for the

area, as witnessed by the abject opposition to the proposal from virtually every local entity in the county, including the local school

district, and the others are identified in my testimony. The scope

of local opposition to this project is virtually unparalleled in our

county.

We view the Plymouth casino proposal to place another casino in

our small, rural county—in the absence of local support—as the

wrong project at the wrong place.

6

Regarding the third tribal project of the most immediate concern,

the Buena Vista Rancheria of Me-Wuk Indians, they are proposing

a massive casino development project within the boundaries of the

former Rancheria. As the map I have with me today shows, the

land is a narrow strip which is only 578 feet wide and one mile

long—and they should be able to project that. Moreover, the

Rancheria is in an isolated rural location served exclusively by narrow county roads. At this time, the site does not have the required

water or wastewater disposal services, and the county has not been

advised as to how these problems would be resolved.

The county opposes the placement of a casino on this site because the rules and regulations in place at the Federal level do not

support the approval of this action.

The land is not in trust. In fact, the Department of the Interior

rejected a trust application for the Rancheria in 1996 and confirmed only a year ago that the land is still in fee and not in trust

ownership.

Chairman Pombo, we again would like to thank you for offering

us the opportunity to testify today, and we appreciate your concern

over our local issues and allowing us to have our impact heard.

[The prepared statement of Mr. Forster follows:]

Statement of Richard Forster, Chairman,

Amador County Board of Supervisors, California

Chairman Pombo, Ranking Member Rahall and Members of the House Resources

Committee, my name is Richard Forster, and I am the Chairman of the Amador

County Board of Supervisors. Chairman Pombo, first I would like to thank you for

providing the opportunity to address the very important issue of off-reservation Native American gaming, and the direct ramifications this activity is having on our

small, rural county.

In addition to representing Amador County, I have been asked by the California

State Association of Counties (CSAC) to submit the following statement as part of

my testimony:

‘‘Our statewide Association in California the California State Association of

Counties has been at the forefront of the Indian Gaming issue attempting

to ensure that county boards of supervisors have the tools to protect their

affected communities from the impacts of Indian Gaming—rural and urban

alike.

‘‘Policy was recently adopted by the CSAC board representing all 58 counties that is consistent with the intent of your draft bill. CSAC’s policy specifically addresses the issue of ‘reservation shopping’ and states that:

‘‘CSAC opposes the practice commonly referred to as ‘reservation shopping’

where a tribe seeks to place land into trust outside its aboriginal territory

over the objection of the affected county.’’

‘‘Upon initial review, CSAC is very pleased to note that your draft bill supports this position and recognizes the important role of local government.

CSAC plans to present detailed written testimony to the Committee within

the week.’’

Through my testimony today, I will attempt to provide you with an understanding

of the impact of Indian casinos on Amador County. Chairman Pombo, we believe our

circumstances support your initiative to provide local government with the ability

to have significant input in the approval process of federal Indian gaming on land

that otherwise would be within its jurisdiction. Amador County and CSAC view

your draft legislation as a serious effort to balance local and state concerns regarding ‘‘reservation shopping’’ with the economic development needs of tribes.

Amador County

Amador County is a rural county of approximately 35,000 people located on the

western slope of the Sierra Nevada, roughly midway between Sacramento and Lake

Tahoe. There are three separate, federally recognized Bands of Miwok Indians that

are either operating or seeking to operate casinos within the County.

7

Currently, two separate tribes are proposing to open large Indian gaming facilities

within 12 miles of each other and the existing Jackson Rancheria casino. The

County is very concerned about the harmful impacts of multiple casinos on the quality of life for our small, rural community. The following is a brief summary of the

status of the proposed casinos and information on the position of the County.

Jackson Rancheria Band of Mi-Wuk Indians

The Jackson Rancheria Band of Mi-Wuk Indians opened the Jackson Rancheria

casino in 1997 and has worked positively with the County to mitigate off-reservation

impacts attributed to casino activities.

This tribe has entered into a local partnership through which it pays the local

governments for services delivered to the casino property and to address various

local concerns, including environmental impacts. The County has worked to build

a positive working relationship with the Jackson Rancheria Band in the past on various issues of mutual interest and anticipates a continuation of this good working

relationship. We appreciate the efforts of Tribal Chairperson Margaret Dalton and

the Tribal Council in fostering a mutually beneficial partnership with the County.

Ione Band of Miwok Indians

The Ione Band of Miwok Indians (Ione Band) has notified the Secretary of the

Interior of its intent to have non-tribal lands placed in federal trust for the purpose

of constructing a casino, hotel and other facilities on the trust acquisition property.

This land is within and partially adjacent to the City of Plymouth.

The County opposes the Band’s proposal to acquire the Plymouth site for the stated purpose of constructing and operating a casino. Of the 227 acres proposed to be

acquired for the casino project, eleven acres are within the City and 216 acres are

adjacent to the City and in the unincorporated area of Amador County. It is unquestioned that the proposed casino project will have significant adverse impacts on the

County and City. It is anticipated that the amount of traffic will vastly increase on

narrow state routes, city streets and county roads and escalate the danger to public

safety. In addition, the project fails to identify a long-term drinking water supply

and an adequate wastewater treatment and disposal facility for the casino.

The City of Plymouth entered into a Municipal Services Agreement (MSA) with

the Ione Band for delivery of municipal services to the casino. The County filed and

won a lawsuit to invalidate the MSA and require the City to perform the environmental analysis and review as required by the California Environmental Quality

Act. The City is appealing this decision.

Chairman Pombo, your draft legislation would provide precisely the kind of protection and participation which a rural county such as ours desperately needs. The

Ione Band’s project is wrong for the area, as witnessed by the abject opposition to

the proposal from the following local government entities and organizations: City of

Jackson, City of Ione, City of Sutter Creek, City of Amador City, Amador Air District, Foothill Conservancy, Amador Chamber of Commerce, Amador Winemakers

Association, the Amador County Farm Bureau and the Amador School District. The

scope of local opposition to this project is virtually unparalleled in our county.

We view the Plymouth casino proposal to place another casino in our small, rural

county—in the absence of local support—as the wrong project at the wrong place.

There are serious issues of public safety associated with it, including the site’s proximity to residential areas and at least one school. In addition, an archaeological

study of the site conducted in 2000 produced no evidence of any Indian occupancy

of the land at any time, clearly suggesting ‘‘reservation shopping’’ in the purest

sense of the term.

Buena Vista Rancheria of Me-Wuk Indians

The tribe occupying this restored Rancheria is proposing a massive casino development project within the boundaries of the former Rancheria. As the map I have

with me today shows, the land is a narrow strip which is only 578 feet wide and

one mile long and is unsuited for a major building project, yet the tribe proposes

a casino and related buildings of approximately 500,000 square feet. Moreover, the

Rancheria is in an isolated rural location served exclusively by narrow country

roads. At this time, the site does not have access to the required water and wastewater disposal services and the County has not been advised as to how these kinds

of problems would be addressed.

The County opposes the placement of a casino on this site because the rules and

regulations in place at the federal level do not support the approval of this action.

The land is not in trust. In fact, the Department of the Interior rejected a trust

application for the Rancheria in 1996 and confirmed only a year ago that the land

still is in fee—and not trust—ownership. I have copies of correspondence from the

8

Department of the Interior documenting these facts and would respectfully ask that

they be submitted for the record.

The history of this tribe is reason enough for serious scrutiny on the development

of the Rancheria site. For years, the tribe claimed only three adult members, until

the Department of Interior determined that none of the three qualified for membership at the Buena Vista Rancheria. Instead, the Department found that a fourth

person living in Sacramento was the only known person eligible for membership in

the Rancheria tribe. Today, she is the Tribal Chair of the Band and is advocating

for a project that she had opposed prior to Interior’s membership determination.

The tribe has a Gaming Compact which was executed by the previous three-person governing body. The Secretary recently approved a Compact Amendment which

would allow a Super Casino with more than 2,000 gaming machines and 80 gaming

tables. In addition, the tribe is seeking from the National Indian Gaming Commission (NIGC) a determination that the Rancheria land qualifies as an Indian ‘‘reservation’’ under IGRA.

We believe that the land does not so qualify and have presented comprehensive

statements to both Interior and the NIGC without receiving any response in return.

Relevant to this discussion is the fact that the NIGC receives and processes tribal

requests for land determinations without advising the local governments that the

requests even exist. We learned of the Buena Vista request by accident and were

able to submit our position, although there is no reason to believe that our statements were even read let alone considered because of no acknowledgment from the

NIGC. I suspect that many local governments missed the NIGC review altogether

because there is no requirement for local notice.

This is a bad project for the immediate area, it is a bad project for the County

and it is bad precedent for Indian gaming in general. It is the kind of project that

your legislation was drafted to address. The case for greater local input and participation in the decision-making process, as called for in your draft legislation, is clearly evident in this instance.

Conclusion

The development of an Indian casino raises legitimate concerns about the impact

upon existing land use patterns, the environment, clean water and air, species and

habitat protection, traffic congestion, public safety and the overall quality of life. Locating three large Indian casinos within a 12 mile radius of each other in a small

rural county is not good public policy and most certainly would be detrimental to

the surrounding communities.

Amador County hopes that by discussing this difficult situation we face along

with numerous other counties and municipalities nationwide, that this will move

Congress and the Department of Interior to consider new policies. These changes

must reflect the need for tribes to have a verified historical connection to the site

of a proposed casino and recognize that local government should have a significant

voice in the process.

The problems created by the shortcomings of the Indian Gaming Regulatory Act

are real, and they increase month by month as a result of creative proposals from

lawyers representing tribes seeking off-reservation casinos in places never contemplated by Congress in 1988 when the IGRA was written.

Chairman Pombo, Amador County and the California State Association of Counties believe your draft legislation is a thoughtful and creative approach to resolving

some of the continuing problems faced by local governments, while also providing

a vehicle for tribes to legitimately pursue their gaming opportunities. Thank you for

the opportunity to present a local government perspective on this difficult issue. I

would be happy to answer any questions that you may have regarding this testimony.

[Responses to questions submitted for the record by Mr. Forster

follow:]

9

Response to questions submitted for the record by Richard Forster, Chairman, Amador County Board of Supervisors, California

From Chairman Pombo:

1. Under the Section 20 two-part determination in IGRA, the governor of a state is cast in the role of representing and protecting the interests of both the state government, and the local governments that exercise jurisdiction in the area proposed

for casino gaming. However, as state governors increasingly look to tribal casinos

to provide large amounts of revenue sharing to supplement the state budget, it has

been argued that governors are now in a position where their fiduciary interest

in securing a tribal revenue stream for state government conflicts with their duty

to represent the interests of local communities in the two part determination

process.

• With the potential of this large financial incentive to a state for a governor

to overlook the concerns of local communities, can it be said that local communities can still be adequately represented solely by the governor’s participation

in the two part determination process?

AMADOR COUNTY ANSWER: The Governor represents the interests of the State

generally, whether those interests are fiscal or otherwise. For example, Governor

Schwarzenegger believes that Indian gaming is appropriate for rural areas but not

urban areas. Amador County believes that adverse impacts from Indian gaming,

both environmental and financial, are the worst in rural areas. The Governor cannot

and indeed does not purport to represent Amador County’s interests which are

rural, not urban, interests and are specific to the County. • Or does this potential conflict of interest presented to governors suggest that

IGRA should be modified to give affected local communities a formal role in

concurring with the Secretary’s two-part determination findings? AMADOR COUNTY ANSWER: The California Constitution and generations of American law makers have decided that local governments can more efficiently and

equitably make local land use choices for their entities than a state office or officer.

The siting of Indian casinos serves no national agenda, as, for example, military

bases or federal office complexes do. Indian casinos are more like subdivisions which

local entities have better skills to plan for and to accommodate. Amador County

does not see a conflict of interest issue but rather that Amador County is most affected by the siting of Indian casinos in the County and its elected officials needs

to have some power to protect its citizens.

2. Under established principles of tribal sovereignty, local communities do not have

a say in decisions involving tribal land that is already held in trust by the federal

government. However, off-reservation gaming proposals involve taking land into

trust that is currently held in fee and is often not even closely located to trust

lands.

• Is it a fundamental right of tribes to have land taken into trust on their behalf

at any location within the United States they so desire, irrespective of the distance to their current reservation or any connection to ancestral or native

lands?

AMADOR COUNTY ANSWER: Clearly not. The purpose of IGRA is to provide income to tribes where they have ancestral land and where those tribes’ members live.

Fundamental rights are Constitutionally based; this topic is statutorily based.

• If not, what limitations should apply on where a tribe can or cannot have

lands taken into trust on their behalf?

AMADOR COUNTY ANSWER: Under no circumstances should land be taken into

trust for gaming. Land may be taken into trust for non-commercial uses, or commercial uses serving tribal residences.

• Should a higher standard of review apply when the off-reservation lands in

question will be used for purposes of gaming?

AMADOR COUNTY ANSWER: It simply should not be allowed because it converts tribes into casino operators apart from their ancestral land and heritage.

• Should this standard include active participation and a requirement for concurrence from local governments, even though they are generally otherwise

prohibited from having a say on matters concerning Indian lands?

AMADOR COUNTY ANSWER: Yes.

3. Tribes have long fought to protect their ancestral lands from the unwanted incursions of outsiders, both Indian and non-Indian alike.

• If a tribe is seeking to have land taken into trust in an area that is not within

the ancestral lands of that tribe, should other tribes whose ancestral lands encompass the site have the ability to object to the land going into trust?

10

AMADOR COUNTY ANSWER: Existing tribes should be able to object because

cross-siting of tribes’ land for gaming is destructive of the sovereignty of the original

tribe.

• The ability to veto the land going into trust?

AMADOR COUNTY ANSWER: Yes, to protect the existing tribes’ own

sovereignty.

• How can the term ‘‘ancestral lands’’ be defined as precisely as possible so it

is clear to all observers, Indian and non-Indian alike, which lands are ancestral to any given tribe?

AMADOR COUNTY ANSWER: The tribes’ members and their ancestors must

have lived there. That standard is different from evidence of their traveling in the

general area in a nomadic culture or the location of artifacts or casual burial

grounds there.

4. Should a cap be placed on any revenue sharing with state governments from an

off-reservation gaming facility?

AMADOR COUNTY ANSWER: The cap should equal state income and sales taxes

lost to the state. A more important issue is that revenue sharing equal to property

and sales taxes that would accrue if the facility was non-Indian should be paid to

the affected local entity together with funds to mitigate public costs stemming from

the facility’s impacts on local entities.

• If so, what should the cap percentage be?

AMADOR COUNTY’S ANSWER: Just enough to equal lost sales and property tax

and financial costs from the facilities.

5. Should a tribe be able to ask for or accept a casino operation as a substitute,

either in whole or in part, of a cash payment to settle a land claim?

AMADOR COUNTY ANSWER: No. Casino operations have impacts beyond

money.

• If a casino is acceptable as a settlement, should tribes whose ancestral lands

encompass the location where the casino would be located be consulted before

the settlement is finalized?

AMADOR COUNTY ANSWER: Yes, because of their sovereign status.

• Should they be allowed veto power over such a casino-based settlement as a

tool to protect their ancestral lands?

AMADOR COUNTY ANSWER: Yes, because of their sovereign status.

6. While there have been only three incidences since IGRA was enacted of off-reservation land being placed into trust for gaming purposes, there are currently dozens

such projects either in the proposed stage or being reviewed by the BIA.

• What impact do you think all of these proposals have on public support for

Indian gaming?

AMADOR COUNTY ANSWER: Such off-reservation siting has substituted ‘‘live

and let live’’ for hostility toward all Indian gaming.

• Do you believe that the vagaries of current law regarding off reservation gaming encourage the proliferation of proposals for off-reservation gaming?

AMADOR COUNTY ANSWER: Without doubt.

• Do you believe that clarifying the law on off-reservation gaming, and placing

greater restrictions on when off-reservation gaming is allowed, will reduce the

number of proposals for off-reservation gaming?

AMADOR COUNTY ANSWER: That depends on the restrictions.

• Will such changes serve to weed out proposals for off-reservation gaming of dubious merits?

AMADOR COUNTY ANSWER: Amador County believes that ALL off-reservation

gaming is ‘‘of dubious merit’’. All off-reservation gaming is contrary to the goals of

IGRA and should not be allowed.

7. Do you believe that the original intent of IGRA was to allow Indian gaming to

be conducted at any location within the United States that a tribe is able to

purchase and have placed into trust?

AMADOR COUNTY ANSWER: No.

• Or was the original intent of IGRA to foster economic development on Indian

lands held at the date of enactment?

AMADOR COUNTY ANSWER: Yes.

11

8. In Minnesota, the governor is entering into an agreement with three tribes to oper- ate an urban casino under the auspices of the Minnesota State Lottery. As currently constructed, IGRA would not apply to this proposal. Is there any other statute authorizing or requiring the Secretary of Interior to ensure tribal interests are

protected in such gaming proposal as this where at least one of the parties is a

tribal government or tribal government business enterprise? Should there be?

• Does this agreement violate the terms of any tribal-state compact in Minnesota? • What would be the impacts to tribes around the country if other governors entered into similar agreements with tribes in their states? • In such a deal as proposed in Minnesota, what is the level of federal scrutiny

of outside investors, management agreements, and vendor contracts? • Are the tribes entering into this deal capable of determining whether or not

they will benefit from it? Are they capable of knowing whether or not developers, casino management companies, and the state government might be taking advantage of them? AMADOR COUNTY ANSWER: The County has no knowledge of the facts of the

Minnesota situation.

From Congressman Gibbons:

1. This Committee has held hearings on legislation that would allow a tribe to go hundreds of miles off their reservation and open a casino in the ancestral lands

of another Tribe.

• Do you have any specific suggestions on how Congress should proceed in this

regards?

AMADOR COUNTY ANSWER: Congress should require the home Tribe’s and the

local entity’s approval.

• Also, with over 300 tribes seeking recognition and presumably gaming, please

comment on the impact that a policy permitting ‘‘reservation shopping’’ and

‘‘off-reservation gaming’’ will have on communities across the country.

AMADOR COUNTY ANSWER: California rural areas will be adversely impacted

extremely severely, given the California policy of allowing Indian gaming in rural,

but not urban, areas. Rural entities cannot cope with the traffic, safety, law enforcement, and environmental issues brought about by non-reservation casinos.

2. A few years ago, during the Proposition 5 campaign that allowed full-scale Indian

gaming in California, the tribes ran television ads stating they wanted to do gaming just on their reservation lands. Now in California, there are several tribes that

are trying to conduct off-reservation gaming.

• If a tribe has a reservation and/or a traditional service area, why should any

tribe be permitted to establish gaming off-reservation, distant from its reservation?

AMADOR COUNTY ANSWER: It should not be so permitted; to do so removes

the policy underpinnings of tribal gaming as originally allowed by Congress.

• Also, please comment on the fact that other tribes are opposed to tribes seeking ‘‘off-reservation’’ gaming.

AMADOR COUNTY ANSWER: The County has no comment.

3. When tribes seek to enter already established gaming areas, doesn’t that create an

unlevel playing field since tribes are not subject to state regulations; are not subject to the restrictions placed on other gaming establishments; do pay not state

taxes; etc.?

AMADOR COUNTY ANSWER: As to competition between Indian Class III gaming facilities and non-casino gaming, the answer is clearly yes, leading to an anticompetitive tilt in favor of Indian gaming facilities.

4. What criteria should be used by the Department of the Interior in it’s determination of land-into-trust?

AMADOR COUNTY ANSWER: The land must first qualify as a true Indian

homeland for that tribe.

• Should there be a requirement of substantial historical connection between the

tribe and the parcel to be taken into trust? Why/why not?

AMADOR COUNTY ANSWER: The historical connection should be current. If it

isn’t, the standard is open to abuse, inconsistent decisions, and removes Indian gaming from its policy roots, of helping tribes living on reservations to help themselves.

• How recent should the historical connection be? 100 years? 200 years?

• What about distance from the tribe’s current service area? 10 miles? 20 miles?

70 miles?

12

AMADOR COUNTY ANSWER: The siting of a gaming facility should be only at the locus of the tribe’s physical existence, its reservation. • Do you believe that the farther away the casino site is, the less likely tribal

members will be able to take advantage of employment opportunities with a

casino? [Alternatively, if the tribal members move near the casino to get jobs,

then will the traditional community/service area be disrupted?] AMADOR COUNTY ANSWER: Yes and yes.

5. If landless, shouldn’t land-into-trust be restricted to the area where the tribe is

located? Where they live, need jobs, need health care and services?

AMADOR COUNTY ANSWER: Yes, for all the policy reasons set forth above.

6. If some tribes are permitted to select the ‘‘best gaming’’ locations, wouldn’t all tribes want to do that?

AMADOR COUNTY ANSWER: Yes, and it removes the crucial philosophical nexus between Indian gaming and self improvement as a tribe (if the facility is unrelated spatially to the tribe). • What about tribes that played by the rules and have their casino on their reservation land, even though it may not be the best gaming location?

AMADOR COUNTY ANSWER: Tribes who game on their ancestral reservations

would not be able to compete evenly with those non-reservation gaming tribes who

can shop for locations, hurting the efficacy of ancestral reservations.

7. Please comment on how the federal campaign contribution laws apply to tribes

and the fact that tribes are exempt from overall donor limits and can give directly

from their treasuries. No other organization is similarly situated.

AMADOR COUNTY ANSWER: The disparate treatment of any group is not in the

interest of the body politic.

8. Please comment on the increasing trend of tribes now crossing state lines away

from their reservation to establish gaming.

AMADOR COUNTY ANSWER: It is a policy that will undermine reservation

gaming and reservations themselves.

• Please comment on the situation in CO where the Cheyenne-Arapaho of Oklahoma are seeking land in CO to establish gaming. In that situation, the tribe

is claiming 27 million acres even though their land claims were definitively

and legally settled in the 1960s. Their action is designed to force the Governor

to agree to a smaller parcel near the Denver Airport for gaming.

AMADOR COUNTY ANSWER: The United States Supreme Court has addressed

the issue of extinguished reservations in City of Sherrill v. Oneida Indian Nation

2005 U.S. Lexis 2927 (2005): Reservations, once extinguished, remain extinguished

even when subsequently purchased by the tribe on the open market.

The CHAIRMAN. Thank you.

Ms. Jaimes?

STATEMENT OF LORI JAIMES, CHAIRWOMAN, GREENVILLE

RANCHERIA OF MAIDU INDIANS, ACCOMPANIED BY DERRIL

B. JORDAN, ESQ.

Ms. JAIMES. Thank you, Mr. Chairperson and members of the

Committee. We thank you for this opportunity to offer testimony

regarding the issue of off-reservation gaming. My name is Lori

Jaimes, and I am the Chairperson of Greenville Rancheria, and I

am accompanied by my attorney, Derril Jordan.

The Greenville Rancheria began as an Indian school and BIA

agency in the 1890s. The school and the agency served Maidu

Wintoons and other Indians and their children from an area that

included Plumas, Tehama, Lassen, Butte, Yuba, Sutter, and Shasta

counties. The Rancheria was terminated in 1966 under the

Rancheria Act, and it was restored in 1983 under the Tillie Hardwick case. Since that time, we have been building and working to

rebuild our tribal government and restore a tribal land base. Of the

original 275 acres, only about 1.8 acres are owned in trust by tribal

13

members, and the tribe owns 8 acres within the Rancheria in fee.

Most of the remaining acreage is owned by non-Indians, and the

land within the Rancheria is generally unfit for economic development.

Our tribe is currently attempting to acquire land in trust in Red

Bluff to establish a tribal gaming facility. As a restored tribe, we

have become very knowledgeable about the restored land exception.

There has been shamefully little discussion of this issue that is

based on a thorough understanding of the law. I hope my testimony will bring some light to the debate.

There are four exceptions to Section 20’s general prohibition

against gaming on off-reservation lands. As we demonstrate in our

written statement, each of these means for acquiring offreservation land are governed by procedural and substantive safeguards that protect the legitimate interests of both other tribes and

non-Indian communities.

Because restored tribes are generally landless, the first step necessary to engage in gaming is to have lands acquired in trust by

the Secretary under the regulations at 25 C.F.R. Part 151. Under

these regulations, the Secretary must consider, one, the tribe’s

need for the land; two, the impact on the State and local government of removing the land from the tax rolls; and, three, the judicial problems and potential conflicts of land use that may arise if

the land is taken into trust.

For off-reservation acquisition, the Secretary must also consider

the distance of the land from the tribe’s reservation, and the applicant tribe must also submit a business plan showing the anticipated economic benefits to the tribe. The State and local government with jurisdiction over the land receive notice of the proposed

acquisition from the BIA, and they are afforded an opportunity to

provide comments.

Judicial review of the Secretary’s decision is available and can be

overturned if it is found to be arbitrary and capricious. In addition,

the Federal courts, Interior, and the NIGC all require a tribe to

show historic and contemporary ties to the land in order for it to

qualify as restored land. I note that our tribe has historic and contemporary ties to the Red Bluff area. We offer the following comments with regard to the discussion draft:

First, it would require the Secretary to determine that the lands

to be acquired in trust for a restored tribe are lands within the

State where the Indian tribe has its primary geographic, social,

and historical nexus to the land. As we have demonstrated, Interior

and the NIGC already require that a tribe have historic and contemporary ties to land in order for that land to be considered restored.

Proposed new Section 20(b)(1)(B)(ii) requires the Secretary to determine that the proposed gaming activity is in the best interest

of the tribe and its members, and that it would not be detrimental

to the surrounding community. We object to this provision because

we do not think that the Secretary knows what is in our best interest.

Second, the Secretary must already consider the impacts on the

State and local government and the expected benefits to the tribe

under the Part 151 process.

14

Finally, we believe that proposed new Section 20(b)(1)(B)(iii) is

completely inappropriate because it requires the approval of the

State as well as every unit of local government that has jurisdiction over the land or that is contiguous to it. Restored tribes are

generally landless and seeking their first and likely only chance to

avail themselves of the benefits of governmental gaming under

IGRA. States and local governments simply should not have veto

power over Indian self-determination and economic development.

It is not lost on the Greenville Rancheria that a number of the

most vocal critics of off-reservation gaming are Indian tribes with

some of the most lucrative casinos in the United States. We applaud their success, but we cannot help but wonder why they do

not support the right of their sister tribes to achieve the same goals

they have reached.

In conclusion, it is our belief that IGRA does not need to be

amended with regard to off-reservation gaming because there is no

genuine crisis in this area. Those who most loudly call for amendment do so either because they do not understand the process or

because they want a guaranteed result in their favor and are not

content to let the process established by Congress and implemented

by the courts, Interior, and the NIGC work.

Thank you for the opportunity to testify.

[The prepared statement of Ms. Jaimes follows:]

Statement of Lori Jaimes, Chairwoman,

Greenville Rancheria of Maidu Indians

Mr. Chairman and Members of the House Resources Committee, thank you for

the opportunity to offer testimony on behalf of the Greenville Rancheria of Maidu

Indians regarding the issue of off-reservation gaming, and to comment on the draft

bill that you have circulated for comment.

There has been much said about this issue, by both tribes seeking to protect their

economic turf and non-Indian communities seeking to block tribal economic development, but there has been shamefully little dialogue on this issue that is based on

a thorough understanding of the law. Most of what has been said on the subject

has come in the form of deliberate misinformation designed to give the appearance

of a crisis where none actually exists. As a restored tribe that is virtually landless

and seeking to acquire land through the restored land exception to section 20 of the

Indian Gaming Regulatory Act (IGRA), we have a keen interest in this subject. I

hope my testimony will cast some rational light on a debate that has been for too

long conducted on the basis of misinformation, fear and greed.

As you know, there are four exceptions to section 20’s general prohibition against

gaming on off-reservation lands acquired after October 17, 1988, the date IGRA was

signed into law. They are: (1) the two-part determination under section 20(b)(1)(A);

(2) the settlement of a land claim under section 20(b)(1)(B)(i); (3) the initial reservation of a tribe recognized by the Secretary pursuant to 25 C.F.R. Part 83, under section 20(b)(1)(B)(ii); and (4) the restoration of lands to a tribe that was restored to

federal recognition, pursuant to section 20(b)(1)(B)(iii). As we demonstrate below,

each of these means for acquiring off-reservation land for gaming purposes has both

procedural and substantive safeguards built into them to protect the legitimate

interests of both other tribes and non-Indian communities.

THE TWO-PART DETERMINATION

With regard to the two-part determination under section 20(b)(1)(A), offreservation land cannot be acquired in trust for either Class II or Class III gaming

purposes unless the governor of the state in which the land is located concurs in

the decision of the Secretary of the Interior that gaming on the off-reservation land

proposed for acquisition is (1) in the best interest of the tribe, and (2) not detrimental to the surrounding community. In reaching this two-part determination, the

Secretary must consult with state and local officials, as well as officials from other

15

1Two-part determinations are generally accompanied by application to acquire the land in trust under 25 C.F.R. Part 151, which process is explained in greater detail in the next section.

Whether or not accompanied by such an application, a two-part determination application will

require compliance with the National Environmental Policy Act (NEPA), which provides the

state, local governments, and other persons and groups in the area to comment on the proposed

acquisition. 2Section 177 provides in pertinent part that:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same

be made by treaty or convention entered into pursuant to the Constitution Every person who,

not being employed under the authority of the United States, attempts to negotiate such treaty

or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the

title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000. The

agent of any State who may be present at any treaty held with Indians under the authority

of the United States, in the presence and with the approbation of the commissioner of the

United States appointed to hold the same, may, however, propose to, and adjust with, the

Indians the compensation to be made for their claim to lands within such State, which shall

be extinguished by treaty. 3 Because most land claims under 25 U.S.C. § 177 involve illegal purchases of tribal land by

state governments, most land claim settlements are achieved by Congressional ratification of an

agreement between the state and the tribe whose lands were illegal purchased. Therefore, it is

at least highly unlikely that a land claim settlement bill can be passed over the objections of

state.

nearby Indian tribes. 1 Assuming that the Secretary reaches the conclusion that gaming on the proposed site will not be detrimental to the surrounding community,

there is simply no chance that off-reservation gaming will be approved under section

20(b)(1)(A) if the governor does not concur with the Secretary’s finding, and it is extremely unlikely that the governor will concur if the local community is opposed. Furthermore, section 20 of IGRA does not establish any standard for the gov- ernor’s concurrence, and a governor is free to withhold concurrence for any reason

or no reason. See Lac Courte Oreilles Band of Lake Superior Chippewas v. United

States, 367 F.3d 650, 656 and 662 (7th Cir. 2004) (land cannot be acquired for gaming purposes under section 20(b)(1)(A) unless and until a governor responds to the

Secretary’s request for a concurrence, and the governor can willfully ignore such request); Confederate Bands of Siletz Indians v. United States, 841 F. Supp. 1479,

1486 (D.C. Oregon), affirmed on other grounds 110. F.3d 688, 697 (9th Cir. 1997),

certiorari denied 522 U.S. 1027 (1997)(‘‘[t]he Governor, by doing nothing, can defeat

the DOI’s determination in favor of granting a tribe’s application for an exception

to § 2719(a).’’) There is virtually no chance that gaming will occur under this exception if the local community and the governor of the respective state do not both support the Tribe’s application.

Nearby Indian tribes are also consulted as part of the two-part determination process. Although IGRA was not intended to protect tribes from competition from

other tribes, Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 947 (7th Cir.

2000), it would be appropriate for Interior to consider credible information that the

proposed new gaming will have a crippling impact on existing tribal gaming operations. Section 20 (b)(1)(A) adequately provides fo the protection of the legitimate

interests of existing gaming operations.

THE SETTLEMENT OF A LAND CLAIM

The settlement of a land claim under section 20(b)(1)(B)(i) generally requires the approval of Congress pursuant to 25 U.S.C. § 177 2, so no gaming can occur under this exception unless Congress has approved the acquisition of the land in the legislation that settles the tribe’s land claim. The need for the enactment of legislation

by Congress provides a chance for everyone to be heard, including the state through

its delegation, 3 and the community involved through its Senators and Congressional representative. Congress has a full opportunity to weigh the pros and cons of a particular land claim settlement and the propriety of gaming on land acquired through

the settlement. This is an eminently fair and balanced process, and leaves little

room for complaint outside of the ‘‘sour grapes’’ whining of those who didn’t get their

way.

THE INITIAL RESERVATION OF A NEWLY RECOGNIZED TRIBE

Tribes recently recognized by the Secretary pursuant to 25 C.F.R. Part 83 are generally landless at the time of recognition. In order to engage in gaming, a newly

recognized tribe will have to have lands acquired in trust for it by the Secretary

of the Interior pursuant to section 5 of the Indian Reorganization Act (IRA)(25

U.S.C. § 465), and 25 C.F.R. Part 151. Under the Part 151 regulations, the Secretary

must consider the following factors: (1) the applicant tribe’s need for the land (25 C.F.R. § 151.10(b);

16

4 All trust land acquisitions for a landless tribe are, by definition, off-reservation acquisitions.

(2) the impact on the state and local governments of removing the land from the tax rolls (25 C.F.R. § 151.10 (e)); and

(3) jurisdictional problems and potential conflicts of land use that may arise if the land is taken into trust (25 C.F.R. § 151.10 (f).

For off-reservation acquisitions, 4 the Secretary must also consider the distance of the land from tribe’s reservation under § 151.11 (b), and the applicant tribe must

also submit a business plan showing the anticipated economic benefits to the tribe

as required by § 151.11 (c). The state and the local government with jurisdiction over the land proposed for trust acquisition receive notice of the proposed acquisition from the Bureau of

Indian Affairs (BIA), and they are afforded an opportunity to provide comments to

the BI A. 25 C.F.R. § 151.10. Compliance with NEPA is also required. 25 C.F.R.

§ 151.10(h). Finally, judicial review of the Secretary’s decision regarding a specific

trust acquisition is available under the Administrative Procedures Act (APA), and

the Secretary’s decision can be overturned by a court if it is found to be arbitrary

and capricious, an abuse of discretion, or not in accordance with law. 5 U.S.C. § 706.

If land is successfully acquired in trust for a newly recognized tribe, the next step is for the Secretary to issue a proclamation proclaiming the land to be a reservation

under 25 U.S.C. § 467. The acquisition in trust and the reservation proclamation together qualify the land as the tribe’s initial reservation. A newly recognized tribe

may avoid the general prohibition of section 20 of IGRA only with regard to those

trust lands that are the subject of the Secretary’s first reservation proclamation—

the tribe’s ‘‘initial reservation.’’ (See memoranda dated December 13, 2000, from the

Acting Associate Solicitor for Indian Affairs to the Regional Director of the BIA’s

Midwest Regional Office about the designation of lands as the initial reservation for

the Huron Potawatomi Band in Michigan (‘‘Huron Potawatomi Memorandum’’).

Moreover, Interior generally requires a tribe to show that it has historic and contemporary ties to land before it will designate land as the initial reservation of a

newly recognized tribe. See the Huron Potawatomi Memorandum. In short, there is a lengthy process for the acquisition of trust land and the dec- laration of that land as initial reservation that affords the state and impacted local

government(s) and land owners an opportunity for input. Interior has established

a substantive standard that requires that the tribe have both historic and contemporary ties to the land in order for it to be declared as the tribe’s initial reservation.

Finally, the Secretary’s decision is reviewable in the federal courts. Once again, we

have a fair and balanced process with both procedural and substantive safeguards.

THE RESTORATION OF LAND TO A TRIBE THAT IS RESTORED TO FEDERAL

RECOGNITION

Restored tribes are also likely to be landless because their land was distributed in fee to tribal members at the time of termination, or sold to non-Indians, or both.

Much of the land that was distributed to members was lost through tax sales and

by other means. That is certainly what happened to the Greenville Rancheria, as

well as to many of the other Rancherias terminated under the California Rancheria

Act. 72 Stat. 69 (1958).

Like a newly recognized tribe, in order to engage in gaming, a restored tribe will have to have lands acquired in trust for it by the Secretary under section 5 of the

IRA and the regulations at 25 C.F.R. Part 151, including the notice and comment

procedures, and the consideration of the substantive regulatory criteria regarding

taxes, land use, and jurisdictional conflicts. As to the determination of whether the land proposed for acquisition can be considered restored, the federal courts require a tribe to show historic and contemporary ties to the land in order for it to qualify as land restored to a tribe that has

been restored to federal recognition. See Grand Traverse Band v. United States, 198

F. Supp. 2d 920, 929-30 (W.D. Mich. 2002); Grand Traverse Band v. United States,

46 F. Supp. 2d 689, 698 (W.D. Mich. 1999); and Confederated Tribes of Coos, Lower

Umpqua & Siuslaw Indians v. Babbitt, 116 F. Supp. 2d 155 (D.D.C. 2000). Interior

also requires the showing of such a nexus. (See Memorandum of December 5, 2001

from the Associate Solicitor-Indian Affairs to the Assistant Secretary-Indian Affairs

regarding the Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians.) The

National Indian Gaming Commission (NIGC) is no exception. (See the August 31,

2001 letter from Kevin K. Washburn, NIGC General Counsel to Judge Hillman of

the Federal District for the Western District of Michigan regarding the Grand Traverse Band’s Turtle Creek Casino; the August 5, 2002 decision of the NIGC regarding the Rohnerville Rancheria; the March 14, 2003, decision of the NIGC regarding

the Mechoopda Indian Tribe of the Chico Rancheria; and the September 10, 2004

17

decision of the NIGC regarding the Wyandotte Nation. (The Interior and NIGC

opinions are available at www.nigc.gov./resources/Indian Land Determinations.)

Once again, both procedural and substantive safeguards prevent the abuse of the

exception designed to allow restored tribes to avail themselves of the intended benefits of tribal governmental gaming under IGRA.

COMMENTS ON DISCUSSION DRAFT

We offer the following comments with regard to the Discussion Draft, which would

amend section 20(b)(1) in several important ways significant to restored and newly

recognized tribes. First, it would require the Secretary to determine that the lands

to be acquired in trust ‘‘are lands within the state where the Indian tribe has its

primary geographic, social, and historical nexus to the land.’’ As demonstrated

above, Interior and the NIGC already require that a tribe have historic and contemporary ties to land in order for that land to either be designated as a newly recognized tribe’s initial reservation, or considered restored lands to a restored tribe.

Proposed new section 20(b)(1)(B)(ii) requires the Secretary to determine that the

proposed gaming activity is in the best interest of the tribe and its members, and

that it would not be detrimental to the surrounding community. We object to this

new subsection on several grounds. First, we do not think that the Secretary of the

Interior is in a better position than our Tribal Council to determine what is in the

best interests of our Tribe or our members. Second, both of these considerations are

already addressed through the Secretary’s consideration of the tribe’s application to

have the land acquired in trust under 25 C.F.R. Part 151. The factors the Secretary

considers under 25 C.F.R. §§ 151.10(e) & (f) already require the Secretary to consider impacts on the state and local government, and 25 C.F.R. § 151.11(c) already

requires the Secretary to consider the expected benefits to the tribe.

Finally, we believe that proposed new section 20(b)(1)(B)(iii) is completely inappropriate because it requires the approval of the state as well as every unit of general purpose local government that has jurisdiction over the land or that is contiguous to it. Remember that restored and newly recognized tribes are generally landless and seeking their first and likely only chance to avail themselves of the benefits

of governmental gaming under IGRA. As discussed above, a restored or newly acknowledged tribe must show that it has historic and contemporary ties to the land

it wishes to acquire for gaming purposes. States and local governments simply

should not have veto power over Indian self-determination and economic development. The enactment of such a provision would constitute a major abandonment of

the United States’ historic trust responsibility to protect tribal self-government from

encroachments by state and local governments.

With regard to the Indian Economic Opportunity Zones proposed in the new section 20(e), we do not understand the purpose of proposed sections (e)(2)(B)(i) and

(ii). The former restricts the practical ability of a tribe to choose another tribe as

its manager because it limits the management fee to ten (10) percent. This seems

to us an unfair limitation on potential tribal managers given that non-tribal managers can receive up to forty (40) percent of net revenues as a management fee. Section (e)(2)(B)(i) means that a tribe that needs an investment partner will have to

do business with a non-Indian investor. We can see no reason to restrict the economic choices of tribes needing management or investment assistance, or of tribes

who may choose to invest their wealth to help other tribes.

Also, we can see no purpose in limiting eligibility to tribes that have no ownership

interest in another tribal gaming facility. It should not be assumed that because a

tribe already has a casino, it is rolling in money. Most tribal casinos are modest

and do not generate enough revenues to enable tribal governments to meet more

than a century of unmet needs. The opportunity to participate in gaming in an

Indian Economic Opportunity Zone may afford a tribe an opportunity to supplement

the modest income it receives from its reservation-based casino to help it to better

serve the tribal community.

Finally, proposed new Section (e)(3)(D) is completely objectionable. There is no

reason that tribes within 200 miles of the Proposed Zone should have to approve.

Market sizes differ from one region of the country to another depending, in part,

upon factors such as population density and per capita income. Moreover, IGRA

should not insulate tribes from ordinary economic competition from other tribes.

CONCLUSION

Each of the four exceptions to section 20’s general prohibition against gaming on

off-reservation lands is subject to procedural safeguards and substantive standards

that prevent abuse of the process of qualifying for the right to conduct offreservation gaming. There is no crisis in this area. Granted, a number of tribes are

seeking to qualify for one or more of the exceptions, but all that is required is that

18

the process for each such application be given a chance to work. We believe very

strongly that tribes should be good, responsible neighbors and work with state and

local governments to improve the quality of life for everyone, Indian and non-Indian

alike. Nonetheless, non-Indian communities simply cannot be given veto power over

the self-determination and economic development efforts of federally recognized

Indian tribes, especially landless tribes that presently have no reservation. It is not lost on the Greenville Rancheria that some of the most vocal critics of

off-reservation gaming are Indian tribes with many of the most lucrative casinos in

the United States. We applaud their wealth and success, and look to them as examples of how successful Indian economic development can be. Nonetheless, upon hearing their complaints, we cannot help but wonder why they do not support the right

of their sister tribes to achieve the same goals that they have worked so long and

hard to reach. We, too, want to rebuild our land base and provide health care and

decent housing to our families and elders. We have the same desire to restore our

language and renew our culture. The concern they express about backlash from nonIndian communities strikes us as hypocritical, not to mention shortsighted. Federal

Indian policy should not be dictated by non-Indian communities, and we find it cruelly ironic that some tribal governments are suggesting that the fears and prejudices of non-Indian communities should dictate the economic development opportunities available to landless tribes. We think they would not be so eager to be dictated to themselves by the state or local governments, but some how they believe

that the interests of non-Indians should trump the ability of other tribes to pursue

what they have. Have they become so rich and powerful that they have forgotten

what it means to be Indian?

In conclusion, it is our belief that IGRA does not need to be amended with regard to off-reservation gaming because there is no genuine problem or crisis in this area.

Those who most loudly call for amendment do so either because they do not understand the process, or because they want a guaranteed result in their favor and are

not content to let the process established by Congress and implemented by the

courts, Interior, and the NIGC work.

[Responses to questions submitted for the record by Lori Jaimes,

Chairperson, Greenville Rancheria follow:]

Greenville Rancheria

P.O. BOX 279

410 MAIN STREET

GREENVILLE, CA 95947

PHONE: (530) 284-7990

FAX: (530) 284-6612

Re: Response to Follow-up Questions from March 17, 2005 Hearing

Dear Chairman Pombo:

I want first to take the opportunity to thank you for offering me the opportunity

to testify at the March 17 hearing on off-reservation gaming. This is a very important issue to all tribes, especially landless tribes like the Greenville Rancheria, and

we look forward to working with the Committee as it deals with this issue.

I wish to reiterate a point I made in my testimony to the Committee. Our tribe

was illegally terminated under the Rancheria Act, 72 Stat. 619, and restored by the

decision in Hardwick v. United States. No. C-79-1710-SW, Stipulation for Entry of

Judgment (Decemberl5, 1983). We are a landless tribe seeking to take land into

trust pursuant to the restored land exception set forth in section 20 (b)(l)(B)(iii) of

the Indian Gaming Regulatory Act (IGRA). As I pointed out in my written testimony, and as discussed below in the answer to your question 2, the restored land

exception is quite different from the two-part determination process under section

20 (b)(l)(A). These two exceptions to section 20’s general prohibition against gaming

on lands acquired after the date of IGRA’s enactment serve different legislative purposes and should not be confused with each other or lumped together. In general,

the two-part determination process is intended for tribes that had reservations or

trust lands as of the date of IGRA’s enactment, whereas the restored tribe exception

is intended to benefit restored tribes that are landless due to termination. The acquisition of land for gaming purposes by restored tribes should not be at the mercy

of states and local governments. To give those governments veto power over the

land acquisition efforts of restored tribes would serve only to continue the injustice

they faced when they were terminated. Also, empowering state and local governVerDate 11-MAY-2000 16:17 Jul 22, 2005 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 J:\DOCS\20127.TXT HRESOUR1 PsN: HRESOUR1
19

ments in this way would only increase their leverage in demanding large payments

from restored tribes and this would be counterproductive to your goal of protecting

tribal gaming revenues so that they primarily benefit the tribes as intended by

IGRA.

Our response to your questions and those of Representative Gibbons are attached

to this letter. Please do not hesitate to contact me if we can provide further information to the Committee.

VERY TRULY YOURS,

LORI JAIMES, CHAIRPERSON, GREENVILLE RANCHERIA

Attachment

RESPONSE TO QUESTIONS FROM CHAIRMAN POMBO

Question 1

We do not agree that there is a wide-spread problem of state governors ignoring

the concerns of local governments. As question 3 acknowledges, only three two-part

determinations have been approved since the enactment of IGRA almost 16 1/2

years ago. It is difficult to discern from these statistics any hard evidence that state

governors have abandoned local communities in the context of the two-part determination process.

Furthermore, a governor’s lack of sensitivity to the concerns of local communities

is a political problem best addressed through the political process. Governors need

the votes of state citizens to win reelection or to help ensure the election of a successor from their political party. Local communities are represented in the state legislature by both state senators and house or assembly members, and the governor

needs the support of these state legislators to pass budgets and enact the governor’s

programs and initiatives. Conversely, with Indians being such a distinct minority

in every state in the United States, governors generally have little to fear at the

ballot box by siding with non-Indian communities in disputes or disagreements between those communities and Indian tribes. In short, governors have every incentive

to be sensitive to the concerns of local communities and their governments.

Governors are generally called on to determine the best interests and balance the

needs of the state as a whole in almost everything they do. It is no different when

they are called on to decide whether to concur in a favorable two-part determination

rendered by the Secretary of the Interior (‘‘Secretary’’). In short, we think that the

present system balances the rights of tribes, and state and local governments about

as well as can be expected given the age-old conflict between Indian tribes on one

hand and state and local governments on the other.

Question 2

We do not think that it is a fundamental right of tribes to have land taken into

trust on their behalf at any location within the United States they so desire, irrespective of the distance to their current reservation or any connection to ancestral

or native lands, and no knowledgeable observer of Indian affairs can truthfully say

that the Department of Interior (‘‘Interior’’) is acquiring land in trust on behalf of

tribes ‘‘at any location within the United States.’’ Granted some tribal proposals are

without merit, but the law should not be changed to bar consideration of legitimate

proposals in order to deal with extreme cases. The present rules and standards are

well equipped to deal with these cases if the process is given an opportunity to

work.

The regulations at 25 C.F. R. Part 151 impose meaningful standards with regard

to trust land acquisitions. Under those regulations, the Secretary must consider the

following factors:

(1) the applicant tribe’s need for the land (25 C.F.R. § 151.10(b);

(2) the impact on the state and local governments of removing the land from the

tax rolls (25 C.F.R. § 151.10 (e)); and

(3) jurisdictional problems and potential conflicts of land use that may arise if the

land is taken into trust (25 C.F.R. § 151.10 (f)).

For off-reservation acquisitions, pursuant to § 151.11 (b), as the distance from the

tribe’s reservation increases, the Secretary gives greater scrutiny to the tribe’s justification of anticipated benefits from the acquisition, and greater weight is given

to the concerns of state and local governments with regard to factors covered by

20

1 All trust land acquisitions for a landless tribe are, by definition, off-reservation acquisitions.

We assume that, for landless tribes, the Secretary considers the distance of the land proposed

for acquisition from the tribe’s service area.

§§ 151.10 (e) and (f). 1 These regulatory requirements virtually ensure that no tribe

will ever be able to take land into trust far from its reservation, especially if state

or local government is opposed.

The Greenville Rancheria does support limits on off-reservation gaming, and

under the current system, there are standards that prevent tribes from taking land

into trust anywhere they desire. As I pointed out in my written testimony to the

Committee, the federal courts, Interior, and the National Indian Gaming Commission (NIGC) all require a tribe to show historic and contemporary ties to land in

order for it to qualify pursuant to section 20 (b)(1)(B)(iii) as land restored to a tribe

that has been restored to federal recognition. See Grand Traverse Band v. United

States, 198 F. Supp. 2d 920, 929-30 (W.D. Mich. 2002); Grand Traverse Band v.

United States, 46 F. Supp. 2d 689, 698 (W.D. Mich. 1999); and Confederated Tribes

of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt, 116 F. Supp. 2d 155 (D.D.C.

2000). See also Memorandum of December 5, 2001 from the Associate Solicitor-Indian Affairs to the Assistant Secretary-Indian Affairs regarding the Confederated

Tribes of Coos, Lower Umpqua & Siuslaw Indians.); August 31, 2001 letter from

Kevin K. Washburn, NIGC General Counsel to Judge Hillman of the Federal District for the Western District of Michigan regarding the Grand Traverse Band’s Turtle Creek Casino; the August 5, 2002 decision of the NIGC regarding the Rohnerville

Rancheria; the March 14, 2003, decision of the NIGC regarding the Mechoopda

Indian Tribe of the Chico Rancheria; and the September 10, 2004 decision of the

NIGC regarding the Wyandotte Nation. (The Interior and NIGC opinions are available at www.nigc.gov./resources/Indian Land Determinations.)

As also discussed in my written testimony, Interior requires a tribe that was acknowledged pursuant to the regulations at 25 C.F.R. Part 83, to show that it has

historic and contemporary ties to land before Interior will designate land as the initial reservation of such tribe pursuant to section 20 (b)(1)(B)(ii).’’ (See memoranda

dated December 13, 2000, from the Acting Associate Solicitor for Indian Affairs to

the Regional Director of the BIA’s Midwest Regional Office about the designation

of lands as the initial reservation for the Huron Potawatomi Band in Michigan and

June 23, 2003 from the Acting Associate Solicitor for Indian Affairs to the Regional

Director of the BIA’s Midwest Regional Office about the designation of lands as the

initial reservation for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians

of Michigan.)

What is of concern to the Greenville Rancheria, and other landless tribes that we

have communicated with, is that it appears that the Committee—not to mention

other tribes and the media—is lumping all off-reservation gaming into one category,

failing to distinguish between two-part determinations under section 20 (b)(1)(A)

from the applications of landless tribes under sections 20 (b)(1)(B)(ii) and (iii). The

Greenville Rancheria does not categorically oppose tribes seeking off-reservation

gaming operations through the two-part determination of section 20 (b)(1)(A); we are

confident that most are meritorious, and realize that some are completely lacking

in merit. Nevertheless, two-part determinations, no matter how meritorious, should

not be confused with applications on the bases of sections 20 (b)(1)(B)(ii) and (iii).

In City of Roseville v. Norton, 348 F.3d 1020, 1030 (D.C. Cir. 2003) the Court of

Appeals held that ‘‘the exceptions in IGRA § 20(b)(1)(B) serve purposes of their own,

ensuring that tribes lacking reservations when IGRA was enacted are not disadvantaged relative to more established ones.’’ The Court also recognized that

§ 20(b)(1)(B)(ii) ‘‘provides a parallel exception for the ‘initial reservation of an Indian

Tribe acknowledged by the Secretary,’’’ and noted the parallel placement of the two

exceptions in the statute, as well as the analogous situation in which restored and

acknowledged tribes find themselves’’ (which is to say landless). City of Roseville at

1030-31. The Court also emphasized ‘‘the role that IGRA’s exceptions in § 20(b)(1)(B)

play in the statutory scheme, namely to confer a benefit onto tribes that were landless when IGRA was enacted.’’ City of Roseville at 1032.

The court makes clear that the purpose of the exceptions contained in section 20

(b)(1)(B)(ii) and (iii) is to provide tribes that were landless at the time of IGRA’s

enactment a chance to share in the economic development opportunities of tribal

governmental gaming without having to comply with the two-part determination

provision of section 20(b)(1)(A). The two-part determination was intended for tribes

that had land at the time of IGRA’s enactment, and therefore an opportunity to

game on existing tribal lands without being subject to the two-part determination

21

2 As the court points out, bills considered in earlier Congresses contained a prohibition against gaming on lands acquired after enactment, but they did not contain the exceptions set forth in

Section 20(b)(1)(B). City of Roseville at 1029 (noting that ‘‘neither H.R. 1920 nor its Senate

counterpart contained the ‘‘restoration of land’’ exception’’). 3Two-part determination applications are usually accompanied by Part 151 applications.

4 Compliance with the National Environmental Policy Act is also required for Part 151 applications and two-part determinations, and this process also provides an opportunity for

community input.

and the governor’s veto power. 2 The distinction between two-part determinations under section 20 (b)(1)(A) and applications for landless tribes under sections 20

(b)(1)(B)(ii) and (iii) was valid in 1988, it is still valid in 2005, and it should not

be discarded by Congress. In summary, the Greenville Rancheria believes that the regulations at 25 C.F.R. Part 151, the two-part determination process 3, including the governor’s veto author- ity and the requirement that restored and acknowledged tribes show both historical

and contemporary ties to the land, all work to ensure that tribes are not able to

take land into trust for gaming purposes anywhere they may desire. Local communities are consulted through the Part 151 process and the two-part determination

process. 4 If a restored or acknowledged tribe can show sufficient ties to the land, neither states or local communities should have veto power over trust acquisitions;

to permit such a veto power would be an abdication of the United States’ trust responsibility to these landless tribes.

Question 3

Like question 2, this question lumps all off-reservation proposals together, failing to distinguish between two-part determinations and applications by restored or acknowledged tribes. It also fails to recognize that the courts, Interior, and the NIGC

all require a restored or acknowledged tribe to show that it has historical and contemporary ties to the land it wishes to acquire for gaming purposes. Whether a tribe

seeks to enter into the aboriginal territory of another, existing tribe in the context

of a two-part determination is a relevant factor for consideration by Interior, and

Interior should consult with the indigenous tribe to determine what, if any, economic impact the proposed casino will have on it.

Keep in mind that tribal aboriginal territories often changed as tribes moved into other areas. For example, in Strong v. United States, 518 F.2d 556, 565-66 cert. denied 423 U.S. 1015 (1975), the Court of Claims recognized the establishment of aboriginal title for two tribes for use starting in the mid-1700s. The Strong court affirmed the Indian Claims Commission’s (‘‘Commission’’) finding of aboriginal title for

the Delaware and Shawnee Tribes in two small portions of Royce Area 11 in Ohio.

31 Ind. Cl. Comm. 89, 121-23 (1973). The Delaware owned their tract from 1742 to

1781, and the Shawnee tract was ‘‘continuously used and occupied . . . from the late

1730’s until they were forced to abandon these lands in the late 1770’s.’’ 31 Ind. Cl.

Comm. at 122-23. The fact that the Delaware and Shawnee tribes did not establish

their uses in Ohio’s Royce Area 11 until the mid 1700s demonstrates that they

moved there from other areas.

Some areas were also shared by several tribes. As a general rule, when a tribe attempts to claim aboriginal title to a piece of land, it must prove that it exclusively

used and occupied at least portions of the land in question ‘‘to the exclusion of other

Indian groups.’’ United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct.

Cl. 1975). However, this general rule on exclusive use is subject to several exceptions, including the joint and amicable use exception, under which ‘‘two or more

tribes or groups might inhabit an area in ‘‘joint and amicable’’ possession without

erasing the ‘‘exclusive’’ nature of their use and occupancy.’’ Pueblo of San Ildefonso,

513 F.2d at 1394 (affirming the Commission’s holding that the Pueblos of San Felipe

and Santo Domingo held ‘‘joint aboriginal title’’ from at least 1770 to June 13, 1902

to approximately 8,600 acres of land). The court has acknowledged on several other

occasions that two or more tribes or groups might inhabit a region in joint and amicable possession without destroying the ‘‘exclusive’’ nature of their use and occupancy, and without defeating Indian title. Turtle Mountain Band of Chippewa

Indians v. United States, 203 Ct. Cl. 426, 442 (1974); Iowa Tribe of the Iowa Reservation in Kansas and Nebraska v. United States, 195 Ct. Cl. 365, 370 (1971), cert.

denied, 404 U.S. 1017 (1972); Confederated Tribes of the Warm Springs Reservation

of Oregon v. United States, 177 Ct. Cl. 184, 194 n 6 (1966) Sac and Fox Tribe of

Indians v. United States, 161 Ct. Cl. 189 n 11, cert. denied, 375 U.S. 921 (1963).

In addition to the changing and sharing of territories, some tribes were precise- ness out by wars, disease, enslavement, and other depredations. In other words, not

every inch of the United States is covered by the aboriginal territory of an existing

tribe (whether or not federally recognized). Also, many tribes were removed from

22

5Section 177 provides in pertinent part that:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from

any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same

be made by treaty or convention entered into pursuant to the Constitution Every person who,

not being employed under the authority of the United States, attempts to negotiate such treaty

or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the

title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000. The

agent of any State who may be present at any treaty held with Indians under the authority

of the United States, in the presence and with the approbation of the commissioner of the

United States appointed to hold the same, may, however, propose to, and adjust with, the

their aboriginal territory to other parts of the United States. How should such tribes

be treated, whether they seek to establish an off-reservation gaming site or to protest the establishment of one by another tribe?

Finally, because of the depredations committed against the Indians of California,

and due to the dislocations that resulted, the use of the concept of aboriginal territory or even ‘‘ancestral lands’’ can be very misleading. Not much was known about

California’s native peoples before the onslaught of Euro-American settlement. Because of the rapid and extreme devastation experienced by Indian communities due

to the gold rush, early twentieth century ethnographers had to use what is referred

to as ‘‘salvage ethnography’’ to try to piece together the social, cultural, and political

fabric of native life before the invasion of their territory by the gold rushers and

those who followed. As a result, it is simply not possible to establish aboriginal territory in California with the same level of preciseness that may be achievable in other

areas of the United States.

What’s more, because of the dislocation of Indian communities in California, many

current- day tribes are made up of people of more than one tribal heritage. Our own

tribe is made up of people of Mountain and Conkow Maidu heritage, as well as people of Wintun ancestry. Further, because they were illegally dispossessed of our

homelands, our ancestors were no longer able to sustain themselves through the traditional means of hunting, fishing, and gathering, so they were forced to neighboring areas in order to find work as a means to survive. Our ties to these areas

date back to the early to mid 1850s, well in excess of the time the Indian Claims

Commission determined is sufficient for a tribe to establish aboriginal territory. See

United States v. Seminole Indians, 180 Ct. Cl. 375, 387 (1967) (refusing to set fifty

years as the minimum number of years for establishing aboriginal title in all cases);

The Alabama-Coushatta Tribe of Texas v. United States, 1996 U.S. Claims LEXIS

128 (1996) (concluding that the Tribe had sufficiently domesticated the land supporting its village sites and the immediate vicinity for a period of 30 years, satisfying the long time requirement); Confederated Tribes of Warm Springs Res. v.

United States, 177 Ct. Cl. 184, 194 (1966) (quoting Sac and Fox Tribe of Indians

of Oklahoma v. United States, 315 F.2d 896, 905, cert. denied, 375 U.S. 921 (1963))

(‘‘The time requirement [of the aboriginal title doctrine], as a general rule, cannot

be fixed at a specific number of years’’).

In summary, questions regarding the definition of aboriginal (or ancestral) territory, and the weight to be given such territory in two-part determinations, require

a collaborative effort between Indian country and the Committee. The Greenville

Rancheria is willing to cooperate in such an effort.

Question 4

A cap should be placed on all revenue sharing with state governments—whether

from on- or off-reservation gaming. First, revenue sharing should not be permitted

unless annual tribal net revenues reach a certain level: for example $5 or $10 million. The percentage paid on revenues exceeding the exempt amount should be

capped at about ten percent, and should be permissible only in exchange for substantial economic benefit, such as the exclusive right to offer certain gaming activities.

Question 5

If the United States and the various states are unable to afford the necessary financial commitment that will enable the settlement of a land claim, some other

form of consideration must be identified in order to permit a settlement that is fair

to the tribal claimant and that leads to the quieting of titles in the claim area. The

right to operate a casino is a significant right that can constitute valuable consideration and support the extinguishment of a tribe’s land claim.

Because land claims under 25 U.S.C. § 177 generally involve illegal purchases or

takings of tribal land by state governments, the settlement of a land claim brought

under 25 U.S.C. § 177 5 generally requires an agreement between the state and the

23

Indians the compensation to be made for their claim to lands within such State, which shall

be extinguished by treaty. 6For example see the following:

Rhode Island Indian Claims Settlement (25 U.S.C. §§ 1701 et seq.) (Acknowledging that the

Settlement Agreement executed between parties to the lawsuits and others interested in the settlement of Indian land claims within Rhode Island requires implementing legislation by

Congress and the legislature of Rhode Island) See § 1701(d).

Florida Indian (Miccosukee) Land Claims Settlement (25 U.S.C. §§ 1741 et seq.) (Acknowledging that agreements executed between Florida and the Miccosukee Indian Tribe for the purposes of resolving tribal land claims and settling lawsuits involving land claims require implementing legislation by Congress and the Legislature of Florida) See § 1741(4). Connecticut Indian Land Claims Settlement (25 U.S.C. §§ 1751 et seq.) (Recognizing that the

parties to the lawsuit and others interested in the settlement of Indian land claims within Connecticut have reached an agreement which requires implementing legislation by Congress and

the Legislature of Connecticut) See § 1751(d). Massachusetts Indian Land Claims Settlement (25 U.S.C. §§ 1771 et seq.) (Acknowledging

that the parties to the lawsuit and others interested in settlement of Indian land claims within

Massachusetts executed a Settlement Agreement that, to become effective, requires implementing legislation by Congress and the General Court of Massachusetts) See § 1771(4). Florida Indian (Seminole) Land Claims Settlement (25 U.S.C. §§ 1772) (Acknowledging that

the State, the district, and the tribe have executed agreements for the purposes of resolving tribal land claims and settling the lawsuit that require implementing legislation by Congress and

the Legislature of Florida) See § 1772(4)(B).

Mohegan Nation (Connecticut) Land Claims Settlement (25 U.S.C. §§ 1775 et seq.) (Recognizing that, in order to implement the agreements between Connecticut and the Mohegan Tribe,

executed for settlement of the action referred to in this Subchapter, it is necessary for the

Congress to enact legislation) See § 1775(a)(8).

tribal claimant, and the tribal/state settlement agreement must be approved by Congress. 6 The need for the enactment of legislation by Congress provides a chance for everyone to be heard—including the state, local communities, the claimant tribe,

and other tribes that might be impacted—directly by Congress and through their

respective delegations. Gaming under section 20(b)(1)(B)(i) can not take place without a tribal/state settlement and without an act of Congress. In short, Congress has

a full opportunity to weigh the pros and cons of a particular land claim settlement

and the propriety of gaming on land acquired through the settlement.

Question 6

Indian tribal sovereignty generally, and Indian gaming in particular, are unpopu- lar in the eyes of much of the public. That this has long been so demonstrated by

cases such as Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832). Since the Supreme Court decided these cases early in our

Nation’s history, it and other federal courts have decided literally hundreds of cases

wherein states and local governments have attempted to: (1) tax tribal lands and

the incomes of reservation Indians; (2) regulate the use of reservation and trust

lands; (3) curtail the exercise of hunting and fishing rights; and (4) regulate and

adjudicate the internal relations of Indian tribes; and (5) challenge almost every exercise of tribal self-government. If Indian tribal government did only those things

that enjoyed wide spread public support, we would have to give up our sovereignty

and right to self-government. So, the level of public support enjoyed by Indian tribes

cannot be the sole or primary guide to how we exercise our sovereignty, nor should

it be such to our trustee, the United States, whether acting through Congress, the

executive branch, or the federal courts, when protecting our sovereignty and powers

of self-government. More than anything, what encourages the proliferation of off-reservation gaming proposals is the number of landless tribes and the severe poverty throughout Indian

country. We do believe that steps can be taken that will make the process of acquiring land for off-reservation gaming purposes more transparent, and additional

transparency may in turn reduce the number of such proposals by eliminating those

that lack serious merit. We do not think that greater restrictions are necessary because we believe that the standards addressed in Question 2, and the gubernatorial

veto power of the two-part determination process, provide sufficient protection. We

believe that Interior should adopt regulations that make clear the Secretary’s decision-making process, and the factors considered, under the two-part determination.

Likewise, Interior should adopt a regulation that sets forth the standards and procedures for determining whether land qualifies as restored to a restored tribe or the

initial reservation of an acknowledged tribe.

We understand the desire for certainty because we would like to have certainty

with regard to our own proposal. Anyone knowledgeable about the legal history of

Indian affairs in our country realizes that, while Indian tribes have much in common, they all have their own unique histories and experiences in dealing with the

24

onslaught of American expansion. A ‘‘one-size-fits all’’ approach to the issue of offreservation gaming is bound to be grossly unfair to most tribes still struggling to

climb out of poverty and despair and to become self-sufficient. What is needed is

a fair, flexible, and transparent process, and we believe that this can be done

through regulations. Congress should encourage Interior to engage in negotiated

rule makings on this subject. The Greenville Rancheria will be a willing participant

in such an endeavor.

Question 7

Like questions 2 and 3, this question appears to lump all off-reservation proposals

together and fails to appreciate the distinction between two-part determination applications under section 20(b)(i)(A) and applications for restored and acknowledged

tribes under section 20(b)(1)(B)(ii) and (iii). For tribes with existing reservations or

trust lands as of the date IGRA was signed into law, the primary intent was to

foster economic development on those existing lands. Nonetheless, as the two-part

determination process demonstrates, Congress did anticipate some level of off-reservation gaming by tribes with existing reservations.

With regard to landless tribes, the answer to this question is emphatically and

categorically no: Congress did not intend IGRA to promote economic development

on existing lands because restored and acknowledged tribes generally had no land

base at the time of IGRA’s enactment. We remind the Committee once again of the

decision in City of Roseville wherein the Court of Appeals held that ‘‘the exceptions

in IGRA § 20(b)(1)(B) serve purposes of their own, ensuring that tribes lacking reservations when IGRA was enacted are not disadvantaged relative to more established ones.’’ City of Roseville at 1030. As the Court further emphasized, ‘‘the role

that IGRA’s exceptions in § 20(b)(1)(B) ‘‘play in the statutory scheme, namely to confer a benefit onto tribes that were landless when IGRA was enacted.’’ City of Roseville at 1032. We implore the Committee not to lose sight of the distinctions between

various off-reservation gaming proposals and the purpose of the exceptions under

section 20(b)(1)(B).

Question 8

Because the Greenville Rancheria is not fully informed about the facts and law

regarding the efforts of the governor of Minnesota to enter into an agreement with

tribes to conduct gaming in an urban area under the auspices of the Minnesota

State Lottery, we cannot comment on the particulars of that venture. We are not

aware of any federal statute that requires the Secretary to ensure that tribal interests are protected in a venture such as the one you describe, and to our knowledge,

there would be no federal scrutiny of the outside investors, management contracts,

or vendors. We cannot think of any reason that Congress should enact a statute requiring such oversight or scrutiny because, when a tribe ventures off of its reservation or trust land, it subjects itself to the non-discriminatory laws of the state. See

Mescalero v. Jones, 411 U.S. 145 (1973). In this context, a tribe’s right to self-government free from the interference of state and local governments is not implicated,

and that is when tribes most need the protection of the United States as trustee.

Furthermore, we do not think that federal bureaucrats, no matter how competent

and well-meaning, can determine what is in the best interest of a tribe. Tribes need

to be able to develop business experience and acumen, and that comes through making your own decisions.

Tribes do have the right to conduct businesses of any kind off their reservations

and trust lands and subject themselves to state law in the process. While this is

not the preferred model for the Greenville Rancheria, we understand that other

tribes have this right. The proliferation of tribally owned gaming establishments operating under state law is not, to the best of our knowledge, prevalent or widespread. We would hope that tribes would rely on their sovereignty to conduct governmental gaming on tribal lands pursuant to IGRA rather than under state law.

On the other hand, it is difficult to conceive of how tribes can be legally prevented

from engaging in the kinds of businesses that others can engage in under state law

without denying tribes due process and the equal protection of the law.

RESPONSE TO QUESTIONS FROM CONGRESSMAN GIBBONS

Question 1

The fact that Congress is considering legislation indicates that the cases referred

to in the question are land claims. Land claim settlements should be evaluated on

a case-by-case basis, with particular attention paid to the merits of the case, the

compensation being offered by the state and the United States, the ties of the claimant tribe to the state and the specific area, and whether other existing tribes have

25

7This is one of the key components of the law. In other words, if a state does not criminally

prohibit the conduct of all gaming in the state, tribes are authorized by IGRA to conduct such

gaming. Senate Report, at 6 and 9.

ties to the area. As discussed in the answer to question 5 from Chairman Pombo,

land claim settlements generally require agreements with the state, which generally

must be approved by the state and legislature. Hearings before both the state legislature and Congress help to ensure that all affected parties, including other tribes,

are heard from. Most significantly, Congress, after hearing from all these parties,

has the final say on whether and where gaming will be permitted under such a settlement.

The term ‘‘reservation shopping’’ is a pejorative and inaccurate term. As ad- dressed in my written testimony for the March 17 hearing, and as discussed above,

IGRA, through section 20 (b)(1)(A), does anticipate that there will be some off-reservation gaming, and through section 20 (b)(1)(B), Congress intended to ‘‘confer a

benefit onto tribes that were landless when IGRA was enacted’’ by allowing them

to game on lands acquired after the date of IGRA’s enactment without complying

with the two-part determination process. This was due to Congress’ concern ‘‘that

tribes lacking reservations when IGRA was enacted are not disadvantaged relative

to more established ones.’’ Restored and acknowledged tribes are simply availing

themselves of a right that Congress conferred on them.

As discussed in answer to question 2 from Chairman Pombo, the courts, Interior,

and the NIGC require that a restored or acknowledged tribe demonstrate that it has

historic and contemporary ties to an area before the land can be considered restored

to a restored tribe or the initial reservation of an acknowledged tribe. It is not the

fault of restored tribes that they were terminated by Congress, nor is it the fault

of tribes acknowledged under 25 C.F.R. Part 83 that they were unrecognized by the

United States for so long. The trust land acquisition process under 25 C.F.R. Part

151 and the compacting process each encourage, if not practically mandate, that

tribes seeking to acquire off-reservation land for gaming purposes negotiate with

state and local governments to address their reasonable and legitimate concerns.

Question 2

Landless tribes in California, the Greenville Rancheria, were not engaging in

gaming before or during the Proposition 5 campaign, and we played no role in the

campaign and made no promises to anyone. The tribes that were gaming in 1998

and conducted the Proposition 5 campaign had no right to speak for landless California tribes, and they certainly were not in a position to bargain away our rights

under IGRA. As we’ve have already shown, section 20 (b)(1)(B)(iii) of IGRA provides

for the right of restored tribes to game on lands acquired after the date of IGRA’s

enactment if the land qualifies as restored land.

With regard to opposition to off-reservation gaming by some tribes, we note that,

in some cases, the opposition may be legitimate. In many cases, however, the concern is based on economic considerations only, though usually clothed in other

terms. We believe that the current process for trust land acquisitions provides an

adequate means for tribes to register their opposition, and the basis of it, to acquisitions by other tribes. Interior, and if necessary, the federal courts, are fully capable

of sorting out the legitimate objections from those based merely on a desire for economic protection from competition, which seems to us grossly unfair and decidedly

un-American.

Question 3

The question reflects a common misunderstanding regarding the regulation of

Indian gaming. The answer lies within the legislative history to IGRA at S. Rpt.

100-446 on S. 555, ‘‘Indian Gaming Regulatory Act,’’ Aug. 3, 1988 (‘‘Senate Report’’)

and IGRA itself. IGRA resulted from years of complicated discussions and negotiations between tribes, states, the gaming industry, the administration, and the

Congress to establish a system for the regulation of gaming on Indian land. Senate

Report, at 1-2. Recognizing the need to balance the competing policy interests and

adjust the jurisdictional framework for the regulation of gaming, IGRA requires for

any class III gaming that tribes and states enter into compacts to address the jurisdictional and regulatory issues.

As an initial matter, a review of IGRA’s provisions is necessary. Class III gaming

activities are lawful on Indian lands only if such activities are (1) authorized by an

ordinance or resolution; (2) located in a state that permits such gaming for any purpose by any person, organization, or entity ; 7 and (3) conducted in conformance with

a tribal-state compact. 25 U.S.C. § 2710(d)(1). Therefore, on the very face of the law,

tribal gaming can be conducted only in a state that otherwise permits gaming.

26

Furthermore, the ‘‘unlevel playing field’’ argument fails because tribal gaming is

subject to state regulation through the compacting process. In addition, IGRA is the state and tribal compromise for the concerns identified

in this question. The Senate Report recognized the well-established principle of federal Indian law as set forth in the United States Constitution and federal statutes,

and in decisions of the United States Supreme Court that, absent Congressional authorization, states do not have jurisdiction and cannot apply their laws on Indian

lands. Senate Report, at 5. Tribes were sovereign entities when they entered into

treaties with the federal government, and today they retain any rights under that

sovereignty that have not been expressly relinquished. The Senate Report notes that

IGRA was drafted to preserve the tribes’ sovereignty, not to create new sovereign

rights. Senate Report, at 5. The compacting process was a means by which tribal and state governments could obtain their individual governmental objectives while working together to develop

a regulatory and jurisdictional framework that would further the uniform

application of the laws regulating gaming. Senate Report, at 6. The compacting

process seemed to Congress to be the best way to balance the strong concerns of

the states that their gaming laws be followed on Indian land and the tribes’ opposition to state jurisdiction over their lands. The Senate Report noted that, since there

was no federal nor tribal regulatory system for the regulation of gaming on Indian

land, the logical choice was to use the existing state laws, although pointing out

that use of the state laws did not involve submission to jurisdiction. While the compacting process was intended to allow states a regulatory role with regard to class

III gaming, it was never intended to exclude a tribe from gaming in order to protect

state licensed gaming enterprises from engaging in competition with tribes. Senate

Report, at 13, or vice versa.

It has always been the law that tribes and their lands are exempt from state taxation. In Mescalero Apache Tribe v. Jones, 411 U.S. at 148, the Court explained the

import of its decision in a companion case, McClanahan v. Arizona Tax Comm’n, 411

U.S. 164 (1973) (holding that states are without jurisdiction to tax income earned

on an Indian reservation by a Indian resident of the reservation), declaring that

states are without authority, absent consent by Congress, to tax Indian reservation

lands or Indian income from activities occurring within the boundaries of a reservation. Moreover, tribes are restricted in their use of gaming revenues, unlike their

commercial counterparts. Net revenues from any tribal gaming must be used (1) to

fund tribal government operations or programs; (2) to provide for the general welfare of the Indian tribe and its members; (3) to promote tribal economic development; (4) to donate to charitable organizations; or (5) to help fund operations of local

government agencies. 25 U.S.C. § 2710(b)(2)(B).

Question 4

We have discussed the criteria used by the Secretary in review trust land applications under 25 C.F.R. Part 151 in our answer to Chairman Pombo’s question 2. As

explained there, as the distance between the land proposed for acquisition and the

tribe’s reservation (or service area) increases, the Secretary gives greater scrutiny

to the tribe’s justification of anticipated benefits from the acquisition, and greater

weight is given to the concerns of state and local governments with regard to factors

covered by §§ 151.10 (e) and (f). Also as discussed in answer to Chairman Pombo

question 2, it is generally required that a tribe demonstrate both contemporary and

historic ties to land before the land can be considered restored to a restored tribe

or the initial reservation of an acknowledged tribe.

The last part of this question assumes that a significant number of tribal members live on or near a reservation. While this is true for some tribes, it is generally

not the case for landless tribes, and it certainly is not true for the Greenville

Rancheria. The majority of our members do not live in Plumas County, the county

in which the Rancheria is located. Instead, and as a direct result of the Tribe’s illegal termination, more members live in the Red Bluff area of Tehama County and

in the Shasta County towns of Redding, Shasta Lake City, and Anderson, than live

in Plumas County. The simple fact is that a tribe may enable more members to take

advantage of casino jobs by locating a casino at some distance from its current reservation or trust lands.

Moreover, the revenues from off-reservation casinos can be invested in other

forms of economic development to create jobs on the reservation or in the service

area. Also, those revenues can be invested in the form of services to tribal members

who live on or near the tribe’s reservation or within its service area, which in turn

can improve the quality of life of those members. The investment of tribal revenues

in services to members also creates more jobs. In short, the investment of revenues

from off-reservation casinos can greatly improve the quality of life of members living

27

on or near reservations or trust lands, or in tribal service areas. As to the possible

disruptive affects that off-reservation casinos may have on tribal communities, the

affects of federal policies embodied in the General Allotment Act and the various

termination statutes that Congress has enacted over the years have had a far more

disruptive impact on tribal communities that an off-reservation casino will ever

have. And in many cases, the revenues from an off-reservation casino may be one

of the few means by which a tribe can effectively address those ill affects by allowing the tribe to rebuild its land base to provide its tribal members a contiguous

homeland and place to renew their culture and traditions of self-government.

Question 5

As I have already discussed above, restored and acknowledged tribes must show that they have both contemporary and historical ties to the land they wish to acquire for gaming purposes. The requirement of contemporary ties generally ensures

that at least some tribal members live in the area of the land proposed for trust

acquisition. However, this question is based on a faulty premise: that the members

of landless tribes live in a fairly confined area. Particularly for landless tribes, and

due directly and inescapably to their landless status, the members of such tribes

generally live in dispersed communities. With regard to the Greenville Rancheria,

more of our adult members live in the Red Bluff area of Tehama County and the

Shasta County communities of Anderson, Shasta Lake, and Redding, than live in

Plumas County. Twenty-nine adult members live in Red Bluff and the Shasta County communities, and only twenty-one live in Plumas. The remainder of the Tribe’s

96 adult members live in other California counties and other states.

Question 6

I refer again to my written testimony and to answers provided above. The two- part determination process provides the governor of the state with veto power over

off-reservation acquisitions under section 20 (b)(1)(A). The regulations at 25 C.F.R.

Part 151 require additional scrutiny for off-reservation applications, and, as the distance between the reservation or service area increases, greater weight is given to

the objections of local communities. With regard to the exceptions under section 20

(b)(1)(B)(ii) and (iii) for acknowledged and restored tribes, respectively, both contemporary and historical ties to the land are required. With regard to land claim settlements, they require an agreement with the state and an act of Congress. All of these

factors work together to ensure that tribes are not able to acquire land any where

they want at any time they want. As to tribes ‘‘playing by the rules,’’ keep in mind that most of the tribes currently gaming in California—including those who purportedly made promises they had no

authority to make in the Proposition 5 campaign—were gaming for years before

they had class III compacts.

Question 7

It is only recently that tribes have been able financially to make campaign contributions, and very few tribes can afford to do that. Even fewer tribes can afford

to take advantage of the exception you refer to, and therefore have no occasion to

know of its existence. The Greenville Rancheria certainly cannot afford to make

campaign contributions, and given the long unmet needs of our tribal membership

and the modest revenues we hoped to earn through our proposed gaming operation,

I doubt that we will be considering campaign contributions anytime in the near future. Given the level of poverty in most tribal communities, and the lack of adequate

health care, dilapidated schools, impassable roads, and substandard housing, there

is scant hard evidence that tribal governments have achieved an unfair advantage

in gaining access to those who hold the reins of power (and appropriations) in Washington, D.C. To the contrary, as the ongoing scandal involving Jack Abramoff demonstrates, tribes have been taken advantage of in this arena.

Question 8

I refer to the first paragraph of the answer to question 6. All of these factors combine to make it extremely difficult for tribes to cross state lines for gaming purposes.

Such proposals are subject to intensive review and the strictest level of scrutiny.

We are not familiar with the details of the proposal of the Cheyenne Arapaho

Tribes, but I refer to the answer to Chairman Pombo’s question 5. If, as the question

suggests, the Tribes’ land claim was already settled, the claim is not valid, and

there will be no basis for an agreement between the Tribes and the state, and there

will be no occasion for Congress to enact legislation approving such a settlement

agreement. Similarly, regardless of whether the claim was settled in the 1960s, if

it is otherwise without merit, it cannot provide the basis for a settlement that

results in the Tribes acquiring land for gaming purposes in Colorado.

28

The CHAIRMAN. Thank you. And it is Ms. Jaimes? OK. I apologize for mispronouncing it originally.

Ms. JAIMES. OK.

The CHAIRMAN. Mr. Leecy?

STATEMENT OF KEVIN LEECY, CHAIRMAN,

BOIS FORTE RESERVATION

Mr. LEECY. Good afternoon, Mr. Chairman and honorable committee members. I wish to extend my appreciation to the Chairman

for providing me with the opportunity to testify before you today.

I respectfully ask that the Chairman accept my written testimony

and make it a part of the record of this hearing.

Mr. Chairman, it is my understanding that the Indian Gaming

Regulatory Act of 1988 had as its fundamental purpose the protection of tribal government gaming to create, develop, and promote

on-reservation economies. Congress intended it to strengthen tribal

self-government. Congress wanted to ensure, and properly so, that

the tribal governments were the primary beneficiaries of the gaming revenues, that the tribal governments would retain the sole

proprietary interest in the gaming enterprises, and that the tribal

governments would be the primary regulatory authority over the

gaming activities.

The ever-increasing proposals to create off-reservation gaming

threaten to undermine the fundamental purposes of the Indian

Gaming Regulatory Act. In my home State of Minnesota, for example, such proposals are being used to divide tribes and to extort

money from tribes with successful and modest gaming operations.

The Bois Forte Band of Chippewa is located in northeastern Minnesota. It is approximately 250 miles from the Twin Cities of Minneapolis and St. Paul. We have an on-reservation population of

1,000 and have engaged in gaming since 1986. We offer both Class

II and Class III activities in a facility that was built in 1988 and

has approximately 25,000 feet of gaming space.

We are geographically isolated and depend on our gaming to

fund a large portion of the operations of our government and its

programs. We do not provide per capita distributions to our enrolled members. Due to our geographic isolation, we have come to

understand the limitations of our market. Most of our casino customers come from within 90 miles of the reservation. However, we

also depend heavily on transient guest traffic, which accounts for

approximately 80 percent of our resort occupancy.

We believe that we are maximizing our opportunities within the

nature of our market and have added some amenities, including a

marina and golf course, which we opened last year. We have been

engaged in providing gaming for over 16 years, and we feel that

the statewide gaming market has matured. Apart from all of our

location disadvantages, we have, nonetheless, created a successful

business that provides an important source of jobs and revenue for

the operation of our tribal government. The non-Indian community

surrounding us also benefits from our gaming. Over the years, we

have been welcomed into our rightful place as partners among the

other governments in the State.

Over the years, we have observed from a distance the various

proposals promoting off-reservation gaming by Indian tribes. These

29

have included the earliest proposals involving tribes seeking offreservation locations to enhance their opportunities, private developers seeking both historic tribes or federally recognized tribes

willing to relocate to off-reservation locations, and now States who

are pitching off-reservation locations. The latter two are linked by

a common objective—how do we raid the tribal treasury. Most recently, the Governor of Minnesota, having failed to bully the tribes into submitting to his demands for revenue sharing, has

now set on a new course. He is seeking to divide the tribes on the

issue of gaming by embracing an off-reservation gaming proposal

that had been languishing in the State legislature for the last 2

years. This proposal was picked up by the White Earth and Red

Lake Bands of Chippewa. This year the Leech Lake Chippewa also

joined the proposal. The proposed Minnesota legislation establishes

a metro area casino operated jointly by the tribes with a new twist.

The new wrinkle is that the activities will be authorized solely

under State law, in disregard of the Indian Gaming Regulatory Act. This is not the first time that such a venture has been proposed.

The Minnesota proposal not only seeks to avoid any connection to

the Indian Gaming Regulatory Act, but it also operates to actually

exclude tribes from participating in an off-reservation gaming facility. The written legislation creates a State-administered means test

to determine eligibility for tribal participation as follows: To be eligible to participate in the tribal entity, the tribal govern- ment must demonstrate to the director of the State lottery that the

revenues available to the tribal government from currently

available revenue sources are insufficient to adequately meet the

basic needs of tribal members.

In conclusion, Mr. Chairman, I share this information with you so that you will understand the never-ending permutations our

tribes have encountered since gaming began. We oppose offreservation gaming that results in the division of tribes, does not

include a review of impacts of existing tribes and their on-reservation economies. We oppose the continued approval of revenue-sharing arrangements with tribes for any reason as illegal and inconsistent with the purpose of Indian gaming. Thank you.

[The prepared statement of Mr. Leecy follows:]

Statement of Kevin Leecy, Chairman, Bois Forte Band of Chippewa Indians of Minnesota

Good afternoon Mr. Chairman and The Honorable Committee members. I wish to

extend my appreciation to the Chairman for providing me with the opportunity to

testify before you today. I respectfully ask that the Chairman accept my written testimony and make it a part of the record of this Hearing. Mr. Chairman, it is my understanding that the Indian Gaming Regulatory Act of 1988 (IGRA) 25 USC § § 2701 et seq. had as its fundamental purpose the protection

of Tribal government gaming to create, develop and promote on-reservation economies. Congress intended would strengthen tribal self-government. Congress wanted

to ensure, and properly so, that the Tribal governments were the primary beneficiaries of the gaming revenues, that the Tribal governments would retain the sole

proprietary interest in the gaming enterprises, and that the Tribal governments

would be the primary regulatory authority over the gaming activities.

The ever-increasing proposals to create off-reservation gaming threaten to undermine the fundamental purposes of the IGRA. In my home State of Minnesota, for

example, such proposals are being used to divide tribes and to extort money from

tribes with successful gaming operations. I would like to explain to the committee

what is happening in my state.

30

Mr. Chairman, the eleven federally recognized tribes located in Minnesota were

the first to complete negotiations under the IGRA when in 1989 the Tribes and the

State of Minnesota entered into a Class III Compact authorizing and regulating the

use of video games of chance. Subsequent to the conclusion of the 89 Compacts the

Lower Sioux Indian Community requested that the State of Minnesota negotiate a

second Class III Compact that would authorize and regulate the play of blackjack.

The State of Minnesota refused arguing that the play of blackjack was not within

the scope of gaming authorized under state law. The Lower Sioux Indian Community, with the support of the other ten Tribal governments, sued the State in federal

court pursuant to the IGRA asserting that the states refusal to negotiate blackjack

was per se bad faith and that Minnesota law clearly supported the Tribes request.

The matter was ultimately resolved by a consent judgment in federal court in the

favor of the Tribe. As a result of that judgment, the State agreed to negotiate and

the eleven tribal governments entered into Compacts authorizing and regulating the

play of blackjack in 1991.

I wish to point out several important facts involving the negotiation of these Class

III Compacts. First, while negotiating the 89 Compact it was imperative for the

tribes to achieve several objectives. That there were to be no artificial restrictions

placed on the video gaming activities under the Compact. The State sought restrictions in the form of limits on the number of machines, limits on the hours of operation and limits on the age of players to name a few. Second, the Tribal governments understood that they would need to make substantial investments in their

infrastructures to take complete advantage of the Class III Compact. Neither the

federal government nor the state government would finance this development and

the Tribes knew that they would need to turn to the marketplace for the financing.

What the Tribal governments wanted to avoid was the high priced financing offered

by individuals and groups who preyed upon the Tribes in the ten years prior to the

adoption of the IGRA. Third, the Tribal governments wanted to enforce the principle

that the Tribes were to be the primary regulators of these activities. Fourth, the

Tribal governments wanted to ensure that the Tribes were to be the primary beneficiaries of the revenues from these activities. The Tribes fought hard to avoid state

imposition of taxes on the activities and the IGRA clearly states such a prohibition.

Lastly, the Tribal governments had been operating gaming on its reservations since

the late 70’s and knew very well the positive impacts that gaming revenue had on

their governments, and on their communities both on and near the reservation.

In order to maximize the opportunities presented by the IGRA, the Tribes sought

and received Class III Video Compacts that had no term and came without the artificial restrictions proposed by the State. The State received in return the ability to

participate in oversight of the regulatory aspects of the Compact and the ability to

track the movements of machines within the State. The State also received assurances that facilities in which the activities would take place will be safe and that

procedures would be implemented to protect the public from unscrupulous operators. Also important to the State was the fact that all of these activities would take

place on-reservation which would impact the decision on the part of the State’s citizens whether or not to engage in the gaming. Bluntly, that tribal gaming would not

be that accessible. The State also understood the positive impacts of the gaming activity including the reduction of unemployment in those reservation areas for

Indians and non-Indians, the development of the infrastructures necessary to serve

the gaming facilities, the use of gaming revenues to support and establish programs

and services to tribal members such as housing, medical clinics, dental services,

public safety, courts and education to name a few. The State also knew that these

monies would be spent in areas that are often the hardest hit in the downturns of

the State’s economy. Given the status of the State’s economy in the early 90’s it was

also seen as an economic stimulus for these rural communities.

The negotiation of the blackjack Compact of 91 introduced the idea of reimbursing

the State for its expenses incurred in the carrying out of certain oversight duties

under both Compacts. It also reflected the Tribe’s acceptance of a limitation of its

right to request the negotiation of Compacts for other activities in light of the federal courts’ broad recognition of the extent of activities that were authorized under

state law. In return for this foregoing of the right to request Compacts on additional

activities the Tribes reserved such right if the State were to explicitly authorize any

expansion of gaming in the future. To this day, the Tribes continue to limit their

activities to the two authorized activities, video games, and blackjack. The State

however did authorize an expansion when five years ago the State allowed private

for-profit horse track operators to open a card club. Last year that card club earned

in excess of 29 million dollars. The private for-profit operators of the track do not

pay any state taxes on the card room income.

31

Since 1991 the Tribes have invested well over 200 million dollars into building

their gaming facilities and supporting facilities and other amenities. They have also

spent millions on each of their reservations building structures that support Tribal

communities. The tribes in the face of diminishing federal and state grant support

did all this. They have established on-reservation economies where none existed before and they are reaching out to their neighbors. They have become the new economic engines within their communities.

We have also seen over the last ten years proposal after proposal to expand gaming in the State. In the last three years we have seen two, and this year three tribes

are promoting off-reservation gaming proposals under state law. These proposals did

not go anywhere until this past year when the current Governor decided that he

wanted revenue sharing from the Tribes and the Tribes did not capitulate.

The Governor’s approach was to meet with the tribal leaders in early January of

04 and inform them of his new policy to expand gaming in the state unless the

Tribes would revenue share. He gave the Tribal leaders a couple of days to mull

over his request and when the Tribal leaders politely responded to his demand he

responded by informing the public and the Tribal leaders in his State of the State

address that he wanted the Tribes gaming money and if he did not get it he would

expand gaming in Minnesota.

OFF-RESERVATION GAMING IS BAD PUBLIC POLICY

The Bois Forte Band of Chippewa is located in Northeastern Minnesota. (Attachment 1) It is approximately 230 miles from the Twin Cities of Minneapolis and

Saint Paul. We have an on-reservation population of 1000. We are part of the Minnesota Chippewa Tribe, which was established in 1934 as an umbrella organization

representing five other Chippewa Bands in northern Minnesota. We have engaged

in gaming since 1986. We offer both Class II and Class III activities in a facility

that was built in 1988 and has approximately 25,000 feet of gaming space. We are

geographically isolated and depend on our gaming to fund a large part of the operations of our government and its programs. We do not provide per capita distributions to our enrolled members. Due to our geographic isolation, we have come to understand the limitations of our market. Most of our customers come from within 90

miles of the reservation. It has become very important to be conservative in our decision-making when it comes to our gaming enterprise. We however believe that we

are maximizing our opportunities within the nature of our market and have added

some amenities, including a marina and golf course, which we opened last year. A

segment of our market includes people from the Twin Cities of Minneapolis and

Saint Paul. We have been engaged in providing gaming for over 16 years and we

feel that the statewide market for gaming has matured. Apart from all of our location disadvantages, we have nonetheless created a successful business that provides

an important source of jobs and revenue for the operation of our tribal government.

The non-Indian community surrounding us also benefits from our gaming. Over the

years, we have been welcomed into our rightful place as a government among the

other governments in our state.

Over the years, we have observed from a distance the various proposals promoting

off-reservation gaming by Indian tribes. These have included the earliest proposals

involving tribes seeking off reservation locations to enhance their opportunities, private developers seeking both historic tribes or federally recognized tribes willing to

re-locate to off-reservation locations and now, States who are pitching offreservation locations. The latter two are linked by a common objective—how do we

raid the tribal treasury.

Most recently, the Governor of Minnesota, having failed to bully the tribes into

submitting to his demands for revenue sharing, has now set on a new course. He

is seeking to divide the tribes on the issue of gaming by embracing an offreservation gaming proposal that had been languishing in the state legislature for

the last two years. This proposal originated within the urban Indian community and

was picked up by the White Earth and Red Lake Bands of Chippewa. This year the

Leech Lake Chippewa have also joined the proposal. The proposed Minnesota legislation HF 1817 establishes a metro area casino operated jointly by the tribes with

a new twist. The new wrinkle is that the activities will be authorized solely under

State law.

This is not the first time that such a venture has been proposed. The Minnesota

Governor’s Chie aide, Dan McElroy had actually pitched this as the Kansas Model

in early discussions with the tribes in Minnesota. The point is that the States are

now shopping tribes much as the private gaming developers have shopped tribes to

entice them into these off-reservation projects. As we know from experience the end

result will be simply another example of tribes being separated from their resources.

32

It is our concern that this is not an isolated incident. The original demands for Minnesota tribal revenue began with the Governor suggesting that he wanted a

‘‘better deal for Minnesotans’’ claiming that the tribes had not contributed anything

to the state irrespective of the 15,000 direct jobs created by Minnesota tribal gaming

and the over 80 million dollars a year that flows into state coffers from non-Indian

employees. In reference to the terms of the existing Compacts, he said that they

were old and not consistent with current realities. He claimed that the tribes held

a monopoly over gaming within the state and there must be competition. His idea

of competition was to enrich the private for-profit owners of the local horse track

by giving them gaming machines and creating a racino. The state legislature gave

the local track a card club five years ago and to this day exempts the revenues from

corporate taxes. The private operation thus made a cool 29 million dollars last year

without providing any direct benefit to the State. The Governor demanded that the tribes fork over 25% of their revenues. ‘‘Why?’’ he was asked. His answer was, ‘‘That is what Connecticut and California get and

I want the same’’. He justified his demand by suggesting that Minnesota produces

the third largest gaming revenues behind Connecticut and California when in fact

it is the region, which includes Michigan, Wisconsin, Iowa, Nebraska, North and

South Dakota, and Wyoming that is the third largest among the National Indian

Gaming Commission regions. Finally, he pushed the Kansas Model as the one that he prefers and asked the tribes to consider the Kansas model. We looked at the Kansas Model and we were

not impressed with what we found. The Kansas Model is an off-reservation proposal

in which two of the resident tribes have agreed to participate in a facility that will

be located in Kansas City. The facility will be operated by an entity the majority

of which may be non-tribal. This proposal will require revenue sharing with the

state and local governments. If the tribes close their existing facilities the state will

make payments to the counties where these facilities were located in order to ease

the burden created by the loss of jobs and other impacts related to the closure. Interestingly the Model does not include funding to make up for the loss of revenues

that the two remaining resident non-participating tribes may incur. However, under

the Model the State of Kansas takes care of the horse tracks by authorizing the distribution of 600 machines to each of three tracks in the state. The State takes care

to make the tracks whole and than some. The one redeeming feature of this Model

is that it at least anticipates federal review under the IGRA § 2719. The Minnesota

proposal does not anticipate any federal review. If the Kansas model and others similar to it are subjected to IGRA standards, they will not pass federal muster for several reasons: the tribes do not retain the

sole propriety interest in the gaming, the tribes are not the primary regulators of

the activities, and the tribes are not the primary beneficiaries of the revenues raised

by the gaming activities.

The Minnesota proposal not only seeks to avoid any connection to the IGRA, but

it also operates to actually exclude tribes from participating in an off-reservation

gaming facility. The legislation creates a State-administered means test to determine eligibility for tribal participation as follows:

‘‘(2) to be eligible to participate in the tribal entity (operating entity), the

tribal government must demonstrate to the director (of the State Lottery)

that the revenues available to the tribal government from currently available revenue sources are insufficient to adequately meet the basic needs of

tribal members including, but not limited to, housing, medical care, education, or other governmental services to members;’’

The Minnesota proposal creates an alleged ‘‘partnership’’ between the participating tribes and the state that can only be described as a one sided deal where

the tribes assume all the liability and risk in financing and operating the enterprise

while the State takes its 200 million dollar license fee and one third of the revenues

off of the top. The State Lottery Director and the Director of Public Safety can make

decisions that will become operating expense costs to the participating Tribes with

respect to regulatory functions, some of the more expensive operating activities in

a casino, without tribal review. The Tribe is required to waive its immunity with

respect to disputes between the parties and these disputes will be heard within the

State’s administrative law process. If a State official decides the Tribes have violated any of their responsibilities, he sends the matter to the State Lottery Director

who can penalize the tribes or end the partnership. The State will also control the

licensing process and State decisions made with respect to licensing are not reviewable.

I am not a lawyer but this ‘‘partnership’’ as currently proposed is so one sided

that it cannot be viewed as a legitimate contract. The problem is that this overreaching is not something new to tribal governments. In the early days of tribal

33

gaming, it was common to find contracts that tribes executed with management

groups that were as unfair as the Minnesota proposal. It was common for the tribe

to pay the manager anywhere from 60-90% of the revenue of the gaming activities.

There were instances where this manager would also be leasing gaming devices to

the tribe with the lease fee also being as much as 30% of the machine take, on top

of the management fee. The IGRA stopped this by putting in place the NIGC management contract review process and established ceilings on the fees and the term

of management agreements. The Minnesota ‘‘partnership’’ will be exempt from any

such oversight or regulation.

Mr. Chairman and Committee members, I share this information with you so that

you will understand the never-ending permutations that tribes have encountered

since gaming began that are designed to separate tribes from their revenue. This

understanding will be valuable as you consider policy issues relating to offreservation gaming. The Minnesota proposal is not home grown or isolated to Minnesota. It is the product of deliberate actions that have evolved from the early deals

in Connecticut to Wisconsin to California to Kansas and now to Minnesota. It has

been advocated by State officials in spite of the clear prohibition against state taxation of tribal gaming activities found in the IGRA, a prohibition that the BIA and

the NIGC seem to ignore. It is apparent that states have now declared an open season on tribal gaming revenues. The Minnesota proposal represents yet another evolution of the strategy to circumvent the protections established in the IGRA. The

worst part is that it attacks tribes’ on-reservation developments and economies. The

Bois Forte Band is not the only tribe concerned by this development in Minnesota.

The Chairman of the Fond du Lac Band of Chippewa issued a news release (attachment 2) after the Governor held a press conference announcing the ‘‘partnership’’

a couple of weeks ago and in the release the Chairman declares to the Governor

that ‘‘Fond du Lac (is) not for sale at any price’’. The Bois Forte Band and seven

other tribes in Minnesota share the sentiment of the Fond du Lac Chair that indeed

our Sovereignty is not for sale.

We understand that this hearing is the first of several the Committee intends to

hold. Although we do not have specific recommendations for amending the Bill to

address the concerns that we raise today we hope to provide those recommendations

after further consultations with the other tribes in Minnesota. I thank the Chair

and the Committee members for this opportunity to appear and testify on this very

important subject.

[Attachments to Mr. Leecy’s statement follow:]

34

20127.001

35

ATTACHMENT 2

Fond du Lac Band Reservation

Business Committee

1720 Big Lake Road

Cloquet, MN 55720

Phone: (218) 879-4593

Fax: (218) 879-4146

News Release: March 4, 2005

FOND DU LAC BAND NOT FOR SALE AT ANY PRICE

FOND DU LAC RESERVATION (CLOQUET, MN)—The Fond du Lac Band of

Lake Superior Chippewa has become aware through news reports that Governor

Pawlenty has succeeded in dividing the Tribes in Minnesota with his false promises

and insincere concerns over the well-being of the Tribes.

The Governor will announce his ‘‘partnership’’ with the Red Lake, White Earth,

and Leech Lake Bands of Chippewa. It is also reported that he will leave the door

open for other tribes to join the ‘‘partnership.’’ Following is the response of Fond du

Lac Chairman Peter Defoe:

‘‘Mr. Governor, the Fond du Lac Band is NOT FOR SALE AT ANY PRICE.

The Fond du Lac Band fought hard for federal legislation to protect gaming for

the purpose of developing our on-reservation economy. Your proposal to expand

gaming by offering an off-reservation casino will adversely impact our reservation

economy, and the reservation economies of other northern and rural Tribes. You

claim that the basis for presenting the proposal is to help the state budget and those

‘‘poor’’ tribes who have not seen the same benefits that the Indian Gaming Regulatory Act (IGRA) has bestowed upon tribes located closer to large populations. Governor, the IGRA was never intended to guarantee equity to all tribes.

There are over 520 federally recognized tribes in this country and only 270 of

those tribes engage in gaming at some level. Your rhetoric characterizing the partner tribes as representing 85% of the Indian population in Minnesota is justification

for your proposal, yet you fail to share with the public that only 1/4 to 1/2 of their

tribal members actually live on their reservations. Further, you have argued that

these tribes are without economic opportunities. The Tribes indeed have needs that

should be met with some assistance from the State, but your cynical plan would provide this assistance by harming the on-reservation economies of the remaining

Tribes in the State.

The unmet needs that exist on those three reservations did not develop in the

past year. Their needs existed while you served in the Minnesota House of Representatives for a decade (1993-2003); their needs existed while you campaigned for

Office of Governor; and their needs have existed while you have occupied the Office

of Governor. Yet, it is only in the past year that you have seen the opportunity to

use their unfortunate status as the smoke screen to help your wealthy friends who

own the Canterbury racetrack. This is a poor excuse to hurt the rural economies

that have benefited both Tribes and the non-Indian communities surrounding the

reservations.

The government treaty negotiators used alcohol, the U.S. Army used blankets infected with small pox, and now you attack our economies, all in an effort to coerce

tribal government to bend to your demands.

We reject your immoral plans.

[Responses to questions submitted for the record by Mr. Leecy

follow:]

Response to questions submitted for the record by

Chairman Kevin W. Leecy, Bois Forte Reservation

From Chairman Pombo:

1. Under the Section 20 two-part determination in IGRA, the governor of a state

is cast in the role of representing and protecting the interests of both the state

government, and the local governments that exercise jurisdiction in the area proposed for casino gaming. However, as state governors increasingly look to tribal

casinos to provide large amounts of revenue sharing to supplement the state

budget, it has been argued that governors are now in a position where their fiduciary interest in securing a tribal revenue stream for state government conflicts

36

with their duty to represent the interests of local communities in the two part

determination process.

• With the potential of this large financial incentive to a state for a governor

to overlook the concerns of local communities, can it be said that local communities can still be adequately represented solely by the governor’s participation

in the two part determination process? • Or does this potential conflict of interest presented to governors suggest that

IGRA should be modified to give affected local communities a formal role in

concurring with the Secretary’s two-part determination findings?

ANSWER

Because the Governor has made expansion of gaming part of his political agenda he has lost his ability to remain open to the concerns of both local

communities and non-participating tribes. The danger is especially acute

when the expansion of gaming is ostensibly to operate under the auspices

of state law and that same law limits tribal participation by imposing a

means test.

2. Under established principles of tribal sovereignty, local communities do not have a say in decisions involving tribal land that is already held in trust by the federal

government. However, off-reservation gaming proposals involve taking land into

trust that is currently held in fee and is often not even closely located to trust

lands.

• Is it a fundamental right of tribes to have land taken into trust on their behalf

at any location within the United States they so desire, irrespective of the distance to their current reservation or any connection to ancestral or native

lands?

ANSWER

It is our view that it is a fundamental right of tribes to have land taken into trust on their behalf, but not at any location in the United States.

However, there may be some exceptions. For example, in Minnesota the

reservation of the Prairie Island Indian Community is located within 600

yards of a nuclear power plant. It would be our view that in the event of

a nuclear accident that renders their reservation uninhabitable they

should be provided new land and they should be allowed to operate gaming

on those lands. • If not, what limitations should apply on where a tribe can or cannot have

lands taken into trust on their behalf?

ANSWER

The land in question should have a historical, cultural, or geographical connection to the petitioning tribe. The process should include a requirement that the Secretary consider the impact of granting such a petition on

existing tribal governments, and require consultation with affected tribes.

• Should a higher standard of review apply when the off-reservation lands in

question will be used for purposes of gaming?

ANSWER

The current standard is acceptable.

• Should this standard include active participation and a requirement for concurrence from local governments, even though they are generally otherwise

prohibited from having a say on matters concerning Indian lands?

ANSWER

We disagree with a requirement of local concurrence.

3. Tribes have long fought to protect their ancestral lands from the unwanted incursions of outsiders, both Indian and non-Indian alike.

• If a tribe is seeking to have land taken into trust in an area that is not within

the ancestral lands of that tribe, should other tribes whose ancestral lands encompass the site have the ability to object to the land going into trust?

ANSWER

Yes, those tribes must be consulted and allowed to participate in the review of the petitioning tribe’s request and supporting documents. The petitioning tribe must have the burden of demonstrating need for the request.

Although ‘‘need’’ can be a relative term, perhaps it could be found to exist

if the petitioning tribe clearly demonstrates that the benefits to all affected

tribes outweigh the detriments to those tribes.

• The ability to veto the land going into trust?

37

ANSWER

No

• How can the term ‘‘ancestral lands’’ be defined as precisely as possible so it

is clear to all observers, Indian and non-Indian alike, which lands are ancestral to any given tribe?

ANSWER

Those lands to which a tribe had attained recognized title. For example, if a tribe sought and received relief in the Indian Claims Commission (or

its successor) with respect to land, it had to establish standing to bring the

claim. That could be prima facie evidence of recognized title.

4. Should a cap be placed on any revenue sharing with state governments from an off-reservation gaming facility?

ANSWER

It is our legal position that ‘‘revenue sharing’’ is a state tax on the reve- nues generated by the gaming facility and as such prohibited by the IGRA.

The only expenditure authorized by the IGRA is to pay for services rendered or expenses actually incurred by a state or local government and related to the gaming activities. Revenue hungry states also use the word

‘‘fee’’ to disguise what is clearly a tax, and that is all the more reason to

limit the availability of tribal revenues to payment for services rendered.

It is a violation of the IGRA for the BIA to approve revenue-sharing arrangements and subjects the federal government to claims of breach of the

trust responsibility owed the tribes by the federal government. • If so, what should the cap percentage be?

5. Should a tribe be able to ask for or accept a casino operation as a substitute,

either in whole or in part, of a cash payment to settle a land claim?

ANSWER

Yes, we would support the sovereign right of a tribe to make that determination. • If a casino is acceptable as a settlement, should tribes whose ancestral lands

encompass the location where the casino would be located be consulted before

the settlement is finalized?

ANSWER

Yes, we support a requirement of consultation with impacted tribes.

• Should they be allowed veto power over such a casino-based settlement as a

tool to protect their ancestral lands?

ANSWER

No, but the decision to authorize this acquisition must include a socioeconomic impact analysis of the sort conducted under NEPA.

6. While there have been only three incidences since IGRA was enacted of off-res- ervation land being placed into trust for gaming purposes, there are currently

dozens such projects either in the proposed stage or being reviewed by the BIA.

• What impact do you think all of these proposals have on public support for

Indian gaming?

ANSWER

It is our position that off-reservation proposals are inconsistent with

what we consider the centerpiece of IGRA: the development, promotion,

and protection of on-reservation economies. These proposals open tribal

gaming to criticism from a public that has supported on-reservation gaming as beneficial to both tribes and the local communities. • Do you believe that the vagaries of current law regarding off reservation gaming encourage the proliferation of proposals for off-reservation gaming?

ANSWER

First, for the most part non-Indian interests (both private and govern- mental) drive these off-reservation proposals and subordinate tribal interests to the interests of others. Second, the vagaries have created a cottage

industry of con artists who whisper promises of extraordinary gain to

tribal governments and naive but greedy investors if the off-reservation

project should become reality. The pattern that follows is an effort of several years which results in promises unfulfilled, a drain on financial resources and then the whisperers move on to their next victim. Left in their

wake is the unraveling of long term tribe to tribe relationships and harm

38

to relationships between tribes and state and local governments. Tribal political good will is exhausted and tribal and investor financial resources

are lost.

• Do you believe that clarifying the law on off-reservation gaming, and placing

greater restrictions on when off-reservation gaming is allowed, will reduce the

number of proposals for off-reservation gaming?

ANSWER

Yes, and going even further, we believe that only the outright elimination

of off-reservation gaming acquisitions will eliminate the wanton waste of

tribal resources.

• Will such changes serve to weed out proposals for off-reservation gaming of dubious merits?

ANSWER

Each proposal for off-reservation gaming is touted as having impeccable

merits. The catch is that if it is not politically acceptable, it is a waste of

time and tribal financial resources to chase the dream. Eliminating the option will save resources.

7. Do you believe that the original intent of IGRA was to allow Indian gaming to

be conducted at any location within the United States that a tribe is able to purchase and have placed into trust?

ANSWER

No. It is our belief that the original intent of the legislation was to develop on-reservation economies. The existence of the off-reservation acquisition language was to provide relief in extreme cases of need. However

that need must always be documented, and in all cases the socio-economic

impact on other tribes must be considered prior to authorizing the acquisition.

• Or was the original intent of IGRA to foster economic development on Indian

lands held at the date of enactment?

ANSWER

See, preceding answer.

8. In Minnesota, the governor is entering into an agreement with three tribes to

operate an urban casino under the auspices of the Minnesota State Lottery. As

currently constructed, IGRA would not apply to this proposal. Is there any other

statute authorizing or requiring the Secretary of Interior to ensure tribal interests are protected in such gaming proposal as this where at least one of the parties is a tribal government or tribal government business enterprise? Should

there be?

ANSWER

There is no other statute that would require or authorize the Secretary

to become involved in a scheme that does not involve Indian trust lands

or Indian gaming as contemplated by the IGRA. There should be a mechanism by which the Secretary would protect tribes from predatory influences-much like the management contract review requirements of IGRA.

However, it must be carefully crafted to ensure that bureaucratic delays

and intransigence do not threaten all Indian business ventures.

• Does this agreement violate the terms of any tribal-state compact in Minnesota?

ANSWER

No, but the Governor’s current proposal to expand gaming by authorizing

a new full-fledged casino in the Twin Cities market and by creating a

racino (slot machines) at the Canterbury track will mean that the waiver

agreed to by the tribes in the Blackjack compacts (not to request negotiations on other Class III gaming) is dissolved. The result of that is to open

the door for tribal expansion to offer full-fledged casinos.

Furthermore, it is our view that the action by the Minnesota Governor

violates the spirit of the promise of no-expansion of gaming, which was a

foundation principle in the Blackjack compact.

• What would be the impacts to tribes around the country if other governors

entered into similar agreements with tribes in their states?

39

ANSWER

The Governor in Minnesota is using his threat to expand gaming in response to the Tribes’ refusal to cave in to his demand that the tribes pay

the state of Minnesota 350 million dollars. This so-called ‘‘revenue sharing’’

proposal is nothing more than an illegal tax. Another part of his plan is to

divide the tribes by offering the metro casino to any tribes that meet his

definition of ‘‘needy’’. Finally, he has proposed that the casino be located

a few miles down the road from an existing tribal casino. That tactic

caused two of the three tribes to abandon the proposal, yet the Governor

persists.

The catch is that the participating tribes must pay a 200 million dollar

fee to the state up front, build the facility without state financial participation and split the future revenues of the facility with the state with the

state receiving 66 per cent of the adjusted gross revenues and the tribes

splitting 33 percent. In addition, the tribes from its share would also be required to pay 2% all adjusted gross revenues to the local government

hosting the facility and .5% to the Commissioner of human services for

problem gambling. The state ‘‘generously’’ capped this revenue commitment at 2.5 million dollars.

The participating tribes will be required by lenders to engage a management group, which will further cut into the tribal revenues. The state

agreement will not have any of the protections offered by the IGRA that

will restrict the management group to a fee ceiling, a guaranteed monthly

payment, or a limited term. This agreement would never pass muster in a

review by the NIGC. The agreement is as bad as, if not worse than, those

seen in the industry in the early 80’s.

The impact of this type of agreement, (if successful) will be that other

states will have another strategy to access tribal gaming revenue and undermine tribal gaming under IGRA.

• In such a deal as proposed in Minnesota, what is the level of federal scrutiny

of outside investors, management agreements, and vendor contracts?

ANSWER

NONE

• Are the tribes entering into this deal capable of determining whether they will

benefit from it? Are they capable of knowing whether developers, casino management companies, and the state government might be taking advantage of

them?

ANSWER

Based on the testimony of tribal members opposed to the Governor’s proposal, it is our understanding that the tribes have been kept in the dark

about the details of the financial arrangements. They have no information

on the impact of the state’s operational and regulatory decision-making authority that the state reserved to itself in the agreement. The state can

make decisions that increase operational costs that the participating tribes

will have the obligation to pay but not have the authority to control.

In the Governor’s proposal the tribes must assume financial responsibility for all of the development which will cost the participating tribes

over 500 million dollars plus operational costs. The state assumes no financial responsibility, yet receives 200 million dollars for a license fee up front

and then takes 66% of the revenue. This is unconscionable. The irony is

that the only tribes eligible to participate are those that the State deems

to be ‘‘needy’’ and it is those tribes which will be saddled with massive debt

and risk.

From Congressman Gibbons:

1. This Committee has held hearings on legislation that would allow a tribe to go

hundreds of miles off their reservation and open a casino in the ancestral lands

of another Tribe.

• Do you have any specific suggestions on how Congress should proceed in this

regards?

ANSWER

Congress should create standards that place the burden on the requesting tribe to demonstrate why granting such a request is necessary. If there

are existing tribal governments that may be affected, those governments

40

should be given a veto over the request and that veto should apply whether

the authority is sought under either federal law or state law.

• Also, with over 300 tribes seeking recognition and presumably gaming, please

comment on the impact that a policy permitting ‘‘reservation shopping’’ and

‘‘off-reservation gaming’’ will have on communities across the country.

ANSWER

The impact can be managed only if there is participation provided to the

existing tribes which may be impacted by such action.

2. A few years ago, during the Proposition 5 campaign that allowed full-scale Indian

gaming in California, the tribes ran television ads stating they wanted to do

gaming just on their reservation lands. Now in California, there are several

tribes that are trying to conduct off-reservation gaming.

• If a tribe has a reservation and/or a traditional service area, why should any

tribe is permitted to establish gaming off-reservation, distant from its reservation?

ANSWER

They should not be able to do so if the sole purpose is to gain an economic advantage created by the move and that advantage creates a disadvantage to existing tribal governments.

• Also, please comment on the fact that other tribes are opposed to tribes seeking ‘‘off-reservation’’ gaming.

ANSWER

It is our understanding that the centerpiece of the IGRA was to establish,

promote, and support on-reservation economies. The tribes seeking off-reservation gaming for the sole purpose of creating some economic advantage

that results in harm to on-reservation economies are acting inconsistently

with that purpose.

In Minnesota the Governor seeks to impose his definition of fairness on

the tribes by luring tribes from remote locations to participate in the establishment of a metro area casino. His fair deal will take advantage of the

participating tribes by taking the bulk of the revenues and leaving the

tribes with all of the debt. It is his position that IGRA created an unfair

playing field that he must now correct. This is insincere and cynical because his purpose for creating such a plan is to exact revenge on the tribes

for refusing to cave into his demands for an annual tax of 350 million

dollars.

3. When tribes seek to enter already established gaming areas, doesn’t that create

an unlevel playing field since tribes are not subject to state regulations; are not

subject to the restrictions placed on other gaming establishments; do pay not

state taxes; etc.?

ANSWER

When tribal governments are able to recover from 200 years of community deficits then we can have a discussion about a ‘‘level’’ playing field.

When Indian people attain the same levels of quality of life as enjoyed by

the majority culture then we can talk about ‘‘even’’ playing fields. When

Indian people no longer occupy the bottom of every list whether it is

health, mental health, access to medical care, education, housing or economics then we can start to talk about a ‘‘level’’ playing field.

4. What criteria should be used by the Department of the Interior in it’s determination of land-into-trust?

ANSWER

The existing standards are sufficient. The problem is in the application.

The problem is the bureaucracy.

• Should there be a requirement of substantial historical connection between the

tribe and the parcel to be taken into trust? Why/why not?

• How recent should the historical connection be? 100 years? 200 years?

• What about distance from the tribe’s current service area? 10 miles? 20 miles?

70 miles?

• Do you believe that the farther away the casino site is, the less likely tribal

members will be able to take advantage of employment opportunities with a

casino? [Alternatively, if the tribal members move near the casino to get jobs,

then will the traditional community/service area be disrupted?]

41

ANSWER

There should be a historical nexus between a tribe seeking trust status

and the location of the land, but the requirement of a substantial connection to a particular parcel may be impossible to prove. A historical nexus

is necessary because otherwise it would create a chaotic scramble of all

tribes seeking the prime locations. Using a current service area is too artificial. Tribes often circumscribe their service areas because of insufficient

funds to serve an expanded are.

Yes, the creation of an urban casino will disrupt the traditional area. The

success of Bois Forte’s on-reservation casino and related resort development has created housing demand as members move back to the reservation. Those same opportunities will not be available at a distant, urban casino.

5. If landless, shouldn’t land-into-trust be restricted to the area where the tribe is

located? Where they live, need jobs, need health care and services?

ANSWER

Yes.

6. If some tribes are permitted to select the ‘‘best gaming’’ locations, wouldn’t all

tribes want to do that?

• What about tribes that played by the rules and have their casino on their reservation land, even though it may not be the best gaming location?

ANSWER

The Bois Forte Reservation is one of the most remote in Minnesota. In

light of this fact, we have carefully managed our gaming enterprises to

maximize our opportunity by fully understanding our market. We are successful given our location. Our expectation was never to accept the concept

that ‘‘if we build it they will come’’. We kept our expectations realistic, we

did not overbuild, and we have expanded based on sound analysis. We have

resisted the notion that instead of bringing the customers to our casino we

should take our casino to a more populous area.

This is where we live. This is the land that was reserved by the wisdom

of our ancestors and we are committed to providing our members the best

opportunities we can right here on our reservation.

We have always understood that gaming was never intended to guarantee that all tribes would achieve the same level of financial success. It

was intended only as a tool to be used by each tribe as they determined.

It is unfair to claim that those tribes who have had the benefit of location

to large populated areas must share their wealth with other tribes, and it

is important to note that Minnesota’s most successful tribes have in fact

shared their wealth with others.

7. Please comment on how the federal campaign contribution laws apply to tribes

and the fact that tribes are exempt from overall donor limits and can give directly from their treasuries. No other organization is similarly situated.

ANSWER

It is inappropriate to refer to tribal governments as ‘‘organizations’’. Our

governments existed at a time when the United States was nothing more

than an ‘‘organization’’. The existing federal campaign laws appropriately

recognize tribes as sovereign governments.

8. Please comment on the increasing trend of tribes now crossing state lines away

from their reservation to establish gaming.

• Please comment on the situation in CO where the Cheyenne-Arapaho of Oklahoma are seeking land in CO to establish gaming. In that situation, the tribe

is claiming 27 million acres even though their land claims were definitively

and legally settled in the 1960s. Their action is designed to force the Governor

to agree to a smaller parcel near the Denver Airport for gaming.

ANSWER

See Response to 2 & 3.

The CHAIRMAN. Thank you.

Ms. Quan?

42

STATEMENT OF JEAN QUAN, COUNCIL MEMBER,

CITY OF OAKLAND, CALIFORNIA

Ms. QUAN. Thank you. It is nice to see the Congress people here, Ranking Member Miller also, so thank you, Mr. Pombo and members of the Committee for allowing us to speak today. And I really

appreciate you taking up what’s become a very difficult and very

divisive issue in California.

California in our area, in the East Bay, is now facing—and I’m not going to read my statement. It’s in your record. I’m going to

emphasize a few points. We’re facing within a 30-mile area of the

East Bay five Indian casinos right now. And they’re introducing

more in jurisdictions on city councils and many of the political, I

think, situations in the East Bay may change because of this. I represent an area in Oakland that ranges from CEO mansions in Oakland Hills to the Mormon Temple to neighborhoods where 60

percent of the kids who enter kindergarten don’t speak English. I

probably represent one of the most economically diverse districts in

my city and maybe in California. I authored the resolution against Indian casinos, the one that’s proposed at the Oakland Airport, with a lot of support from people

from every neighborhood. I’m speaking today on behalf of that situation. Chairman Pombo, we did not have an opportunity to study

your whole bill, but we strongly support the provision in it that requires the approval of the local jurisdiction. What we found under the Koi Nation situation is, we think, the

ultimate case of reservation or casino shopping. Their argument is

that even though they were not the native tribe that they had

trade and hunting in that region. Under that argument, anyone in

northern California could suddenly have a casino moved into its

neighborhood, and under the situation here, whether or not the

local government approves of it.

I’m speaking today on behalf of the East Bay Regional Park District, the mayors of Berkeley, Alameda, and our neighboring city to

the south, San Leandro.

What we have in Oakland is a situation where we feel that the

Bureau of Indian Affairs or potentially the Federal Government is

substituting basically their power over our power of our mayor, our

planning commission, our council, and our port authority.

The site that we’re talking about is the Martin Luther King

Shoreline Park area. This is the last marsh in the East Bay. It is

on the Pacific Migratory Flyway. It is over 1,000 acres of restored

fragile land, which houses several threatened and endangered species. It’s on title land. It has deed and land use restrictions, including a Federal decree, consent decree, about environmental issues.

It is next to the airport. It’s not a great site. Apparently you can’t

fish off the shore now thanks to the security measures that the

Federal Government’s required, but you could gamble and you

could put up a seven-story hotel which would be in the path of

some of our flight ways at the Oakland Airport. And, again, I understand that if this becomes tribal land that we won’t have anything to say about that.

So I want to address three issues. From the very beginning, we

have problems with the way and—the controversial and questionable way in which the tribe was recognized. I have this document,

43

and we’ve made copies for you, an internal memo from the department that’s been in our papers recently, which basically has the

staff of the BIA saying that the approval of this did not meet your

regulations and was perhaps illegal. So the tribal rights and how the city got into this situation was done in a way—and, Chairman Pombo, we would ask you to investigate that, because, frankly, as the Chair of the Finance Committee in a city that’s going to cut $30 million, I’d prefer not to

spend money on lawyers to fight this over the next 10 years. The

reason we would be willing to fight for this is that we’ve looked at

the impact of urban casinos and we see that suicides, bankruptcies,

abuse of minors, domestic violence, bankruptcies, and the recent

Thompson study of the Lytton Tribe shows that maybe as much as

$100 million from our local economy would be taken out of our

area, and that most of the studies show, particularly in an urban

area, that the people who will come to gamble in urban casinos live

within 30 to 50 miles. East Oakland is a very poor community. The

poorer you are and the less educated you are, the more likely you

are to gamble. I grew up in Oakland. I talk about being a Chinese

American, and grew up with legends, because of the Chinese Exclusion Act, of Chinese grandfathers who never made it back to China

and never sent money back home because of gambling. So I do

have a prejudice here. But it really victimizes mostly—particularly

slot machines, which only return 25 percent of the money back to

the people who gamble, really victimizes the poor the most. So we

feel very strongly about it.

Second, we believe that the process by which it was prepared, the

environmental impact statement and the NEPA process is flawed.

If this land is land that is environmentally not safe, we’ve regraded

it for commercial but not for habitation. Why is the BIA spending

the money on this process and forcing me as an elected official to

spend the money on this process?

The bottom line here is that there may be communities—and I

respect them—that may want casinos, but the basic question here

is the issue of local control. This is a community where not only

our city is united and opposed to it, but our neighboring cities and

the county supervisors and our regional park district, and a site

that is terribly, terribly flawed. But I suspect that we will all spend

hundreds of thousands of dollars fighting this because of a decision

that was made which did not meet your regulations, did not meet

your rules, and may be illegal.

So I would ask the Committee to please help us in this situation.

Thank you.

[The prepared statement of Ms. Quan follows:]

Statement of Jean Quan, Council Member,

City of Oakland, California

Good afternoon Chairman Pombo, Ranking Member Rahall and Members of the

Committee. My name is Jean Quan and I am a Council Member in the City of

Oakland, California representing the citizens of the 4th Council District. Thank you

for inviting me to appear and testify at this oversight hearing. On behalf of my

colleagues and our citizens, I extend my deep appreciation for your willingness to

address these difficult issues.

Currently, California is experiencing a proliferation of Indian gambling proposals

with at least five being proposed for urban areas in the eastern San Francisco/

Oakland Bay Area, including one in the City of Oakland. Investigations by the

44

media, criminal and civil authorities, and the committees of Congress are exposing

questionable practices related to federal recognition of Indian tribes and the

preemption of state and local jurisdiction over our communities by federal officials

taking land into trust for casino development. My testimony focuses on what is

happening to us and to our community, but I believe our concerns are shared by

many other communities throughout the United States. The City of Oakland opposes any legalized gambling establishment within its municipal borders. The City made that decision after concluding that casino

development creates unacceptable risks with severe, detrimental impacts on our

densely populated urban community. Those impacts include increased crime, personal bankruptcy, blight, homelessness, domestic violence, child abuse, prostitution,

suicide, fraud and traffic congestion. I have submitted with my testimony a copy of

the Oakland City Council’s resolution expressing those views. Moreover, almost

every surrounding jurisdiction—the Cities of Alameda, San Leandro, and Berkeley,

the Alameda County Board of Supervisors and the East Bay Regional Park District—opposes the proposed casino-hotel project. Under ordinary circumstances, that

would be the end of the matter. However, aggressive tribal gaming developers and

their lobbyists are trying to circumvent the right of Oakland and other Bay Area

citizens to govern ourselves by appealing to federal officials in Washington. Those

officials claim the authority to recognize Indian tribes and substitute federal and

tribal jurisdiction for state and local jurisdiction over land within our city. The casino advocates would have the Secretary become the de facto Mayor and City Council of Oakland, and the arbiter of our community standards. The following is some background on the situation in Oakland. In 2004, the Lower Lake Rancheria (also known as the Koi Nation) and the Department of the Interior

began the process to locate a large-scale casino-hotel development in the City of

Oakland on a 35-acre parking lot adjacent to the Oakland International Airport and

Martin Luther King Shoreline Park. The Martin Luther King Shoreline Park encompasses 1,220 acres of land, associated tidal marshes, seasonal wetlands and a

shoreline trail. It is part of the Pacific Migratory Flyway, is home to several threatened and endangered wildlife species and has 250,000 -300,000 visitors annually. The proposed casino site is within our Port of Oakland’s jurisdiction and is subject to several deed and land use restrictions, as well as a Federal Court consent decree

addressing environmental issues on the site. City of Oakland has concluded that the

site may not be developed for human habitation under any land use criteria, including single or multiple housing. There is a covenant on the title to the proposed site

that requires that notice of hazardous substances be placed in any lease or purchase

agreement for the property. The City has investigated and classified this property

at considerable expense and with the health and welfare of its citizens as the primacy consideration. Now the Interior Department and the Tribe are forcing us to

reinvent the wheel in a costly and time consuming process.

The Tribe is ‘‘landless’’, according to the federal government, and has been since

the federal government sold off its land in Lake County in 1956. We cannot understand what would lead the federal Indian trustee to consider taking land into trust

for Indians that is unfit for habitation. Consider also the health risk to the tens of

thousands of hotel and casino patrons who would visit the site. Moreover, consider

the safety and national security risks of locating a large, seven story intensive development immediately adjacent to the Oakland International Airport. Because of

the environmentally sensitive nature of the adjacent Martin Luther King Jr. Shoreline Park, intense development on the site was intended to be limited. Few uses

could be more intensive than a major casino/hotel operating twenty-four hours a

day, seven days a week.

From the beginning, the Koi Nation’s proposal was controversial and contained

questionable aspects. First, consider the status of the Tribe itself. We urge the Committee to inquire into whether the 2000 recognition of the Tribe by the prior administration was procedurally or legally correct. The following facts suggest that the

Committee should do so. By the Act of March 29, 1956 (Public Law 84-443), the

United States converted the sold 140 acres of tribal trust land in Lake County, California (150 miles from Oakland) and, and deeded the remainder in fee simple to an

Indian and his spouse who were reportedly the only inhabitants of the land at that

time. Nearly a half century later, the Assistant Secretary for Indian Affairs purported to reaffirm the federal status of the Tribe. According to published reports,

the Assistant Secretary took that action without processing the matter pursuant to

the federal acknowledgment regulations (25 CFR Part 83), and over the strenuous

objections of Bureau of Indian Affairs staff experts in charge of implementing the

regulations. News reports indicate that the objections were based on legal concerns

that the facts related to the Tribe did not justify reinstatement of federal status.

(His participation in the legally questionable circumstances under which the Tribe

45

was recognized, further cloud this because the former Assistant Secretary is now a

lobbyist for the Tribe’s casino project).

Second, we also request the Committee to look into the propriety of what appears

to be an ambiguous and misleading use of the National Environmental Policy Act

and trust land acquisition procedures by the Department of the Interior to further

Indian gaming development in Oakland. The published Notice (69 Fed. Reg. 68970,

November 26, 2004) of the Secretary’s intention to prepare an Environmental Impact Statement states only that it is for the purpose of determining the impacts of

building a hotel and Indian casino project on the Oakland site. It does not advise

the public that the land first has to be taken into trust and that there are significant issues and procedures associated with trust land acquisition that are separate

and apart from casino and hotel development. See 25 CFR Part 151. In the parlance

of Secretary Norton’s cooperative conservation policy, the notice did not properly

‘‘communicate’’ to the public, and so the public cannot have an informed ‘‘consultation’’ with the Secretary about the proposed action.

Third, the Koi Nation’s proposal is the ultimate case of ‘‘location shopping.’’ The

Koi Nation is from Lake County, more than 150 miles from Alameda County where

the proposed site is located. And yet, the Tribe is asking for land in Oakland to be

placed into trust on the Tribe’s behalf.

No one can look at this situation and not see that something is wrong. We request

that the Committee ask the Secretary to:

1) withdraw the original notice of intent to prepare an environmental impact

statement;

2) terminate the existing NEPA process; and

3) investigate the propriety of prior administration’s action to recognize the Tribe

the Tribe’s federal status has been completed.

Finally, we ask you to support the fundamental concept of local control. Please

enact legislation that would prohibit any gaming development on land acquired in

trust for an Indian tribe if the state, or any local governments in which the land

is located or to which it is adjacent do not consent.

Thank you for your attention to our concerns.

[Responses to questions submitted for the record by Ms. Quan

follow:]

Response to questions submitted for the record by Jean Quan,

Councilmember, City of Oakland, California

I want to thank you and the committee for the opportunity to testify before you

on March 17th. I want to thank you Chairman Pombo for taking the leadership in

examining this complex issue of increasing public concern. Many important issues

were discussed and I and my East Bay colleagues from the cities of Oakland, Alameda, Berkeley, and San Leandro, the County of Alameda, and the East Bay Regional Park District look forward to working with the Chairman and the Committee

on addressing local concerns with tribal gaming in urban areas.

I specifically appreciate the opportunity to discuss the situation in Oakland with

the Koi Nation and other potential tribes. I hope that the Committee and the Chairman will pursue some of the legal concerns raised regarding the Koi Nation’s recognition and lack of historical connection to Oakland.

Please find my personal responses to the questions submitted to the speakers of

March 17th. While the Oakland City Council has formally opposed the Koi Nation

proposal, our scheduling and sunshine requirements did not allow time for formal

review of these questions or responses.

Question 1: Conflicts of Interest Between State and Local Government

(Pombo)

• The political struggle around the massive state deficit in California has been

marked by many fights over revenues, pitting local interests against the state

government. Indian casino revenues were a substantial part of the Governor’s

plan to balance the budget; it appears those revenues will fall far short of his

projections. While we would hope that the Governor would be able to look beyond the financial resources offered by tribes and consider local communities

input and concern on any gaming proposal, we cannot guarantee that this will

occur. This is particularly true in a state as large and diverse as California. It

cannot be said that local communities can be adequately represented solely by

the Governor’s participation in the two part determination test.

46

• Local communities should be part of the formal process. This should include

communities that are directly impacted by a gaming proposal and communities

within a certain radius of a gaming proposal.

• I cannot stress too much, how important it is, that local governments have

input early on in the process. IGRA should be amended to allow local affected

communities a role in the process. It is clear that even if the Koi Nation had

been a local tribe and we were not opposed to a casino, we as local elected officials would never have planned a casino on a site that: 1) that will increase

traffic congestion on the major bay freeway and airport access road; 2) that violates airport height restrictions and imposes increased security issues; 3) next

to the last East Bay marshlands and home to endangered bird species; 4) on

land that is restricted in development because of former industrial use and

clean-up issues.

Question 2: Off Reservation Gaming and Tribal Sovereignty (Pombo)

• The United States has an historical obligation to promote tribal economic development. However, I would hope that the federal government would promote

comprehensive economic opportunities beyond tribal gaming and that these efforts not come at the expense of other citizens. I do not believe tribes should

not have a right to have land taken into trust at any location within the United

States irrespective of the distance to their current reservation or any connection

to ancestral or native lands, especially where those lands are to be used exclusively for gaming purposes.

• In California rural tribes which invested substantial resources to establish casinos on their reservations, now find their economic development threatened by

urban casinos.

• Tribes should have a connection to the land before it can be taken into trust

on their behalf and/or strong local support for taking the land into trust. The

intended use of the land should also be considered and off reservation land

should not be taken into trust solely for gaming purposes. For example, off reservation land that could only be used for gaming and not for housing, social programs or other economic development opportunities should not be taken into

trust unless there is local support.

• I believe a higher standard of review should apply when the off-reservation

lands will be used for gaming because of the social and economic impact on local

communities, especially in urban areas. Land taken into trust solely for gaming

purposes should be evaluated at a higher standard since it is not intended to

be used for tribal housing, tribal social service programs or other economic development opportunities.

• Off reservation gaming should not be permitted without concurrence from local

governments. Local governments should be actively involved in any proposal for

off reservation gaming and should be contacted early on in the process. Tribes

seeking off reservation gaming in a community should be required to contact

and work with that community before proceeding through the NEPA or fee-totrust process. There should be a threshold of support established before the formal BIA process for taking land into trust begins. If not, then local communities

are forced to expend enormous amounts of monetary resources on projects that

never had a chance of moving forward. This is an unfunded mandate on local

governments and an unfair burden on communities with already limited resources. Requiring that proposals meet a certain threshold before beginning the

formal process ensures that only strong gaming proposals move forward and

protects local communities from unfunded mandates.

Question 3: Protection of Ancestral Lands (Pombo)

Again, I would urge the committee to examine how the Koi Nation received recognition and consider that if it did not meet the Department of Interior standards

as recently published memos indicate, that the Oakland application be halted.

It is not for local communities to dictate how inter-tribal disputes or concerns are

resolved; however, local communities in urban areas are concerned that multiple

tribes will attempt to locate in their jurisdictions. There are five active attempts to

place casinos within 30 miles of Oakland.

Urban areas are more appealing for gaming proposals given the large concentration of potential customers. Local communities have very real concerns that there

will be an unfair concentration of gaming facilities in urban areas, which would

have a significant impact on crime, prostitution, addictive gambling, bankruptcies,

suicides, domestic violence and child abuse. Many studies show that lower income,

less educated residents are more like to gamble. In urban communities this may

compound existing social problems. Any change to inter-tribal ability to dictate the

47

location of lands taken into trust should carefully evaluate the possibility for over

concentration of gaming facility in urban areas and the impact to urban communities.

Question 4: State Revenue Caps (Pombo)

I do not believe I would support revenue caps on revenue sharing agreement with either state governments or local communities from off-reservation gaming facilities.

Different facilities might have different impacts on the local communities. In fact,

off reservation gaming facilities should be required to enter into revenue sharing

agreements with the affected local communities. Local communities receive most of

the impact from gaming facilities and those impacts must be mitigated as part of

any gaming facility approval. At least one study by a noted authority concludes that the detrimental effects of locating a casino in a densely populated urban area can never be fully mitigated.

This study estimates that over $100 million will be drained from the local economy

as the result of state taxes, royalties, and payments to outside investors. (See William S. Thompson, A Casino for San Pablo: A Losing Proposition attached). Mitigation could be either in the form of a revenue sharing agreement, off-site improvements and/or a municipal services agreement. Whatever the form of mitigation, it

must be required so that local communities are not unfairly impacted when gaming

facilities locate in their jurisdiction.

Question 5: Casinos for Land & Sovereignty (Pombo)

This question involves very specific tribal issues and it is not for local government

to dictate how land claims should be settled and what say other tribes should have

over that settlement. However, in line with the second question, only providing a

tribe with a casino operation may conflict with the United States obligation to assist

tribes in becoming economically self sufficient. Gaming is just one of many economic

development opportunities available to tribes. If a tribe is only granted a casino operation it may harm the tribe in the long run should that operation fail. It is clear

to me after visiting casinos around the state, some operations are more prosperous

than others and it is unclear how equally revenues are shared amongst tribe members. It seems preferable that any land taken into trust should be useable for a multitude of economic development, housing or social service opportunities.

Question 6: Increasing Off Reservations Proposals (Pombo)

• In Northern Bay Area of California there are at least 5 current off-reservation

gaming proposals. Previously, Oakland received a number of other proposals for

off reservation casinos to be located in this city. The sheer number of off-reservation gaming proposals is creating a backlash against Indian gaming. When

California approved Indian gaming it did not envision off-reservation gaming or

multiple gaming facilities in urban areas. Indian gaming is growing exponentially in California which only very recently since the passage of Proposition 5

in 1998 allowed Class III gaming in California.

There are now two state propositions gathering signatures to put a moratorium

on casinos. The spring assembly of the Association of Bay Area Governments

will focus on casinos; while not taking a position, this focus reflects the growing

concern of all local governments.

• IGRA in its current form does encourage the proliferation of proposals for offreservation gaming.

• If more stringent standards are placed on off-reservation gaming, it should reduce the number of such proposals.

• If off-reservation gaming is more difficult to obtain, dubious proposals, like the

Koi Nation’s proposal in Oakland, should disappear. As discussed above this is

an important point because of the economic strain these dubious proposals place

on local communities. Local communities are forced to analyze every gaming

proposal even those that are questionable. This places an unfunded mandate on

local communities. If the standard for seeking off reservation gaming is made

more stringent, some of these proposals should disappear thereby reducing

some of the burden on local communities.

Even with stricter standards for off reservation gaming, however, a threshold

test should exist for any gaming proposal before the formal fee to trust or

NEPA process is started. Because of the Koi Nation controversy, we believe the

committee should also review the processes by which the Bureau of Indian Affairs recognizes landless tribes.

• Proposition 5 allowed for revenue sharing between tribes with casinos and those

without. I think this might be the right direction. However, I have been told

that the Koi, reported a tribe with 56 members most who are minors, receives

48

approximately $1 million per year but they still want to place a casino outside

of their historical area and in our city even though all local governments are

opposed.

Question 7—IGRA Intent

As a local official, I do not pretend to have an historical understanding of the act.

My reading indicates IGRA was intended to foster tribal economic development. I

do not believe that Congress foresaw the current rapid proliferation of proposals

hundreds of miles away from historical tribal lands and in at least two cases across

state lines and across the country. Any broad interpretation of IGRA that allows

gaming on any land taken into trust, either before or after its enactment is wrong

and the law should be clarified. Indian gaming should only be allowed on lands in

trust at the date IGRA was enacted and on lands taken into trust where local communities support such a use of the property.

Question 8—Minnesota (Pombo)

This question involves issues in Minnesota and is not within my purview. I did

find with interest that there seems to be the same conflict between tribes who have

invested in resorts/ casinos on traditional lands and new proposed urban casinos.

Congressman Gibbons’ Questions

Question 1—Reservation Shopping (Gibbons)

My comments under #6 above apply. With 300 tribes seeking recognition, who

could use the current provision to put a casino anywhere, then no urban area in

the nation would be unaffected. Same comments as above regarding threshold and

unfair impacts on local communities both socially and economically.

Question 2—California, Proposition 5, and the Backlash (Gibbons)

• Same as above with discussion of backlash against Indian gaming and unfair

impacts on local communities. See comments on #2 & #6.

• Off reservation gaming not only has the potential to impact urban communities

more significantly, but also impacts rural tribes that complied with IGRA and

the intent of Proposition 5 and constructed gaming facilities on their reservation

lands. Those rural tribes should not be unfairly punished by tribes seeking offreservation gaming. Proposition 5 also established a pool of resources for other

California tribes that were not involved in Indian gaming. This pool was intended to ensure that tribes with ancestral lands in areas not conducive to

Indian gaming were not penalized by not being able to conduct Indian gaming.

Those tribes should not now be able to seek Indian gaming outside their ancestral lands in urban areas that have the potential for higher revenues.

• Also, a distinction should be made between economic development and gaming.

There should be a different standard with respect to economic development

from gaming and economic development from other sources. Gaming has very

particular and very serious social and economic impacts. As a result, gaming

should be treated differently than other economic development opportunities.

Question 3—Unlevel Playing Field (Gibbons)

Yes, we agree that tribes entering into already established gaming areas create

an unlevel playing field because they are not subject to state regulations and local

regulations

Question 4—Criteria for the Department of the Interior Determination of

Land-into-trust (Gibbons)

• Tribes should be required to have a substantial historical connection to the land

taken into trust. This would eliminate dubious proposals and help ensures that

urban areas are not unfairly impacted from Indian gaming. Without some requirement for a connection, every tribe will try to locate in an urban area with

a high concentration of customers and those local communities will suffer tremendously from the high social and economic impacts of Indian gaming.

• The historical connection should be significant and within a tribe’s service area

Question 5—Land Characteristics (Gibbons)

Same as #2 above. Landless tribes should have land taken into trust that can be

used for more than just Indian gaming. For example the proposed site for the Koi

Nation casino might violate federal guidelines for housing, parks, schools or other

social programs or needs because of contamination or conflicts with federal environmental and safety laws, it should not be taken into trust.

49

Question 6—Impact of Reservation Shopping on other Tribes (Gibbons)

Same as answer #2 above with regard to the shared revenue pool. In California

many rural tribes located in areas with limited economic opportunities have invested heavily in facilities. They played by the Prop 5 rules and many are opposed

to urban casinos.

Question 7—Unlimited Political Donations & Influence (Gibbons)

The ability of tribes to contribute to political campaigns and influence federal,

state and local politics is a great concern. Many of the television ads and mailers

in recent state elections of all kinds were financed by Indian gaming interests. The

League of Women Voters is now looking into the issue in our state. In Oakland,

polls are being conducted by the Koi nation and its investors on the popularity of

various elected city officials. In another California community, the elected officials

have changed over at least three times since Indian gaming was proposed. The ability of tribes to ‘‘buy’’ their way by backing elected officials that support their proposals is a very real concern and may add to a backlash.

Question 8 Crossing State Lines (Gibbons)

California has numerous tribes seeking recognition and the ability to conduct

gaming. Because of the large number of potential California tribes, the issues of

tribes crossing state lines to come to California is not one that I am familiar with

and cannot comment on.

Additional Response For Representative Kildee:

I want to repeat that I have followed your work in defense of public education

with great respect for many years as a former school board member and chair of

the California Urban Schools Association and National School Board Association

Council of Urban Boards of Education Chair. I have thought long about your

questions about local control versus the federal role to protect the rights of Native

Americans.

I believe that the federal government has the right to defend basic rights under

the constitution and to prevail if local laws violate those rights. I think this issue

is not equivalent to the civil rights battles of the recent past:

• In the case of reservation shopping, there is no historic tie to the land. I do not

believe there is a fundamental right to have a casino anywhere off reservations

in face of legitimate local opposition. I believe with our rich national resources

we must be able to help Native American tribes find economic development

without negatively affecting urban areas.

• I represent a city which has no ethnic majority; some say we are a majority minority with significant numbers of Black, Asian, Latino and white groups. Many

of our residents are poor and working class people. According to studies on gambling and casinos they will be disproportionately negatively impacted by an

urban casino.

Giving the right to an equal education and the right to vote, did not harm other

groups and indeed contributed to the long term good of all Americans. Urban casinos have to possibility of having a disproportionate impact on the poor and in California specific minority groups are targeted by the gambling interests.

I know the committee has a difficult job before you. Thank you for this opportunity, please do not hesitate to contact me if I can be of further assistance.

NOTE: The attachment submitted for the record by Ms. Quan has been retained

in the Committee’s official files.

The CHAIRMAN. Thank you. I thank all of the panel for their testimony. As you have heard, we have just been called to a series of

votes, so instead of beginning the questioning right now, I’m going

to recess the Committee temporarily and let the members go vote.

It will probably be about a 30-minute recess, and I apologize to

you, but we have no control over when they call votes. But I would

encourage the members to return as soon as they can after the

final vote so that we can continue with the hearing.

We will stand in recess.

[Recess.]

The CHAIRMAN. The hearing will come back to order. To begin

with, I want to apologize to our panel for the delay. It took a lot

50

longer to get through the votes than I originally anticipated, and

I apologize to you for that.

Ms. Jaimes, I think I wanted to begin with you, if I could. And

if you could clarify for me, in the draft legislation there are a number of different provisions. How do you anticipate that that would

affect—if it were adopted the way it is written, how do you anticipate that would affect you? Because I am not exactly sure how it

would, and that is one of the reasons why we put this out in a draft

form, was to get that kind of feedback. How do you anticipate that

would affect you in your tribe?

Ms. JAIMES. May I ask that I can have our attorney respond? I’d

like our attorney to respond.

The CHAIRMAN. That is fine, but I have to swear you in.

[Witness sworn.]

The CHAIRMAN. Let the record show he answered in the affirmative. Please identify yourself for the record.

Mr. JORDAN. Thank you, Mr. Chairman. My name is Derril Jordan. I’m an attorney for the Greenville Rancheria.

As Chairperson Jaimes testified earlier, the tribe is proceeding as

a restored tribe, and under the draft legislation, as I understand

it, restored tribes would be subjected to now a new requirement

that the Secretary would have to determine that the gaming for the

tribe would be in the best interest of the tribe and not detrimental

to the local community. That would be a new standard that restored tribes would have to go through. And most pertinently, it

would subject the tribe’s application to essentially veto by either

the State or local government, and that is not currently the case

for restored tribes.

The CHAIRMAN. Under current law, the State—you don’t have to

enter into a compact with the State currently?

Mr. JORDAN. We have to enter into a compact to conduct Class

III gaming.

The CHAIRMAN. Does the State not have a veto power right now

if the Governor chooses not to enter into a compact?

Mr. JORDAN. There really are two different processes there. One

is approval of a compact. The other one is the taking land into

trust. If a tribe acquires land in trust in the State, under the law

the Governor doesn’t technically have a choice not to enter into a

compact with them. And as you know, in California, Proposition 1A

was passed where the Governor—you know, where the State does

enter into compacts, and I believe that that proposition waives the

State’s immunity so the tribe would be able to utilize the good-faith

lawsuit provision in IGRA to bring suit against the Governor if the

Governor chose not to enter into a compact.

But the compacting process and the land into trust process are

really two distinct purposes or two distinct processes, but, on the

other hand, though, your point is a good one in the sense that we’re

talking about, you know, unwanted gaming being foisted on the

tribe. There is a compacting process that is required. And if a tribe

does not have ties to an area, does not have ties to the State, then

the Governor is in a better position to resist entering into a compact. But they are two distinct processes, though.

51

The CHAIRMAN. As far as taking land into trust, the way the

draft is written, it doesn’t change taking land into trust. It does impact the gaming.

Mr. JORDAN. Well, actually that would be a point that would

need to be clarified. I think that’s—

The CHAIRMAN. At least that is the way I intended it when I

wrote it.

Mr. JORDAN. I’m not sure how the Department of Interior would

understand it. But probably what they—and I’m guessing here, to

some degree. Probably what they would—what they do now for a

two-part determination that is subject to that two-part test, the Interior usually bifurcates the process. They do the two-part determination, and if the Governor concurs in it, then they do the land

into trust process. My guess is they would probably do the same

here; if the Governor did not concur, then that land would not be

taken into trust, at least not for gaming purposes.

The CHAIRMAN. The other issue is the tribe currently has land

in trust.

Mr. JORDAN. No, it does not. It owns some small amount of fee

lands, but Greenville Rancheria does not own any lands in trust,

or the United States does not own any lands in trust for the Greenville Rancheria.

The CHAIRMAN. I misunderstood the testimony then, because I

believed that she said they had. We will have to go back.

Mr. JORDAN. 1.8 acres of land within the Rancheria boundaries

is owned in trust on behalf of individual members of the tribe.

The CHAIRMAN. Does the tribe exercise jurisdiction over that 1.8

acres?

Mr. JORDAN. Yes, it has jurisdiction. Yes, the boundaries of the

Rancheria were restored. The lands within it are Indian country.

The tribe can exercise jurisdiction over the Rancheria, over that 1.8

acres, and the tribe does own 8 acres in fee within the boundary.

But they’re not owned in trust.

The CHAIRMAN. OK. On the 1.8 acres, what prevents them from

establishing a gaming facility on that 1.8 acres?

Mr. JORDAN. It’s owned by individual members of the tribe. It’s

not—it’s owned in trust by the United States for individual members of the tribe, not the tribe itself.

The CHAIRMAN. OK. Mr. Jordan, I am going to have additional

questions for you that I am going to give you in writing because

I want to make sure I understand exactly what situation you are

in, that the tribe is in, and how the draft legislation would affect

them. So I am going to have further questions for you because I

want to make sure I understand it, because the purpose of this was

not to take away an economic opportunity away from anybody. But

we do need to have some kind of control over how this is all happening right now, and I am sure you can understand that. But I

do need to understand exactly what situation this particular tribe

is in and how this would affect them.

Mr. JORDAN. We would be happy to answer your questions, Mr.

Chairman.

The CHAIRMAN. Mr. Forster, again, to you I would ask: How do

you anticipate the draft legislation affecting Amador County in the

operations that are currently there?

52

Mr. FORSTER. I believe, Mr. Chairman, that clearly if we can

have something that will control the ability of tribes to do the reservation shopping, you’ll have less of an impact on the counties. We

can talk about the residual effects of a casino all day long. Our

problem lies with does the tribe—does any tribe when it comes in

have the ability to game lawfully? And if we can have language in

a piece of legislation that will prohibit this reservation shopping

and look at a tribe’s ability to game by either previous occupancy

or some tie-in to the land, but in many cases there are no ancestral

ties. So if your legislation would put an end to that reservation

shopping, it would help the case in small counties like ours so that

we don’t end up in an adversarial position.

The CHAIRMAN. Now, on sovereign lands, the tribe has the ability

to conduct gaming, and that is not—currently in law, that is not

up to local government to have the ability to affect that. I know

that in most cases the tribe will enter into agreements with the

local city or county and work out whatever their impacts are, and

for the most part that has been a fairly successful process. Where

this has begun to change is when we have had others that have

stepped in to different areas, and that is where it has raised concerns with people.

Currently—or let me back up. On the draft, what it would do in

the case of someone coming in is it would give the local community

the opportunity to work with them in order to have some kind of

an agreement if it was not land that had historically been put in

trust. And that is really what you are looking for.

Mr. FORSTER. We are looking, one, to stop the reservation shopping, but, two, yes, that’s why I represent also CSAC and the 58

California counties today, by looking for local concurrence and local

governments to have some representation, the ability to go in and

have some process where they can have input into it regarding the

effects that a casino will have on their county. Now, primarily you

know now that our only avenue is with the Governor to have that

local input. That’s happened with us on the Plymouth casino that’s

being proposed by the Ione Band. Unfortunately, the situation with

the Buena Vista Rancheria happened so fast that the community

wasn’t allowed the time to gear up. And once the San Pablo casino

was pulled out of the five cases that were presented, the other four

passed unanimously when the urban legislators came back and

voted for that.

Our issue with the Buena Vista site and the local community has

geared up now is the placement of a casino there is—to allow Class

III gaming is not legal, and the local community should have some

input into that, and I am talking about our local governments, but

also the local people that live in the community. You should have

some say-so, and also look at the laws on that site. Are they allowed to game? On the Buena Vista Rancheria site, they are not

a reservation. They are not in trust status. We feel strongly those

two things absent take away their right to have a Class III gaming

establishment there. But also the ability in your legislation as proposed to have the local input means a great deal to our small communities as well, and I am not going to leave out the urban counties because each of us have problems that are different depending

on what the county is, where the county is located.

53

The CHAIRMAN. All right. Thank you. My time has expired. Mr. Kildee?

Mr. KILDEE. Thank you very much, Mr. Chairman. I would like to submit a statement for the record also and then

ask a couple questions.

The CHAIRMAN. Without objection. [The prepared statement of Mr. Kildee follows:]

Statement of The Honorable Dale E. Kildee, a Representative in Congress from the State of Michigan

Mr. Chairman, last year this committee held two hearings in which I raised con- cerns about attempts by two tribes in my own State of Michigan to gain Congressional approval to operate off reservation gaming facilities on land several hundred

miles away from their existing reservation where they have no historical ties. I believe that these attempts undermine the Indian Gaming Regulatory Act and avoid the current administrative process for approving the use of land for offreservations gaming purposes for land acquired after October 17, 1988. The draft proposal would amend that administrative process set forth in the IGRA

and would authorize off-reservation gaming in limited circumstances through the establishment of zones. While I appreciate the unique circumstances of certain landless tribes seeking opportunities to operate gaming facilities, I remain reluctant to

open up IGRA to attack by our colleagues who want to harm Indian gaming. With that said, however, Mr. Chairman, I commend you for taking on this issue and I look forward to working with you. Thank you.

Mr. KILDEE. Thank you very much. You know, I do worry about opening up IGRA because there are many people out in the Congress and around the country who are

not that fond of Indian gaming, even though the Cabazon decision

guaranteed that under the treaties and under the Constitution of

the United States. So I am always a little worried about putting

a bill out amending IGRA because once it goes out on the Floor,

unless you get a really tight, closed rule, it becomes the property

of the House and they can amend it in many, many different ways.

I would like to submit this statement for the record and ask a

couple questions. First of all, I would like to ask a question of Mr.

Forster. The Federal trust responsibility to the tribes does protect

the tribes, and that is why the trust responsibility came in. As a

matter of fact, the trust responsibility came into being to a great

extent to protect tribes from State government, the Carolinas and

Georgia, John Marshall’s decision. And the trust responsibility and

the U.S. Constitution recognizes really the only other units of government, Article I, Section 8, Congress shall have the power to regulate commerce with foreign nations, the several States, and the

Indian tribes. It does not in the Constitution as such recognize the

creatures of the State, and villages and townships and cities and

counties are really creatures of the State, and they are arranged

in various ways in different States, called various things, parishes

in Louisiana.

Presently, IGRA requires only the approval of the State Governor

under Section 20. Why should local units of government that are

really these creatures of the State have authority over tribes’ acquiring land after October 17, 1988? Why should we give that to

a local unit of government when the trust responsibility is to protect the tribes and one local unit of government could, in effect,

veto any action on behalf of that tribe?

54

Mr. FORSTER. I believe in our system of government you’re looking for checks and balances. I think we’re missing some of those

checks and balances in the process right now, and I think you’ve

seen that with some of the abuses of some tribes that were granted

recognition and the ability to game. If you don’t have those checks

and balances in place and part of that we’re looking for, extend

that to the counties and to the States so that they have that ability

to at least have their input in place and so you have a full set of

information before the recognition is granted. At this time we do

see abuses in the process, and we’re not arguing against tribes that

had the ability to legally game. What we are arguing against is if

the process is there, if the laws are in place, there should be a series of checks and balances to protect not only the rights of the

Indian community but the rights of the local governments.

Mr. KILDEE. But even under Section 20, we still deal directly

with the States under present law. You know, during the civil

rights movement, some States for a while—they didn’t get away

with it long—kept saying, well, it is not us, it is not the State of—

this State or that State that are discriminating against African

Americans, it is the school board, it is the county government, it

is the city government. But the Supreme Court said you cannot

hide behind that. It is the State. The Constitution recognizes only

the State, and those other units of government are only creatures

of the State. And I think that is a basic principle of law, and I

think when we deal differently with local units of government, I

think we have to deal with it very, very carefully because of the

U.S. Constitution’s relationship to the 50 States.

Mr. FORSTER. I believe just to answer that, it depends who you

deal with, one, who is the Governor of your State. We do have a

Governor of California now that is very responsive to the local communities’ interests. As I stated in my written testimony today, on

the Federal level and their recognition of us and the ability for

them to discuss issues, Amador County has not been contacted by

IGRA, even dealing with the NIGC, they receive requests for land

determination, and the county is never talked to in respect to how

we feel about those requests.

The Secretary of Interior never talked to the county when the

compact for the Buena Vista Rancheria went to her. She approved

that via inaction.

Mr. KILDEE. Let me ask, if I may have time, just one question

to Ms. Jaimes. You have clearly laid out your opposition to sections

within the discussion draft regarding the proposed Section

20(b)(1)(B)(iii). What is the greatest danger in providing veto power

to local government from your point of view? What is the greatest

danger, do you feel, in providing veto power to local governments?

Ms. JAIMES. The greatest danger that our tribe would feel that

it may have the greatest impact would be the decisions on our economic development.

Mr. KILDEE. Is there a possibility where you might have—and I

will finish with this, Mr. Chairman. I am sorry. Maybe Mr. Forster,

too, could join in this. If you have two units of government that

would encompass the area that would be set aside, couldn’t one

unit of government then, in effect, override the other and veto the

plan?

55

Mr. FORSTER. Once again, you’re talking about the checks and

balances. If the system is followed correctly, if the laws are followed correctly, then even the local entity I don’t believe is going

to override the ability of the gaming to occur, because you have the

law set in place. At this time over and over again we can give cases

where basically the back-door process is being followed. And let’s

face it, the monies flowing so well in the process now, you have $18

billion nationwide, $4 billion in California. It’s a big player’s game.

And entities such as Amador County where I’m from, we don’t have

that kind of checkbook to fight these issues. It’s getting more and

more difficult.

Mr. KILDEE. Thank you, Mr. Chairman.

Ms. QUAN. Congressman, if the Chairman would allow me to

respond?

The CHAIRMAN. Yes.

Ms. QUAN. Congressman Kildee, I’ve had a lot of respect for your

work in education and your support of civil rights in education as

a former school board member. What I think at least we’re seeing

in the Oakland case, and I think many cities are saying, is that,

exactly right, everyone must be within the law. In the case of the

decision—because it is a huge loophole, it does allow the possibility

of reservation shopping, we need to make sure that the Federal

Government follows its own rules and regulations. And if I were to

answer Congressman Pombo’s issue about how I’d like to see if

local control is involved or has at least some say, that the decision

be made up front. I mean, we may win the denial of the NEPA

process because of the environmental concerns, because of the impact on traffic, because of the impact on security, et cetera, et

cetera. But there needs to be a way that there is a threshold before

we are forced in that process, because our city and the cities

around us will spend probably several million dollars fighting you

in this process or just doing our part to reply in that process in

terms of the impact on the environment, the impact on transportation, the impact on our community in terms of social services.

And, quite frankly, a half a million dollars would fund an afterschool program in every one of my middle-school programs. So I’d

like it to be defined. If you are going to put local input, to define

when the threshold is, and not make it after a 2-year EIR or a

long, long, long scoping process involving lots of lawyers on all

sides.

Mr. KILDEE. Thank you very much.

Thank you, Mr. Chairman, for your indulgence.

The CHAIRMAN. Mr. Pearce?

Mr. PEARCE. Thank you, Mr. Chairman. Most of my questions

would go to Ms. Jaimes.

Page 3 of your testimony—and this is just an observation. Page

3 of your testimony says that Section 20 of IGRA does not establish

any standard for Governor’s concurrence and a Governor is free to

withhold concurrence for any reason or no reason. And I would just

point out that the opposite is also true, that there is no standard

and a Governor then can give concurrence for any reason or no reason. And as the stakes grow higher and higher in this game, it

opens the door larger for bad reasons to be used for either concurrence or non-concurrence.

56

On page 6, you make a fairly direct statement that State and

local governments simply should not have veto power over Indian

self-determination and economic development. Can I ask, other

than Indian gaming, what is your tribe doing to establish self-determination and economic development? In other words, I think the

basis of the statement is that somehow the State can keep you

from doing anything that would improve yourself economically. But

I am thinking that the State really has only input as it affects

Indian gaming. It does not really stop you from going into any

number of businesses.

So my question is: What other businesses are you approaching

other than gaming?

Ms. JAIMES. Well, currently the tribe has not looked at any other

type of economic development this huge. The dollars that the tribe

has currently to work with to establish any type of development is

small and that it’s created to meet our needs as well. The only development we have is a small trailer park that we’ve invested in,

and it will help us create housing to meet our needs and also bring

in some amount of revenue. And that’s only because of the revenue

sharing that’s been created in California.

Mr. PEARCE. OK. How many tribal members do you have?

Ms. JAIMES. We have 96 voting members.

Mr. PEARCE. Ninety-six. Ms. Jaimes, there are several—the spectrum of discussion here is quite large on those tribes that might

not have access to gaming right now, and so my question is: You

all are a landless tribe that are trying to get land to open a casino.

Would you oppose any restrictions for non-landless tribes to expand

into off-reservation gaming? In other words, you are a landless

tribe trying to get land for gaming, but there are tribes with land

that are trying to get off-reservation properties to open casinos

somewhere else. Would you oppose that, oppose those tribes doing

that, or would you think that to want to regulate that is satisfactory?

Ms. JAIMES. That’s a difficult question. I couldn’t answer it.

Mr. PEARCE. If Mr. Jordan wants to address that question, I

would consider his answer.

Mr. JORDAN. It is a difficult question. We think that through the two-part determination process, the 20(b)(1)(A) process as it exists

now that requires the Governor’s concurrence, we believe that

there are sufficient limitations on the ability of tribes to take land

into trust who already have gaming in other places. We realize that

other tribes, you know, who feel like, you know, tribes are moving

into their area disagree with that.

You know, there could be some improvement to that process, but

we also respect the right of other tribes to expand their economic

development. Not every tribe that has a casino somewhere is necessarily making a lot of money, and they may need to be able to

move to a better market to have economic development. They

shouldn’t be foreclosed from that, but there should be a process for

that, and perhaps the Section 20 process could be improved.

Mr. PEARCE. Thank you. Let me just get one more question in,

and that is my last one.

Ms. Jaimes, on page 8 of your testimony, you said that, ‘‘Federal

Indian policy should not be dictated by non-Indian communities,

57

and we find it cruelly ironic that some tribal governments are suggesting that fears and prejudices of non-Indian communities should

dictate the economic development opportunities available to landless tribes.’’

Now, the last question that I will ask, and then this question

merged together, that we have got a situation in my district where

a tribe outside my district 300 miles away wants to come down and

acquire land near one of my communities and open a casino, and

the local community has reservations about that.

Would you really declare that to be a prejudicial position of a

non-Indian community and find that cruelly ironic that they would

say that a tribe 300 miles away should not be allowed to come and

open a casino near their community? And that really is the question, so I will leave the answer to you.

Ms. JAIMES. Could you repeat that question?

Mr. PEARCE. Yes. I am sorry. Is it really prejudicial for a nonIndian community in the southern end of our State to really take

exception to a northern tribe that wants to come 300 miles away

and open a casino on grounds that they want to pick up these nontribal grounds just for the purposes of opening a casino? Your testimony says that that should not be allowed, that non-Indians really

shouldn’t have a say, and even then gets quite critical of the nonIndian communities that would want to voice a position on that.

Are you really that stringent in your opposition to input from nonIndian communities?

Ms. JAIMES. No and yes, and we can only rely on that everything

is dealt with on a case-by-case issue.

Mr. PEARCE. OK, but it is the non-Indian who is objecting to it,

and your testimony seems to indicate that you think that to be

prejudicial and ill-placed.

Thank you, Mr. Chairman. I appreciate the indulgence.

The CHAIRMAN. Mr. Pallone?

Mr. PALLONE. Thank you, Mr. Chairman. I just wanted to associate myself with Mr. Kildee’s remarks, and also point out that, you

know, one of the concerns I have here today and why I think it is

so important for us to proceed with such caution is because I am

very concerned about infringement on tribal sovereignty. In other

words, if you look at IGRA, which I guess was a reaction to the

Cabazon decision, as Mr. Kildee mentioned, even the requirement

that the Governor give consent could be perceived as an infringement on tribal sovereignty. And so if we go further and now

require, you know, consent of local communities, you know, the

question is how far are we going to go in terms of our infringement

on tribal sovereignty? I mean, historically—and I think for good

reason—the notion is that a tribe is a nation and they have a

nation-to-nation relationship with the Federal Government. So the

Federal Government deals with them, but, you know, the States

and the localities really shouldn’t have that much of a say.

So I am just very concerned that if we change IGRA significantly

and allow significant local input, you know, it does go against the

very grain of what the notion is of tribal sovereignty.

The other thing is that you cannot really take away the context

of historic discrimination against Native Americans, as, you know,

we have discriminated against many minorities in this country.

58

And I think that to the extent that the Federal Government becomes the arbitrator, there is less likely to be discrimination historically than there is if, you know, there is input from local communities or even the State, because if you look at the history of discrimination, it tends to be greater at the local level.

And then the last thing that bothers me is this whole notion,

which I think to some extent is out there, that, you know, the

tribes are all rich and they have got all this money and, you know,

the communities don’t. I mean, oftentimes it is the opposite. We

had hearings before this committee on the whole issue of tribal recognition, and many of the tribes have a very difficult time gaining

recognition because they don’t have the money to even go through

the process. And I don’t think we should assume that tribes are

rich and communities are poor. Oftentimes it is the opposite. It

may not be the case here with, you know, those who are sitting before the panel, but it is often the case. So we can’t—we have to be

very careful.

The other thing I have to say is a lot of my concern comes from

the fact that I think the issue of off-reservation gaming is being

overblown in the media, and Congress is sort of reacting to that.

You know, I guess the last time we had a hearing on this, we had

Ernie Stevens testify, who is the—I guess he is the President or

Chairman of NIGA, and he said—you know, he pointed out there

were only three tribes that have successfully navigated the Section

20 two-part process. And so I don’t really think that, you know,

this is a problem, that we are facing a huge problem here.

I just have two questions. One is of Mr. Forster. You know, in

the current law, you know, under this two-part determination of

Section 20 of IGRA, it does say that there is local input. It actually

says in the language, in the statute, that the Secretary, after consultation with the Indian tribe and appropriate State and local officials, determines that a gaming establishment on newly acquired

lands would be in the best interest of the tribe.

So I don’t really understand given that only three tribes of many

applicants have ever successfully navigated this two-part process,

why are you so concerned that there isn’t local input now? It seems

to me there is, and it hasn’t been that easy to go through the current law. I mean, you guys keep talking about the law, the law.

Well, that is the law, and only three tribes have ever been able to

go through the process. What are you so worried about? Why isn’t

there local input now?

Mr. FORSTER. One, our big issue is that when we are done with

this process, if we have two more tribes allowed to game and if it

is not done lawfully, we are going to have three tribes within 12

miles of each other in a county that has 34,000 people.

Speaking on the side of the law, the compact that was issued by

the State went to the Federal level, went to the Secretary of the

Interior without any comments from the county that was approved

by her via no action. So we don’t feel we had any say-so in that

process. We were not consulted, and we are not consulted by NIGC

on the issues of land determination. We accidentally found out on

an issue that it was being run through them and so issued comments. We do not feel that we are being afforded the opportunity

to get our input in at the Federal level.

59

Mr. PALLONE. But what I am asking you is it is not as if you did

not have the opportunity to express your opinion. It is just you feel

that it did not go your way. I mean, you know, I guess what I am

trying to say, you know, we are talking about major changes here

that impact the entire nation. And, I mean, I understand that

maybe it did not go the way you wanted, but, I mean, it does not

mean that the current process does not provide for the local input.

It is just that maybe it was not—you know, it was not—the decision was not what you wanted.

Mr. FORSTER. Sir, in the process, there is virtually no acknowledgment of a county’s input when it does come in. So how do we

know that the input of the county was even taken into account in

the process? At this time we do not because there is no acknowledgment that comes back to us.

Mr. PALLONE. Well, I mean, maybe—I am just trying to say that

it seems to me there is a difference between saying there is no

input and saying that you do not like the way the decision went.

The law provides for the input. The law provides the opportunity

for you to express your opinion. Oftentimes, we do not like the way

the decision goes. It does not mean that the input was not there.

It is required under the law.

Mr. FORSTER. But on our other two tribes that are trying to put

casinos in right now, the law is pretty clear, and to us it doesn’t

seem like it’s being followed, because one tribe is a landless tribe

and trying to put a casino on a piece of property with no ancestral

ties; the other tribe, the Buena Vista Tribe, is trying to put a

casino on a site that is Indian land, but it does not have trust

designation and it doesn’t have any other designation to make it

legally possible for them to have Class III gaming.

So we are looking at the Federal laws, and then we are looking

at those being overridden. It would be nice once in a while to be

acknowledged and hear what are the reasonings for your decisions.

And we don’t get that at the Federal level.

Mr. PALLONE. Thank you.

Ms. QUAN. And I have to say the Oakland situation is exactly the

same. You have environmental and other Federal laws that if you

put a casino there that you’re going to be ignoring. And, again, the

tribe is in the same situation as the other Congressman raised.

They had a Rancheria. It was 150 miles away. The Aloney, who actually may have some Bay Area roots and ties to do that, aren’t

even—I think they’re only being involved in one of the five casinos

that’s going to be within 30 miles of my city.

Mr. PALLONE. But you seem to suggest—and I know the time is

up, but you seem to suggest that the environmental laws are simply ignored. I mean, isn’t there a process for the environmental

laws? I do not understand.

Ms. QUAN. We are not sure. I mean, I think that looking at the

conditions of the deed and the title and trust laws in California

that this site should not even be considered, that I shouldn’t have

to—

Mr. PALLONE. You see, again, I don’t want to keep arguing, but

it just seems to me that you guys are addressing the fact that you

do not like the decision, not that there was not a process that you

had input in. You just do not feel that the decision went your way.

60

Ms. QUAN. No, we—there is no decision in Oakland’s case, and

the BIA did not follow its own rules in restoring the rights of this

tribe.

Mr. FORSTER. And we are talking Federal and State—

Ms. QUAN. So if you are going to be consistent with Federal laws,

then you have to be consistent.

The CHAIRMAN. The gentleman’s time has expired.

Mr. Gibbons?

Mr. GIBBONS. Thank you very much, Mr. Chairman, and I want

to thank you for bringing this very important hearing before this

committee, and the witnesses, I want to thank them for their time,

their patience, and their testimony that is helping us make a better

and more informed decision on this process.

I come from the State of Nevada, which, let me say at the beginning, I am not anti-gaming. I am for gaming. I just wanted you to

know that. But I guess what I would like to do is to follow on Mr.

Pearce’s line of questioning because I thought he was headed in the

right direction, but one which let me say it perhaps a bit differently. If a tribe 300 miles away has no historical ancestral connection with another part of the land and yet travels that distance

to construct or in hopes of getting land for a casino, should that

distance, should that ancestral connection be considered in the

granting of land for trust status? Ms. Jaimes, what would you say?

Ms. JAIMES. Well, for Greenville, all we’re doing is following the

process, and there’s a process.

Mr. GIBBONS. Well, I understand. You are following the written

process that was established under IGRA. What I am talking about

is the philosophical sense, the historical connection between the

tribe and the land, which is basically the foundation, the fundamental process, if you will, by which land is granted in trust for

a tribe because there is some historic connection. But where there

is no historic connection, do you feel it is proper to grant trust status to land for a non-historically connected tribe to that area, to

that land? For any purpose, whether it is economic purpose, whether it is social, for any purpose.

Ms. JAIMES. I can’t answer. Could I have our attorney respond

to that?

Mr. GIBBONS. Well, I think it is just—you know, I was hoping

that you as the chairperson for the tribe would be able to give us

some sort of a conceptual answer for that. But perhaps the gentleman, Kevin, maybe perhaps you could answer the question.

What is your thought?

Mr. JORDAN. Well, I think, if I may, the chairwoman is having

a little trouble answering the question because in Greenville’s situation, we do have ties to the land, and so we have not really considered situations outside of that. But, clearly, whether or not a tribe

has ties to the land and whether or not there are other tribes that

are in the area that do have ties to the land, those are clearly relevant considerations that ought to come into play.

Now, there may be situations where a tribe may be going 200 or

300 miles away from its reservation, but there are no other tribes

there that have aboriginal territory. And if the State and local governments are in support of the tribe, I am not sure why that would

be a problem.

61

Mr. GIBBONS. OK. So it would not bother you to have a casino

established by one tribe who has a historical connection to the land

to be—well, let’s just say to have another tribe who does not have

historical connection, who came from outside of the area, to bring

and want to have its own casino right next door to yours on land

that would be in competition. That would be fine with you.

Mr. JORDAN. No, I am not saying that. I am saying that is a relevant consideration. And when Interior is considering such an application, it should take into account the fact that Tribe A is moving into the area of Tribe B.

Mr. GIBBONS. I am just trying to figure out how we would address that situation, how we can formulate language which identifies the concerns and brings that into focus.

Let me just ask a question also. Proposition 5 in California that

happened not too long ago was a proposition premised on the idea

that tribes would not go into off-reservation gaming. Now we are

seeing tribes in California that were supporting Proposition 5 asking for off-reservation gaming. Do any of you feel that that was a

misrepresentation to the voters of the State of California?

Ms. QUAN. I absolutely do. The Association of Bay Area Governments is having our spring conference, and it is exactly going to be

on the gaming and casinos, because many of us felt that this would

be a way to help particularly our rural tribes. In fact, many of our

rural tribes are now very upset, and maybe that is why they are

considering zones now to come to the cities. But I have to say that

if the Bay Area is going to have five on the east side and God

knows how many on the other side of the Aloney recognized, it is

a huge economic impact on our community. And the issue of prostitution I have been working on and the crime related to that.

Those are huge social costs. It seems very unfair for those to be

concentrated in urban areas because obviously the urban areas are

the most lucrative areas. They are marketed to minorities, many

of these casinos.

I will tell you the busloads that drive up in front of the

Chinatown—

Mr. GIBBONS. Well, those are—excuse me. You know, Councilwoman, I know that those are important issues to be considered.

My question was going directly to the representation in—

Ms. QUAN. I am just saying, everywhere that I go in informing

this conference, that is what people—I hear from people, that they

feel that they were sort of sold a bill of goods, that we were told

that there would not be urban casinos, we told it would help our

rural tribes, and now we suddenly have five alone within 30 miles

of my county.

Mr. GIBBONS. I guess our concern here is an attempt to figure

out how we best deal with any changes to the law if we are going

to make them, how suggestions should come to us, and it is the

purpose of eliciting the information out there.

Mr. Chairman, I have many, many more questions, but I would

like to submit them for the record for our witnesses to have them

answer in writing so that we may get back some information, if I

may.

The CHAIRMAN. Without objection.

62

The CHAIRMAN. At this point I will tell our panel that I know

that there are members that have been in and out today, and there

are a lot of questions that they would like to ask. Those will be

submitted to you in writing, if you could answer those in writing

so they can be part of the hearing record.

Mr. GIBBONS. Is there a timeframe within which we will get

these answers?

The CHAIRMAN. We will hold the hearing record open for 2 weeks

to allow them the opportunity to respond. And that applies to the

next panel as well, yes, Mr. Kildee.

Mr. Walden?

Mr. WALDEN. You know, Mr. Chairman, given the lateness of the

hour and the fact you have another panel, I believe, to go, I will

yield at this point and submit any questions in writing.

The CHAIRMAN. Thank you.

I am going to dismiss this panel. I want to thank you and again

apologize to you for the delay in us getting back. It was not intentional and I apologize to you.

The CHAIRMAN. I would like to call up our next panel. We will

hear from several tribal organizations with an interest in the issue.

The witnesses are Kurt Luger, Executive Director of the Great

Plains Indian Gaming Association; James T. Martin, Executive

Director of the United South and Eastern Tribes, Incorporated; and

Mark Van Norman, Executive Director of the National Indian

Gaming Association. If you would join us at the witness table,

please remain standing and I will administer the oath.

[Witnesses sworn.]

The CHAIRMAN. Thank you, gentlemen. Let the record show they

all answered in the affirmative. And I know that all of you have

been waiting a long time to have your opportunity to testify, and

I appreciate your patience in sticking with us.

Mr. Luger, we are going to begin with you as soon as you are

ready. I will remind the witnesses that we limit oral testimony to

5 minutes. Your entire written statements will be included in the

record.

Mr. Luger?

STATEMENT OF J. KURT LUGER, EXECUTIVE DIRECTOR,

GREAT PLAINS INDIAN GAMING ASSOCIATION

Mr. LUGER. Thank you, sir. Good afternoon, Chairman Pombo

and distinguished members of the Committee. My name is Kurt

Luger. I’m the Executive Director of the Great Plains Indian Gaming Association, and I represent 28 tribal nations in the States of

North Dakota, South Dakota, Kansas, Nebraska, and Iowa. We

have approximately a quarter of a million tribal enrolled members

and 15 million acres of trust that we occupy. And at the outset I

want to get to the important points of the written testimony that

I have already submitted, and at the outset let me say that Indian

gaming is working in the rural areas of America. Where I live, we

face 50, 60, to 70 percent unemployment, and we are now generating jobs not only for their own tribal members, but for neighboring non-Indians as well. I live and work in Bismarck, North Dakota, so I will use the situation of the North Dakota tribes as a representative example.

63

Since the beginning of tribal gaming in North Dakota, the primary function has been to provide employment and economic development opportunities. To this end, this is an extremely important

statement for us. Out in the Great Plains, Indian gaming represents jobs, not revenue, and often, especially in the media, that’s

the only thing that we hear about, is our struggles over the revenue. For us it’s jobs. Jobs, jobs, and more jobs. And it’s worked.

There are five Indian gaming facilities in the State. Together, the

gaming facilities employ almost 2,000 North Dakota residents. We

were the second fastest growing industry in the State of North Dakota outside of technology in the decade of the 1990s. About 70 percent of our employees are tribal members and the balance are nonIndian neighbors. And taking into account the multiplier effect of

$112 million of economic activity generated by Indian gaming in

North Dakota, Indian gaming generates an additional 2,000 jobs

statewide. Since 1997, the combined economic impact of Indian

gaming and related activity has exceeded $1 billion, even in the

small State of North Dakota, which is a population of only 650,000.

The tribes of North Dakota work very hard to preserve a strong

relationship with the State, and the State for its part has worked

in good faith with the tribes. State officials in North Dakota know

that tribal governments have many unmet needs, and it helps the

whole State when tribal governments have a way to create jobs and

generate essential government revenue.

The Indian tribes in North Dakota are engaged in gaming on

Indian lands acquired prior to the Indian Gaming Regulatory Act.

To date, there have been no off-reservation land acquisitions under

the two-part secretarial process. But the Turtle Mountain Band of

Chippewa has indicated that it is considering an off-reservation acquisition under the secretarial process set forth in Section 20. The

other four federally recognized tribes oppose this proposal, and one

of the reasons and the main reason is our existing arrangements

were based upon jobs. And this is another—and several of the

Committee members have touched on it. We clearly see that there

are outside non-Indian developers that are a part of this story and

pushing this agenda in many cases.

At the Great Plains Indian Gaming Association, we believe that

under existing law it is very important for the Secretary of Interior

to thoroughly consult with local governments and neighboring

Indian tribes. In fact, in North Dakota, we all consider ourselves

to be neighbors in the tribal community, and we believe that all

tribes should be consulted concerning any Section 20 after acquired

land application in North Dakota or even near the North Dakota

border in Minnesota, South Dakota, or Montana. After all, we live

in areas that are large geographically; our populations are small;

and we often draw our customer base from a substantial distance

away. The same is true in the other Great Plains States.

On behalf of the Great Plains Indian Gaming Association, I want

to thank you, Chairman Pombo, and the Committee for issuing this

bill in a discussion draft. To us, this is critical that working with

tribal government prior to the introduction of the bill honors our

tribal government-to-government relationship, and we thank you

very much. We want to work with you and your process as it moves

forward.

64

Let me start by saying that we have made important employment, economic, social, and governmental progress under IGRA,

and we do not want to take a step backward. Therefore, we respectfully ask the Committee to work with us to protect IGRA and make

sure that the only bill that moves forward is one developed by the

Committee through the regular hearing process with the consensus

of the tribal governments. We do not want to be surprised by

amendments on the House or the Senate Floor or in the conference

committee that are not relevant to this issue or that undercut tribal rights to conduct Indian gaming as an exercise of Indian sovereignty.

Second, let me say, as I did in July, the Secretary needs to respect the interests of neighboring Indian tribes as well as tribes

seeking to engage in new gaming projects. We see this as critical.

We know that your legislative process is going to take some time.

Perhaps the Chairman would consider writing a letter to the Secretary asking her to fully consider the interests of neighboring

tribes. The regulation process should square with the statute.

I have taken in some of the comments earlier in July, and I will

repeat this. IGRA is not a panacea for Indian country. There are

some tribes that are going to do better than others. There are some

tribes that this opportunity may never be available to them. But

on-reservation activity is what this is about. It must be a priority.

In our view, your draft bill would provide some clear rules of offreservation gaming by eliminating the existing Section 20 process

and substituting the Indian Economic Opportunity Zones. Before

we take that final position on a draft bill—and timing is of the

question. I haven’t had a chance to consult with all 28 tribes yet.

We will work with NIGA and NCAI in their task force meetings,

and we will jointly host a task force meeting at our annual Great

Plains Midwest meeting on May 25th. Members of the Committee

and their staff will be invited to attend this event. There will be

approximately 75 tribes from the Rocky Mountain region, Great

Plains, and the Midwest that will be attending.

On the other hand, as some have stated, we are also concerned

about the heightened role for local governments. Local governments

are sub-units of States, so it should be enough for the Governor or

the State legislature to act on behalf of the State. We have a strong

working relationship with our State governments. We think this

provision could needlessly complicate that relationship. Pardon me,

but let me be blunt. It is the State’s job to make sure that the interests of local governments are protected. In addition, we do not

want to see any precedent for the idea that tribal governments are

subordinate to local governments. We have a direct government-togovernment relationship with the Federal Government, and our

tribal governments carry out our own governmental functions on

our land.

Finally, as someone who grew up on Standing Rock in North

Dakota, let me say that our reservation was established before the

State boundaries were. We need to be clear that Indian tribes who

have Indian lands that overlap State boundaries, like the Standing

Rock Sioux Tribe and the Sisseton Wahpeton Oyate, must be respected by both State governments where their lands are located.

65

This bill should not impact our tribes with lands on both sides of

the border.

In conclusion, Chairman Pombo, I want to thank you. We know

you are trying to take tough issues heads on. We respect that.

Thusly, we respect you. We have found and have worked with you

to be a man of honor, and it’s a pleasure to work with you on this

very difficult situation. But we also have some concern and want

to move forward cautiously, with an opportunity for plenty of opportunity for all concerned parties to be heard. And we want to be

sure to protect Indian sovereignty and our right to self-government

on our treaty lands throughout the process. We have fought for

these rights for generations, and we continue to protect our reservation homelands to this day.

In addition, in closing, as always I would like to thank the veterans of the military service of this country. Without their past

contributions and their present contributions, we wouldn’t enjoy

the freedom that we do today here in this country. So, Pilama,

thank you, Mr. Chairman. I would also additionally like to thank

your staff and their expertise and sensitivity toward my contact

and my tribes: Tom Brierton, Chris Fluhr, and Jim Hall. I appreciate their sincerity and their expertise, and I stand to answer any

questions that would come forward.

And, additionally, back to the two questions before. I can already

tell you my answer to the 300-mile question is no.

[Laughter.]

[The prepared statement of Mr. Luger follows:]

Statement of J. Kurt Luger, Executive Director,

Great Plains Indian Gaming Association

Introduction

Good morning. Chairman Pombo and Members of the Committee thank you for

inviting me to testify today concerning Indian gaming on off-reservation, restored,

and newly acquired lands.

My name is J. Kurt Luger and I am a member of the Cheyenne River Sioux Tribe

of South Dakota and my family resides on the Standing Rock Reservation near Ft.

Yates, North Dakota. I serve as the Executive Director of the Great Plains Indian

Gaming Association, which includes 28 Indian nations from North and South Dakota, Nebraska, Iowa, and Kansas. We work closely with both the National Indian

Gaming Association and other regional Indian gaming associations, including the

Minnesota Indian Gaming Association. At Great Plains Indian Gaming Association,

my job is to alert our Member Tribes to the challenges that we face in Indian gaming and to provide training and technical assistance to our tribal government officials, tribal gaming commissioners, gaming management and staff.

At the outset, let me say that Indian gaming is working in rural areas of America.

Indian tribes that faced 50, 60, and even 70% unemployment are now generating

jobs not only for their own tribal members, but for neighboring non-Indians as well.

I live and work in Bismarck, North Dakota so I will use the situation of the North

Dakota Tribes as a representative example.

Indian Tribes in North Dakota

In North Dakota, 5 tribal governments operate Indian gaming facilities: the Three

Affiliated Tribes of Fort Berthold—Mandan, Hidatsa, and Arikara; the Spirit Lake

Sioux Tribe, the Turtle Mountain Chippewa Tribe, the Standing Rock Sioux Tribe

and the Sisseton-Wahpeton Sioux Tribe. Both the Standing Rock Sioux Tribe’s reservation and the Sisseton-Wahpeton Sioux Tribe’s reservation straddle the border

with South Dakota.

Three Affiliated Tribes. The Three Affiliated Tribes, Mandan, Hidatsa, and

Arikara, operate as a unified tribal government. These Tribes have occupied the

Missouri valley for hundreds and thousands of years, planted corn, squash, and

beans on the fertile flood plains, and hunted buffalo and wild game. Living in

66

stockaded villages, the Three Affiliated Tribes were devastated by smallpox

epidemics in 1792, 1836, and 1837.

Early on, the Three Affiliated Tribes established friendly relationships with the United States. They welcomed the Lewis and Clark expedition into their villages

and assisted them on their journey. In 1825, the Mandan, Hidatsa, and Arikara

Tribes entered into Treaties of Friendship and Trade with the United States, which

states:

Henceforth, there shall be a firm and lasting peace between the United

States and the [Mandan, Hidatsa, and Arikara Tribes]’’. The United

States—receive the [Tribes] into their friendship and under their protection.

The United States’ treaty pledges of protection forms the basis for the Federal Indian trust responsibility. The traditional lands of the Mandan, Hidatsa, and

Arikara encompassed an area of 12 million acres from eastern North Dakota to

Montana and as far south as Nebraska and Wyoming. The Fort Laramie Treaty of

1851, congressional acts and executive orders reduced the Tribes’ lands to 1,000,000

acres in western North Dakota.

In the early 1950s, the Three Affiliated Tribes were asked to undertake a tremen- dous sacrifice by allowing the United States to dam the Missouri River and flood

their reservation. The original tribal headquarters was flooded and families were

moved away from the fertile Missouri River flood plain up on to the high prairie.

When Lake Sakakawea was formed by the dam, the new lake divided the reservation into three parts. The Tribes suffered an enormous loss of natural resources, including the most fertile land on the reservation, their community was divided and

the small village life that many had known along the Missouri River was gone. The

tribal headquarters were relocated four miles away in New Town, North Dakota.

Today, the tribal population is about 10,000 with about 5,000 living on the reservation.

Spirit Lake Sioux Tribe. The Spirit Lake Sioux Tribe is composed of the

Sisseton-Wahpeton and Yankton bands of the Dakota or Sioux Nation. Originally

residing in Minnesota and eastern North Dakota, the Spirit Lake Sioux Reservation

was established by the Treaty of 1867 with the United States. The Treaty of 1867

provides that: ‘‘The...Sioux Indians, represented in council, will continue...friendly

relations with the Government and people of the United States...’’ The Treaty recognizes the Spirit Lake Sioux Reservation as the ‘‘permanent’’ reservation of the Tribe.

The Tribe has worked to develop jobs through manufacturing, providing Kevlar helmets and military vests to the Pentagon through Sioux Manufacturing Corporation, yet with a reservation population of over 6,000 people, the Tribe has struggled

with 59% unemployment as the Defense Department budget was cut in the 1990s.

The Spirit Lake Reservation encompasses 405 square miles north of the Sheyenne

River in northeastern North Dakota.

Turtle Mountain Chippewa Tribe. The Chippewa or Ojibwe people originally

inhabited the Great Lakes Region and began to hunt and trade in North Dakota

in the late 18th and early 19th Centuries. Historically, the Chippewa and the Dakota fought wars with each other, but they settled their differences through the

Treaty of Sweet Corn in 1858.

In 1882, Congress set aside a 32 mile tract in Northeastern North Dakota for the

Turtle Mountain Band of Chippewa 11 miles from the Canadian border. With the

passing of the great buffalo herds, the Chippewa turned to agriculture and ranching, and faced many difficulties due to encroachment by settlers. Today, almost

20,000 tribal members live on the 6 x 12 mile Turtle Mountain reservation, and

Belcourt, North Dakota has become the 5th largest city in the state.

Standing Rock Sioux Tribe. The Standing Rock Sioux Tribe is composed of Sitting Bull’s Band, the Hunkpapa, and the Yanktonai, with some Black Foot Sioux

on the South Dakota side. In the Fort Laramie Treaty of 1868, the United States

pledged that: ‘‘The Government of the United States desires peace and its honor is

hereby pledged to keep it.’’ The Treaty also provides that the Great Sioux Reservation was to serve as the ‘‘permanent home’’ of the Sioux Nation.

Yet, in 1876, General Custer and the 7th Cavalry came out to Sioux country to

force the Sioux tribes on to diminished reservations. In 1889, the Federal Government once again called on the Sioux Nation to cede millions more acres of reservation lands, and the Standing Rock Sioux Reservation was established by the Act of

March 2, 1889. Sitting Bull had opposed the land cession and in 1890, he was murdered by BIA police acting in concert with the U.S. Cavalry.

The Standing Rock Sioux Reservation is composed of 2.3 million acres of land

lying across the North and South Dakota border in the central area of the State.

Like the Three Affiliated Tribes, the Standing Rock Sioux Tribe was asked to make

a substantial sacrifice for flood control and ceded almost 56,000 acres of the best

reservation land for Lake Sakakawea. Tribal members were removed from their

67

traditional homes along the Missouri River flood plain and relocated well up above

the river. Today, the population of resident tribal members is almost 10,000. Sisseton-Wahpeton Sioux Tribe. Located in Southeastern North Dakota and

Northeastern South Dakota, the Sisseton-Wahpeton Sioux Tribe has a total enrollment of over 10,000 tribal members and a resident population of about 5,000 tribal

members. The Tribe was originally located in Minnesota, but pressure from white

settlers pushed the Tribe westward. The Treaty of 1858 with the United States established the Sisseton-Wahpeton Sioux Reservation, which today has approximately

250,000 acres in North and South Dakota.

Indian Gaming in North Dakota

Since the beginning of tribal gaming in North Dakota, the primary function has been to provide employment and economic development opportunities. Indian gaming has also provided vital funding for tribal government infrastructure, essential

services including police and fire protection, education, and water and sewer services, and tribal programs, such as health care, elderly nutrition, and child care. There are five Indian gaming facilities in the state—Four Bears Casino & Lodge (Three Affiliated Tribes), Sky Dancer Casino & Lodge (Turtle Mountain), Spirit

Lake Casino (Spirit Lake Sioux), Dakota Magic Casino (Sisseton-Wahpeton), and

Prairie Knights Casino & Lodge (Standing Rock). Together, the gaming facilities

employ almost 2,000 North Dakota residents. About 70% of the employees are tribal

members, and the balance are our non-Indian neighbors, and taking into account

the multiplier effect of the $112 million of economic activity generated by Indian

gaming in North Dakota, Indian gaming generates an additional 2,000 jobs statewide. Since 1997, the combined economic impact of Indian gaming and related activity has exceeded $1 billion statewide.

Tribal-State Relations

All of the North Dakota tribes have worked to maintain positive government-to- government relationships with the State of North Dakota. Our Tribal-State compact

acknowledges that: The Tribe and the State mutually recognize the positive economic benefits

that gaming may provide to the Tribe[s] and to the region of the State adjacent to the Tribal lands, and the Tribe and the State recognize the need

to insure that the health, safety and welfare of the public and the integrity

of the gaming industry of the Tribe and throughout North Dakota be protected.

The Tribes in North Dakota have worked very hard to preserve a strong relation- ship with the State, and the State for, its part, has worked in good faith with the

Tribes.

In fact, the State Attorney General is vested with authority to regulate gaming under state law and works with the tribal governments through our compacts. Attorney General Wayne Stenjhem has complimented the tribal governments on our

record of strong regulation and has cooperated with the tribal regulatory agencies

to apprehend and prosecute those who attempt to cheat our casinos. The Attorney

General has recognized that Indian gaming has created important jobs and generated vital revenue for tribal self-government and has made it clear that he is

proud that the State of North Dakota has not asked for revenue sharing. State officials in North Dakota know that tribal governments have many unmet needs and

it helps the whole state, when tribal governments have a way to create jobs and

generate essential governmental revenue.

After Acquired Lands

In general, the Indian Gaming Regulatory Act is intended to strengthen tribal self-government by safeguarding Indian gaming as a way to fund essential tribal

government infrastructure, services and programs. The Act establishes a general

policy that Indian gaming shall be conducted on trust land acquired prior to its passage in 1988. Because of the complex history of Federal takings of Indian lands, Section 20 of the Act provides several necessary exceptions: • Lands Contiguous to Indian Reservations or Within the Last Reservation of a

Tribe No Longer Has Reservation Borders; • Lands Recovered Under Land Claims; • Lands for Newly Recognized Tribes; and • Lands Acquired Through Consultation with Local Governments and Neighboring Indian Tribes and a Two-Part Determination by The Secretary of the Interior with the Concurrence of the State Government.

The first three exceptions for trust land within historic reservation boundaries,

trust lands under land claims, and lands for newly acquired lands fall into the category of addressing problems created by the United States’ historic takings of

68

Indian lands and injustices. The last exception, however, is a discretionary exception

that requires the development of a broad consensus that such an acquisition is in

the best interests of the Tribe and not adverse to the surrounding community. The Indian Tribes in North Dakota are engaged in gaming on Indian lands ac- quired prior to the Indian Gaming Regulatory Act, or in the case of the SissetonWahpeton Sioux Tribe, on trust land acquired within the original boundaries of its

reservation under the 1867 Treaty. To date, there have been no off-reservation land acquisitions under the two-part

Secretarial process. The Turtle Mountain Band of Chippewa has indicated that it

is considering an off-reservation acquisition under the secretarial process set forth

in Section 20.

Section 20 explains that the limitation on Indian gaming to lands acquired prior to 1988 shall not apply when: The Secretary, after consultation with the Indian tribe and appropriate State, and local officials, including officials of other nearby

Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members,

and would not be detrimental to the surrounding community, but only if the

Governor of the State...concurs...

25 U.S.C. 2719(b)(1) (emphasis added).

At the Great Plains Indian Gaming Association, we believe that under existing

law it is very important for the Secretary of the Interior to thoroughly consult with

local governments and ‘‘neighboring’’ Indian tribes. In fact, in North Dakota we all

consider ourselves to be ‘‘neighbors’’ in the tribal community, and we believe that

all Tribes should be consulted concerning any Section 20 after acquired land application in North Dakota or even near the North Dakota border in Minnesota, South

Dakota or Montana. After all, while we live in areas that are large geographically,

our population is small and we often draw our customer base from a substantial

distance away. The same is true in other Great Plains states.

Committee Proposal

On behalf of the Great Plains Indian Gaming Association, I want to thank Chairman Pombo and the Committee for issuing this bill in a discussion draft. Working

with tribal government prior to the introduction of the bill honors our tribal government-to-government relationship with the Federal Government. We want to work

with you as your process moves forward.

In summary, the Committee proposal would:

• Strike IGRA’s existing Section 20(b) and substitute new provisions;

• A newly recognized tribe could conduct gaming on after acquired trust lands

within the State where the Tribe has its primary geographic, social, and historical nexus to the land;

• A restored tribe could conduct gaming on after acquired trust land in the State

where the Tribe has its primary geographic, social, and historical nexus to the

land, so long as the Secretary determines that it is in the best interest of the

Tribe, not detrimental to the surrounding community and the State, city,

county, town, parish, village and any other local government concurs;

• The Secretary may designate two Indian Economic Opportunity Zones;

* One on Existing Trust Land; and

* One on Land to be Taken into Trust;

• On the Existing Trust Land, an Indian Tribe could participate in the Indian

Economic Opportunity Zone provided the Secretary determines that it is in the

best interest of each participating Tribe; that the State and local governments

approve the project, the Tribe does not have ownership in another facility, and

the ‘‘host’’ tribe may not receive more than 10% of the gross revenues as a management fee; and

• On the Land to Be Taken Into Trust, an Indian Tribe could participate in the

Indian Economic Opportunity Zone provided the Secretary determines that it is

in the best interest of each participating Tribe and lands are taken into trust

for the benefit of each participating Tribe, the State and local governments approve the project; each Indian Tribe within 200 miles approves the project, and

participating Tribes do not have an interest in any other facility.

• In addition, Indian tribes would be limited to conducting gaming in the State

where they are primarily located, unless their reservation is along a border between states or overlaps the border.

Let me start by saying that we have made important employment, economic, social and governmental progress under IGRA, and we do not want to take a step

backward. Therefore, we respectfully ask the Committee to work with us to protect

IGRA and make sure that the only bill that moves forward is one developed by the

69

Committee through the regular hearing process with the consensus of tribal governments. We do not want to be surprised by amendments on the House or Senate

Floor or in the Conference Committee that are not relevant to this issue or that undercut tribal rights to conduct Indian gaming as an exercise of Indian sovereignty. Second, let me say, as I did in July—the Secretary needs to respect the interests of neighboring Indian tribes as well as tribes seeking to engage in new gaming

projects. We know that your legislative process is going to take some time. Perhaps

the Chairman would consider writing a letter to the Secretary asking her to fully

consider the interests of neighboring Tribes. In our view, your draft bill would provide some clear rules for off-reservation gam- ing by eliminating the existing Section 20 process and substituting the Indian Economic Opportunity Zones. Before we take a final position on the draft bill, we will

work with NIGA and NCAI in their Task Force meetings and we will jointly host

the Task Force meeting in Minnesota on May 25th. Yet, as a preliminary matter,

let me say please respect the interests of neighboring Indian tribes in both the Existing Trust and New Lands Zones. Please require agreement for tribal governments

in both provisions.

On the other hand, we are also concerned about the heightened role for local gov- ernments. Local governments are just sub-units of States, so it should be enough

for the Governor or the State Legislature to act on behalf of the state. We have a

strong working relationship with our state governments, we think this provision

could needlessly complicate that relationship. Let me be blunt, it is the State’s job

to make sure that the interests of local governments are protected. In addition, we

do not want to see any precedent for the idea that tribal governments are subordinate to local governments. We have a direct government-to-government relationship

with the Federal Government, and our tribal governments carry out our own governmental functions on our lands.

Finally, as someone who grew up on the Standing Rock Sioux Reservation in North Dakota, let me say that our Reservation was established before there were

any state boundaries. We need to be very clear that Indian tribes who have Indian

lands that overlap state boundaries, like the Standing Rock and Sisseton Wahpeton

Sioux Tribes, must be respected by both state governments where their lands are

located. This bill should not impact our Tribes with lands on both sides of the

border.

Conclusion

In conclusion, I want to thank Chairman Pombo. We know you are trying to take on tough issues heads on. We respect that. But we also have some concern and want

to move forward cautiously, with an opportunity for plenty of opportunity for all

concerned parties to be heard. And, we want to be sure to protect Indian sovereignty

and our right to self-government on our treaty lands throughout the process. We

have fought for those rights for generations and we continue to fight to protect our

reservation homelands to this day. Again, thank you for the opportunity to testify today. Pilamayayelo.

As Chairman of the Great Plains Indian Gaming Association,

I concur in Mr. Luger’s testimony.

Charles Murphy, Chairman, Standing Rock Sioux Tribe

[Responses to questions submitted for the record by Mr. Luger

follow:]

Response to questions submitted for the record by J. Kurt Luger,

Executive Director, Great Plains Indian Gaming Association

Answers to Congressman Pombo’s Questions.

Answer to Question 1.

At the Great Plains Indian Gaming Association, our Member Tribes work closely

with their Governors. We count on the State Governors to speak on behalf of their

state because that is what they were elected to do. Existing law reflects that reality

of our Federal system.

Answer to Question 2.

The United States took millions of acres of Indian lands, much of it in violation

of treaties. In the 1930s, President Roosevelt and Congress acknowledged that the

theft of Indian lands had left our Indian tribes and people in poverty. The Indian

Reorganization Act provided for the acquisition of lands for Indian tribes and

70

landless Indians. In our view, the existing regulations that provide a sliding scale

are appropriate: on-reservation trust land acquisitions are easier and tribal interests weigh more and off-reservation trust land acquisitions are harder and state and

local interests weigh more heavily the further from the reservation the acquisition

is located. For gaming, the process is tougher and the Secretary must consult neighboring tribes as well as state and local governments and request the Governor’s concurrence. When existing law is properly applied, consultative roles for local governments and neighboring Indian tribes protects their interests.

Answer to Question 3.

Tribes should seek to take land into trust in their aboriginal, ancestral or treaty

areas. If a tribe goes outside its aboriginal, ancestral or treaty area, and another

tribe objects to the land acquisition because it is in its own aboriginal, ancestral or

treaty area, the Secretary should listen to the objections of the neighboring tribe

and deny the trust application.

This is the way that existing law should work. If not, the House Resources Committee should call on the Secretary to respect the aboriginal, ancestral and treaty

areas of Indian tribes—which was the intent of the Indian Reorganization Act. No

amendment to the Indian Gaming Regulatory Act is needed to achieve this result.

An aboriginal land means lands a tribe has occupied from time immemorial. An

ancestral land means lands a tribe has occupied after the first contact with Europeans because it had to move out of its aboriginal areas due to pressure from colonists. Treaty lands means Indian lands recognized under a treaty between the

United States and an Indian tribe.

Answer to Question 4.

Revenue sharing should be prohibited. 0%. Existing revenue sharing agreements

could be grandfathered in, but it is now clear that revenue sharing is basically a

state tax upon tribal government and should be prohibited to restore the original

intent of IGRA.

Answer to Question 5.

The Department of the Interior requires further congressional legislation to implement a land claim settlement before the settlement lands can be used for gaming.

This issue can be addressed in the context of the congressional legislation implementing the settlement.

Answer to Question 6.

We recognize that anyone can propose anything. The existing system ensures that

only projects with the support of the state, local governments and neighboring

Indian tribes are appropriate.

We believe that the American public should take the time to educate themselves

about Indian tribes because, after all, they are living on lands that our tribes donated for their residential use.

Answer to Question 7.

The original intent of IGRA was to regulate and protect Indian gaming on existing

Indian lands, with new lands to be used only in limited circumstances outlined in

the Act. If the Committee reminds the Secretary of that fact, there should be no

problem under the law.

Answer to Question 8.

The proposed Minnesota agreement is illegal because it end runs the Indian Gaming Regulatory Act.

Answers to Congressman Gibbons’ Questions.

Answer to Question 1.

The Committee should recognize that the existing regulation on Indian trust land

acquisitions deals with these issues in a fair and balanced way. 25 CFR 151.

Answer to Question 2.

Landless tribes are generally directed to go to their former reservations and tribes

that are restored to recognition by Congress generally have an area described where

they are to reacquire lands.

It is not surprising that an Indian tribe would object to another tribe’s acquisition

of trust land in its aboriginal area. The Secretary should deny a trust land acquisition that infringes on another tribe’s aboriginal lands.

71

Answer to Question 3.

History speaks for itself. The United States Army killed many of our people in order to force us on to small reservations. Then our reservation lands were stolen.

If tribes get back a small portion of their former lands, it is a small measure of

justice.

Answer to Question 4.

The Department of the Interior has appropriate criteria for land into trust applications under 25 CFR 151. As stated above, that regulation establishes a sliding

scale where land acquisitions on-reservation are easier and off-reservation acquisitions are harder.

Answer to Question 5.

See Answer to Question 2.

Answer to Question 6.

Anyone can make any proposal, but the existing law provides only limited excep- tions to the general rule that Indian tribes use existing reservation lands for gaming.

Answer to Question 7.

American Indians were denied the right to vote for so long that all Americans

should be applauding the fact that we finally have a right to participate. The Federal Government did not recognize the right of American Indians to vote until 1924.

Basically, our people were treated as resident aliens. For decades after the Federal

law changed, state laws and constitutions prohibited reservation Indians from voting. And, county governments also prohibited our people from voting into the 1970s.

Any participation by American Indians and Indian tribes is proportional to our

numbers and should be encouraged.

Answer to Question 8.

As we discussed with Governor Owens, the Cheyenne-Arapaho proposal was not

likely to succeed without the support of the state and local government. Thus, his

opposition has more or less stopped the proposal.

The land claim settlement would have to be implemented by further congressional

legislation before any lands could be used for gaming, so that prospect appears to

be unlikely without the support of the people of Colorado.

The CHAIRMAN. Thank you.

Mr. Martin?

STATEMENT OF JAMES T. MARTIN, EXECUTIVE DIRECTOR,

UNITED SOUTH AND EASTERN TRIBES, INC.

Mr. MARTIN. Good afternoon, Chairman Pombo, Congressman

Kildee and other distinguished members of the Committee. It is a

pleasure to be here this afternoon. USET has submitted written

testimony, and I would like to have that entered as our official testimony for this hearing. I would also like to make some oral remarks.

My name is Tim Martin. I am the Executive Director of United

South and Eastern Tribes, an intertribal organization representing

24 federally recognized Indian tribes in the East and Southeastern

part of the United States.

I appear before the Committee today to discuss Chairman

Pombo’s proposed legislation to restrict off-reservation gaming.

USET believes it is time for Congress to pass legislation to address

what has become known as reservation shopping. Consequently, we

thank Chairman Pombo for his leadership in bringing to the

Committee’s attention this issue, and we look forward to working

with the Committee as we consider this corrective legislation.

Congress enacted the Indian Gaming Regulatory Act, IGRA, to

promote trial economic development, tribal self-sufficiency and

72

strong tribal governments. The Act is doing just that. Indian gaming has been described as the only Federal Indian economic initiative that has ever worked, and that is absolutely true. Indian gaming has served as a critical economic tool to enable Indian nations

to once again provide essential public services to their tribal members, reassert their trial sovereignty, promote the ultimate goal of

self-determination and self-sufficiency.

Unfortunately, however, USET has been increasingly concerned

with the handful of Indian tribes and wealthy non-Indian developers who are seeking to establish Indian casinos far away from

their existing reservation in distant States where the tribe is not

even currently located. In at least 12 States Indian tribes are seeking to move across State lines and even across multiple States to

take advantage of more lucrative gaming markets. In most cases

these efforts are being funded by shady developers who are underwriting the litigation expense, lobbyist fees, and in some cases buying the land that could be put in for a cut of the profits.

This kind of reservation shopping runs contrary to the intent behind IGRA and well-established Federal Indian policy. The basic

idea of IGRA was to protect the governmental rights of tribes to exercise jurisdiction over their land while assuring regulatory oversight over Indian gaming. But these proposed Indian casino deals

are not based upon governmental rights. In most instances the developers and tribes are using land claims or the threat of land

claims to promote casinos in far off places. In these instances

Indian gaming is not being used as a tool by the tribe to promote

economic activities on their lands. It is being used as a tool by developers who simply need Indian tribes to make their casino deals

work.

Let me give a typical scenario for how the developers normally

seek to gain approval for an Indian casino on behalf of a out-ofState tribe. First the developer will extend a carrot to the State

and local governments. The developer hires lobbyists who try to

convince State and local officials that an Indian casino will benefit

that State by creating jobs and economic development. The developer will offer the State and local communities a cut of the proceeds of the casino in exchange for State support. In most cases

these offers violate IGRA’s prohibition against taxing Indian casinos. But the out-of-State tribes are willing to pay these taxes because the venture does not impair the enterprises where their

tribes are located. The developers also are willing to agree that the

out-of-State tribes will waive most of their aspects of its tribal sovereignty. In other words, the out-of-State tribe will agree to submit

to State and local jurisdiction and return to the ability to establish

an Indian casino in the new State. Whatever concessions the outof-State tribes are willing to make are fine because they don’t impact that tribe because it is another State.

Unfortunately, though, where there are other tribes located in

the State that the tribe is proposing to go to, where the out-of-State

is seeking a casino, the offer to be submitted to the State jurisdiction pay hefty taxes on the gaming facility seeking undermines the

in-State tribe’s effort to defend their sovereignty. Why? Because the

out-of-State tribe’s offer becomes the new baseline which the State

will seek concessions from the in-State tribes. The State will be

73

1The members of USET are: The Chitimacha Tribe of Louisiana, the Seneca Nation of

Indians, the Coushatta Tribe of Louisiana, the Eastern Band of Cherokee, the Mississippi Band

of Choctaw, the Seminole Tribe of Florida, St. Regis Band of Mohawk Indians, the Miccosukee

Continued

asked to the tribe, Why aren’t you as reasonable as an out-of-State

tribe are willing to relinquish their sovereignty in exchange for the

right to operate a casino. If the carrot approach does not work, the developer typically raises the suspect of land claims litigation as a stick to compel the

State to negotiate with the tribe for a casino. In fact, there seems

to be a handful of developers who have created a new business

model that relies on tribes and existing or potential land claims as

a means to establish lucrative casino proposals in geographically

attractive locations.

So far none of the out-of-State Indian tribes have obtained the

necessary approval to establish the casinos they are seeking. If

even one of these deals is approved, however, the floodgate for reservation shopping will be open all across the United States. There

are many tribes that assert land claims to lands formerly occupied

by ancestrals or tribal members. Given that many tribes in the

west previously migrated from lands in the east, it will not be difficult for them to convey some nexus to the land stipulated in the

eastern part of the United States, especially in areas that are potentially lucrative casino sites. In the meantime, the activities of these developers and out-ofState tribes create uncertainty for States and local communities

and undermine the ability of in-State tribal nations to defend their

homeland and sovereign rights. Chairman Pombo’s recent distributed discussion draft legislation would prohibit Indian tribes from conducting gaming on lands outside of a State in which the Indian tribe has an existing reservation unless such lands are contiguous to an existing reservation of

that tribe in that State.

Although we have some technical suggestions in the approved discussion draft, we support the intent of Chairman Pombo’s proposed amendment to IGRA. We applaud this committee for conducting a hearing of this important issue, and we look forward to

working with Chairman Pombo and this committee to develop a

common sense solution to put a end to reservation shopping. Thank you.

[The prepared statement of Mr. Martin follows:]

Statement of James T. Martin, Executive Director,

United South and Eastern Tribes, Inc.

Good afternoon Chairman Pombo, Ranking Member Rahall, and distinguished members of the Committee on Resources. My name is Tim Martin, and I am Executive Director of United South and Eastern Tribes, Inc. I am pleased to appear before

the committee to discuss Chairman Pombo’s proposed legislation to restrict offreservation gaming. As you know, United South and Eastern Tribes, Inc. passed a

resolution over two years ago raising concerns with the increasing activities of

shady, non-Indian developers and a handful of tribes seeking to establish casinos

in states where they have no reservation. Consequently, we thank Chairman Pombo

for his leadership in bringing the Committee’s attention to these activities, and we

look forward to working with the Committee as it considers corrective legislation. United South and Eastern Tribes, Inc. (‘‘USET’’) is a non-profit, inter-tribal orga- nization that collectively represents its member Tribes at the regional and national

levels. USET represents twenty-four federally recognized Tribes. 1 Included among

74

Tribe, the Penobscot Indian Nation, the Passamaquoddy Pleasant Point Tribe, and the Passamaquoddy Indian Township Tribe, the Houlton Band of Maliseet Indians, the Tunica-Biloxi Indians

of Louisiana, the Poarch Band of Creek Indians, the Narragansett Indian Tribe, the

Mashantucket Pequot Tribe, the Wampanoag Tribe of Gay Head (Aquinnah), the AlabamaCoushatta Tribe of Texas, the Oneida Indian Nation, the Aroostook Band of Micmac Indians,

the Catawba Indian Nation, the Jena Band of Choctaw Indians, the Mohegan Tribe of Connecticut, and the Cayuga Nation. 2 25 U.S.C. § 2701(4)

3 Jim Adams, Leaders guide museum with humble yet historic partnership, Indian Country

Today (Lakota Times), Sept. 22, 2004, at 1.

the members of USET are some of the largest gaming tribes in the United States,

such as the Mashantucket Pequots, the Mohegan Tribe, the Oneida Indian Nation,

the Mississippi Band of Choctaw, the Seminole Tribe, and the Miccosoukee Tribe.

We also represent tribes with more modest gaming facilities, as well as tribes that

currently do not engage in gaming. To be specific, of the 24 Indian nations that comprise USET, 15 engage in Indian gaming pursuant to the Indian Gaming Regulatory

Act of 1988 (‘‘IGRA’’ or ‘‘the Act’’). Nine tribes conduct Class III gaming pursuant

to a tribal-state compact, and six tribes engage in Class II gaming. Congress enacted the IGRA ‘‘to promote tribal economic development, tribal self- sufficiency, and strong tribal government.’’ 2 The Act is doing just that. Indian gam- ing has been described as ‘‘the only federal Indian economic initiative that ever

worked.’’ That is absolutely correct. Indian gaming has served as a critical economic

tool to enable Indian nations to once again be able to provide essential governmental services to their members, re-assert their sovereignty, and promote the goals

of self-determination and self-sufficiency. Prior to the advent of Indian gaming, many Indian nations, while legally recog- nized as sovereign governments, were not able to provide basic, governmental services to their people. They had all of the legal attributes of sovereign nations, but

many did not have the practical ability to be an effective government for their members. Consequently, despite a strong and proud tradition, Indian nations were stuck

in a two hundred year cycle of poverty. Today, the proceeds of Indian gaming operations go directly into providing essen- tial governmental services to tribal members. Our Members have used these revenues to invest in dozens of Member programs, including home ownership initiatives,

tuition assistance for everything from private schools to post-doctorate work, national health insurance for tribal members, and access to top-notch health clinics.

Gaming has also allowed Indian nations to take tremendous steps to reclaim their

heritage. Reclaiming a past heritage has been a priority for all USET members, and gaming proceeds have enabled Indian nations to make tremendous gains in this area. In

many respects, these efforts culminated in the dedication of the National Museum

of the American Indian in September 2004. I am proud to note that the three largest contributions to the building of this tremendous institution came from Indian

nations that are Members of USET. 3

Unfortunately, however, USET has been increasingly concerned with a handful of Indian tribes and wealthy non-Indian developers who are seeking to establish

Indian casinos far away from their existing reservations in different states from

where the tribes are currently located. In at least twelve states, Indian tribes are seeking to move across state lines to take advantage of more lucrative gaming markets. In most cases, these efforts are

being funded by shadowy developers who underwrite the litigation expenses, lobbyists fees, and even the cost of land in exchange for a cut of the profits. This kind of ‘‘reservation shopping’’ runs contrary to the intent behind IGRA and well-established federal Indian policies. The basic idea of IGRA was to protect the

governmental rights of tribes over their lands while assuring regulation of casino

gaming. But these proposed Indian casino deals are not based on governmental

rights. In most instances, the developers and tribes are using land claims or the

threat of land claims to promote casinos in far-off places. In these instances, Indian

gaming is not being used as a tool by tribes to promote economic activities on their

lands, it is being used as a tool by developers who simply need Indian tribes to

make their deals for casinos work.

Let me give you a typical scenario for how the developers normally seek to gain approval for an Indian casino on behalf of an out-of-state tribe. First, the developer

will extend a ‘‘carrot’’ to the state and local governments. The developer hires lobbyists who try and convince state and local officials that an Indian casino will benefit

the state by creating jobs and economic activity. The developer will offer the state

and local communities a cut of the proceeds of the Indian casino in exchange for

state support. In most cases, these offers violate IGRA’s prohibition against taxing

75

4 Illegal Gaming by the Seneca-Cayuga Tribe of Oklahoma in the State of New York, USET,

Inc. Res. No. 2003:057, Feb. 6, 2003 5 Reservation Shopping, USET, Inc. Res. No. 2005:022, Feb. 10, 2005

6 Id.

Indian casinos. But the out-of-state tribes are willing to pay a tax because these

ventures do not impact the enterprises where the tribes are currently located. The

developers also are willing to agree that the out-of-state tribe will waive most aspects of its sovereignty. In other words, the out-of-state tribe will agree to submit

to state and local jurisdiction in return for the ability to establish an Indian casino

in a new state. Whatever concessions the out-of-state tribes are willing to make are

fine because they do not impact the tribes’ primary reservation.

Unfortunately, when there are other tribes located in those states where out-ofstate tribes are seeking a casino, the offers to submit to state jurisdiction and pay

hefty taxes on their gaming facilities severely undermine the in-state tribes’ continuing efforts to defend their sovereignty. Why? Because the out-of-state tribes’ offers become the new baseline upon which the State will seek concessions from the

in-state tribes when negotiating gaming compact renewals, tax compacts, and local

community jurisdictional agreements. The State will ask the in-state tribe why it

won’t be as reasonable as the out-of-state tribes who are willing to relinquish their

sovereignty in exchange for the right to operate a casino.

If the ‘‘carrot’’ approach does not work for the developer, the developer typically

raises the specter of land claims litigation as a ‘‘stick’’ to compel the state to negotiate with the tribe for a casino. In fact, there seem to be a handful of developers

who have created a new business model that relies on tribes with existing or potential land claims as a means to establish lucrative casinos in geographically attractive locations.

So far, none of the out-of-state Indian tribes has obtained the necessary approvals

to establish the casinos they are seeking. If even one of these deals is approved,

however, the floodgates for this kind of reservation shopping will open throughout

the United States. There will be no legal rationale to prohibit other tribes from establishing casinos in far away states, and developers will seek casinos for potentially

dozens of other tribes throughout the United States and even Canada. There are

many tribes that assert land claims to land formerly occupied by ancestors of tribal

members. Other tribes would undoubtedly be encouraged to assert such claims as

a route to casino riches. Given that most tribes in the west previously migrated

from lands in the east, it will not be difficult for them to contrive some nexus to

lands situated in the eastern part of the United States—especially in areas that are

potentially lucrative casino sites.

In the meantime, the activities of these developers and out-of-state tribes create

uncertainty for states and local communities, and undermine the ability of in-state

Indian nations to defend their homelands and sovereign rights.

Consequently, in early 2003, USET was the first Native American organization

to adopt a resolution raising concerns with the encroachment of out-of-state tribes

on lands on which they have no recognized jurisdiction. The resolution called on

Congress to oppose the efforts of these so-called ‘‘out-of-state tribes’’ to establish casinos in different states. 4 A copy of this Resolution is attached.

This year, USET again adopted a resolution opposing reservation shopping. 5 A

copy of this Resolution is attached. The Resolution includes the following admonition to Congress:

Resolved that the USET Board of Directors calls upon the United States

Congress to enact legislation that would prohibit, and oppose any legislation that would allow, individual Indian Nations or Tribes from establishing

a reservation, acquiring trust land or exercising governmental jurisdiction

in a state other than the state where they are currently located or at a remote location to which they have no aboriginal connection’’. 6

In order that the Committee understands the extent of this kind of reservation

shopping across the country, the following is a summary of what we know is happening in at least twelve different states.

Colorado

Cheyenne-Arapahoe Tribes of Oklahoma: In 2004, the consolidated CheyenneArapahoe Tribes filed a 27 million acre land claim with the Department of Interior,

claiming all of Denver and Colorado Springs. In exchange for dropping the claims,

the Cheyenne-Arapahoe Tribes have proposed to develop a Las Vegas-style gaming

facility near the Denver Airport. This proposal has met opposition from the state

and federal representatives of Colorado. In late 2003, a developer sought to

76

7 ‘‘Owens to denounce casino,’’ The Denver Post, August 29, 2004; ‘Indians’ leveraged efforts

for casinos reach beyond Colo.,’’ The Denver Post, August 16, 2004 8 ‘‘Kialegee gamble on casino bid,’’ The Tulsa World, November 14, 1999

9 ‘‘Johnson testifies on Hill; Bill centers on tribal land disputes,’’ The Pantagraph, May 9, 2002

10 ‘‘Village opposes Lynwood casino,’’ Chicago Tribune, November 19, 2004; ‘‘Weller will battle

Ho-Chunk proposal,’’ Chicago Tribune, August 28, 2004. 11 ‘‘Indian gaming law takes effect,’’ The Daily Chronicle, November 20, 2004. 12 ‘‘Tribe wins step in fight for N.Y. casino,’’ The Daily Oklahoman, November 16, 2004; ‘‘Midwest Tribes See Big Payoffs in the East,’’ The New York Times, March 24, 2003; ‘‘...the Oklahoma-based tribe, which has been negotiating to open a casino in northern Indiana, recently

declared that the tribe has a legal claim to 100 percent of the land in [5] counties.’’ ‘‘An obvious

ploy,’’ South Bend Tribune, July 2, 2002. 13 ‘‘Delaware Indian tribes face long odds to win gambling effort,’’ Newsday.com article, May

15, 2003. 14 ‘‘Tribe aims for casino deal,’’ The Pantagraph, Jan. 12, 2003. 15 ‘‘Sebelius not sure she’ll support tribal gambling plan,’’ Associated Press, Jan. 25, 2003. 16 ‘‘[Halle Cos.] has agreed to pay an Oklahoma-based Indian tribe as much as $1.4 million

a year to take over the land and to apply to make it tribal property...To make its case to the

[BIA], the tribe presented its history, including evidence of its ancestral ties to Maryland.’’ ‘‘Surprising Ally Joins Landfill Quest; Thwarted Developer Would Make Indian Tribe Owner of

Arundel Site,’’ The Washington Post, November 1, 2004.

purchase 500 acres east of Denver, near the Denver International Airport, to create

a reservation for the tribes. 7

Georgia

Kialegee Tribal Town of Oklahoma: The tribe sought to move to Hancock County, Georgia to establish a casino and entertainment project. County officials were interested in the plan, because of extreme poverty in the county, but the previous Governor was opposed to casino gaming. The tribe also sought land in Texas and other

parts of Georgia in the past. 8

Illinois

Miami Tribe of Oklahoma: The tribe is seeking 2.6 million acres in east-central Illinois based upon a treaty from the 1800s. The tribe sued landowners in 2000, and

dropped the lawsuit in 2002. The tribe has indicated it would agree to a casino in

exchange for dropping the claim. 9

Ho-Chunk Nation of Wisconsin: The tribe is seeking to build the largest casino in Illinois, which would be located in the Chicago suburb of Lynwood. There is

strong opposition from the community, but the plan has been supported by Congressman Jesse Jackson, Jr. (D-IL). The proposed casino would be located approximately 296 miles from the tribe’s current reservation. 10

Prairie Band Potawatomi Nation of Kansas: The tribe has sought a gaming compact with the Governor, which prompted the State’s legislature to pass legislation

that would require the Governor to get approval from the General Assembly before

signing a deal with any Native American tribe. The Governor vetoed the bill, but

the veto was overridden and has gone into law. The tribe was seeking land outside

of Chicago for a casino. 11

Indiana

Miami Tribe of Oklahoma: The tribe is negotiating with the state to put a casino

in Gary, Indiana. The tribe has negotiated with the mayor of Gary since 2002. The

tribe unsuccessfully attempted to place a casino in Terre Haute, Ind. as well. The

proposed casino would be located approximately 610 miles from the tribe’s current

reservations. 12

Kansas

Delaware Tribe of Oklahoma: The tribe signed with a California-based developer

to help secure gaming rights near Kansas City, Kansas. A land claim is pending. 13

Miami Tribe of Oklahoma: The tribe attempted to open a casino in Kansas in

1999, but the plan was rejected by the federal government. 14

Wyandotte Tribe of Oklahoma: The tribe expressed interest in opening a casino

in Edwardsville, KS, and U.S. Congressman Dennis Moore (D-KS) introduced legislation in 2002 to allow the casino. The Governor has expressed reservations with

this plan. 15

Maryland

Delaware Nation of Oklahoma: The tribe agreed to take over land in Anne Arundel County to create a landfill, run by a local development company. The tribe expressed interest in the land for establishing a high stakes bingo parlor, and if slots

are approved by the state, offering those as well. 16

77

17 Newsday.com article, ‘‘Delaware Indian tribes face long odds to win gambling effort,’’ AP,

May 15, 2003; Philly.com article, ‘‘2 Okla. tribes seek fortune in Penna.’’ Philadelphia Inquirer,

July 7, 2003 18 ‘‘Local tribes unable to play,’’ Las Cruces Sun-News, November 14, 2004 ‘‘[Tribal chairman]

Houser said it is his hope the Fort Sill Apaches can return to New Mexico under an act of Congress that would grant land to the tribe as compensation for the U.S. government’s past acts.’’

(Source: ‘‘Okla. Apaches Seek to Build N.M. Casino,’’ Albuquerque Journal, November 7, 2004.) 19 ‘‘Midwest Tribes See Big Payoffs in the East,’’ The New York Times, March 24, 2003 20Press Release from Office of Governor George Pataki on November 12, 2004; ‘‘Midwest

Tribes See Big Payoffs in the East,’’ The New York Times, March 24, 2003 21 ‘‘Land deals draw various reactions,’’ The Syracuse Post-Standard, March 12, 2005. 22 ‘‘Indians’ leveraged efforts for casinos reach beyond Colo.,’’ The Denver Post, August 16,

2004; ‘‘Allen County, Ohio, leaders turn down offer from tribe on casino,’’ The Lima News, November 12, 2004; ‘‘Monroe gets look at casino proposal,’’ The Cincinnati Enquirer, November 11,

2004

New Jersey

Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: The two tribes

(which are separate entities recognized by the federal government) attempted to

open a casino in 1999 in Wildwood, New Jersey, but state and local officials opposed

the plan. 17

New Mexico

Fort Sill Apache Tribe of Oklahoma: The tribe is considering building a casino in

southern New Mexico, and might oppose plans by an in-state tribe, the Jemez Pueblo to build in the area as well. 18

New York

Stockbridge-Munsee Tribe of Wisconsin: This tribe has offered to settle a land

claim with the state in exchange for a casino in New York. The tribe has signed

with a developer to build one of the planned Indian casinos in the Catskills. A Federal court is poised to drop the tribe’s land claim against the state because it is not

supported by the Federal Government. After years of opposing any governmental

presence in New York by an out-of-state tribe, Governor Pataki agreed to give the

tribe the right to establish a Las Vegas-style facility in the Catskills. The U.S. Congress and the New York Legislature must still approve this agreement. 19

Seneca-Cayuga Tribe of Oklahoma: The Seneca-Cayuga Tribe of Oklahoma purchased land in New York and declared its intention to build and operate an Indian

gaming facility more than 1,100 miles from its reservation in Oklahoma. The Indian

tribe claims that it has sovereign authority over these newly acquired lands, which

if it were true, would provide the tribe with the right to engage in high-stakes bingo

without obtaining approval from the federal government or the State of New York.

The Seneca-Cayuga Tribe asserts that its participation in the land claim litigation

involving the Cayuga Nation and the State of New York provides it with political

jurisdiction over land in New York. Governor Pataki announced a settlement agreement with the Seneca-Cayuga on November 12, 2004, allowing the tribe to establish

a Las Vegas-style gaming facility in the Catskills. The U.S. Congress and the New

York Legislature must still approve this agreement. 20

Oneida Tribe of Wisconsin: This tribe is a party to a land claim suit with the

Oneida Nation of New York and the Oneida of the Thames Band. On December 7,

2004, the Governor announced an agreement with the tribe that will allow them to

establish a Las Vegas-style gaming facility in the Catskills in exchange for the tribe

dropping their land claim. The U.S. Congress and the New York Legislature must

still approve this agreement. The agreement is opposed by the Oneida Indian Nation of New York. 21

Ohio

Eastern Shawnee Tribe of Oklahoma: The tribe is preparing a 4 million acre land

claim suit and is seeking to build anywhere from five to seven casino resorts in

Ohio. Additionally, Allen County (OH) commissioners turned down a proposal by the

tribe to take out an option on county-owned land for a casino. The tribe has a contract to buy 150 acres in Monroe (OH) and plans to approach state officials in December or January. The tribe would need to enter into a compact with the state for

the casinos. 22

Pennsylvania

Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: These two tribes declared a claim on 315 acres of land in Pennsylvania near Allentown after their plans

for a casino on the New Jersey shore failed. The tribes are seeking to build a casino

78

23 ‘‘2 Okla. tribes seek fortune in Penna.,’’ Philadelphia Inquirer, July 7, 2003; ‘‘...two Delaware

Indian tribes from Oklahoma want to reclaim 315 acres in the Lehigh Valley that they say were

stolen from their Pennsylvania ancestors 200 years ago...Stephen A. Cozen, the Philadelphia

lawyer representing the tribes, said the group is prepared to file a federal lawsuit to reclaim

the land and pursue gaming unless they can reach an agreement with [Governor] Rendell to

open a casino.’’ (Source: ‘‘Indians seek N.E. Pennsylvania land for casino,’’ Philly.com article,

May 15, 2003. 24 Newsday.com article, ‘‘Delaware Indian tribes face long odds to win gambling effort,’’ Associated Press, May 15, 2003 25 ‘‘Kialegee gamble on casino bid,’’ The Tulsa World, November 14, 1999) 26Letter from Department of Interior Secretary Gale Norton to New York Governor George

Pataki, Nov. 12, 2002, at 2.

in exchange for dropping their claims. Governor Rendell has so far refused to negotiate with the tribes for a casino. 23

Texas

Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: In addition to casino

plans in New Jersey and Pennsylvania, these two tribes have attempted to build

a travel plaza in Texas. 24

Kialegee Tribal Town: Attempted to establish lands and gaming in Texas, but

were rejected. 25

The above-referenced activities are opposed by the majority of Indian nations, including the 24 member-nations of USET. Consequently, we strongly support Chairman Pombo’s desire to address these reservation shopping activities by clarifying

that Indian tribes cannot cross state lines to establish casinos in states where they

are not currently located.

Chairman Pombo’s recently distributed discussion draft would prohibit Indian

tribes from conducting gaming on lands outside of a State in which the Indian tribe

has an existing reservation, unless such lands are contiguous to an existing reservation of that Indian tribe in that State. Although we have some technical suggestions

to improve the discussion draft, we support the intent behind Chairman Pombo’s

proposed amendment to IGRA.

Department of Interior Secretary Gale Norton recently noted that, ‘‘[t]ribes are increasingly seeking to develop gaming facilities in areas far from their reservations,

focusing on selecting a location based on market potential rather than exercising

governmental jurisdiction on existing Indian lands.’’ 26 If tribes are permitted to conduct gaming in different states far away from their recognized reservations, Secretary Norton’s concerns will have been fully realized. There is no precedent for

these kinds of activities, and if allowed to continue, it will usher in a new era of

‘‘portable sovereignty’’ across the country.

We applaud the Resources Committee for conducting a hearing on this matter,

and we support Chairman Pombo’s efforts to develop a common-sense solution to

put an end to reservation shopping for gaming purposes.

79

20127.002

80

20127.003

81

20127.004

[Responses to questions submitted for the record by Mr. Martin

follow:]

Response to questions submitted for the record by James T. Martin,

Executive Director, United South and Eastern Tribes, Inc.

From Chairman Pombo:

1. Under the Section 20 two-part determination in IGRA, the governor of a state is

cast in the role of representing and protecting the interests of both the state government, and the local governments that exercise jurisdiction in the area proposed

for casino gaming. However, as state governors increasingly look to tribal casinos

to provide large amounts of revenue sharing to supplement the state budget, it has

been argued that governors are now in a position where their fiduciary interest

in securing a tribal revenue stream for state government conflicts with their duty

to represent the interests of local communities in the two part determination

process.

• With the potential of this large financial incentive to a state for a governor

to overlook the concerns of local communities, can it be said that local communities can still be adequately represented solely by the governor’s participation

in the two part determination process?

• Or does this potential conflict of interest presented to governors suggest that

IGRA should be modified to give affected local communities a formal role in

concurring with the Secretary’s two-part determination findings?

ANSWER:

Unfortunately, State governments are increasingly turning to Indian governments’ casino operations as a potential source of revenue.

82

1 25 U.S.C. § 2701(4)

Congress enacted the IGRA ‘‘to promote tribal economic development, tribal self- sufficiency, and strong tribal government.’’ 1 Today, the proceeds of Indian gaming operations go directly into providing essential governmental services to tribal members. Our Members have used these revenues to invest in dozens of Member programs, including home ownership initiatives, tuition assistance for everything from

private schools to post-doctorate work, national health insurance for tribal members,

and access to top-notch health clinics. Gaming has also allowed Indian nations to

take tremendous steps to reclaim their heritage. The basic idea of IGRA was to protect the governmental rights of tribes over their lands while assuring regulation of

casino gaming. IGRA was meant to be an economic tool of Indian governments to

strengthen their ability to provide for their people. Unfortunately, State governments are increasingly turning to Indian govern- ments’ casino operations as a potential source of revenue. This runs contrary to

IGRA, where in Section 11(d)(4), the Act prohibits a State or any of its political subdivisions from imposing any ‘‘tax, fee charge, or other assessment’’ upon an Indian

nation lawfully engaged in gaming under the Act. In tough budgetary times, however, some State Governors are looking for poten- tial sources of new taxation instead of trying to tighten their belts and employ fiscal

restraint. Consequently, some Governors require an Indian government to engage

in significant revenue sharing with the State as a cost of doing business with the

State. In some situations, when an Indian government refuses to concede its rights,

the State will seek to work with tribes located in far away states or in remote locations. These tribes are typically more willing to share revenue and concede sovereign rights for a chance to engage in casino gaming. Chairman Pombo’s discussion draft would prohibit a tribe from migrating to a dif- ferent state for purposes of engaging in casino gaming. This bright line prohibition

would go a long way to eliminate some of the revenue sharing abuses that are occurring, as the handful of tribes that are seeking gaming in such locations are typically

willing to share as much revenue as needed in exchange for a casino. The draft also would impose additional steps for Indian nations seeking to engage in off-reservation gaming within the same state but on land that is not aboriginal.

This also would help curb some of the current revenue sharing abuses. Non-Indian communities are represented by the Governor of the State and by their federal representatives. Unlike States, Indian nations have no direct representation in Congress. Consequently, it may not be necessary to provide local, non-Indian communities with a more formal role in considering off-reservation land-intotrust proposals.

2. Under established principles of tribal sovereignty, local communities do not have

a say in decisions involving tribal land that is already held in trust by the federal

government. However, off-reservation gaming proposals involve taking land into

trust that is currently held in fee and is often not even closely located to trust

lands.

• Is it a fundamental right of tribes to have land taken into trust on their behalf

at any location within the United States they so desire, irrespective of the distance to their current reservation or any connection to ancestral or native

lands?

• If not, what limitations should apply on where a tribe can or cannot have

lands taken into trust on their behalf?

• Should a higher standard of review apply when the off-reservation lands in

question will be used for purposes of gaming?

• Should this standard include active participation and a requirement for concurrence from local governments, even though they are generally otherwise

prohibited from having a say on matters concerning Indian lands?

ANSWER:

An Indian government does not have a fundamental right to have land taken into

trust regardless of the distance to its current reservation or any connection to ancestral or native lands. Federal Indian law and policy typically has required that an

Indian government have an aboriginal tie to land that is being sought to be taken

into trust. The farther away proposed land is from a tribe’s current reservation,

typically the Department of Interior gives greater deference to the concerns of surrounding communities that could be impacted by taking the land into trust. Moreover, when a proposed land for trust application involves the aboriginal land of a

different Indian government, the impacted tribe should have a significant role in the

decision-making.

83

The IGRA contains a higher standard of review when off-reservation lands in

question will be used for purposes of gaming. USET believes, however, that Congress should enact legislation that would prohibit an Indian nation from establishing a reservation, acquiring trust land, or exercising governmental jurisdiction

in a state other than the state where they are currently located or at a remote location to which they have no aboriginal connection.

3. Tribes have long fought to protect their ancestral lands from the unwanted incursions of outsiders, both Indian and non-Indian alike.

• If a tribe is seeking to have land taken into trust in an area that is not within

the ancestral lands of that tribe, should other tribes whose ancestral lands encompass the site have the ability to object to the land going into trust?

• The ability to veto the land going into trust?

• How can the term ‘‘ancestral lands’’ be defined as precisely as possible so it

is clear to all observers, Indian and non-Indian alike, which lands are ancestral to any given tribe?

ANSWER:

As mentioned above, we do believe that the federal government should protect

tribes from unwanted incursions of outsiders, both Indian and non-Indian alike.

Tribes whose aboriginal land is the subject of a land-into-trust application of a different tribe should be able to veto the land from going into trust.

Chairman Pombo’s Discussion Draft (dated March 9, 2005) includes language that

adequately describes ‘‘ancestral lands’’ as lands where the tribe has its primary geographic, social, and historical nexus to the land. We can support this definition.

4. Should a cap be placed on any revenue sharing with state governments from an

off-reservation gaming facility?

• If so, what should the cap percentage be?

ANSWER:

On October 26, 2004, George Skibine, [title], testified before the Senate Committee on Indian Affairs, suggested that perhaps IGRA should be amended to include a hard cap on revenue sharing. He suggested that such a cap should be in

the single digits. As discussed above, however, the IGRA prohibits a State government from demanding revenue sharing. In certain situations, however, the Secretary of Interior will approve revenue sharing arrangements when the Indian government receives substantial economic benefit in exchange for the revenue sharing.

Typically, this economic benefit comes in the form of exclusivity tied to the operation

of slot machines. Unfortunately, the Department has approved compacts, or they

have been deemed approved, which contain substantial revenue sharing arrangements without substantial exclusivity for the tribe. Consequently, much of this problem could be addressed if the Department better enforced the provisions of IGRA.

5. Should a tribe be able to ask for or accept a casino operation as a substitute, either in whole or in part, of a cash payment to settle a land claim?

• If a casino is acceptable as a settlement, should tribes whose ancestral lands

encompass the location where the casino would be located be consulted before

the settlement is finalized?

• Should they be allowed veto power over such a casino-based settlement as a

tool to protect their ancestral lands?

ANSWER:

The most important issue for an Indian nation seeking to settle its land claim is

what value it will accept in exchange for foregoing litigation. Once an Indian nation

determines what a settlement should be worth, there are many different means of

funding the settlement. A casino is one such means but it is not the only way to

fund a settlement, and it may not be in the best interest of the tribe to accept a

casino in lieu of cash. In other words, if a settlement is worth $100 million, the tribe

could agree to accept a cash settlement. However, a cash-strapped State may determine that it would rather provide the tribe with a business (i.e., a casino) as a substitute. In that instance, the tribe should and will engage in a lengthy economic

analysis to determine whether the terms of the casino are an adequate substitute

for $100 million in cash.

If a tribe whose ancestral lands encompass the location where the casino would

be located, the tribe should be consulted before the settlement is finalized and be

able to veto the establishment of a casino on its ancestral lands.

84

6. While there have been only three incidences since IGRA was enacted of off-reserva- tion land being placed into trust for gaming purposes, there are currently dozens

such projects either in the proposed stage or being reviewed by the BIA.

• What impact do you think all of these proposals have on public support for

Indian gaming? • Do you believe that the vagaries of current law regarding off reservation gaming encourage the proliferation of proposals for off-reservation gaming? • Do you believe that clarifying the law on off-reservation gaming, and placing

greater restrictions on when off-reservation gaming is allowed, will reduce the

number of proposals for off-reservation gaming? • Will such changes serve to weed out proposals for off-reservation gaming of dubious merits?

ANSWER:

There are only three incidences since IGRA was enacted of off-reservation land being placed into trust for gaming purposes, but there are currently dozens such

projects either in the proposed stage or being reviewed by the BIA. These proposals

have a negative impact on public support for Indian gaming. Wealthy, non-Indian

developers take advantage of vague language in IGRA to promote off-reservation casino deals. Consequently, USET supports Congress clarifying current law to place

greater restrictions on when off-reservation gaming is allowed. Specifically, Congress should enact legislation that would prohibit an Indian nation from establishing a reservation, acquiring trust land, or exercising governmental jurisdiction

in a state other than the state where they are currently located or at a remote location to which they have no aboriginal connection.

7. Do you believe that the original intent of IGRA was to allow Indian gaming to be conducted at any location within the United States that a tribe is able to purchase and have placed into trust?

• Or was the original intent of IGRA to foster economic development on Indian

lands held at the date of enactment?

ANSWER:

Congress did not intend for IGRA to allow Indian gaming to be conducted at any location within the United States where a tribe is able to purchase and have land

taken into trust. IGRA was meant to be an economic tool to foster economic develop

on an Indian nation’s lands where the tribe is located. IGRA was not meant to allow

a tribe to conduct gaming on lands far away from the tribe’s current location and

in a different state than where the tribe is located.

8. In Minnesota, the governor is entering into an agreement with three tribes to oper- ate an urban casino under the auspices of the Minnesota State Lottery. As currently constructed, IGRA would not apply to this proposal. Is there any other statute authorizing or requiring the Secretary of Interior to ensure tribal interests are

protected in such gaming proposal as this where at least one of the parties is a

tribal government or tribal government business enterprise? Should there be?

• Does this agreement violate the terms of any tribal-state compact in Minnesota? • What would be the impacts to tribes around the country if other governors

entered into similar agreements with tribes in their states? • In such a deal as proposed in Minnesota, what is the level of federal scrutiny

of outside investors, management agreements, and vendor contracts? • Are the tribes entering into this deal capable of determining whether or not

they will benefit from it? Are they capable of knowing whether or not developers, casino management companies, and the state government might be taking advantage of them?

ANSWER:

USET is not familiar with the particular circumstances in Minnesota, so it would

not be appropriate to respond. However, the Secretary of Interior has broad discretion under her trust responsibilities to Indian nations to ensure that tribal interests

are protected.

From Congressman Gibbons:

1. This Committee has held hearings on legislation that would allow a tribe to go hundreds of miles off their reservation and open a casino in the ancestral lands

of another Tribe.

• Do you have any specific suggestions on how Congress should proceed in this

regards?

85

• Also, with over 300 tribes seeking recognition and presumably gaming, please

comment on the impact that a policy permitting ‘‘reservation shopping’’ and

‘‘off-reservation gaming’’ will have on communities across the country.

ANSWER:

The United South and Eastern Tribes, Inc. supports Congress clarifying current

law to place greater restrictions on when off-reservation gaming is allowed. Specifically, Congress should enact legislation that would prohibit an Indian nation from

establishing a reservation, acquiring trust land, or exercising governmental jurisdiction in a state other than the state where they are currently located or at a remote

location to which they have no aboriginal connection. Current ‘‘reservation shopping’’ activities has a detrimental impact on communities across the country.

As stated in USET’s written testimony, the basic idea of IGRA was to protect the

governmental rights of tribes over their lands while assuring regulation of casino

gaming. But these proposed Indian casino deals are not based on governmental

rights. In most instances, the developers and tribes are using land claims or the

threat of land claims to promote casinos in far-off places. In these instances, Indian

gaming is not being used as a tool by tribes to promote economic activities on their

lands, it is being used as a tool by developers who simply need Indian tribes to

make their deals for casinos work.

The activities of these non-Indian developers and out-of-state tribes seeking to establish off-reservation casinos in different states create uncertainty for states and

local communities, and undermine the ability of in-state Indian nations to defend

their homelands and sovereign rights.

2. A few years ago, during the Proposition 5 campaign that allowed full-scale Indian

gaming in California, the tribes ran television ads stating they wanted to do gaming just on their reservation lands. Now in California, there are several tribes that

are trying to conduct off-reservation gaming.

• If a tribe has a reservation and/or a traditional service area, why should any

tribe be permitted to establish gaming off-reservation, distant from its reservation?

• Also, please comment on the fact that other tribes are opposed to tribes seeking ‘‘off-reservation’’ gaming.

ANSWER:

Congress did not intend for IGRA to allow Indian gaming to be conducted at any

location within the United States where a tribe is able to purchase and have land

taken into trust. IGRA was meant to be an economic tool to foster economic develop

on an Indian nation’s lands where the tribe is located. IGRA was not meant to allow

a tribe to conduct gaming on lands far away from the tribe’s current location and

in a different state than where the tribe is located.

Many tribes are opposed to ‘‘off-reservation’’ gaming proposals because the developers promoting these deals typically agree to give up the sovereign rights of the

tribes on whose behalf they are seeking casinos in order to make the deal work. This

undermines the ability of other Indian nations that are not willing to eliminate their

sovereign rights. In addition, in some cases, the off-reservation gaming proposals

impact the aboriginal lands of other Indian nations. IN those cases, the Indian nations whose land is the subject of an off reservation gaming proposal should be consulted.

3. When tribes seek to enter already established gaming areas, doesn’t that create an

unlevel playing field since tribes are not subject to state regulations; are not subject to the restrictions placed on other gaming establishments; do pay not state

taxes; etc.?

ANSWER:

Indian gaming is unlike commercial gaming because the former is used by Indian

nations as an economic tool to provide governmental services for their members. In

this respect, it is much like state-sponsored gaming (e.g., lotteries), where the proceeds are used to fund certain state programs. Proceeds of Indian gaming operations

go directly into providing essential governmental services to tribal members. Our

Members have used these revenues to invest in dozens of Member programs, including home ownership initiatives, tuition assistance for everything from private

schools to post-doctorate work, national health insurance for tribal members, and

access to top-notch health clinics. Gaming has also allowed Indian nations to take

tremendous steps to reclaim their heritage. Consequently, it is not quite correct to

compare Indian gaming to non-Indian, commercial gaming enterprises.

86

In addition, Indian gaming is a highly regulated industry. The regulation of

Indian gaming is expressly provided for in IGRA, which starts from the premise

that ‘‘Indian tribes have the exclusive right to regulate gaming activity on Indian

lands, if ... [it] is conducted in a state which does not, as a matter of criminal law

and public policy, prohibit such gaming activity.’’ In recognition of this exclusive

right, Congress sought to create a regulatory framework that Indian nations could

use for their gaming enterprises. This was accomplished by establishing a compacting mechanism that gives state governments significant input regarding the

scope and nature of tribal casino operations, and by creating a new regulatory agency, the National Indian Gaming Commission (‘‘NIGC’’).

It is through the compact negotiation process that state governments are given

a meaningful voice in the manner in which gaming will be conducted in Indian

country. Virtually all gaming compacts are detailed and specific, setting forth rules

governing games to be played, the application of various laws, operational standards

to be followed, fees and reimbursements to be paid, and the respective roles of state

and tribal authorities. For example, the Oneida Indian Nation’s compact with the

State of New York is nearly 300 pages long and covers almost every aspect of its

gaming operations. The compacting process has been immensely successful in ensuring the integrity of Indian gaming while preserving the inherent sovereign rights

of Indian nations to regulate their own legal and commercial affairs.

4. What criteria should be used by the Department of the Interior in it’s determination of land-into-trust?

• Should there be a requirement of substantial historical connection between the

tribe and the parcel to be taken into trust? Why/why not?

• How recent should the historical connection be? 100 years? 200 years?

• What about distance from the tribe’s current service area? 10 miles? 20 miles?

70 miles?

• Do you believe that the farther away the casino site is, the less likely tribal

members will be able to take advantage of employment opportunities with a

casino? [Alternatively, if the tribal members move near the casino to get jobs,

then will the traditional community/service area be disrupted?]

ANSWER:

Congress should amend IGRA to create bright lines that prohibit an Indian nation

from migrating into a different state for the purpose of establishing a casino. In addition, Congress should clarify that a proposal for an off-reservation casino within

a state include requirements that the tribe have an aboriginal connection to the

land on which the tribe seeks to game.

Chairman Pombo’s Discussion Draft (dated March 9, 2005) includes language that

adequately describes ‘‘ancestral lands’’ as lands where the tribe has its primary geographic, social, and historical nexus to the land. We can support this definition.

In addition to an absolute prohibition against an Indian tribe seeking to migrate

to a different state to establish a casino, Congress should make it more difficult for

a tribe to take land into trust when the proposed lands are far away from the tribe’s

current location and on land on which it has not aboriginal connection.

5. If landless, shouldn’t land-into-trust be restricted to the area where the tribe is

located? Where they live, need jobs, need health care and services?

ANSWER:

Yes.

6. If some tribes are permitted to select the ‘‘best gaming’’ locations, wouldn’t all

tribes want to do that?

• What about tribes that played by the rules and have their casino on their reservation land, even though it may not be the best gaming location?

ANSWER:

The IGRA was not meant to allow tribes to select the ‘‘best gaming locations.’’

IGRA was meant to be a tool for tribes where they are located. In some cases, tribes

are located in geographically conducive areas for gaming. Unfortunately, some tribes

are in locations that are not as conducive to gaming.

87

1 ‘‘Owens to denounce casino,’’’ The Denver Post, August 29, 2004; ‘‘Indians’ leveraged efforts

for casinos reach beyond Colo.,’’ The Denver Post, August 16, 2004 2 ‘‘Kialegee gamble on casino bid,’’ The Tulsa World, November 14, 1999

3 ‘‘Johnson testifies on Hill; Bill centers on tribal land disputes,’’ The Pantagraph, May 9, 2002

7. Please comment on how the federal campaign contribution laws apply to tribes

and the fact that tribes are exempt from overall donor limits and can give directly

from their treasuries. No other organization is similarly situated.

ANSWER:

Like every other entity other than the Federal Government, Indian tribes are subject to the Federal Election Campaign Act of 1971 (‘‘FECA’’). Tribes are subject to

the contribution limits per candidate per election cycle. See 2 U.S.C. § 441a(a)(1).

However, there is an erroneous misperception that a ‘‘loophole’’ exists for tribes

under FECA because tribes are not subject to the current individual aggregate limits that apply to a single human being. Nowhere in FECA is there an aggregate

limit for unincorporated entities, such as cooperatives, community associations,

partnerships, LLPs, PACs, LLCs, and even State Governments. Thus, Tribes are

treated just like other unincorporated groups.

8. Please comment on the increasing trend of tribes now crossing state lines away

from their reservation to establish gaming.

• Please comment on the situation in CO where the Cheyenne-Arapaho of Oklahoma are seeking land in CO to establish gaming. In that situation, the tribe

is claiming 27 million acres even though their land claims were definitively

and legally settled in the 1960s. Their action is designed to force the Governor

to agree to a smaller parcel near the Denver Airport for gaming.

ANSWER:

USET was the first Native American organization in the country to ask Congress

to put a stop to the increasing trend of Indian tribes seeking to cross state lines

in order to establish gaming. Attached is a matrix demonstrating that Indian nations are seeking to cross state lines in at least 12 different states. The Pombo discussion draft would create a bright line to prohibit such activity, and USET fully

supports that prohibition.

Attachment to Questions from Committee

States in which Indian nations are seeking to migrate from other states in

order to establish casino gaming operations.

Colorado

Cheyenne-Arapahoe Tribes of Oklahoma: In 2004, the consolidated CheyenneArapahoe Tribes filed a 27 million acre land claim with the Department of Interior,

claiming all of Denver and Colorado Springs. In exchange for dropping the claims,

the Cheyenne-Arapahoe Tribes have proposed to develop a Las Vegas-style gaming

facility near the Denver Airport. This proposal has met opposition from the state

and federal representatives of Colorado. In late 2003, a developer sought to purchase 500 acres east of Denver, near the Denver International Airport, to create a

reservation for the tribes. 1

Georgia

Kialegee Tribal Town of Oklahoma: The tribe sought to move to Hancock County,

Georgia to establish a casino and entertainment project. County officials were interested in the plan, because of extreme poverty in the county, but the previous Governor was opposed to casino gaming. The tribe also sought land in Texas and other

parts of Georgia in the past. 2

Illinois

Miami Tribe of Oklahoma: The tribe is seeking 2.6 million acres in east-central

Illinois based upon a treaty from the 1800s. The tribe sued landowners in 2000, and

dropped the lawsuit in 2002. The tribe has indicated it would agree to a casino in

exchange for dropping the claim. 3

Ho-Chunk Nation of Wisconsin: The tribe is seeking to build the largest casino

in Illinois, which would be located in the Chicago suburb of Lynwood. There is

strong opposition from the community, but the plan has been supported by ConVerDate 11-MAY-2000 16:17 Jul 22, 2005 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6621 J:\DOCS\20127.TXT HRESOUR1 PsN: HRESOUR1
88

4 ‘‘Village opposes Lynwood casino,’’ Chicago Tribune, November 19, 2004; ‘‘Weller will battle Ho-Chunk proposal,’’ Chicago Tribune, August 28, 2004. 5 ‘‘Indian gaming law takes effect,’’ The Daily Chronicle, November 20, 2004.

6 ‘‘Tribe wins step in fight for N.Y. casino,’’ The Daily Oklahoman, November 16, 2004; ‘‘Mid- west Tribes See Big Payoffs in the East,’’ The New York Times, March 24, 2003; ‘‘...the Oklahoma-based tribe, which has been negotiating to open a casino in northern Indiana, recently

declared that the tribe has a legal claim to 100 percent of the land in [5] counties.’’ ‘‘An obvious

ploy,’’ South Bend Tribune, July 2, 2002. 7 ‘‘Delaware Indian tribes face long odds to win gambling effort,’’ Newsday.com article, May

15, 2003. 8 ‘‘Tribe aims for casino deal,’’ The Pantagraph, Jan. 12, 2003.

9 ‘‘Sebelius not sure she’ll support tribal gambling plan,’’ Associated Press, Jan. 25, 2003.

10 ‘‘[Halle Cos.] has agreed to pay an Oklahoma-based Indian tribe as much as $1.4 million

a year to take over the land and to apply to make it tribal property...To make its case to the

[BIA], the tribe presented its history, including evidence of its ancestral ties to Maryland.’’ ‘‘Surprising Ally Joins Landfill Quest; Thwarted Developer Would Make Indian Tribe Owner of

Arundel Site,’’ The Washington Post, November 1, 2004. 11 Newsday.com article, ‘‘Delaware Indian tribes face long odds to win gambling effort,’’ AP,

May 15, 2003; Philly.com article, ‘‘2 Okla. tribes seek fortune in Penna.,’’ Philadelphia Inquirer,

July 7, 2003 12 ‘‘Local tribes unable to play,’’ Las Cruces Sun-News, November 14, 2004 ‘‘[Tribal chairman]

Houser said it is his hope the Fort Sill Apaches can return to New Mexico under an act of Congress that would grant land to the tribe as compensation for the U.S. government’s past acts.’’

(Source: ‘‘Okla. Apaches Seek to Build N.M. Casino,’’ Albuquerque Journal, November 7, 2004.)

gressman Jesse Jackson, Jr. (D-IL). The proposed casino would be located approximately 296 miles from the tribe’s current reservation. 4

Prairie Band Potawatomi Nation of Kansas: The tribe has sought a gaming com- pact with the Governor, which prompted the State’s legislature to pass legislation

that would require the Governor to get approval from the General Assembly before

signing a deal with any Native American tribe. The Governor vetoed the bill, but

the veto was overridden and has gone into law. The tribe was seeking land outside

of Chicago for a casino. 5

Indiana

Miami Tribe of Oklahoma: The tribe is negotiating with the state to put a casino in Gary, Indiana. The tribe has negotiated with the mayor of Gary since 2002. The

tribe unsuccessfully attempted to place a casino in Terre Haute, Ind. as well. The

proposed casino would be located approximately 610 miles from the tribe’s current

reservations. 6

Kansas

Delaware Tribe of Oklahoma: The tribe signed with a California-based developer to help secure gaming rights near Kansas City, Kansas. A land claim is pending. 7

Miami Tribe of Oklahoma: The tribe attempted to open a casino in Kansas in

1999, but the plan was rejected by the federal government. 8

Wyandotte Tribe of Oklahoma: The tribe expressed interest in opening a casino in Edwardsville, KS, and U.S. Congressman Dennis Moore (D-KS) introduced

legislation in 2002 to allow the casino. The Governor has expressed reservations

with this plan. 9

Maryland

Delaware Nation of Oklahoma: The tribe agreed to take over land in Anne Arun- del County to create a landfill, run by a local development company. The tribe expressed interest in the land for establishing a high stakes bingo parlor, and if slots

are approved by the state, offering those as well. 10

New Jersey

Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: The two tribes

(which are separate entities recognized by the federal government) attempted to

open a casino in 1999 in Wildwood, New Jersey, but state and local officials opposed

the plan. 11

New Mexico

Fort Sill Apache Tribe of Oklahoma: The tribe is considering building a casino in southern New Mexico, and might oppose plans by an in-state tribe, the Jemez Pueblo to build in the area as well. 12

New York

Seneca-Cayuga Tribe of Oklahoma: The Seneca-Cayuga Tribe of Oklahoma pur- chased land in New York and declared its intention to build and operate an Indian

gaming facility more than 1,100 miles from its reservation in Oklahoma. The Indian

89

13Press Release from Office of Governor George Pataki on November 12, 2004; ‘‘Midwest

Tribes See Big Payoffs in the East,’’ The New York Times, March 24, 2003 14 ‘‘Land deals draw various reactions,’’ The Syracuse Post-Standard, March 12, 2005. 15 ‘‘Midwest Tribes See Big Payoffs in the East,’’ The New York Times, March 24, 2003 16 ‘‘Indians’ leveraged efforts for casinos reach beyond Colo.,’’ The Denver Post, August 16,

2004; ‘‘Allen County, Ohio, leaders turn down offer from tribe on casino,’’ The Lima News, November 12, 2004; ‘‘Monroe gets look at casino proposal,’’ The Cincinnati Enquirer, November 11,

200417 ‘‘2 Okla. tribes seek fortune in Penna.,’’ Philadelphia Inquirer, July 7, 2003; ‘‘...two Delaware

Indian tribes from Oklahoma want to reclaim 315 acres in the Lehigh Valley that they say were

stolen from their Pennsylvania ancestors 200 years ago...Stephen A. Cozen, the Philadelphia

lawyer representing the tribes, said the group is prepared to file a federal lawsuit to reclaim

the land and pursue gaming unless they can reach an agreement with [Governor] Rendell to

open a casino.’’ (Source: ‘‘Indians seek N.E. Pennsylvania land for casino,’’ Philly.com article,

May 15, 2003. 18 Newsday.com article, ‘‘Delaware Indian tribes face long odds to win gambling effort,’’ Associated Press, May 15, 2003 19 ‘‘Kialegee gamble on casino bid,’’ The Tulsa World, November 14, 1999)

tribe claims that it has sovereign authority over these newly acquired lands, which

if it were true, would provide the tribe with the right to engage in high-stakes bingo

without obtaining approval from the federal government or the State of New York. The Seneca-Cayuga Tribe asserts that its participation in the land claim litigation involving the Cayuga Nation and the State of New York provides it with political

jurisdiction over land in New York. Governor Pataki announced a settlement agreement with the Seneca-Cayuga on November 12, 2004, allowing the tribe to establish

a Las Vegas-style gaming facility in the Catskills. The Federal Government and the

New York Legislature must still approve this agreement. 13

Oneida Tribe of Wisconsin: This tribe is a party to a land claim suit with the Oneida Nation of New York and the Oneida of the Thames Band. On December 7,

2004, the Governor announced an agreement with the tribe that will allow them to

establish a Las Vegas-style gaming facility in the Catskills in exchange for the tribe

dropping their land claim. The Federal Government and the New York Legislature

must still approve this agreement. The agreement is opposed by the Oneida Indian

Nation of New York. 14

Stockbridge-Munsee Tribe of Wisconsin: This tribe has offered to settle a land claim with the state in exchange for a casino in New York. The tribe has signed

with a developer to build one of the three planned Indian casinos in the Catskills.

Despite the fact that a Federal court is poised to drop the tribe’s land claim against

the state because it is not supported by the Federal Government, the Governor

agreed to give the tribe the right to establish a Las Vegas-style facility in the Catskills. The Federal Government and the New York Legislature must still approve

this agreement. 15

Ohio

Eastern Shawnee Tribe of Oklahoma: The tribe is preparing a 4 million acre land

claim suit and is seeking to build anywhere from five to seven casino resorts in

Ohio. Additionally, Allen County (OH) commissioners turned down a proposal by the

tribe to take out an option on county-owned land for a casino. The tribe has a contract to buy 150 acres in Monroe (OH) and plans to approach state officials in December or January. The tribe would need to enter into a compact with the state for

the casinos. 16

Pennsylvania

Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: These two tribes declared a claim on 315 acres of land in Pennsylvania near Allentown after their plans

for a casino on the New Jersey shore failed. The tribes are seeking to build a casino

in exchange for dropping their claims. Governor Rendell has so far refused to negotiate with the tribes for a casino. 17

Texas

Delaware Tribe of Oklahoma; Delaware Nation of Oklahoma: In addition to casino

plans in New Jersey and Pennsylvania, these two tribes have attempted to build

a travel plaza in Texas. 18

Kialegee Tribal Town: Attempted to establish lands and gaming in Texas, but

were rejected. 19

The CHAIRMAN. Thank you.

Mr. Van Norman?

90

STATEMENT OF MARK VAN NORMAN, EXECUTIVE DIRECTOR,

NATIONAL INDIAN GAMING ASSOCIATION

Mr. VAN NORMAN. Mr. Chairman and Mr. Kildee and members

of the Committee, thank you for inviting the National Indian Gaming Association to testify today. I am Mark Van Norman, Executive Director of NIGA. I am a

member of the Cheyenne River Sioux Tribe from South Dakota,

and I served as Director of the Office of Tribal Justice in the Department of Justice prior to coming to work for NIGA. Chairman Stevens regrets he is not able to be here personally today due to prior commitments, but he would like to come in at

a later hearing after we have had some discussions with our NIGA/

NCAI Task Force on Indian Gaming. We want to thank you for

bringing this issue forward in a discussion draft. We think it’s important to have government to government discussions on this. Let me start with a little background. We all know the general rule. IGRA says tribes should conduct gaming on lands held prior

to 1988. But there are a number of exceptions and these exceptions

account for historical mistreatment of tribes such as terminated

reservations and terminated tribes. In almost 17 years under IGRA

the Interior Department has acquired land in a trust for only about

a dozen tribes pursuant to these exceptions. There is also an exception for land claim settlements. Only one tribe, the Seneca Nation

of New York, has been able to use that provision because it requires congressional approval of the land settlement. Section 20 of the Indian Gaming Regulatory Act also has a more general exception sometimes referred to as the two part determination process, under which a tribe may apply to the Secretary to

place land in trust for gaming purposes. The two-part determination process is significant. Upon application by a tribe the Secretary must determine whether the acquisition would be in the

best interest of the tribe and must consult with local governments

and neighboring Indian tribes to ensure that acquisition would not

be detrimental to the surrounding community. If the Secretary

makes those findings, the Governor must concur in her determination in order to move forward. In also 17 years under IGRA, only

three tribes have successfully navigated the Section 20 two-part

process, Forest County Potawatomi, the Kalispel Tribe and

Keweenaw Bay Indian Community. Four other applications under

this exception have been rejected. 12 applications are pending.

The draft proposal would substantially amend Section 20. The

bill would delete the two-part secretarial consultation process and

nullify pending applications under Section 20(b)(1). The bill also

deletes the exception for lands required by Indian tribes as part of

a land claims settlement process and seems to preclude the use of

those lands for gaming purposes. The bill would replace current

Section 20(b)(1) by altering treatment of initial reservations of

newly acknowledged, restored and currently federally recognized

but landless tribes. The limitation on location of their initial reservation would be that it must be located somewhere within the

State where the tribe has its primary connection. In some cases the

draft would add a new requirement for State and local approval for

these tribes to use their new or restored lands, but would not

require new tribal approval.

91

The bill would also authorize the Secretary to establish two Economic Opportunity Zones in each State with Indian gaming, one on

a current reservation and one off reservation. For on-reservation

zones, tribes can participate if the Secretary finds such participation is in the best interest of all tribes. The host tribe receives no

funds other than 10 percent of gross revenues as a management

fee. The host tribe provides no financial support to any participating tribe and the State and local governments approve of the

zone.

For the off-reservation zone there would be no host tribe. Land

would be placed in trust for all participating tribes. The State and

local governments would have to approve, and the off-reservation

zone would also require approval of tribes located within 200 miles.

No tribe participating in such a zone could own another gaming facility on Indian lands.

Finally, the bill would add a new section which would limit tribes

to gaming on lands in the State in which the tribe is currently located. And we think it is important to be careful with that provision, to watch out for tribes that overlap the borders already, and

I know that you are attuned to that.

From our point of view, any amendment to the Act is approached

with caution because our tribal governments need to protect our

hard-won gains in jobs, economic activity, community infrastructure and government services. So as your committee progresses

with this issue, we ask that the Committee and Congress as a

whole work to ensure that the integrity of IGRA is maintained. We

don’t want to get into other amendments or into other issues

through this process.

The Indian Gaming Regulatory Act reflects a balance of Federal,

State and tribal interests. As President Bush has recently affirmed,

tribes have historically dealt with the Federal Government on a

government-to-government basis. Under IGRA the States had a

role in the compact negotiation process and the use of lands acquired after the Act for gaming purpose only because Congress developed these unique processes to accommodate tribal and State

sovereign interests.

At the time of the Act’s passage, many tribes objected to the

State role because that role is generally denied to them by the Constitution which establishes the Federal-tribal relationship. The Supreme Court’s decision in the Seminole case in 1996 further altered

the balance of IGRA by permitting States to interpose an 11th

Amendment defense to good faith litigation to enforce their compact requirements.

NIGA and our member tribes have traditionally requested that

Congress enact a ‘‘Seminole fix’’ in any substantial amendment to

IGRA to restore the original balance of the Act. The National Congress of American Indians has had the same position. As part of

our dialog we’ll ask our tribal leaders to consider that issue.

Similarly, tribal governments will need to consider any amendment to the Act that would expand the existing role of local governments. At NIGA we provide a forum for our tribal governments to

come together and take a look at these important issues regarding

Indian gaming, and we would like to work with the Chairman and

the Committee to ensure that the draft bill is thoroughly reviewed

92

and considered by tribal governments before it moves forward. We

will work with our member tribes to try and build on common

ground, and we’ll ask that all interested tribes have a full and fair

opportunity to come before the Committee.

NIGA and NCAI have scheduled three task force meetings on

this important subject. The first will be on March 24th here in

Washington, D.C., the second April 13th at our trade show in San

Diego, and a third May 25th at the Great Plains Midwest Indian

Gaming Conference in Minnesota. Chairman Stevens will co-chair

these meetings along with President Tex Hall of NCAI, and NIGA

will develop our official position based on the bill—based on what

we hear from the tribal governments through this process. Upon

completion of the process we hope to come back and testify further.

We thank you for including us and for having this governmentto-government dialog with tribal governments.

[The prepared statement of Mr. Stevens follows:]

Statement of Ernest L. Stevens, Jr., Chairman,

National Indian Gaming Association

Good Afternoon, Chairman Pombo, Congressman Rahall, and Members of the

Committee. My name is Ernest L. Stevens, Jr., and I am the Chairman of the National Indian Gaming Association (NIGA). Thank you for inviting me to testify today

concerning the draft discussion bill to amend the Indian Gaming Regulatory Act

(‘‘IGRA’’) to restrict off-reservation gaming. I regret that due to other commitments,

I cannot be there with you today to testify in person, so I am submitting written

testimony. NIGA is an association of 184 Indian tribes dedicated to preserving

Indian sovereignty and protecting Indian gaming as a means of generating tribal

government revenue, building strong tribal governments, and rebuilding our Indian

communities.

In my absence, I have asked Mark Van Norman, NIGA Executive Director, to testify on behalf of our intertribal association. Mr. Van Norman is a member of the

Cheyenne River Sioux Tribe and prior to serving as NIGA’s Executive Director, he

served as Director of the Office of Tribal Justice in the U.S. Justice Department and

as Tribal Attorney for his Tribe. He will be able to provide you with an overview

of how IGRA has worked historically regarding gaming on lands acquired after

1988.

Indian Tribes Are Sovereign Governments

At the outset, it is always important to recall our origins. Before Columbus,

Indian tribes were independent sovereign nations. Through treaty-making, Indian

tribes were brought within the framework of the United States. In the earliest

Indian treaties entered into during the Revolutionary War, the United States acknowledged the status of Indian tribes as sovereigns, guaranteed our original, inherent rights to self-government, and took Indian tribes under its protection. My own

tribe, the Oneida Nation, assisted General Washington and his troops with food during the cold winters at Valley Forge.

The Constitution of the United States recognizes Indian tribes as governments,

together with foreign nations and the several states, in the Commerce Clause.

Through the Treaty Clause, the Constitution respects Indian sovereignty by ratifying the earliest Indian treaties entered into under the Articles of Confederation and

charting the course for the hundreds of treaties and agreements entered into by the

United States and Indian tribes on a government-to-government basis.

On September 23, 2004, President Bush issued an Executive Memorandum to the

Heads of Executive Departments and Agencies, explaining:

The United States has a unique legal and political relationship with Indian

tribes and a special relationship with American Indian tribes and Alaska

Native entities as provided in the Constitution of the United States, treaties, and Federal statutes. Presidents for decades have recognized this relationship’’. My Administration is committed to continuing to work with federally recognized tribal governments on a government-to-government basis

and strongly supports and respects tribal sovereignty and selfdetermination for tribal governments in the United States.

93

We thank you, Chairman Pombo and Members of the Committee, for working

with tribal governments on a government-to-government basis and issuing a discussion draft of the bill on the important subject of amending the Indian Gaming Regulatory Act concerning off-reservation gaming. Tribal governments are looking forward to the opportunity to have a government-to-government dialogue on the bill

before it is introduced in Congress.

Indian Gaming: The Native American Success Story

In the 18th and 19th Century, the United States destroyed traditional American

Indian economies through warfare, genocide, dispossession and theft of lands. In an

article entitled, ‘‘Exiles in Their Own Land (2004),’’ U.S. News and World Report

explained that:

The vast primeval forests that once blanketed the eastern United States

were once home to millions of Indians. But starting in the 17th century,

shiploads of European settlers arrived in superior numbers, bearing superior weapons. By 1830, war, genocide, and pestilence (diseases such as

smallpox and measles to which the Indians had no immunity) had conspired to kill most Eastern Indians.

Throughout most of the 19th and 20th Century, our people endured poverty and

social dislocation because of the destruction of traditional tribal economies. In California v. Cabazon Band of Mission Indians and Morongo Band of Mission Indians

(1987), the Supreme Court acknowledged that Indian tribes in California were removed from their lush agricultural lands and seaside dwellings to rocky

outcroppings at the edge of the desert. As the Court explained it, California Indians

were left with reservations that ‘‘contain no natural resources which can be exploited.’’

Yet through these hardships, many generations of our grandmothers and grandfathers maintained our original, inherent right to tribal self-government. The Federal Government had a number of programs to promote economic development on

Indian lands but few worked because of a lack of infrastructure, natural resources,

and capital and remoteness from markets.

With little or no economy or tax base, tribal governments turned to Indian gaming

in the late 1960s and 1970s. After several court battles, the Supreme Court agreed

with the lower Federal courts: Indian gaming is crucial to tribal self-determination

and self-government because it generates the general tribal government revenue

needed to fund essential services. Over the ensuing decades, Indian tribes worked

hard to develop Indian gaming as a means of generating tribal government revenue.

Chairman Mark Macarro of the Pechanga Band of Lusieno Indians explains, ‘‘Indian

gaming has enabled Tribes to begin the long march back from poverty and hopelessness towards prosperity and a better future for our people.’’

Today, Indian gaming is the Native American success story. Through Indian gaming in 2004, we estimate that tribal governments generated $18.5 billion in gross

tribal government revenue. Naturally, tribal governments must pay substantial

sums in wages and benefits—approximately $6 billion annually—as well as the cost

of capital, facilities expenses, operation and maintenance, goods and services, and

local service agreements before realizing net revenues.

Tribal governments use their net gaming revenues, first and foremost, to fund essential government services—education, health care, police and fire protection,

water and sewer service, transportation, child and elder care—and to build basic

community infrastructure, schools, hospitals, water systems, and roads.

Through the economic multiplier effect, Indian gaming generates more than

550,000 jobs. In addition, Indian gaming generates $5.5 billion in Federal revenue

and $1.4 billion in Federal revenue savings through reduced welfare and unemployment payments. Tribal government gaming generates $1.8 billion in State revenue

and an additional $100 million in local government revenue. And, tribal governments give generously to charitable causes—over $100 million annually.

The Indian Gaming Regulatory Act

The purposes of the Indian Gaming Regulatory Act are to promote strong tribal

governments, economic development and self-sufficiency, and to establish a statutory basis to protect Indian gaming as a means of generating tribal government revenue. Through the use of the tribal-state compacting process and the exceptions to

gaming on after acquired lands, IGRA was able to strike a delicate balance between

the interests of the Tribes and States. Part of the original balance of state and tribal

sovereign interests is reflected in Section 20 of the Act, concerning the use of lands

acquired after 1988 to conduct Indian gaming.

94

Treatment of After Acquired Lands Pursuant to IGRA

IGRA establishes a general policy that Indian Tribes should only conduct gaming

on lands held in trust by the United States prior to passage IGRA on October 17,

1988. 25 U.S.C. § 2719, with some exceptions. Congress accounted for historical circumstances such as diminished reservations, terminated Tribes, and Indian land

claims, and established exceptions to provide for the use of ‘‘after acquired’’ lands

in certain circumstances.

In addition, Congress established a process whereby Indian tribes may apply to

acquire land in trust for gaming purposes to the Secretary of the Interior, and the

Secretary then undertakes a consultation process with the State, local governments,

and neighboring tribal governments. If the Secretary agrees that it is in the best

interests of the Tribe and not adverse to the local community, the Secretary may

approve the acquisition only with the concurrence of the State Governor.

Section 20 Two-Part Secretarial Consultation Process

As noted above, Section 20 of the Indian Gaming Regulatory Act provides that an

Indian Tribe may apply to the Secretary to place land into trust for gaming purposes. The two-part determination process is significant. Upon application by a

Tribe the Secretary of the Interior begins a review to make a determination of

whether the acquisition of the land in trust for gaming purposes would be in the

best interests of the Indian tribe. The Secretary must also consult with the local

area government and neighboring Indian tribes to ensure that such acquisition

‘‘would not be detrimental to the surrounding community.’’ 25 U.S.C. § 2719(b)(1)(A).

We believe it is important for the Secretary to consult with local governments and

neighboring Indian Tribes because the local community and Tribes in the area have

an interest in the development of new gaming venues in their area. Certainly, local

governments may be impacted by additional calls on their resources. Where the

process has been successful, tribal governments have negotiated agreements with

local governments to defray the cost of local government services and mitigate the

impacts of gaming on the local community.

Neighboring Indian Tribes may also be impacted by new gaming venues, either

through a market impact or concerns about overlapping aboriginal areas. In addition, we believe that it is important for the Secretary to consider whether the applicant Tribe has aboriginal or historical ties to the land sought. (If the Tribe does not

have an aboriginal or historical connection to the area where the land is located,

such applications can interfere with the aboriginal rights of other Tribes). Consultation can help to identify and address such concerns. The Secretary of the Interior

has a trust responsibility to the neighboring Tribes as well as to the applicant Tribe

and the interests of neighboring Tribes should be given appropriate consideration.

If the Secretary makes a determination favorable to the applicant Tribe, then the

process turns to the Governor of the State in which the land is located. The Governor is consulted to ensure that the overall interests the State are considered, and

the process will not move forward unless the Governor concurs with the Secretary’s

determination. The Governor’s concurrence serves as a condition precedent to the

use of ‘‘after acquired’’ lands for Indian gaming.

To date, only three Indian Tribes have successfully navigated the Section 20 twopart process: the Forest County Potawatomi Tribe in Milwaukee, Wisconsin, in

1990; the Kalispel Tribe in Spokane, Washington, in 1997; and the Keweenaw Bay

Indian Community in Marquette, Michigan, in 2000.

A number of other Indian tribes have applied to the Secretary to have land taken

into trust under Section 20’s two part consultation process, but several of these applications have been rejected, including applications by:

Lac Courte Oreille

Red Cliff

Mole Lake

Jena Band of Choctaw

95

A number of applications to take land into trust under the two part consultation

process are pending, according to the Department of Interior, including applications

by:

Keweenaw Bay Indian Community

Bad River Band of Chippewa

Fort Mohave Tribe

Cayuga Indian Tribe

St. Regis Band of Mohawk

Stockbridge Munsee Community

Elk Valley Rancheria

Timbasha Shoshone

Menominee Indian Tribe

Delaware Tribe of Oklahoma

Tule River

Pueblo of Jemez

Land Within Reservation Areas and Contiguous Land—2719(a)(1)

Recognizing the excessive loss of Indian lands and sporadic checker-board landholdings due to Removal and Allotment, Congress—through IGRA—permits Tribes

to conduct gaming on lands within or contiguous to existing reservations. 25 U.S.C.

§ 2719(a)(1). These ‘‘contiguous’’ land acquisitions are generally not controversial.

For example, the White Earth Ojibwe reservation was heavily checker-boarded by

the loss of trust lands under the Allotment Policy, and without much fanfare, the

White Earth Band reacquired a 61-acre parcel of land within its existing reservation

area for gaming in 1995. Other Indian tribes that have utilized this section include:

Tunica-Biloxi Tribe

Coushatta Tribe

Saginaw Chippewa

Skokomish Tribe

Suquamish Tribe

Wyandotte Tribe

Cherokee Nation

Sisseton Wahpeton Sioux Tribe

Fort Sill Apache Tribe

Land Claim Settlements

IGRA permits gaming on Indian lands reaffirmed through a land settlement. 25

U.S.C. sec. 2719(b)(1)(B)(i). Under current law, where Indian lands were wrongfully

taken by the United States or a State and are restored through land settlement

they, in essence, relate back in time to the original holding of the lands by the

Tribe.

The Department of the Interior has required congressional approval of land claims

under this section to comport with the Indian Non-Intercourse Act, 25 U.S.C. sec.

77, so the Department reports that to date no Indian tribe has utilized this section

to conduct gaming on lands reacquired through a land claim settlement. The Department did recognize the right of the Seneca Nation of New York to utilize its

separate congressional land settlement statute, codified at 25 U.S.C. section 1774,

to place land into trust and the Secretary then acknowledged the Nation’s right to

conduct gaming on their lands.

Newly Acknowledged and Restored Tribes

In addition, the governmental status of a number of Tribes was wrongly

terminated, either by Congress in direct acts of termination—or through wrongful

Administrative termination by the Bureau of Indian Affairs and other agencies.

Under current law, newly acknowledged and restored Tribes can conduct gaming on

their initial reservations and restored lands.

For example, the Mohegan Tribe’s land was taken into trust under the exception

for the initial reservation for newly recognized tribes. 25 U.S.C. § 2719(b)(1)(B)(ii).

Of course, the residents of Uncasville, Connecticut were well aware of the Tribe’s

historical status as a State-recognized Indian tribe and the status of their lands as

a state Indian reservation.

The Grande Ronde Indian Community in Oregon was restored to recognition after

termination, and in 1990, the Secretary acquired about five acres of land in trust

pursuant to the exception for Tribes restored to recognition. 25 U.S.C.

§ 2719(b)(1)(B)(iii).

96

Other Indian tribes that have utilized these provisions include:

Siletz Tribe

Coquille Tribe

Klamath Tribes

Little River Band of Ottawa

Little Traverse Bay Bands

Paskenta Band of Nomlaki Indians

Pokagon Band of Potawatomie

United Auburn Indian Community

Nottawaseppi Huron Band of Potawatomi

Ponca Tribe

Little Traverse Bay Bands

Picayune Rancheria of Chukchansi Indians

Draft Bill to Amend IGRA to Restrict Off-Reservation Gaming: Summary

To amend IGRA to restrict off-reservation gaming, and for other purposes Section 1. Restriction of off-reservation gaming. (1) Section 20(b)(1) (25 U.S.C. § 2719(b)(1)) of the Indian Gaming Regulatory Act is amended as follows:

‘‘(b)(1) Subsection (a) (which generally prohibits gaming on lands acquired after October 17, 1988) will not apply to Indian Tribes ‘‘ (A) that are newly acknowledged (through the BAR process), if the Sec- retary determines that the Tribe’s initial reservation is in the State of the

Tribe’s ‘‘primary geographic, social, and historical nexus’’; or (B) that are restored by legislation or other process, or are landless Tribes (as of the date of enactment of the bill) if ‘‘

(i) the Secretary determines that the Tribe’s initial reservation is in the

State of the Tribe’s ‘‘primary geographic, social, and historical nexus’’;

(ii) the Secretary finds that gaming would be in the best interest of the

Tribe and not detrimental to the surrounding community; and

(iii) the State, city, county, town, parish, village and other political

subdivisions of the State with authority over lands contiguous to the proposed

reservation approve. (2) Add at the end of Section 20 (25 U.S.C. § 2719) the following new subsections: ‘‘(e)(1) the Secretary may designate ‘2 Indian Economic Opportunity Zones’ (IEOZ)

to consolidate class II and class III gaming operations in each State, where at least

one Tribe has its ‘‘primary geographic, social, and historical nexus to land within

that State’’—as follows:

(A) The Secretary will establish one IEOZ in each State on current Indian lands as of the date of enactment;

(B) The Secretary will establish one IEOZ in each State on off-reservation

lands—taken ‘‘into trust for all of the Indian tribes participating in that

Indian Economic Zone.

‘‘(e)(2) A tribe may participate in a (1)(A) on reservation IEOZ if—

(A) the Secretary determines that participation is in the best interest of

each participating tribe;

(B) the tribe for which the IEOZ lands are held in trust ‘‘

(i) receives no benefit from gaming revenue of other tribes in the IEOZ,

other than no more than 10% of gross revenues as a management fee to

operate the facility; and

(ii) provides no other financial support to any other participating Tribe

(C) the State, city, county, town, parish, village and other political subdivisions of the State with authority over lands contiguous to the proposed

reservation approves;

(D) the tribe has no other ownership interest in another gaming facility

on Indian lands.

‘‘(e)(3) A tribe may participate in a (1)(B) off-reservation IEOZ if—

(A) the Secretary determines that participation is in the best interest of

each tribe;

(B) the Secretary takes the lands within the IEOZ into trust for the benefit of each participating tribe;

(C) the State, city, county, town, parish, village and other political subdivisions of the State with authority over lands contiguous to the proposed

reservation approves;

(D) each tribe that has its ‘‘primary geographic, social, and historical

nexus’’ to land within 200 miles of the IEOZ approves; and

(E) the tribe has no other ownership interest in another gaming facility

on Indian lands.

97

‘‘(e)(4) The Secretary may approve gaming compacts with 2 or more tribes and the Governor of each State to carry out this subsection.

‘‘(f) No tribe shall conduct gaming pursuant to IGRA on lands ‘‘outside of a State in which the Indian tribe has an existing reservation as of the date of enactment

of this subsection, unless such lands are contiguous to an existing reservation of

that Indian tribe in that State.’’

Section 2. Statutory construction. These amendments shall be applied prospectively, and gaming compacts that were in effect on the date of enactment of this amendment will not be affected.

Analysis: The Draft Bill Would Amend IGRA Section 20

The bill would replace current IGRA section 20(b)(1) (25 U.S.C. § 2719(b)(1)) by altering treatment of the initial reservations of newly acknowledged, restored, and

currently federally recognized but landless Tribes.

Section 20 Two-Part Secretarial Consultation Process

The bill would delete the two-part secretarial consultation process and nullify pending applications under Section 20(b)(1).

Newly Acknowledged and Restored Tribes

The bill would treat the initial reservations of newly acknowledged Tribes dif- ferently from those of legislatively restored and landless Tribes. A newly acknowledged Tribe would simply need the Secretary to determine that its initial reservation is ‘‘within the State where the Indian tribe has its primary geographic, social,

and historical nexus to the land.’’ (Emphasis added).

Legislatively restored and landless Tribes would need this same determination that the reservation is within the State where the tribe is primarily located. These

Tribes would also have to undergo an expanded two-part determination process.

Under the new process, the Secretary would determine whether the gaming activity

is in the best interest of the Tribe and not detrimental to the surrounding community. Then, the Tribe would have to gain the approval of ‘‘the State, city, county,

town, parish, village, and other...political subdivision of the State with authority

over land that is...contiguous to...the newly acquired lands (the Tribe’s initial reservation). Thus, the new provisions require affirmative local government approval.

Local governments are subdivisions of, and derive their authority from, the state,

so in a sense this new provision has the effect of limiting authority at the state

level. In addition, it is noteworthy that while current law provides for agreement

by the Governor, similar to other Federal land acquisition statutes, see e.g., 16

U.S.C. sec. 715(f), the new provision references the ‘‘State,’’ suggesting that state

legislative action may be required to approve new Federal land acquisitions.

Reservation Area Lands and Contiguous Land: Landless Tribes—2719(a)(1)

This provision appears to move the treatment of landless Tribes from Section 20(a) to amended Section 20 (b), and we are not certain whether this result is intended. Under current section 20(a), landless Tribes can conduct gaming on their

initial reservation established after October 17, 1988, if the initial reservation is

‘‘within the tribe’s last recognized reservation within the State or States within

which the tribe is presently located.’’ However, landless Tribes would have to meet

the test set forth in amended Section 20(b), which requires that the Secretary find

both that the initial reservation is within the State where the Tribe is primarily located and that gaming would benefit the Tribe. In addition, the State and local community would have to approve of gaming on the Tribe’s initial reservation. This new test is both positive and negative for landless Tribes. The location of their initial reservation would no longer be limited to land ‘‘within the tribe’s last

recognized reservation’’. As noted above, the initial reservation could be located anywhere in the State. However, in order to conduct gaming on that initial reservation,

the Tribe would have to gain the approval of the State and the nearby local units

of government.

Land Claim Settlements

The bill deletes the exception for gaming on lands taken into trust as part of a land claim settlement and seems to preclude the use of such lands for gaming purposes.

New Provisions for ‘‘Indian Economic Opportunity Zones’’

The bill would also add new subsections (e) and (f) to Section 20 of IGRA. New

subsection (e) would authorize the Secretary to establish two (2) ‘‘Indian Economic

Opportunity Zones’’ (IEOZ) in each State with Indian gaming. Subsection (e)(1)(A)

authorizes the Secretary to establish an IEOZ on a current reservation, and

98

subsection (e)(1)(B) authorizes the Secretary to establish one IEOZ off-reservation,

but within the same State.

For on-reservation IEOZs, Tribes may participate if: (1) the Secretary finds that such participation is in the best interests of all of the participating Tribes; (2) the

host-Tribe receives no ‘‘funds related to the gaming activities’’ of other participating

Tribes, other than no more than 10% of gross revenues as a management fee to operate the IEOZ facility;(3) the host-Tribe provides no financial support to any other

participating Tribe; (4) the State and contiguous units of local government approve

of the IEOZ; and (5) the host-Tribe does not have an ownership interest in any other

gaming facility on any other Indian lands. This provision will permit a Tribe to

partner/host another Tribe or Tribes within the State on a separate gaming facility

on the host-Tribe’s reservation. However, the bill would place limits on what the

host-Tribe can do on its reservation with that facility. It would also require the

State and nearby units of local government to approve of the on-reservation partnership.

For off-reservation IEOZs, there would obviously be no host Tribe. The newly ac- quired land would be placed into trust for the benefit of all participating Tribes. The

State and contiguous units of local government would have to approve of the offreservation IEOZ. The off-reservation zone would also require the approval of Tribes

located within 200 miles of the proposed site. No Tribe participating in the offreservation IEOZ could have an ownership interest in another gaming facility on

Indian lands—including its own current reservation.

Limitation on Gaming to State of Current Reservation

Finally, the bill would add a new subsection (f) would limit Tribes to gaming on lands in the State in which it is currently located, unless the Tribe currently has

contiguous land located in more than one State, such as the Navajo Nation, Standing Rock Sioux Tribe, Sisseton Wahpeton Sioux Tribe, Colorado Indian Tribes,

Washoe Indian Tribe, and the Duck Valley Shoshone Paiute Tribe.

Continued Viability of IGRA Section 20(a)

The bill seems to leave intact the exceptions contained in 25 USC § 2719(a), which permit gaming on lands acquired after Oct. 17, 1988 where: (1) such lands are

‘‘within or contiguous to’’ reservations that existed on October 17, 1988; (2) for landless Tribes in Oklahoma (as of Oct. 17, 1988), if the lands are within the boundaries

of the Tribe’s former reservation, as defined by the Secretary or are contiguous to

other land held in trust by the U.S. for the Tribe in Oklahoma. However, it is unclear if landless Tribes not located in Oklahoma, would be subject to the new requirements of amended Section 20(b) as discussed above.

CONCLUSION

The Indian Gaming Regulatory Act has worked well to promote ‘‘tribal economic development, self-sufficiency, and strong tribal governments,’’ as Congress intended,

and as discussed above, Indian gaming is the Native American success story—and

indeed, a true American success story for the Nation as a whole, as many Native

Americans begin to see the promise of the American dream of a job, home ownership, and an economic future on the horizon. Naturally, any amendment to the Act

is approached with caution because tribal governments need to protect our hard won

gains in jobs, economic activity, community infrastructure, and government services.

Thus, as the Committee’s process progresses, we ask that the Committee and Congress as a whole work to ensure that the integrity of the Act as a whole is protected. The Indian Gaming Regulatory Act reflects a balance of Federal, state and tribal government interests. As President Bush recently affirmed, Indian tribes historically have dealt directly with the Federal Government on a government-to-government basis. Under IGRA, the States have a role in the compact negotiation process

and the use of lands acquired after the Act for gaming purposes only because Congress developed unique processes for the accommodation of tribal and state sovereign interests. At the time of the Act’s passage, many tribes—including the Red

Lake Band of Chippewa and the Mescalero Apache Tribe who filed suit—objected

to state involvement in Indian affairs because that is a role denied to them by the

Constitution. The Supreme Court’s 1996 decision in Seminole Tribe of Florida v.

Florida, 517 U.S. 44 (1996) (‘‘Seminole’’) altered the original balance of IGRA by permitting the states to interpose an Eleventh Amendment defense to litigation to enforce its ‘‘good faith’’ requirements, so NIGA and our Member Tribes have traditionally requested that Congress enact a ‘‘Seminole Fix’’ in any amendment to IGRA to

restore the original balance of the Act. The National Congress of Americans Indians

has had the same position. NCAI Res. ABQ-03-029. We will ask our tribal government leaders to consider that issue as we go forward. Similarly, Tribal governments

will need time to consider any amendment to the Act that would expand the

99

existing role of state governments, so provisions requiring approval by state subdivisions for the use of Indian trust lands will be closely examined by tribal governments.

The National Indian Gaming Association provides a forum for tribal governments

to come together to consider important issues concerning Indian gaming. We will

work with the Chairman and the Committee to ensure that the draft bill is thoroughly reviewed and considered by tribal governments before it moves out of Committee. We will work with our Member Tribes to try to build common ground and

we will work closely with the Committee and the Administration as the dialogue

on the proposal progresses. We request that all concerned parties have a full and

fair opportunity to be heard.

For our part, NIGA and the National Congress of American Indians will convene

our NIGA/NCAI Task Force on Indian Gaming with meetings on March 24th, 2005

in Washington D.C., April 13 in San Diego, California and later, on May 25th at

the Great Plain/Midwest Indian Gaming Conference in Minnesota to consider the

draft bill. President Tex Hall of the National Congress of American Indians will cochair the meetings with me, as we consider the important national issues that the

bill represents. As an inter-tribal government organization, NIGA will develop an

official position on the draft bill based upon the views of our elected tribal leaders

through this series of Task Force meetings. Upon completion of our Joint Task Force

meetings, I look forward to the opportunity to testify again before the Committee

so that I may provide you with an overview of our Task Force meetings on the important topic of off-reservation gaming.

Mr. Chairman and Members of the Committee, this concludes my remarks. Once

again, thank you for providing me with this opportunity to submit testimony.

[Responses to questions submitted for the record by Mr. Stevens

follow:]

Response to questions submitted for the record by Ernest Stevens, Jr.,

Chairman, National Indian Gaming Association

On behalf of the National Indian Gaming Association and our Member Tribes, I

am compelled to respond to two statements by Ms. Jean Quan, City Council, Oakland. Although Ms. Quan admitted that she is biased against gaming, the following

statements demand a response:

Ms. Quan alleged that prostitution is associated with Indian gaming in California.

That statement was false and defamatory. The truth is that Indian lands in California are subject to Public Law 280, which delegates to the state criminal jurisdiction over Indian lands. California criminal law prohibits prostitution and the State

Attorney General has not identified prostitution as an issue on Indian lands. Further, Ms. Quan also cited a litany of other detrimental impacts allegedly related to

Indian gaming to include homelessness, domestic violence, child abuse, and suicide

for which there is absolutely no empirical evidence. In fact, the Harvard Project on

American Indian Economic Development found a significant decrease in all these

factors on lands where Indian Gaming is located.

Tribal government law enforcement, security, and surveillance ensure the integrity of Indian gaming operations and prevent crime on Indian lands often in conjunction with state and federal authorities.

Ms. Quan also alleged that tribal governments pay out only 25% of slot machine

revenue as prizes. Again, the statement was false. In California, tribal governments

worked with the State regulators to develop technical regulations for the operation

of gaming machines and the minimum payout is 75% in some tribal jurisdictions

and 80% in other tribal jurisdictions while the maximum payout is 100%. In Nevada, by comparison, state law provides that the minimum prize payout for slot machines is 70% and the maximum payout is 100%.

Finally, I note that Ms. Quan appears to have been representing only herself, and

not the City Council. We believe that the Mayor and other City Council members

hold more favorable views of Indian gaming.

100

FROM CHAIRMAN POMBO:

1. Under the Section 20 two-part determination in IGRA, the governor of a state is

cast in the role of representing and protecting the interests of both the state government, and the local governments that exercise jurisdiction in the area proposed

for casino gaming. However, as state governors increasingly look to tribal casinos

to provide large amounts of revenue sharing to supplement the state budget, it has

been argued that governors are now in a position where their fiduciary interest

in securing a tribal revenue stream for state government conflicts with their duty

to represent the interests of local communities in the two part determination

process.

• With the potential of this large financial incentive to a state for a governor

to overlook the concerns of local communities, can it be said that local communities can still be adequately represented solely by the governor’s participation

in the two part determination process?

• Or does this potential conflict of interest presented to governors suggest that

IGRA should be modified to give affected local communities a formal role in

concurring with the Secretary’s two-part determination findings?

The actual implementation of the Indian Gaming Regulatory Act (IGRA) demonstrates that local interests are adequately safeguarded. Under the IGRA Section

20 two-part determination process, the Secretary must consult with state and local

officials and neighboring Indian tribes to determine whether a Tribe’s application

to acquire off-reservation lands for gaming is in the best interests of the Tribe and

not adverse to the surrounding community. Only then does the Secretary forward

her decision to the Governor for concurrence.

In almost 17 years under IGRA, only three Indian tribes have acquired trust land

for gaming under the Section 20 two-part determination process: Forest County Potawatomi Tribe in Milwaukee, Wisconsin; Kalispel Tribe near Spokane, Washington;

and Keweenaw Bay Indian Community in Marquette, Michigan. The Office of

Indian Gaming Management, Department of Interior has stated publicly that, in all

likelihood, the Secretary would disapprove an application to take land into trust for

off-reservation gaming under the Section 20 two-part determination if local governments within 10 miles of the land opposed the acquisition.

State Governors are elected state-wide to represent all of the people of the state

and in practice, Governors are typically very respectful of legitimate local government concerns. Governments and other elected officials often must balance competing interests and generally do so in a manner consistent with their view of sound

public policy—and that is why they are elected. Not surprisingly, experience suggests state governors respond to the interests of local governments and have been

more conservative on Indian gaming issues than local governments.

2. Under established principles of tribal sovereignty, local communities do not have

a say in decisions involving tribal land that is already held in trust by the federal

government. However, off-reservation gaming proposals involve taking land into

trust that is currently held in fee and is often not even closely located to trust

lands.

• Is it a fundamental right of tribes to have land taken into trust on their behalf

at any location within the United States they so desire, irrespective of the distance to their current reservation or any connection to ancestral or native

lands?

• If not, what limitations should apply on where a tribe can or cannot have

lands taken into trust on their behalf?

We believe that questions about Indian trust lands must be viewed in historical

context. Through the Removal Policy, Indian tribes were called upon to cede hundreds of millions of acres of land in violation of existing Indian treaties. During the

Era of Allotment and Assimilation (1881 to 1934), Indian land holdings plunged

from 158 million acres to 48 million acres. Many tribes lost entire reservations during the Termination Policy of the 1950s. The United States called on Indian tribes

to cede hundreds of thousands of acres of land for flood control and other public

projects well into the 1960s. Even today, the federal government continues to seek

both rights of way and title to valuable Indian lands for public projects like interstate highways. So, as the United States considers applications for trust land acquisitions, it is essential to bear in mind that:

• Historically, Indian tribes held vast territories—sufficient to sustain tribal

economies and independent Indian nations;

• In violation of treaties and statutory agreements, Indian tribes were forced to

cede their most valuable tribal lands to benefit the United States, states, local

governments and non-Indian citizens at the expense of Indian communities;

101

• Indian tribes were left with marginal, unproductive lands; and

• Today, more lands go out of trust and distinctly Indian ownership than are

taken into trust for American Indians and Indian tribes.

Against this background, we believe that fundamental fairness dictates that reasonable tribal government requests to reacquire homelands to rebuild and meet the

needs of their communities should be accommodated.

Such tribal requests are addressed through the Department of the Interior’s ‘‘land

into trust’’ regulations. 25 C.F.R. Part 151 (authorized in part by the Indian Reorganization Act, 25 U.S.C. §§ 461-479). For purposes of off-reservation land acquisition,

these regulations provide in relevant part:

Off-reservation acquisitions.

The Secretary shall consider the following requirements in evaluating tribal

requests for the acquisition of lands in trust status, where the land is located outside of and noncontiguous to the tribe’s reservation, and the acquisition is not mandated [by Congress]:—as the distance between the tribe’s

reservation and the land to be acquired increases, the Secretary shall give

greater weight to the concerns raised [by] state and local governments [including] the acquisition’s potential impacts on regulatory jurisdiction, real

property taxes and special assessments.

25 C.F.R. § 151.11. In essence, the Secretary’s regulations establish a ‘‘sliding scale’’

where tribal interests in on-reservation acquisitions and acquisitions of nearby

lands are given more weight and as the distance increases between a proposed acquisition of land from existing reservation lands, more weight is given to state and

local interests. These regulations provide appropriate and adequate protection for

state and local government interests in Indian trust land acquisitions.

Existing law as set forth in 25 U.S.C. § 465 and 25 C.F.R. § 151 appropriately balances tribal, state and local government interests. State and local concerns are

given more weight in off-reservation acquisitions and the Secretary provides more

deference to State and local concerns as the distance from existing Indian lands increases.

• Should a higher standard of review apply when the off-reservation lands in

question will be used for purposes of gaming?

A higher standard of review is in place for off-reservation acquisitions of trust

land that will be used for gaming purposes. In addition to meeting the requirements

of 25 C.F.R. part 151.11, tribes must navigate the process set forth in the Indian

Gaming Regulatory Act at 25 U.S.C. § 2719(b)(1)(A). Pursuant to IGRA, when a

Tribe seeks to acquire off-reservation land for gaming purposes, the Secretary is required to consult the local community, the Governor, and neighboring Indian tribes,

and make a determination that gaming on such lands would be in the best interests

of the Tribe, and would not be detrimental to the surrounding local and tribal community. The State Governor then has veto authority over the Secretary’s determination.

Attached to our response is the Department of the Interior’s ‘‘Checklist for Gaming and Gaming-Related Acquisitions’’ (hereinafter ‘‘Checklist’’). This Checklist is

used as an aid in the Section 20 two-part determination process. The Checklist defines local officials to be consulted as those within 10 miles of the land where gaming proposed. ‘‘Nearby tribal officials include the tribal governing bodies of all tribes

located within 50 miles of the site of the proposed trust acquisition.’’ In determining

whether the acquisition would be detrimental to the surrounding local and tribal

community, the Secretary will consider:

1. Evidence of environmental impacts and plans for mitigating adverse impacts;

2. Reasonably anticipated impact on the social structure, infrastructure, services,

housing, community character, and land use patterns of the surrounding community;

3. Impact on the economic development, income, and employment of the surrounding community;

4. Costs of impacts to the surrounding community and sources of revenue to accommodate them;

5. Proposed programs, if any, for compulsive gamblers and the source of funding;

and

6. Any other information which may provide a basis for a Secretarial determination that the gaming establishment is not detrimental to the surrounding community.

Interior officials have also recently added the requirement that tribes prepare an

Environmental Impact Statement.

As we noted in our testimony, we believe that under Section 20 of the Act the

Secretary has a trust responsibility to the neighboring Indian tribes to appropriately

102

consider their interests. As part of that consideration, we believe that it is appropriate for the Secretary to consider whether the applicant Tribe has an aboriginal

or historical connection to the land. In our view, consideration of the Tribe’s aboriginal or historical connection to the land is consistent with the history of the Indian

Reorganization Act, which intended to assist tribes in reacquiring lands taken

through the past federal policies discussed above.

• Should this standard include active participation and a requirement for concurrence from local governments, even though they are generally otherwise

prohibited from having a say on matters concerning Indian lands?

The United States Constitution’s Commerce Clause empowers Congress to regulate commerce with Foreign Nations, among the Several States, and with the Indian

tribes. This Clause reflects the separate sovereign authority of each entity. Thus,

we believe it is appropriate that IGRA’s Section 20 two-part determination process

respects State sovereignty by calling upon the Governor for concurrence in the Secretary’s determination. In our view, the State speaks for itself, including its political

subdivisions. Accordingly, we believe that it would be unnecessary and inappropriate to require the concurrence of local governments under Section 20.

3. Tribes have long fought to protect their ancestral lands from the unwanted incursions of outsiders, both Indian and non-Indian alike.

• If a tribe is seeking to have land taken into trust in an area that is not within

the ancestral lands of that tribe, should other tribes whose ancestral lands encompass the site have the ability to object to the land going into trust?

In our view, the Secretary has a trust responsibility to protect all Indian tribes.

Accordingly, under the Section 20 two-part determination, the Secretary should give

substantial weight to the views of neighboring Indian tribes. If an application to

take land into trust is not within the aboriginal or historical area of the applicant

Tribe and a neighboring Tribe objects because it is within its aboriginal or historical

area, the Secretary may deny the application.

• The ability to veto the land going into trust?

If the Secretary gives appropriate weight to the interests of neighboring Indian

tribes, it is unnecessary to amend the Act in this regard.

• How can the term ‘‘ancestral lands’’ be defined as precisely as possible so it

is clear to all observers, Indian and non-Indian alike, which lands are ancestral to any given tribe?

‘‘Aboriginal lands’’ means the original territory of an Indian tribe, which the tribe

occupied from time immemorial. ‘‘Historical lands’’ means lands which an Indian

tribe occupied later due to warfare, removal, or forced migration, etc.

4. Should a cap be placed on any revenue sharing with state governments from an

off-reservation gaming facility?

Congress passed the Indian Gaming Regulatory Act to support economic self-sufficiency for Indian tribes, not to raise revenue for states.

IGRA established a balance between tribal and state interests by requiring tribes

to enter into compacts to conduct class III gaming, and requiring states to negotiate

such compacts in good faith—or be subject to suit in federal court. IGRA also made

clear that because Indian tribes are governments, ‘‘nothing in [the Act confers] upon

a State or any of its political subdivisions authority to impose any tax, fee, charge,

or other assessment upon an Indian Tribe’’. No State may refuse to enter into [compact] negotiations—based on the lack of authority—to impose such tax.’’ 25 U.S.C.

§ 2710(d)(4).

However, the U.S. Supreme Court’s 1996 decision in Seminole Tribe v. Florida destroyed the balance in the compacting process by voiding the right of tribes to sue

States for failure to negotiate in good faith. As a result, tribes have no recourse

when a state negotiates in bad faith. In recent years, a number of states have attempted to impose unreasonable revenue sharing demands and concessions of tribal

sovereignty on tribal governments through the compacting process. Such demands

violate both the intent and express purpose of IGRA.

• If so, what should the cap percentage be?

A good model for limiting revenue sharing was proposed by former Senate Indian

Affairs Committee Chairman Ben Nighthorse Campbell with the introduction of S.

1529 in the 108th Congress. Section 2(f)(2) of the bill would have amended IGRA

Section 2710(d)(4). Concerning revenue sharing with a State government, the Secretary could only approve such agreements if the total amount of net revenues exceeded the amounts needed to fund both tribal governmental operations/programs

and the promotion of tribal economic development. Moreover, any revenue sharing

agreement should be based upon net revenues, not gross revenue, to insure that the

Tribe is the primary beneficiary of the agreement. In addition, in return for revenue

103

sharing, ‘‘a substantial economic benefit [must be] rendered by the State to the

Indian tribe.’’

These requirements would restore some balance between tribes and states, and

restore the original intent of IGRA to rebuild and provide economic self-sufficiency

to tribal communities. Naturally, in order to avoid upsetting settled expectations it

would be important to ‘‘grandfather’’ existing agreements between tribes and states.

5. Should a tribe be able to ask for or accept a casino operation as a substitute, either in whole or in part, of a cash payment to settle a land claim?

IGRA permits off-reservation gaming on lands placed in trust as part of a land

claim settlement. This more narrow exception requires that: (1) a Tribe has a valid

land claim; (2) that the State agrees to settle the claim; and (3) that Congress enact

legislation approving the land claim settlement, authorizing the lands as eligible for

gaming pursuant to IGRA. The significant hurdle requiring the passage of federal

legislation ensures that only legitimate land claim settlements will be recognized

under IGRA. To date, only one Tribe (Seneca of New York) has successfully navigated the land claim settlement exception.

• If a casino is acceptable as a settlement, should tribes whose ancestral lands

encompass the location where the casino would be located be consulted before

the settlement is finalized?

• Should they be allowed veto power over such a casino-based settlement as a

tool to protect their ancestral lands?

We believe that tribes with aboriginal claims to settlement lands should be given

adequate notice and an appropriate opportunity to be heard in the settlement and

congressional legislative processes.

6. While there have been only three incidences since IGRA was enacted of off-reservation land being placed into trust for gaming purposes, there are currently dozens

such projects either in the proposed stage or being reviewed by the BIA.

• What impact do you think all of these proposals have on public support for

Indian gaming?

There are currently 11 applications for gaming or gaming-related trust land acquisitions pending at the Office of Indian Gaming Management. Of those 11, three (3)

are less than 6 miles from the tribe’s reservation. (See attached Table of Pending

Acquisitions).

A few high profile proposals generate tremendous media attention no matter how

unrealistic they may be. In some cases, the local communities themselves are entering into development agreements with out of state tribes as a means of economic

revitalization.

However, we do believe that there is a need for education of the public about the

strength of the current legal processes. As a result, the NIGA-NCAI Tribal Leaders

Gaming Task Force is considering an Intertribal Protocol for Off-Reservation Gaming, which would call upon tribal governments proposing off-reservation gaming locations to minimize negative impacts on other tribes and engage in a mutually respectful dialogue with state and local governments.

• Do you believe that the vagaries of current law regarding off reservation gaming encourage the proliferation of proposals for off-reservation gaming?

• Do you believe that clarifying the law on off-reservation gaming, and placing

greater restrictions on when off-reservation gaming is allowed, will reduce the

number of proposals for off-reservation gaming?

• Will such changes serve to weed out proposals for off-reservation gaming of dubious merits?

We believe public education about the significant processes that are in place

would significantly clarify the facts about off-reservation gaming. We recommend

that the Committee direct the Interior Department prepare a press release that describes all legal requirements and processes for off-reservation gaming proposals—

from the 151 land into trust process, to additional requirements for the exceptions

to IGRA’s Section 20. That document should reference the Interior’s Checklist, all

relevant Interior Solicitor’s opinions, NIGC land opinions, and other relevant materials. The document should also describe the actual experience under IGRA.

When the media and developers who make substantial investments in these often

failed proposals are made fully aware of the entire process, we believe that public

support for Indian gaming will be protected and only proposals with significant public support will go forward.

104

7. Do you believe that the original intent of IGRA was to allow Indian gaming to be conducted at any location within the United States that a tribe is able to purchase and have placed into trust?

• Or was the original intent of IGRA to foster economic development on Indian

lands held at the date of enactment?

IGRA’s primary purpose was to provide a statutory basis for the operation of gam- ing by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments. The inclusion of Section 20 was an acknowledgment by Congress to allow for tribal economic development on re-acquired homelands that were taken due to the destructive policies of the past. Section 20 must

be read in conjunction with 25 C.F.R. § 151 which, as discussed above, creates a sliding scale to evaluate off-reservation gaming proposals by giving more weight to state

and local concerns as the distance increases. Actual practice under IGRA demonstrates the reasonableness of this approach.

8. In Minnesota, the governor is entering into an agreement with three tribes to oper- ate an urban casino under the auspices of the Minnesota State Lottery. As currently constructed, IGRA would not apply to this proposal. Is there any other statute authorizing or requiring the Secretary of Interior to ensure tribal interests are

protected in such gaming proposal as this where at least one of the parties is a

tribal government or tribal government business enterprise? Should there be?

• Does this agreement violate the terms of any tribal-state compact in Minnesota?

The Minnesota proposal is subject to approval by the state legislature and the terms of the proposal are constantly changing. On April 5, 2005, the proposed partnership was rejected by the Minnesota Senate Agriculture, Veterans, and Gaming

Committee by a vote of 10-4. Therefore, until a viable proposal is presented to the

legislature it is not clear if the proposal violates any tribal-state compact in Minnesota, but it may violate IGRA if the tribes are not the primary beneficiaries of

the agreement. • What would be the impacts to tribes around the country if other governors

entered into similar agreements with tribes in their states? It is hard to say because the agreement is not final, but as noted above, it may violate IGRA. Accordingly, it is not a valid model. • In such a deal as proposed in Minnesota, what is the level of federal scrutiny

of outside investors, management agreements, and vendor contracts? The agreement may be subject to challenge in Federal Court, if it violates IGRA.

• Are the tribes entering into this deal capable of determining whether or not

they will benefit from it? Are they capable of knowing whether or not developers, casino management companies, and the state government might be taking advantage of them? NIGA defers to the sovereign right of all its member tribes to determine their own affairs. Tribal leaders are no less capable than any other elected officials.

FROM CONGRESSMAN GIBBONS:

1. This Committee has held hearings on legislation that would allow a tribe to go hundreds of miles off their reservation and open a casino in the ancestral lands

of another Tribe.

• Do you have any specific suggestions on how Congress should proceed in this

regards? Congress should first review the facts about off-reservation gaming. Off-reserva- tion gaming involves two categories of land acquisitions: (1) off-reservation sites

sought through the ‘‘two-part determination process’’ (Indian Gaming Regulatory

Act (IGRA) § 20(b)(1)(A)); and (2) lands taken into trust as part of a land claim settlement (IGRA § 20(b)(1)(B)(i)).

Only three off-reservation sites have been approved through the two-part deter- mination process: (1) for the Forest County Potawatomi in Milwaukee, Wisconsin

(Governor’s concurrence 07/24/1990); (2) for the Kalispel Tribe in Airway Heights

(Spokane County), Washington (Governor’s concurrence 06/26/1998); and (3) for the

Keweenaw Bay Indian Community in Chocolay (Marquette County), Michigan (Governor’s concurrence 11/07/2000). Given that only three applications have been approved in over 17 years under IGRA is testament of the arduous process that is in

place.

For years, the Department of the Interior has used a ‘‘Checklist for Gaming and

Gaming-Related Acquisitions’’ to guide it in making the initial determination of

whether an acquisition pursuant to Section 20(b)(1)(A) ‘‘would be in the best interests of the Indian Tribe and its members, and would not be detrimental to the surrounding community’’. The Guidelines require significant consultation with ‘‘State

105

1San Juan Southern Paiute Tribe, AZ (3/28/1990); Mohegan Indian Tribe, CT (5/14/1994); Jena Band of Choctaws, LA (8/29/1995); Huron Potawatomi, MI (3/17/1996); Samish Indian

Tribe, WA (4/26/1996); Match-E-Be-Nash-She-Wish Band of Potawatomi Indian (formerly Gun

Lake Band), MI (8/23/1999); Snoqualmie Indian Tribe, WA (10/6/1999); Cowlitz Tribe of Indians,

WA (1/4/2002). 2 Aroostook Band of Micmacs, ME (11/26/1991); Pokagon Potawatomi Indians of Indiana &

Michigan, IN (9/21/1994); Little Traverse Bay Bands of Odawa Indians, MI (9/21/1994); Little

River Band of Ottawa Indians, MI (9/21/1994); Loyal Shawnee Tribe, OK (12/27/2000).

and local government officials whose jurisdiction includes or borders the land,’’ and

with ‘‘[n]earby tribal officials,’’ which includes ‘‘all tribes located within 50 miles of

the site of the proposed trust acquisition.’’ In addition, the Guidelines have been recently amended to require an Environmental Impact Statement be conducted prior

to the Secretary’s determination.

If the Secretary makes a positive determination in favor of the applicant-Tribe,

then the Governor of the State must concur with her determination.

Again, as a result of this significant process, only three applications have been

approved for gaming on off-reservation lands placed into trust pursuant to Section

20(b)(1)(A).

IGRA also permits off-reservation gaming on lands placed in trust as part of a

land claim settlement. This more narrow exception requires that: (1) a Tribe has

a valid land claim filed in court; (2) that the State agrees to settle the claim; and

(3) that Congress enact legislation approving the land claim settlement, authorizing

the lands as eligible for gaming pursuant to IGRA. The significant hurdle requiring

the passage of federal legislation renders the land claim settlement exception almost

impossible to meet. Only one Tribe (Seneca of New York) has successfully navigated

the land claim settlement exception.

Thus, only four off-reservation land acquisitions have been approved for gaming

pursuant to the Indian Gaming Regulatory Act in over 17 years. While the number

of applications for off-reservation gaming have increased, the significant process and

requirements in place have and will continue to prevent significant growth of offreservation.

Lands placed into trust for gaming purposes pursuant to the other exceptions contained in IGRA’s Section 20 should not be considered off-reservation, because they

encompass lands contiguous to existing reservations or lands that constitute a

Tribe’s initial reservation (landless, restored, and acknowledged tribes).

• Also, with over 300 tribes seeking recognition and presumably gaming, please

comment on the impact that a policy permitting ‘‘reservation shopping’’ and

‘‘off-reservation gaming’’ will have on communities across the country.

The National Indian Gaming Association consists only of federally recognized

Indian tribes and takes no position on particular applications for federal recognition.

Congress should again review the facts about this issue.

In the 17 years since the enactment of IGRA, only 8 tribes have been recognized

through the Federal Acknowledgment Process (FAP). 1 (Five tribes have been recognized by congressional Act). 2 The majority of these tribes sought acknowledgment

long before the enactment of IGRA.

IGRA provides that a Tribe may conduct gaming on after-acquired lands if such

lands are placed in trust as ‘‘part the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process.’’ 25 U.S.C.

§ 2719(b)(1)(b)(ii). This does not end the process. The Department of the Interior

then uses requirements from its unpublished Checklist to make a final determination of whether the Tribe can conduct gaming on the initial reservation. The Checklist states that, ‘‘When an application [for gaming on ‘after-acquired’ lands] indicates

that the proposed acquisition falls within [this] exception, the Area Director must

provide documentation that the particular exception is applicable to the case. Copies

of the enabling acts or legislation such as the settlement act the restoration act, the

reservation plan, the final determination of federal recognition and other documentary evidence relating to the tribe’s history and existence must be included as part

of the acquisition package. A legal opinion from the appropriate Regional of Field

Solicitor’s office concluding that the proposed acquisition comes within one of the

above exceptions must be included.’’

A number of House Resources and Senate Indian Affairs Committee hearings over

the past several years have revealed that the FAP is flawed, under-funded, and

under-manned.

All federally recognized Indian tribes have a vested interest in ensuring that only

legitimate, historical Indian communities are acknowledge as Indian tribes—either

through the FAP process, through congressional Act or other means. As a result,

106

we encourage Congress to properly staff and fund the process to provide sufficient,

timely, accurate, and unbiased decisions on petitions for tribal recognition. Because so few tribes have been acknowledged since the enactment of IGRA, and because of the significant process in place for acknowledged tribes to conduct gaming on their initial reservations, we believe that IGRA’s exception for newly acknowledged tribes has not and will not result in significant negative impacts on

nearby communities.

2. A few years ago, during the Proposition 5 campaign that allowed full-scale Indian gaming in California, the tribes ran television ads stating they wanted to do gaming just on their reservation lands. Now in California, there are several tribes that

are trying to conduct off-reservation gaming.

• If a tribe has a reservation and/or a traditional service area, why should any

tribe be permitted to establish gaming off-reservation, distant from its reservation?

As noted above, the exceptions contained in IGRA’s Section 20 address historical

mistreatment, malfeasance, and mismanagement of Indian land holdings. The Department of the Interior has approved only four off-reservation land acquisitions for

gaming purposes in more than 17 years under IGRA. • Also, please comment on the fact that other tribes are opposed to tribes seeking ‘‘off-reservation’’ gaming. NIGA understands the concerns that tribes have with regard to off-reservation gaming. While the Section 20 two-part determination procedure is not without its

difficulties, we feel that if the process is followed, and that all affected Indian tribes

are fully consulted, that these difficulties will be addressed. Here again, we would

emphasize that the Secretary of the Interior should give as much weight to the

views of neighboring tribes as she gives to local governments in the Section 20

process.

The Secretary has a trust responsibility to protect all Indian tribes. Accordingly, under the Section 20 two-part determination, the Secretary should give substantial

weight to the views of neighboring Indian tribes. If an application to take land into

trust is not within the aboriginal or historical area of the applicant tribe, and the

neighboring tribes object because it is within their aboriginal or historical area, the

Secretary may deny the application.

3. When tribes seek to enter already established gaming areas, doesn’t that create an un-level playing field since tribes are not subject to state regulations; are not subject to the restrictions placed on other gaming establishments; do pay not state

taxes; etc.?

The United States Constitution’s Commerce Clause acknowledges Indian tribes as separate sovereigns, with Foreign Nations and the Several States. In addition, treaties, and hundreds of federal laws, regulations, and U.S. Supreme Court decisions

acknowledge Indian tribes as sovereign governments. The Indian Gaming Regulatory Act also acknowledges the right of Indian tribes, as separate governments,

to conduct gaming to generate governmental revenue, just as state governments

conduct lotteries and use other forms of gaming to fund their governmental programs. Tribes and states negotiate gaming regulatory regimes pursuant to tribalstate class III gaming compacts. IGRA specifically acknowledges that no state or

unit of local government may impose a tax on a tribal government, even pursuant

to a tribal-state class III gaming compact. As a result, we would disagree that

Indian gaming creates an un-level playing field. Instead, the ability of Indian tribes

to conduct gaming reflects the status of tribes as governments, which is acknowledged in the U.S. Constitution, laws and court decisions.

4. What criteria should be used by the Department of the Interior in it’s determina- tion of land-into-trust?

The Department of the Interior has promulgated appropriate regulations on the acquisition of trust land. See 25 C.F.R. § 151. Applied together with Section 20 of

IGRA, those regulations provide a strong framework for reviewing trust land acquisitions for gaming purposes. • Should there be a requirement of substantial historical connection between the

tribe and the parcel to be taken into trust? Why/why not? We believe that the Secretary may appropriately require an aboriginal or histor- ical connection to the land.

• How recent should the historical connection be? 100 years? 200 years?

• What about distance from the tribe’s current service area? 10 miles? 20 miles?

70 miles?

Given the unique circumstances of Indian tribes and the United States’ history

of treaty violations, it is difficult to establish a time or distance limit. We believe

107

that each case should be reviewed on its own merits, against the background of the

United States’ treatment or mistreatment of the Tribe. • Do you believe that the farther away the casino site is, the less likely tribal

members will be able to take advantage of employment opportunities with a

casino? [Alternatively, if the tribal members move near the casino to get jobs,

then will the traditional community/service area be disrupted?] Again, the answer will depend on the circumstances. Many tribes have little or no land base to sustain their community. Under these circumstances, a number of

tribal citizens might be willing to relocate to a different part of the reservation in

order to take advantage of employment, housing and other opportunities that additional reservation lands will provide. The Committee may recall that only 50 years

ago the United States pursued a policy of Relocation.

5. If landless, shouldn’t land-into-trust be restricted to the area where the tribe is

located? Where they live, need jobs, need health care and services?

This restriction is currently in place. IGRA Section 20(a)(2)(B) states that the ini- tial reservation of a landless Tribe must be located ‘‘within the Indian tribe’s last

recognized reservation within the State or States within which such Indian tribe is

presently located.’’ The Interior Department’s unpublished Checklist requires the

Regional Director to ‘‘provide documentation that the proposed acquisition is in the

tribe’s last recognized reservation. The Regional Director’s analysis of this issue

must include documented information relating to the history of the tribe to show

that the tribe is presently located in the state in which the land proposed for trust

acquisition is located. [In addition,] a legal opinion from the Office of the Solicitor

addressing this issue must be included.’’

6. If some tribes are permitted to select the ‘‘best gaming’’ locations, wouldn’t all tribes want to do that? What about tribes that played by the rules and have their

casino on their reservation land, even though it may not be the best gaming location?

As noted above, this hypothetical has not played out given the significant proc- esses already in place. Off-reservation gaming has been approved in only very limited circumstances.

7. Please comment on how the federal campaign contribution laws apply to tribes and the fact that tribes are exempt from overall donor limits and can give directly

from their treasuries. No other organization is similarly situated.

Indian tribes, like states, local governments, and unincorporated entities (such as homeowner associations, cooperatives, partnerships, LLPs, LLCs, PACs, and many

others), are not treated as ‘‘individuals’’ for purposes of federal campaign laws.

These entities are subject to the per candidate/per election limits of $2100. Because

they are not single human beings they are not subject to the aggregate donor limits

of $101,400 per two-year election cycle imposed on individuals. (Amounts permitted

for the 2006 cycle). This limit on individuals was established to prevent a lone affluent citizen from unduly influencing elections. However, unincorporated entities,

such as tribes, states, and others include numerous individuals—and are thus,

treated accordingly under federal law. In addition, tribal governments, like state governments, may use general treasury funds to make contributions to federal campaigns, as long as such funds come from

permissible sources. See Federal Election Advisory Opinion 1991-14 (permitting

state governments to use state tax revenues and licensing fees to finance federal

candidates and political party committees). Thus, Indian tribes are not uniquely

treated under federal campaign laws, but instead are properly treated as governments.

It is important to note that tribal governments and individual tribal citizens were prohibited from participating in the federal political process for nearly one hundred

fifty years from 1776 to 1924. During this time, the United States adopted policies

and laws that sanctioned the murder of Native Americans, taking of hundreds of

millions of acres of tribal homelands, destruction of tribal economies, and the forced

abduction of Native children from their homes to federal boarding schools where

they were forbidden from speaking their language or practicing their religion. These

shameful policies all occurred while tribal governments had no voice in Congress,

could not participate in the political process, and while Native Americans had no

right to vote in federal elections. Accordingly, Native Americans have a experienced

a denial of voting and electoral rights and today, clearly understand the importance

of democracy.

Because Indian lands are held in trust by the federal government (and are often

subject to federal jurisdiction), most federal laws passed by Congress uniquely affect

tribal communities unlike non-Indian lands. An entire title of the United States

108

Code (Title 25) is dedicated to the unique treatment of tribal governments and individual Indians. Thus, Native Americans must work closely with the Federal Government.

Fortunately today, tribes now have a voice. Native Americans were granted U.S. citizenship in 1924, and now vote in growing numbers in federal elections. Like

other similarly situated entities, Indian tribes comply with the Federal Election

Campaign Act of 1971, as well as the Bi-Partisan Campaign Reform Act of 2002.

According to the Center for Responsive Politics (www.opensecrets.org), Indian tribes

contributed $7 million to federal campaigns in the 2004 election cycle. This figure

represents less than 0.35% of national federal campaign contributions (House, Senate, and Presidential elections) which totaled more than $2 billion. Native American

participation in the political process was not disproportionate, but our participation

was as meaningful and important as the participation of others across America.

8. Please comment on the increasing trend of tribes now crossing state lines away from their reservation to establish gaming.

• Please comment on the situation in CO where the Cheyenne-Arapaho of Oklahoma are seeking land in CO to establish gaming. In that situation, the tribe

is claiming 27 million acres even though their land claims were definitively

and legally settled in the 1960s. Their action is designed to force the Governor

to agree to a smaller parcel near the Denver Airport for gaming.

As stated above, only four off-reservation land acquisitions have been approved

for gaming pursuant to the Indian Gaming Regulatory Act in nearly 17 years. None

of these applications have crossed state lines. While the number of applications for

off-reservation gaming have increased, the significant process and requirements in

place have and will continue to prevent any significant growth of off-reservation

gaming.

The Denver Airport proposal provides a perfect example of the Act at work, and

of media hype that does not acknowledge political and legal reality. Without the

support of the state and local governments, this proposal will not move forward

under the Section 20 two-part determination process. In addition, without a congressional Act to implement any possible land claim settlement, it will not move forward

under IGRA’s land claim settlement exception.

NOTE: Attachments submitted for the record have been retained in the

Committee’s official files.

The CHAIRMAN. Well, thank you, and I appreciate the testimony

of all the witnesses. I think first of all I would say I want to thank

all of you for not taking a position on the bill, because at this point

it is a discussion draft. What we are trying to do is move forward

with those discussions and trying to figure out what works and

what doesn’t. Just as we have been sitting here over the last several hours, there are a lot of different ideas that I have heard and

things that have come up that I think bear some changes to the

draft.

A couple of you talked about opening up the law and being able

to control this process, and I can assure you—and I am sure that

the Ranking Member, Mr. Rahall, would join with me, that if we

are able to reach a consensus on this bill that we will ask that it

be a very limited rule in terms of what can or cannot be part of

this one before it ever comes to the Floor because I am not really

interested in bringing something like this up under an open rule.

Mr. Luger, you talk about going through the regular hearing

process and opening this up so that we have the opportunity to

hear this out. Before this draft was ever even made public I talked

to a number of different people about this, and what direction I

wanted to go, and what was happening with this because I wanted

to make sure that everybody knew that this was a discussion draft,

that we were putting it out there just so people could have an opportunity to see this and respond to it, because obviously, as Chief

Martin said and we have heard from other people, is that this is

109

a problem in different parts of the country for different reasons,

and it is something that I feel ultimately threatens tribal sovereignty if we don’t get control over it. That is a big concern that

I have.

One thing about the local government issue—and I think there

is some misunderstanding about what my intentions were in terms

of the local government. It is my understanding, the way this draft

is written, that on these Economic Opportunity Zones, that if it is

located on existing tribal trust land, and if in North Dakota they

wanted to take—if one of the tribes happened to be more remote

and they wanted to co-locate with an existing casino on existing

tribal land, that they would have the ability to do that. My intention on this was that that would go forward being the tribe at that

point is, for all intents and purposes, is the local government. They

are the ones who have control over that land.

On the other Economic Opportunity Zone, that would be on lands

that are not currently in trust, and in that case I would rather that

be located in a community that says, yeah, we want it. We want

the jobs created here. We want the economic opportunities created

here. And in that case we would have a local government sign off.

And I think those are two very different issues, two very different ways of looking at it. What I am trying to do is give as much

opportunity as I can to the tribes that may not be right next to a

major urban center.

Does that kind of fit along with—I mean you obviously have a

lot of different tribes, a lot of different things moving on this. Does

that kind of fit with what you see as an economic opportunity for

those that may be remotely located?

Mr. LUGER. Yes. The answer is yes. And the fact that—where we

have a problem is back to one of the questions of the earlier committee members. You have hit it right on the head. We will use

Turtle Mountain for an example. They’re 250 miles away looking

at Grand Forks, North Dakota when the Spirit Lake Nation is 50

miles away from Grand Forks. Now, as you stated, in that zone if

Spirit Lake and Turtle Mountain agreed that this was in their best

interest to do this, we don’t have a problem with that. That it

would seem to me that they would be the local community input.

So I agree that you have hit some chords of truth and that we’re

going to continue to assist the Committee in developing some consensus to see if we can get some of this straightened out.

The CHAIRMAN. Now, on the one hand we have the opportunity

zones that would be located on current trust land. On the other

hand we have an Economic Opportunity Zone that would be located

on land that is not currently in. Now, I want to ask you about that.

If instead—I mean what I see happening in different parts of the

country is that you have a tribe with an existing casino that may

be an hour or two hours away from a major population center, and

then you have somebody else that comes in and wants to be an

hour and a half away or 45 minutes away, and they keep trying

to do one better. What we are doing is we are ending up with creating a situation where these guys are going head to head and it

is going to end up hurting everybody.

Wouldn’t it make more sense in that situation that we take one

place that—with a community that says, ‘‘Come on in. We want

110

you here. We want to establish this kind of an economic opportunity here,’’ and have those tribes have the ability to co-locate in

that situation, and then take the land into trust under that situation? Does that sound like it is something that is workable rather

than—you heard the lady from Oakland who testified about the

five different proposals right around the City of Oakland. If she

went out another 25 miles, there are 12 different proposals that are

there, and instead of having 12 of them located all over the place

and all the different problems with local communities and all of

that, wouldn’t it make more sent to locate them together in a community that says, yeah, we want them?

Mr. LUGER. I think your concept deserves serious consideration,

and it’s something that we’re going to sit back and take a look at

and see if there are some—there’s a couple of technical points that

I would want to raise to it, but as far as the concept goes, I know

the tribes in the Great Plains Region are going to give it serious

consideration to see how they would fit under that scheme.

The CHAIRMAN. Mr. Martin, could I have you comment on that

as well?

Mr. MARTIN. Our tribes, as the Great Plains Tribes, will take

that under serious consideration. In general the concept is something that is worth looking at because you hit on the aspects of

tribal involvement, tribal discussion, self-determination and tribes

working out problems amongst themselves.

I would take it back to also though we have to look at what the

original intent of IGRA was and what it looked at at that time.

IGRA made provision for tribes that were not recognized or restored after. So the original intent of IGRA was that where you are

now is where you are now, and that you should stay within those

boundaries of whatever circumstances got you to that place and be

able to exercise that tribal authority of that tribal government at

that place in time.

The CHAIRMAN. Mr. Van Norman, did you want to?

Mr. VAN NORMAN. Well, I guess I would say, going back to the

history, the way the Act has operated, that it is important to note

on the local government consultation that actually the three

projects that successfully went forward under Section 20, Forest

County Potawatomi, Kalispel and Keweenaw Bay Indian Community, only went forward with the support of the local governments.

So what we saw under the current process was that actually consultation with the local governments was enough, and that the Secretary took that into consideration.

You also have to look at the Code of Federal Regulations, and as

an acquisition gets further away from a reservation, they’re directed to give more weight to the local government concerns.

So I think it’s worth taking a look at the existing practice and

what has taken place under that. Certainly we would feel, as you

mentioned, that there’s no need for local government approval

when you’re talking about existing reservation lands. I think it is

a very interesting concept. I think clearly, as the Chairman of the

Committee, you’ve been thinking hard about this and hearing from

different folks. It is a creative approach to a situation, and we certainly want to have those dialogs, and in fact if you can come and

address our tribal leaders as we move forward, we appreciate that.

111

The CHAIRMAN. I look forward to continuing those discussions.

You and I have had the opportunity many times to talk about this,

but I look forward to having the opportunity to continue those discussions.

I am going to recognize Mr. Kildee.

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

It is good to have all three of you here. Chief Martin, I have

known you forever, as young as you are, and it is good to work with

you, all of you.

One nice thing about working with Chairman Pombo is that no

one can question his great concern both for Indians and Indian sovereignty, so you have a committee here that is really convinced of

the genuine nature of Indian sovereignty. As I had to remind a

candidate for Governor a few years ago, that Indian tribes are not

social clubs, they are sovereign nations and the sovereignty is a retained sovereignty, and it is mentioned in our U.S. Constitution,

not granted. It is just recognized in that.

I would like to, Chief Martin, I ask you does USET have a position on out-of-State off-reservation gaming and in-State offreservation gaming, and could you maybe go into that some?

Mr. MARTIN. It is an honor to be before you again, Congressman.

I hope your family is doing well.

Mr. KILDEE. Yes, they are. Thank you.

Mr. MARTIN. USET does have a position on the out-of-State in a

sense that we believe, as I answered earlier to Chairman Pombo,

the circumstances for a tribe to wind up where they’re at presently

whether it was voluntarily or forcibly has to be given consideration.

So therefore we are definitely opposed to the concept of reservation

shopping where tribes are jumping across State lines and multiple

States just for lucrative markets where that occurs.

On the in-State, we have not taken as close a look on that. We

are studying the proposal as it exists now. Chairman Pombo brings

up an interesting way of having to look at that. I think we have

to look at that. And as long as the tribes who are affected—will be

affected in that State has an opportunity to dialog and make a

process where it’s transparent for those tribes to have input into

the decisionmaking, not necessarily maybe a veto, because you may

be talking about different types of—the scenario before. We would

definitely be against a tribe even in-State that wants to go totally

outside of their aboriginal land and put up a casino just because

it’s a lucrative area in there. So the history and the aboriginal

lands of the tribes has to come into play in these decisions also.

Mr. KILDEE. Thank you.

Mark, you and I have discussed IGRA for a long time. I helped

write IGRA right in this room many years ago. I wasn’t sure we

needed it. I wasn’t sure it was good because I thought Cabazon was

so good, and we actually put some restrictions on Cabazon with

that, and we brought the State Government into the picture.

We brought the State Government in, but I am very reluctant to

bring local government in, very, very reluctant to bring local government. Now, we do have a consultative process if—like a tribe

was trying to move into Auburn Hills, Michigan, which they finally

backed off of, but there is—maybe a consultation, but a veto power

by a local unit of government really goes way beyond the

112

compacting or the approval that we gave to the Governor. I think

we have to approach that most cautiously, most carefully, with

great input from the three of you on that.

As a matter of fact, reading the bill here it says that Indian tribe

may participate in Class II gambling, Class III, if the Secretary determines that participation is in the best interest of each participating Indian tribe, and the Indian tribe for which the Indian

lands within the economic zone are held in trust.

Let’s talk about trust land. Now, trust land is sovereign land.

Then it says: and the State, city, county, town, parish, village and

other general purpose political subdivisions of the State with authority over the land that is concurrent or contiguous to the economic opportunity zone approves. Now, approval is way beyond

consultation. Yet it talks about that those lands are held in trust.

I just am very reluctant to give any local creature of State Government control to really veto how you use your own trust land.

Would you concur with that?

Mr. VAN NORMAN. Congressman Kildee, we agree that there is

a concern about involvement of local governments and share your

views. As Chairman Pombo stated, I think that when you’re talking

about—and especially the existing trust land provision, that that

provision is unnecessary because normally the local governments

would not have any approval because that’s an area for tribal selfgovernment.

I also do think it’s worth looking at the existing practice under

the consultation provision. We’ve seen the Secretary take that very

seriously and really, under the current Section 20, they’ve only

moved forward when the local governments have agreed. And they

also don’t just look at the statute, they look at the regulations, and

the regulations say that for off-reservation acquisitions the further

that you move away from the reservation the more deference

should be given to the State and local government. So I think that

as we discussed the bill, that’s worth taking a look at.

Mr. KILDEE. Well, you know, the encouraging thing of working

with Chairman Pombo is that he would be the first one to admit

that this first draft was not written on Mount Sinai, it was written

on Capitol Hill.

[Laughter.]

Mr. KILDEE. So we can go back and look at it again and—

The CHAIRMAN. If the gentleman would yield for just a second.

It was not written on Mount Sinai, it was written in the room next

door, but—

[Laughter.]

The CHAIRMAN. I just want to follow up on Mr. Kildee’s question.

In the case of an on-reservation Economic Opportunity Zone, in

that case in listening to this, it seems like it would make more

sense for there to be—if we are going to create one of these zones

on existing trust lands, it sounds to me like it would make more

sense if there were some consultation with the local community,

but not approval if it is on existing trust lands.

But the—obviously that tribe would have to sign off on it because

it is their land. So in that case they would in essence be the local

government that would be signing off on it, but I think that if we

do this, then you would have to have some kind of a consultation

113

process with the local community in that case, because we are talking about the opportunity to open a number of casinos in one place

or a number of gaming facilities and hotels and everything that

goes along with that.

So I think in that case it would probably make sense to have

some kind of a consultation process because the way the bill is

drafted right now there is a limited number of these per State. So

if the Secretary is trying to determine where the best place in a

State would be to establish one of these, it would obviously be

somewhere where they would have the least opposition to doing it

and where it would make the most sense for economic opportunity

for the tribes. Does that make sense to you?

Mr. VAN NORMAN. It makes sense that, you know, especially in

the on-reservation zone that the consultation would be better than

involving the local governments in any kind of approval because

that’s already Indian land.

The CHAIRMAN. Yes. OK.

Mr. LUGER. I concur.

Mr. MARTIN. I would have to caution though that our tribes

would perceive it that any involvement absent the already stated

purpose of IGRA where tribes can enter into Class II gaming without the concurrence or any consultation with the local government

would be perceived as backing up.

But I understand your portion is going toward what is the intent,

the prospective of trying to work out an enterprise zone for tribes

that find themselves in desolate areas where it would not be profitable. So it goes toward the intent of that. But a perception where

it’s already established reservation land, and that tribe wants to

enter into Class II gaming, they do not need the local government

approval.

The CHAIRMAN. But in the case—I want to make sure I understand you—that is if a tribe wants to put one facility on their trust

land, correct?

Mr. MARTIN. Yes, sir.

Mr. LUGER. Right.

The CHAIRMAN. And in the case of an Economic Opportunity

Zone we are talking about a number of tribes that would be located

on one trust land. So I think there is somewhat of a difference

there, and I do understand what your issue with the Class II gaming, and we are going to have to continue to talk about that, but

I think there is a difference when we are talking about several facilities versus one.

Mr. MARTIN. And upon clarification, as this hearing is doing, I

think your proposal and therefore local government does merit

some sort of consideration.

The CHAIRMAN. Mr. Kildee, did you—

Mr. KILDEE. Just one statement. I have to leave now and catch

a plane. I know Chief Martin will understand. He has met my family. My wife and I are still celebrating our 40th wedding anniversary, and I wanted to join her, so I am going to have to leave now.

The CHAIRMAN. You had better leave.

Mr. VAN NORMAN. Congratulations.

Mr. KILDEE. Thank you very much. Thanks a lot.

The CHAIRMAN. Mr. Walden?

114

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

I am sort of learning about these issues, so bear with me, and

I will try not to stray too far. The issue of local government involvement, I understand the sensitivity that you feel toward a veto,

if you will, by a local government. I have several tribes and reservations in my district and I deal with both, local governments,

obviously, State governments and all of that. One of the concerns

that the local governments always have is just the impacts of any

kind of development or action on the rest of the community and

how those impacts get paid for.

In my hometown, there is a tribe that has lands that have been

in trust pre-IGRA that are in the middle of the Columbia Gorge

National Scenic Area. They are up on a hillside. They acquired

some land adjacent to that they want to bring into trust and originally wanted to put a large casino in the middle of what the Federal Government has declared a National Scenic Area, put the

parking garage on the acquired lands, and link to the pre-IGRA

lands and put this four-story thing right up on the side of a hill.

And the local community went, well, shall we say just nuts. 70 percent in a plebiscite voted against it or more.

And so they looked at some alternatives, and they are looking

off-reservation, and they went 16 miles to the west and there is a

community there that said, ‘‘Come on down. We’d love to have you,’’

80 percent support. They are now in negotiations for a compact

with the Governor, and I think soon will announce that.

I have expressed concerns to the Chairman that if they finally

reach this agreement with the community, a supportive community

and all of that, I wouldn’t want this legislation to somehow upend

all that work by saying, well, you weren’t in tribal trust by the

time this legislation passed.

How do we resolve this issue? Because I am sure if a local government were to do something that adversely affected tribal nations, that you would want to say, ‘‘Wait a minute, you should have

consulted us on that.’’ The State may have no piece of whatever the

local government—how do we work out this conflict?

Mr. LUGER. Members of the Committee, personally I think that

it’s going to be really difficult unless we fix the Seminole decision,

I really do. That’s just my own personal opinion on it, but until the

Seminole decision is addressed, a Seminole fix is in play, we are

going to have this constant bantering.

Mr. WALDEN. All right. And then—go ahead, yes. Somebody else

has a comment.

Mr. VAN NORMAN. Yeah. Let me just say, you know, I think that

history would be a little bit different if tribal governments had had

some kind of approval process vis-a-vis local governments or State

governments, and we might have larger reservations, for example.

So I think that the question is when you’re dealing with one government and dealing with another government, I think consultation, you know, is one thing, but approval, especially at the level

where tribal governments are really providing services just the

same as State or local governments, and feel that, you know, we

are coordinant governments entitled to that kind of respect.

Mr. WALDEN. I mean in my State I believe one of the casino convention centers now is the State’s top tourist attraction or number

115

two. It used to be Timberline Lodge and Multnomah Falls. Obviously, the impact of that volume of travel doesn’t just start at the

reservation boundary. How do you deal with, if you are the local

government and you have—and this isn’t the case—but I am just

saying as an example, how do you work out those issues if you

have a tribe that says ‘‘Forget it, we’re not going to give you a

dime. It’s not our problem, it’s yours.’’ What is the local government supposed to do?

Mr. VAN NORMAN. There’s a provision in current law, and that’s

what the tribes are relying on in terms of these discussions, that

provides for that consultation with local government, and that’s a

factor for the Secretary to take into account in determining whether it’s detrimental to the surrounding community. So that’s how

local law—current law looks at that.

But also through the compact process, the State can consider the

impacts on local communities and ask for mitigation.

Mr. WALDEN. OK. Now—

Mr. MARTIN. If I may?

Mr. WALDEN. Yes, sir.

Mr. MARTIN. And I’ve, I’ve negotiated, renewed I think 17 compacts over the last eight or nine years and—

Mr. WALDEN. 18 more than I have done.

Mr. MARTIN. And I have come to find out that integrity is part

of the question. Those tribes that you have stated the case where

they’re unwilling is extremely rare. We have to be sensitive to public opinion as well as everybody else, and in the compact process,

for example, in North Dakota we had public hearings in every one

of those counties and municipalities where the renewed compacts

were going to get in. So the executive branch, the legislative branch

got to take those all into consideration before a final stamp was put

on.

Mr. WALDEN. Lest I be misunderstood, I am not saying any of

them in Oregon have done that, I don’t think they have. But just

as we wrestle with these issues, you can see.

And then there is—if I could, Mr. Chairman, just a second more.

Then there is this issue of competition among tribes and between

tribes. One of the tribes in my district was very supportive helping

another get status for gaming, and now this tribe—and the other

tribe was very appreciative of all that, gave them a big plaque, all

this stuff. Now, guess what? They are trying to do the same thing

and the other tribe is trying to block them. Imagine that. And so

they are trying to do it off-reservation, and this tribe is isolated.

They have tried a casino where they are, and it is just pretty darn

difficult.

So representing a district of 78,000 square miles is second only

to Mr. Gibbons or the single member States, very rural. I worry

about the haves getting more and those of us out in the very rural

remote areas, never being near a population center, what do we do

for those folks?

Mr. LUGER. If I may—and they’re facing that in Minnesota right

now. This was talked about in the intent of IGRA. I believe Senator

Inouye said that it would never be a panacea. There’s some cold realities in this. There are some tribes that aren’t going to do good

by gaming. That was a good question today about the one

116

individual tribe. Do you have anything else on plan beside gaming?

There are some tribes in Indian country that are not going to benefit hardly at all if any from gaming, and we need to get used to

that.

And we not—just like—you know, like a class difference in taxes.

I don’t want to be in the position of distributing wealth. If they

were lucky enough to be where they’re at geographically, fine and

great. We use—and others are used constantly in our area, but the

reality of it is, given enough time, those areas and the works that

they do with the other tribes begin to mitigate that in helping them

perform—or help with economic activities that will work in that

rural area. Those tribes that are in that rural area are just that,

rural. They’re farmers, ranchers. There’s other things that can be

done, but gaming—and I keep coming to this amongst ourselves,

even the tribes—is not a panacea.

And you’ve got developers out there that are trying to pretend

with certain elected tribal councils that this is your right, and it

isn’t. It’s for us to work out if it’s available to us, and maximize

it to the best interest that we possibly can.

Mr. WALDEN. Then is it your view that there should be no post

IGRA gaming cited; if the lands weren’t in trust pre-IGRA that

they shouldn’t be allowed to take land into trust and do gaming?

Mr. LUGER. No. But what I do think is that travel input is the

key to this, that and the fix of the Seminole. I do.

Mr. VAN NORMAN. That’s one thing, you know, we need to have

our own dialog among the tribal governments, and we’re going to

have a series of dialogs—

Mr. LUGER. Imagine that.

Mr. VAN NORMAN.—as you move forward with your hearings so

that we—

Mr. LUGER. You can tell it’s going to get rocky.

Mr. VAN NORMAN. Yeah. Well, we want to make sure we have

a broad spectrum of member tribes from the largest gaming tribes

to the Oglala Sioux Tribe, which is one of the poorest tribes in the

country.

Mr. WALDEN. Good, because obviously the haves aren’t wanting

to give up anything. I mean that happens no matter what culture

you’re in.

Mr. LUGER. And if I may, you know, the haves and haves not

story, I just debated an individual from Minnesota, and it’s kind of

disingenuous for people to determine who has or who isn’t and

what’s wealthy and what isn’t. And the bottom line is, is that look

at these large land-based tribes where I’m at. Standing Rock’s got

3 million acres and 18,000 members. Well, their unmet need is

humongous. And we recognize that. We’re not going to be in a same

position as somebody that’s got 220 members and is sitting on the

end of New York City. It’s just cold reality. So sometimes we’re

going to have to accept reality.

Mr. WALDEN. I really appreciate your input. It is helpful for me

as I learn more about these issues and wrestle with them in my

own district and work with the tribes.

Mr. MARTIN. As we start to deliberate it on our side, we would

hope to solicit the Committee to referee some of those discussions.

[Laughter.]

117

Mr. WALDEN. Yes. We are trying to solve all those account issues

too, aren’t we, Mr. Chairman?

The CHAIRMAN. Yes.

Mr. LUGER. Again, just one more comment. I can only say from

the Great Plains it’s absolutely critical to us that jobs is number

one.

Mr. WALDEN. Absolutely. No, I understand that.

Mr. LUGER. And on-reservation scenarios have priority, and we

feel that way strongly amongst ourselves. And given time we’ll

work out the others. This has only been going on for, you know,

what, 10, 12, 15 years, but that is really our basic sentiment. And

to thank the Chairman and the Committee for helping us get

through this.

Mr. WALDEN. Can I ask like an explosive question perhaps?

The CHAIRMAN. Maybe not.

[Laughter.]

Mr. LUGER. To Mr. Van Norman, please.

[Laughter.]

Mr. WALDEN. When you are talking about haves and haves nots

and how we do this and we all know federally there is a pretty

small pie and it is getting tighter and tighter, as—and I may be

way off, I have not been briefed on this so bear with me—but as

there are funds available through BIA for different places and

tribes, do we need to look at somehow those tribes that are very

profitable and have a lot of money in the reservations—and I don’t

even know if they continue to get BIA support and funding—and

say, you know, maybe this is some way we can help with the scarce

resource that is available there?

The CHAIRMAN. The gentleman’s time has expired.

[Laughter.]

Mr. WALDEN. Thank you, Mr. Chairman.

The CHAIRMAN. That is the subject of another hearing.

[Laughter.]

Mr. WALDEN. All right.

The CHAIRMAN. And we have had discussions about that and I

appreciate the question, but I think we will save that one for another hearing.

Mr. Pallone?

Mr. PALLONE. Thank you, Mr. Chairman.

You guys were probably here when we had the first panel, and

I am sure you heard me explain my concern over the whole issue

of creeping over Indian sovereignty, in other words to the extent

that—I mean if you listen to the first panel you would probably be

very concerned about opening up IGRA because of the suggestion

that, you know, local towns or communities should exercise a veto

and all these notions—I think many of them not exactly true about

rich tribes and the ability to have all kinds of money to impact the

law or the statute.

But the same thing applies in terms of—to me, I have the same

concerns in terms of restrictions on sovereignty that might apply

to one tribe against another. In other words, I was thinking about

what Tim Martin, where you said that in dealing with States the

out-of-State tribe will waive most aspects of its sovereignty. In

other words, in order to get a good deal they will waive all their

118

sovereignty, and that is a disturbing possibility. But the question

in my mind is, well, again, is that something for Congress to deal

with? In other words, if theoretically tribes are nations, and they

can make a deal with a State, you might say, ‘‘Well, why should

the Federal Government step in and prevent that from happening?’’

Maybe that is an infringement on sovereignty and a way for the

Federal Government to step in and do something that becomes almost big brother.

What is your response to that?

Mr. MARTIN. I believe that each tribe should have their opportunity to be self-determining in there. In a perfect world that would

not have any negative impact on other tribes to be just as self-determined. But there is this other element. It is the State or other—

the developers that in a sense are bringing up false expectations

to this tribe who has nothing, so they think if they get anything,

it’s better than nothing, but not realizing, being too narrowly looking and not being foresight to realize that decision may haunt them

in the future.

Mr. PALLONE. I understand, and I appreciate your response. But

what I am thinking in the back of my mind is that becomes sort

of paternalistic as well on the part of the Federal Government, if

you will. I mean you can think about it that way.

Mr. MARTIN. Just as we will interact as a sovereign to the Federal Government, I would hope that Congress will give us time to

interact amongst ourselves to work out those conflicts that may

arise.

Mr. PALLONE. And then the second thing, you know, this whole

idea about one Indian Nation being able to exercise veto authority

over another in the issue of wanting to settle a land claim. In other

words, I am not saying that that is what the Chairman’s bill does

because I know you don’t really deal with the land claims at all,

but I mean—

The CHAIRMAN. It is not in there.

Mr. PALLONE. Right, it isn’t. But I mean, again, my concern is

to what—in the same way I would be concerned about the Federal

Government stepping in and saying, ‘‘You can’t do this’’ to a tribe

‘‘because somehow you don’t have the ability, you don’t really know

what you are doing.’’ I would have the same concern whether one

tribe should have a veto over another. I mean it is the same problem. You might say, look, you know, laissez-faire, these are sovereign nations, let them negotiate with the State or let them deal

with each other and negotiate. Don’t let one veto another’s ability

to game or do anything. I mean that is not the way to operate

among sovereigns, so to speak. If anybody wants to respond to

that?

Mr. LUGER. I didn’t see the land claim issue in the bill and I—

Mr. PALLONE. It is not.

Mr. LUGER. And with respect to the veto and our relationship

with another on a one-to-one basis, I put it to you this way in kind

of an old, a western heritage sense. If somebody’s dropping a fence

pole in my back yard, I want to have some say so over it, and that’s

what this is about.

Right now the advantages to those that want to do, but for those

that say this is going to have a negative impact on us, we’re kind

119

of moved off to the side. And just common sense would say if somebody’s going to do something in your back yard that’s going to negatively impact you, you should have some say so.

Mr. PALLONE. OK. But again the issue is, how far do you want

to go? Do you negotiate it, which is what sovereigns do? I mean if

you make the analogy, say the U.N. or sovereign nations like the

U.S., that maybe they should simply negotiate and there shouldn’t

be some veto or some ability to absolutely say no.

I don’t know if anybody else wants to—I am being very philosophical here, guys.

Mr. MARTIN. And that’s part of the discussion that needs to take

place. I think there exists now the consultation process, and the

Secretary is bound by her or his fiduciary trust responsibility to

look at negative impacts of a sovereign tribe. You’re saying it’s one

tribe a veto over other. I’m not sure our tribes would agree there.

We believe every tribe should have self-determination. But the Secretary of Interior has the trust responsibility as one tribe is doing

to look at the impact on the other tribes because it is just as equal

to all tribes, so therefore there is already that call for that government to balance that relationship that exists between both those

tribes or multiple tribes.

Mr. PALLONE. If I could ask one more thing, Mr. Chairman, none

of you are—oh, I am sorry, Mark. Go ahead.

Mr. VAN NORMAN. Congressman Pallone, thank you. I just do

want to mention—and maybe this is a technical point—but in the

current Section 20(b)(1) there is a provision for land to come into

trust pursuant to a land claim settlement, and as I mentioned in

my testimony—or in Chairman Stevens’ testimony as well, there’s

only been on circumstance where that’s been utilized to date, the

Seneca Nation in New York.

But the bill does strike out that provision, so it would amend

that provision. And I assume that we have member tribes that

have these land claims that that will be part of our discussion and

part of our dialog among the tribes about how that all works out.

Mr. PALLONE. OK. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Kind?

Mr. KIND. Thank you, Mr. Chairman.

I know the hour is late and they have been very generous with

their time, but I want to welcome everyone and certainly appreciate your testimony. I apologize getting here a little bit late. We

had business wrapping up in another committee, but I have been

trying to catch up by reading the written testimony, and rest assured, we will be looking into this.

But, Mr. Chairman, first of all I want to express my appreciation

for some of the remarks that you made earlier, that this is recognizing a very complicated issue with a lot of details that we are

going to have to look through and sift through and determine the

impact on how this proposed new process would actually work. I

agree with you, Mr. Chairman, that if we can try to reach some

consensus on the Committee and work in a bipartisan fashion,

move forward on that basis, while also recognizing it might take

some time in order to weed through this because a lot of this is

going to be based on some anecdotal evidence on what has happened in the past, and the importance of making sure that

120

sovereign rights are recognized and protected, and that whatever

process is drafted is fair to the parties involved, and whether it

makes sense ultimately, and not too prohibited so that no advancement or no movement can be achieved at the same time.

I know just based on what I have been able to observe throughout the years, tribes are very sensitive to the fact that they do need

to be good community neighbors, and when they are looking to expand, whether new trust lands or off-reservation opportunities, economic opportunities, there is a lot of working with local communities at the local level, between cities and county boards and parishes and you name it, because I think they understand that if it

is going to work at all, there is going to have to be development

of consensus at all levels, the local, at the State, and then obviously

with the Secretary approval at the Federal level.

So hopefully when we move forward on this that we recognize

that there is going to have to be a built-in consultation process in

order to address various concerns, not only government to government, but tribal consultation too, whether it is in a more formal

basis or whatever, but something that can help move the process

along so that the communication is there.

Mr. Luger, I certainly appreciate the comments that you have

been making and that you have been raising here as well. One of

the issues obviously is concern about other tribes and the impact

it is going to have on them. And I am just wondering if you are

envisioning any change in the consultation process right now that

is taking place, or something that might improve the consultation

process from tribe to tribe?

Mr. LUGER. Thank you very much. And as I stated in my testimony, we—and I guess it was a question to the Chairman, if it

would be out of step to write a letter to the Secretary and see

where she’s at on some of these things. I mean obviously I’ve stated

it in my written testimony, but some of the examples here today,

one about the 300 miles and one being recognized, one being not.

Those are the types of things that I think could be addressed by

that from an administrative process from the influence from this

committee.

Mr. KIND. It is an excellent point because I know how easily

these things can get bogged down. I mean they are inherently very

difficult. Usually there is a lot of different interests at stake. Many

times, unfortunately, there is a lot of local politics that come into

play as well, and it is not hard to establish roadblocks as far as

reaching agreement on many of these issues. And the difficulty of

just establishing compacts with the States, for instance. I know in

Wisconsin we have had a lot of problems on that, and it has been

tough to get everyone on the same page. And because of that, thing

tend to break down.

So as we move forward, hopefully we will be patient enough in

order to listen to the different points of view. This hearing obviously is very, very helpful, and opens up a lot more questions or

ideas that should be explored, and obviously we will be looking forward to working with you and staying engaged with you all as we

move forward on a committee basis, and trying to reach even beyond that some consensus in the Congress, what can be very tricky

121

and very difficult because it does entail a lot of details, and I think

just a lot of experience in seeing how these things ultimately work. So with that, Mr. Chairman, I appreciate the time, appreciate

you having this hearing today. I think it is very, very helpful, and

certainly appreciate the witnesses’ attendance. I yield back. The CHAIRMAN. Thank you, Mr. Kind. I want to thank our witnesses for their testimony, and again re- mind you that I know that there are members that have questions

that they want to ask in writing. If you could answer those in writing so that they can be included in the hearing record, we will hold

it open long enough to include those answers. But I know that

there are a number of members that for one reason or another

weren’t able to be here and ask all their questions.

So I want to thank you for that. I look forward to working with all of you as this process moves forward. Again, this is a draft, and

it is something that I think we need to continue to talk about. I

know that you are planning hearings or discussions amongst the

tribes. I think that will be extremely helpful to begin to get that

kind of feedback. There are technical issues that obviously we need

to fix. I mean just during the course of this hearing I heard a number of things that we could change or word a little bit differently

in the draft that would accomplish what it is you gentlemen and

the people you represent are concerned about. I look forward to continuing to working with you, and thank you again for your testimony. There is no further business. I again thank the members of the Committee and our witnesses. The Committee stand adjourned. [Whereupon, at 6:07 p.m., the Committee was adjourned.]

[NOTE: The following list of information submitted for the record has been retained in the Committee’s official files.] • Brown, Mark, Chairman, Mohegan Tribe of Indians of

Connecticut • Confederated Tribes of the Warm Springs Reservation of

Oregon • Cox, Greg, Supervisor, President, Board of Directors, California

State Association of Counties • Franklin, Matthew, Chairman, Ione Band of Miwok Indians • Kennedy, Cheryle A., Chairwoman, Confederated Tribes of the

Ronde Community of Oregon • Malick, Elida A., Director, No Casino in Plymouth • Morningstar Pope, Rhonda L., Chairperson, Buena Vista

Rancheria

• Royball, Edward R., II, Governor, Piro-Manso-Tiwa Indian

Tribe, Pueblo of San Juan De Guadalupe, New Mexico

• Sanchez, Merlene, Chairperson, Guidiville Band of Pomo

Indians

• Schmit, Cheryl, Director, Stand Up for California

• Smith, Tim, Chair, Sonoma County Board of Supervisors

• Spurr, Laura, Chairwoman, Nottawaseppi Huron Band of

Potawatomi

• Toledo, Mike, Governor, Pueblo of Jemez

• Uikema, Gayle B., Chair, Contra Costa County Board of

Supervisors Æ