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S. HRG. 109–50, Pt. 3

GAMING

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

OVERSIGHT HEARING ON LAND ELIGIBLE FOR GAMING PURSUANT TO

THE INDIAN GAMING REGULATORY ACT

JULY 27, 2005

WASHINGTON, DC

PART 3

(
COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman

BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

MICHAEL D. CRAPO, Idaho

RICHARD BURR, North Carolina

TOM COBURN, M.D., Oklahoma

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

DANIEL K. AKAKA, Hawaii

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

JEANNE BUMPUS, Majority Staff Director

SARA G. GARLAND, Minority Staff Director

(II)
(III)

C O N T E N T S

Page

Statements:

Barnett, John, chairman, Cowlitz Indian Tribe ............................................. 28

Coleman, Penny, acting general counsel, National Indian Gaming Commission ........................................................................................................... 13

Dorgan, Hon. Byron L. U.S. Senator from North Dakota, Vice Chairman,

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

Enyart, Charles D., chief, Eastern Shawnee Tribe of Oklahoma ................. 30

Gray, Walter, tribal administrator, Guidiville Band of Pomo Indians ........ 24

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

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

Norris, Christine, principal chief, Jena Band of Choctaw Indians ............... 26

Skibine, George, acting deputy assistant secretary, Policy and Economic

Development for Indian Affairs, Department of the Interior .................... 9

Vitter, Hon. David, U.S. Senator from Louisiana .......................................... 3

Voinovich, Hon. George V., U.S. Senator from Ohio ..................................... 6

APPENDIX

Prepared statements:

Barnett, John .................................................................................................... 44

Coleman, Penny ................................................................................................ 42

Enick, Jerry Kanim, tribal chief, Snoqualmie Tribe ..................................... 50

Enyart, Charles D. (with attachment) ............................................................ 53

Gray, Walter (with attachment) ...................................................................... 71

Hillaire, Darrell, chairman, Lummi Indian Nation (with attachment) ....... 124

Inouye, Hon. Daniel K., U.S. Senator from Hawaii ....................................... 41

McGowan, Mike, chairman, Indian Gaming Working Group, California

State Association of Counties (with attachment) ....................................... 187

Norris, Christine (with attachment) ............................................................... 204

Skibine, George (with attachment) ................................................................. 225

Vitter, Hon. David, U.S. Senator from Louisiana .......................................... 234

Voinovich, Hon. George V., U.S. Senator from Ohio (with attachment) ...... 241

Additional material submitted for the record:

Lindsay, Barbara M., national director and spokesperson, One Nation

United, (letter) .............................................................................................. 248

Schmit, Cheryl A., director, Stand Up For California (letter with attachment) .............................................................................................................. 254

(1)

GAMING

WEDNESDAY, JULY 27, 2005

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

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

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

Present: Senators McCain, Dorgan, and Smith.

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

ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. Good morning. This hearing is the third oversight hearing held by the committee into the implementation of the

Indian Gaming Regulatory Act. That act has been very successful

for many tribes, yet it has not been without controversy or challenge, as our hearings have shown.

Among the issues that have been both controversial and challenging are the determinations of what Indian lands are eligible for

gaming. Under the Indian Gaming Regulatory Act, trust lands outside of a reservation are generally not eligible for gaming if acquired after October 17, 1988, the date IGRA was enacted.

However, IGRA provides exceptions to that ban if the Secretary

and Governor agree after making certain findings; also for three

specific situations: Settlement of land claims, tribes that are newly

acknowledged by the Department of the Interior, and tribes that

are registered to recognition.

When IGRA was drafted, notions of fairness led to considerations

for those tribes who, through no fault of their own, lost lands or

were not recognized by the Federal Government prior to 1988.

However, in recent years this committee has been made aware of

attempts by some tribes and by some non-Indian developers to expand the use of these exceptions in ways not contemplated when

IGRA was enacted.

Recognition of tribes and the creation, restoration or recovery of

reservation lands are significant events to Indian and non-Indian

communities. When coupled with the establishment of a gaming facility, the impacts to the affected communities are even greater and

the need for clarity in the law is especially important. It is time

this committee reviewed the uses of these exceptions to determine

if they are meeting their intended purpose.

Senator Dorgan.
2

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

NORTH DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN

AFFAIRS

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

I think we all agree that Indian gaming has grown very substantially. It has become a very big success for many Indian tribes.

They have generated over $18 billion of revenue from gaming, employed over 200,000 people. There are Indian reservations in this

country that have substantially reduced their unemployment as a

result of gaming activities. I will not go through the list, but I

think there is no question but that there are substantial benefits.

The opportunities for Indian tribes to locate gaming activities

near large population centers is certainly something that tribe aspire to do to the extent they can. We know that the success in

many cases of Indian gaming is primarily determined by location.

We know that there are some very large, extraordinarily successful

operations, Foxwoods and Mohegan Sun come to mind, and then

many other smaller gaming facilities. In my State there are I believe five, all located in generally rural areas, but nonetheless still

providing significant jobs for members of the tribes.

The exceptions in IGRA, the three exceptions that we will primarily talk about today are expressly for tribes whose lands were

illegally taken, whose governments were wrongfully terminated, or

who are just establishing their government-to-government relationship with the our country. The exceptions are intended to correct

some of the many injustices that have been bestowed upon Native

people. I believe there is a need for these exceptions. I support

these exceptions and the need to correct these injustices.

But I do not believe that tribes should use the IGRA exceptions

to place itself in a better position than had the injustices not occurred. By that, I mean a tribe historically located in the Adirondack Mountains, for example, should not now be able to use an exception to acquire land and open a casino in downtown Manhattan.

I wonder about some of the stories you hear about some tribes willing to settle very large land claims for mere acres in a metropolitan

acre or resort area. So that is the issue I raise with respect to the

use of the exceptions.

Once again, IGRA provides a mechanism for those tribes seeking

to obtain more economically viable lands, but this mechanism is

burdensome. It requires local input, gubernatorial support. It is

still the proper mechanism to be used in certain cases, and I think

this particular hearing will give us the opportunity to learn about

the use of the IGRA exceptions and about whether any changes

need to be made.

I think this hearing is an important discussion about a significant piece of Indian gaming because we see these pressures all

around the country now to find ways to locate gaming facilities in

the middle of major population centers.

Mr. Chairman, thank you very much. I am anxious to hear from

the witnesses.

The CHAIRMAN. Thank you very much.

We are pleased to have with us Senator David Vitter, our colleague from Louisiana. Please proceed.
3

STATEMENT OF HON. DAVID VITTER, U.S. SENATOR FROM

LOUISIANA

Senator VITTER. Thank you, Mr. Chairman and Mr. Vice Chairman. Thank you for holding this hearing.

I am really pleased to be here today to express my concerns

about the proliferation of, in particular, off-reservation Indian casino gambling. It is an issue that directly affects my home State

of Louisiana, but it is also clearly a national issue as well, as both

of you have pointed out. Thank you for inviting me to testify.

In 1988 when Congress passed IGRA, gambling on Indian reservations was a very small industry. At the time, virtually no one

could foresee the future growth of class III casino-style gambling

or that it would become an $18 billion a year industry, with 400

casinos in 30 States. Now, that in and of itself does not mean there

are problems with the law, but I do think there are problems with

the law that are being unfairly exploited, and you all have alluded

to some of those possibilities.

My testimony will mention several problems that my legislation

addresses: But the biggest concern is the need to discourage the recent trend known as ‘‘forum shopping’’ or ‘‘reservation shopping’’ by

Indian tribes. That is the troubling practice, on the part of a growing number of tribes, of selecting land to which the tribes have little or no connection for the sole purpose of building casinos at the

most economically advantageous location.

As widely reported in the press, various tribes are now attempting to claim rights that would allow them to engage in gambling

operations in States where they have no reservation or trust land

status. Tribes making such claims include landless tribes, as well

as tribes with an existing reservation. Affected States include

many, including California, Illinois, Ohio, Colorado, Oregon, New

York, New Mexico, and Louisiana.

Allow me to quickly summarize of some of these developments.

In California, by one account as many as 40 tribes are pursuing offreservation gambling proposals there alone. California is a State

which is already home to approximately 55 Indian casinos. I commend the members of this committee for recently approving, by a

bipartisan 10 to 3 vote, a measure authored by our colleague, Senator Dianne Feinstein, which would make it more difficult for one

California tribe to proceed with an off-reservation casino.

In Ohio, where there are no federally recognized Indian tribes,

the Eastern Shawnee Tribe of Oklahoma is trying to open casinos

in multiple Ohio locations. The tribe is pushing its casino proposals

with help from non-Indian investors—against the wishes of many

folks in Ohio. The tribe has sued the State to seek reparations for

tribal lands in Ohio that were taken 170 years ago.

New York offers another example of possible forum shopping.

There, several out-of-State tribes and additional in-State tribes

have attempted to negotiate for casinos in the Catskill area to settle land claims. And of course, Louisiana, my home State, provides

yet another possible example of where a tribe has engaged in forum

shopping, that is the Jena Band of Choctaws, who you will hear directly from later today. The Jena Band attempted to take land into

trust for gambling purposes in an area of my State that is outside

of its traditional service area.
4

I think the history of the Jena Band’s action is instructive. I just

use it as an example. There are plenty of examples, but this is an

example with which I am very familiar. The Jena Band has been

rejected in its pursuit of land for casinos in two counties in Mississippi. It made a number of applications for land across Louisiana. It may have considered land in Texas as well, I understand.

I am concerned about this forum shopping. The Jena Band first

received Federal recognition in 1995; and after receiving that recognition, the tribe courted the Rapides Parish Police Jury which is

basically the county government, in July 1996, with promises to

pay them up to 6 percent of the net profits made off the proposed

casino.

However, then-Louisiana Governor Mike Foster opposed these attempts and refused to negotiate a compact. The Jena Band actually

filed a lawsuit in an attempt to force the Governor to negotiate, but

the judge threw out the lawsuit in December 1996.

The Band then courted the Natchitoches Parish Police Jury in

1998, offering them 50 percent of its ‘‘planned local monetary contributions.’’ That was unsuccessful. Then they reached out to Mississippi, actually, and were rejected by two counties there in 2001,

Greene and Tishomingo. Mississippi’s Governor stated he would

refuse another Indian casino in Mississippi. So the Jena looked

back to Louisiana; and, in October 2001, on hearing that the Jena

might be looking to their parish, the Sabine Parish Police Jury

passed a resolution declaring their opposition to a casino.

After that, the Jena Band and former Governor Foster then

quietly negotiated a compact centered on the town of Vinton in

Southwest Louisiana and sent it to the Bureau of Indian Affairs

[BIA] for approval in January 2002. There was a real outcry about

that, particularly in the local area. Several leaders joined in that

outcry, including myself, Congressman Jim McCrery, Congressman

Chris John, and Senator Mary Landrieu, as well as 30 other members of the U.S. Congress. The BIA rejected that proposed compact

on March 7, 2002.

The Jena Band has argued that it has the ability to force a State

into agreeing to a gambling compact, circumventing the State process designed by Federal law and instead working directly with the

U.S. Department of the Interior. The current Governor of Louisiana

opposes the expansion of casino gambling in our State, and even

the suggestion that the Federal Government would ever force

States to accept casinos they oppose is very troubling. That is another distinct issue I address in my bill.

In June, I joined my colleague, Senator George Voinovich, who

is here as well, and other members of the Senate in offering a floor

amendment to ensure that Governors of affected States will have

input when decisions are being made to take land into trust on behalf of Indian tribes for gambling purposes. This amendment was

endorsed by the National Governors Association, but we did not

call for a vote on the Voinovich amendment due to jurisdictional

concerns of this committee.

That amendment actually complements a bill I introduced in

June, and I want to spend just a few minutes outlining that bill.

It is titled the Common Sense Indian Gambling Reform Act of

2005, S. 1260. It is a nearly identical companion to a House meas-
5

ure introduced by Congressman Mike Rogers of Michigan, H.R.

2353. Our legislation does not specifically target any particular

tribes. Rather, it proposes seven reasonable reforms, which I have

alluded to, to current Federal law related to Indian gambling.

First, the bill we introduced would require that an economic impact study be conducted in an area within a 60-mile radius of a

proposed new Indian casino. The rationale for requiring such a

study is to ensure that we fully understand the effect of a proposed

new casino on all surrounding communities.

Second, the bill we introduced calls for more local input. The bill

we introduced will eliminate several existing exceptions to the existing ban on Indian casino gambling under IGRA, thereby ensuring that Federal officials must consult with officials of all potentially affected State or local governments, or other Indian tribes,

before making what is known as their two-part determination with

respect to a proposed Indian casino. Striking these exceptions

would simply ensure that State and local input is garnered and

honored.

Third, the bill we introduced would ensure an enhanced role for

State legislatures. The measure requires State legislatures, as well

as each Governor, to concur in the two-part determination. I mentioned just now. The bill would enhance the role of State lawmakers in conjunction with the Governor.

Fourth, under this bill, off-reservation casinos would be virtually

rendered impossible. Our bill effectively precludes Indian tribes

from proposing new casinos on land to which the tribes have little

or no connection. It does so by imposing these conditions. First, an

Indian casino must be on a single contiguous parcel of Indian lands

for a casino; and second, the casino must be within the State in

which the tribe is primarily located and on land to which the tribe

has its primary ‘‘geographical, social and historical nexus.’’

Fifth, the bill we introduced calls for additional background

checks. The bill would clarify that any financial top-10 interest involved in opening an Indian casino operation will be subject to normal background checks and that the National Indian Gaming Commission would approve all top-10 financial arrangements and

would perform the background checks.

Sixth, the bill we introduced would require that tribes declare an

intent to gamble when initially making an application for land, and

that declaration would be binding in the future.

Seventh, the bill would require that a tribe submit a new environmental impact statement to the Secretary of the Interior if the

tribe changes the use of its land from non-gambling or general purpose to a gambling purpose.

As I said, this I think is a widespread and growing set of concerns in the Nation and in the Congress. I thank so many others

of my colleagues, including Senator Voinovich here, and Senator

Feinstein for joining in this national effort. I look forward to working with you, Mr. Chairman, you, Mr. Vice Chairman and this entire committee in developing and refining legislation in this area.

I would urge my colleagues to join us in enacting these sensible reforms.

Thank you very much.

[Prepared statement of Senator Vitter appears in appendix.]
6

The CHAIRMAN. Thank you very much.

Senator Voinovich, welcome.

STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR

FROM OHIO

Senator VOINOVICH. Thank you, Mr. Chairman. I want to thank

you and Senator Dorgan for having this hearing. Mr. Chairman, I

appreciate your keeping your word to me when I wanted to amend

the Interior Appropriations bill that if I backed off from it that you

would hold a hearing. You are a man of your word. Thank you very

much.

Senator Vitter has done a good job of defining the problem, and

that it is not just a problem in Ohio or in Louisiana, but it is a

problem that we have throughout the United States of America. I

can tell you, it is becoming a real problem in my home State of

Ohio. Currently, there are over 400 tribal casinos in 30 States. The

tribes who run these casinos have seen a substantial financial benefit to their tribes. Last year, the annual revenue of Indian casinos

had grown to almost $19.5 billion. With the continued expansion of

Indian casinos, that annual revenue will continue to grow.

To build on this financial success of tribal casinos, some Native

American tribes are aggressively seeking to take gambling off reservations and into local communities all across the United States.

In this practice, commonly referred to as reservation shopping,

tribes are looking to acquire new non-contiguous land to open casinos near large communities or next to major roads with easy access.

A loophole in the law that regulates Indian gaming, the Indian

Gaming Regulatory Act, allows the Department of the Interior to

take land into trust for a tribal casino, even at great distances from

their home reservation. While some casinos on tribal reservations

have been very successful, many reservations are located in rural

areas at great distances from population centers. These tribes are

looking at lands hundreds of miles away from their reservations

and near population centers like Cleveland, Chicago, Miami, and

the Bay Area of California.

In early 2003, a tribe secretly began courting communities in

Ohio with the lure of financial gain from casinos. Since then, agreements have been reached between the tribe and four separate mayors in our State to site casinos in their communities under the

pledge that a casino complex would bring new jobs and increase

their tax base. All of this has been done without any land claims

filed or any determination in terms that the claims would be successful.

The Eastern Shawnee and the developers behind their casino

plans are so confident that they can pull off their land claim that

they are garnering political support for casinos. Last month, the

Eastern Shawnee Tribe of Oklahoma filed a land claim in Federal

court for the rights to 146 square miles of land and hunting rights

to 4 million acres of land throughout the State. To put this in perspective, Mr. Chairman, 146 square miles is almost the size of

Cleveland and Cincinnati combined. This claim is filed against the

State of Ohio, 36 counties in the State and a number of cities and

private landowners.
7

As indicated in this article from the Columbus Dispatch, the

Eastern Shawnee’s lawyer has stated that the tribe will drop the

land claim in exchange for the right to put casinos in these communities throughout the State. Mr. Chairman, I ask unanimous consent that this article be made part of the record.

The CHAIRMAN. Without objection.

[Article appears in appendix.]

Senator VOINOVICH. The Eastern Shawnee and the groups financing their efforts in Ohio are clearly blackmailing the State and

they are not even being subtle about it. The reality here is that

they were looking at location and then looking at the legality of

bringing a casino into my State after that. By filing this claim, the

Eastern Shawnee Tribe is exploiting loopholes in existing Federal

law.

The Indian Claims Commission Act of 1946, which was created

expressly to resolve land claims against the Federal Government,

required that any claims be filed within 5 years of enactment. Because the tribe is now precluded from suing the Federal Government, they are now suing the State.

The Eastern Shawnee was successful in pursuing a claim against

the Federal Government in the Indian Claims Commission. In the

1970’s, the commission concluded that claims against the Government were valid and Congress appropriated funds to pay these

claims.

Mr. Chairman, I respectfully request that as you develop legislation in your committee, you consider that tribes are now using land

claims against State and local governments, as well as private

landowners as leverage for casinos. The real goal behind this land

claim is to site casinos, not to seek financial restitution.

As you consider this, also consider the need to strengthen IGRA

to specifically prohibit tribes from moving across State lines, hundreds of miles from their reservations. Clear language such as this

would prevent frivolous lawsuits such as the one that we are experiencing now in the State of Ohio.

Another loophole the Eastern Shawnee is taking advantage of is

the ambiguity of how the provision in the Indian Gaming Regulatory Act which determines which gambling activities are permitted. As you know, IGRA defines casino-style gambling as class

III, which includes slot machines, blackjack, craps, roulette, some

lotteries, and parimutuel racing. This class of gambling activity on

Indian lands can only be ‘‘located in a State that permits such gaming for any purpose by any person, organization or entity.’’ It is unclear whether this means that the statutory language should be

read and applied in a class-wide or categorical sense, or whether

it should be read and applied on an activity-by-activity basis.

District and Circuit Federal Courts have both considered this

question. In 1991, a district court in Wisconsin ruled that if a State

permits one type of class III gaming, then all other types of class

III gaming can be conducted in that State under IGRA. On the

other hand, in 1993 and 1994, the Eighth and Ninth Circuit Courts

of Appeal construed the language of IGRA to mean that class III

gaming in a particular State is limited under Federal law to the

specific activities that are permitted under the State’s laws.
8

Earlier this month, the 10th circuit revealed that these uncertainties continue by finding in favor of the Northern Arapaho Tribe

who want to build a casino in Wyoming. Gambling is illegal in the

State of Wyoming except for social and charitable gambling. In this

instance, the tribe contended that it is entitled to offer full casinostyle gambling on its reservation because the State allows casinostyle activities for social and nonprofit purposes.

In Ohio, gambling for commercial purposes is prohibited by the

State Constitution. However, parimutuel racing and lottery are

both permitted, as well as charitable gambling on a very limited

and controlled basis. The Eastern Shawnee and the developers they

have partnered with recognize this ambiguity in existing Federal

law. In order to address this loophole, I will be introducing legislation today that clarifies congressional intent that the provisions of

IGRA which permit class III gambling only apply on an activityby-activity basis and do not permit the full gamut of gaming.

Mr. Chairman, I respectfully request that you hold a hearing on

the questions that are raised by the ambiguity in the law and that

you consider my bill as you develop legislation to address the unintended consequences of the Indian Gaming Regulatory Act. The

Eastern Shawnee already operate a casino on the reservation at

the border of Oklahoma and Missouri. Chief Enyart testified before

the House Resources Committee earlier this year that their economic potential is limited by the rural character of where the casino and reservation are located.

This tribe has been courted by investors with the attraction that

they can find dollar signs out of State, dollar signs they will make

at the detriment of my constituents. Ohio is a much larger and

more populated State. In fact, the population of Ohio is more than

three times the size of the population of Oklahoma. The Eastern

Shawnee and the financial backers of their proposals are promising

local communities in Ohio that casinos and gambling will address

the economic problems Ohio is facing right now.

Mr. Chairman, that is another issue that I encourage you to consider as your committee continues to investigate this issue. Who is

actually funding the efforts to bring Indian casinos off-reservation

and across State lines? Who are these people? In Ohio, it is well

recognized that the Eastern Shawnee efforts are being paid for by

a number of ‘‘unnamed private investors.’’ Think about that. Is this

the tribe or are these unnamed private investors promoting casinos

so that they can benefit substantially from the proceeds that the

Indians would garner from locating one of these casinos in a State

like Ohio?

With private investors such as these, Indian gaming and its consequences have gone far beyond what was originally intended by

Congress when IGRA was passed. This has become a gigantic shell

game instead of righting earlier wrongs against tribes. We are no

longer looking at giving tribes the self-sufficiency needed for economic gain, but rather lining the pockets of investors with large

sums of money.

Mr. Chairman, this issue is ultimately a public policy question.

I oppose gambling in all forms, whether commercial or Indian. To

me, this is ultimately a question of States rights, one that our

founding fathers addressed in the 10th Amendment. I believe that
9

States should have the authority over whether or not to allow for

gambling within their borders. However, in Ohio we are facing

blackmail by Indian tribes and the financial backers who are funding these efforts.

I just want to thank you very much for doing this. I think that

this proliferation of Indian casinos around the country is something

that we all ought to be very, very concerned about. It goes far beyond anything that was anticipated in terms of rightfully reimbursing these tribes for what was done to them or to fulfill the treaties

that they signed that the Federal Government did not fulfill.

I thank you very much.

[Prepared statement of Senator Voinovich appears in appendix.]

The CHAIRMAN. I thank you both for being here. It has been very

helpful. Obviously, there is some passion associated with this issue.

I thank you for your input and we look forward to working with

you.

Byron.

Senator DORGAN. Mr. Chairman, let me thank both of the witnesses. I do not have any questions because they have well and

very clearly expressed their interest in this, and as you said, with

great passion as well.

Let me ask consent to have Senator Inouye’s opening statement

put in the record at this point.

The CHAIRMAN. Without objection.

[Prepared statement of Senator Inouye appears in appendix.]

Senator DORGAN. Your comments are very helpful to this Committee and we appreciate very much your being here.

The CHAIRMAN. I would just like to add again, as one of the authors of the Indian Gaming Regulatory Act, we never anticipated

that gaming would turn into as large and widespread involvement

as it has.

As you mentioned, Senator Voinovich, one of the decisions of the

courts that basically said that full-blown gaming can take place if

there is charitable gaming taking place. In other words, one Las

Vegas night a year then equates to a full-blown 24–7 gaming. It

was a court decision and that certainly had a great affect on the

proliferation of gaming throughout America.

I thank you both very much.

Senator VITTER. Thank you.

Senator VOINOVICH. Thank you.

The CHAIRMAN. Our other panel is George Skibine, who is the

acting deputy assistant secretary for Policy and Economic Development for Indian Affairs; and Penny Coleman, who is the acting

general counsel of the National Indian Gaming Commission.

Welcome to both of you. George, we will begin with you. Welcome

back.

STATEMENT OF GEORGE SKIBINE, ACTING DEPUTY ASSISTANT SECRETARY, POLICY AND ECONOMIC DEVELOPMENT

FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

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

I am pleased to be here today to present testimony on the section

20 exceptions to the gaming prohibition on after-acquired land.

My written testimony will be part of the record.
10

The CHAIRMAN. Without objection.

Mr. SKIBINE. What I want to discuss today is how we have implemented section 20 since 1988; what is currently pending before the

department; and what we hope to accomplish, what we are facing

in the future.

For that purpose, we have produced in my testimony a number

of charts. Here we have a visual aid that will help with showing

what we have. We will start first to discuss briefly the approved

gaming acquisition that are on-reservation or contiguous with the

boundaries of a reservation. Since 1988, we have had essentially

eight of these. You can point to what they are. That is the first

chart. That is where they are. Of these, four were on-reservation

and three were contiguous to the reservation, or sort of both on and

off the boundaries of the reservation. So this exception has not

really been used very much. And I think what that shows is that

by far the majority of tribes are operating gaming establishments

on their reservations on lands that have been part of the trust before October 17, 1988.

Of course, our position is that the definition of Indian lands

would authorize gaming by the tribe on the reservation if the land

is not in trust as long as it is owned in fee by the tribe. But there

are some advantages to taking the land into trust, and essentially

that is what has happened for these.

The next exception that I wanted to talk briefly about is the initial reservation of an Indian tribe acknowledged by the Secretary

under the Federal acknowledgment process. Here, we have approved three of these acquisitions. The first one was for the Mohegan Tribe back in 1995, and the next two were for tribes in Michigan. I want to point out that under this exception, only one has actually gone in to trust. The other two are the subject of a lawsuit,

so the land has not been taken into trust. The fact on our chart,

we show that those that were approved does not mean that the

land itself has been taken into trust because a number of them can

be challenged for various purposes.

For instance, even under number one, I think that for White

Earth in Minnesota, that land has still not been taken in to trust

because there are encumbrances of other issues.

Now, with the initial reservation of Indian tribes acknowledged

by the Secretary under the acknowledgment process our position

has been that in order to qualify for this exception, the tribe has

to show substantial historical, cultural and geographical ties to the

land. What we do when we look at the application is we look at

the record that is compiled by the Federal acknowledgment process, which are thousands and thousands of pages that essentially

follow the history of the tribe and where it has been, and it essentially will tell us in a fairly objective way whether that tribe will

qualify under that exception.

The CHAIRMAN. How does that work if a tribe, as testified by the

two previous witnesses, want to acquire lands in another State for

purposes of a gaming operation?

Mr. SKIBINE. They cannot take advantage of that exception. If

they try to take advantage of that exception, it will be disapproved.

I think that, for instance, for the Jena Band of Choctaws who will

testify later, I know that as Senator Vitter mentioned, we dis-
11

approved the compact for that tribe for land that was off-reservation. I think the reason for the disapproval was that, well, the reason for the disapproval was not really because there was all this

congressional objection. Hopefully, we followed the law, and essentially we found that the payment that the tribe was agreeing to

make to the State was in exchange for the Governor’s support of

the tribe’s initial reservation at that location. We felt that that designation is not the Governor’s to make, but the Secretary’s. Secretary Norton indicated in her letter of disapproval that she, although that was not an issue in the compact, that she would not

be willing to approve an initial reservation under this exception,

several hundred miles from the tribe’s traditional area.

That is why it is a fairly difficult process. We look at the historical record. I know there are tribes where there are pending initial

reservations. That is what we do. I know that I have talked to

some groups who have challenged whether the tribe actually is

from the area where they claim to be. I think we will look very

carefully at all the records, not only the one that is submitted by

the tribe, but the one that is submitted by the local community or

anyone who has an issue with that because I think the Secretary

definitely does not want to place a tribe in a community for an initial reservation where they do not belong, in other words, where

they are not from.

So the test that we have, we have devised on a case-by-case

basis. It has not been applied many times, but that is the one we

have.

And that is why, for this exception, to call that reservation shopping is misguided. These tribes are not shopping, the ones that will

be approved are not shopping for a reservation far from their

homeland. They are tribes that essentially have nothing. They have

no land. A lot of them have no money. They have been denied recognition for years, and after a very arduous process, sometimes it

takes 20 or 25 years, they are finally recognized. They are seeking

to take advantage of that exception for gaming, but really what

they want is land for economic development. Because we insist that

they have strong geographical and cultural ties to the land, I am

not sure that the reservation shopping tag can be applied to that

exception.

Let me move on to the next one. That is the approved gaming

acquisition for the restoration of lands for an Indian tribe restored

to Federal recognition. In that case, we have had 12. In the chart

that we have, the chart only concerns those lands where the tribe

needed to acquire land in trust, and then the way it works is if the

land is not in trust, when the tribe applies and we have to make

a determination on whether it fits within the exception. My colleague, general counsel of the NIGC, will delve into this issue in

much more detail, so I think I am going to skip over it except to

mention that if you look at the list that we have of the 12 tribes

that have qualified under this exception, I think all of these have

been qualified because they were restored by Federal statute. The

land that was the subject of the exception was land that was specifically mentioned in that statute, the restoration statute, as being

land that the Secretary could or had to take in trust for the tribe.
12

Some of these that are listed in our chart are mandatory acquisitions and some of those were discretionary. For instance, I see here

that at number eight, we have the Lytton Band that was the subject of the previous hearing before this committee. This was a mandatory acquisition for that tribe. When that happens, of course, we

have no discretion at all to say yea or nay, but some of them are

discretionary.

Finally, let me briefly mention the approved gaming acquisition

for settlement of a land claim. Here, we have had essentially since

1988, it has been applied once, and that is for the Seneca Nation

of New York. It is listed four times in our charts, but they are all

for the one tribe. Three of these acquisitions, in fact, are gaming

related, but not for gaming.

So this was under the 1990 Seneca Settlement Act. I do not

think that it was enacted with IGRA in mind, but it just so happened that it would have qualified.

So the bottomline is that if we look at past practices, we really

do not see the problem that has been mentioned by the Senator in

the previous panel. Essentially, we have had not that many applications. They have been carefully considered. As you can see from

the record, it has not been a runaway problem of Indian tribes

seeking lands off-reservation.

Now, there may be a problem in the future. We are not discounting that. We share the committee’s concern in this regard. For the

department, for instance with the Eastern Shawnee Tribe that Senator Voinovich mentioned, we do not have an application. We have

not talked to the tribe about that. We have had essentially no communication at all. We are aware of what is going on basically because of clips in the newspapers. That is true in some of these

other instances.

I have seen a list, for instance, that a group in California, Stand

Up For California, puts together of pending and rumored acquisitions. It is true that, as the Senator mentioned, that there may be

close to 40 in there, but in fact what we have pending, and that

is the second chart we have. As to the pending Indian acquisitions,

we only have about 11 pending right now, certainly not 40. The

reason there are 40 is because there is a lot of money to be made

in gaming and this is the land of free enterprise and people are

looking for opportunities. So these deals are talked about and they

are raised by the newspapers, but in fact we have not seen many

coming to actual fruition. The reason is that it is a very difficult

process.

Briefly, let me mention the two-party termination is not part of

this meeting. I have said on many instances, we have only approved three since 1988, and we have about eight pending right

now. This is for the two-party termination exception. I think some

call it the true reservation shopping exception because it allows a

tribe to submit an application when none of these other exceptions

apply, for land that could be potentially out of state, and where the

tribe has no significant cultural and historical connection. But in

effect, it is a very difficult process. It goes through a rigorous test

and we have to make a determination that the gaming establishment is in the best interest of the tribe and its members; and it

is not detrimental to the surrounding community. We have to con-
13

sult with local and government officials, and finally the Governor

of the State has essentially veto power over that acquisition.

For practical purposes, in all three cases where we have approved these applications, the local community and the Governor

have in fact supported it. Even though the local community’s support is not mandated under the act, in fact I think that if you take

that in connection with the land acquisition regulations that we

have in section 25 CFR part 151, it is extremely unlikely that the

Secretary here would ever make a positive two-part determination

if the local community in fact is opposed to this. When I go around,

I stress to tribes who are thinking about this that local community

support is absolutely crucial to have this process go forward.

Now this is what we have done, let me just mention briefly what

we are doing. As you may know, we published regulations in 25

CFR part 292 back in 2000 or maybe a little earlier that would

have implemented the two-part determination. I think the Bush

administration when it came over was not really interested in

pushing those regulations. We are now trying to revive them, and

we are thinking about moving forward again on those. We would

essentially put in the regulations not only the implementation of

section 20(b)(1)(a), the two party determination, but also the definitions and a test that we have for these other exceptions, like initial

reservation, settlement of a land claim, and other things of this nature.

We will see essentially where that goes. We want to work with

the committee on addressing the problems that have been identified for the future, to make sure that we understand what was the

intent of Congress in 1988 in enacting these exceptions. We definitely would be interested in looking at some of these issues that

we think can be nailed down.

With that, I will end my comments and I will be available for

questions. Thank you very much.

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

The CHAIRMAN. Thank you very much.

Ms. Coleman, welcome.

STATEMENT OF PENNY COLEMAN, ACTING GENERAL

COUNSEL, NATIONAL INDIAN GAMING COMMISSION

Ms. COLEMAN. Thank you. Good morning.

Chairman McCain, Vice Chairman Dorgan, Senator Smith, my

name is Penny Coleman. I am the acting general counsel for the

National Indian Gaming Commission. I really appreciate the

chance to come and speak to you. A lot of people do not realize that

the National Indian Gaming Commission has an important role in

these Indian land decisions. So I wanted to come here to tell you

that we do; that it is a very important process to us. These decisions are difficult and we struggle with them. So I wanted to tell

you a little bit about that.

Indian lands, that is the foundation on which you have Indian

gaming. Indian gaming can only be conducted on Indian lands.

IGRA defines Indian lands, requires gaming to be on the Indian

lands, and limits the commission’s authority to Indian lands. It establishes the general prohibition against gaming on lands after October 1988.
14

And then of course we have all of the exceptions we have been

talking about so far. Those Indian lands are central to our functions because we have to determine whether the gaming facility is

on Indian lands and is central to our function because we can only

regulate on Indian lands. So we have to know whether or not there

are Indian lands there. If there aren’t any Indian lands, for instance we took a position in Oklahoma, fee lands, no reservation,

and we said, these are not Indian lands. We cannot regulate it. We

sent that information to the State, and so now the State has moved

to close down that particular facility based on the theory that it is

within its jurisdiction.

The CHAIRMAN. When you say ‘‘Indian lands,’’ that means Indian-owned lands as well as trust lands?

Ms. COLEMAN. There is so much more to it, because first Indian

lands is defined as reservation lands. So if it is within a reservation, no problem.

The CHAIRMAN. That is trust status, yes.

Ms. COLEMAN. But if it is off-reservation, then it has to be either

held in trust or restricted status, and the tribe has to exercise governmental authority over it. And to exercise governmental authorities over it, they have to do both present-day exercise. So in other

words, they have to have law enforcement, maybe have tribal offices. They have to do actual right-now exercise of governmental

powers over it.

But they also have to have that theoretical right to exercise that

power. So for instance if you have fee lands off- reservation, as a

general matter a tribe is not going to have that theoretical right.

The CHAIRMAN. What about tribally owned lands, not fee, but

they buy some land in downtown Denver.

Ms. COLEMAN. Those are fee lands.

The CHAIRMAN. Those are fee lands.

Ms. COLEMAN. Right; those are still fee lands.

The CHAIRMAN. So they set up a police force and a government

entity; they own the land. They bought it. Now, is that under your

jurisdiction?

Ms. COLEMAN. No; generally not, because the tribe owns those

lands in fee and cannot just by buying the lands take them outside

of the jurisdiction of the State.

Senator DORGAN. When you say ‘‘generally not,’’ are there conditions under which it is under your jurisdiction?

Ms. COLEMAN. I am aware of in Alaska there are fee lands that

are held as restricted against alienation. It is a very unusual situation. I have not actually run into it in any other place. It was a

result of the unusual history of Alaska where the lands were fee

lands that were restricted against alienation.

The CHAIRMAN. So these lands, they have to not only acquire

some way, but they have to have it be in trust status.

Ms. COLEMAN. Yes.

So we get into it. We, the commission, both trying to determine

whether or not we can regulate this, but also because we have

management contracts that are subject to our approval.

The CHAIRMAN. Management contracts are subject to your approval, but consulting contracts are not.

Ms. COLEMAN. That is correct, Senator.
15

The CHAIRMAN. We have very few management contracts anymore, and we have lots of consulting contracts.

Ms. COLEMAN. We do not have all that many consulting contracts

anymore because we have taken a rather broad view as to what

consulting contracts mean. So we have taken the view that just because they call it a consulting contract does not make it a consulting contract. It has to actually be one. Where they are providing

just very specific deliverables for a specific sum of money, if it looks

like a management contract, then we have concluded it is a management contract.

The CHAIRMAN. So have you taken action that has reduced the

amount of money that a so-called ‘‘consulting’’ contract, but is actually a management contract?

Ms. COLEMAN. To do that, we issue advisory opinions. Tribes and

contractors submit their contracts to us, to the Office of General

Counsel. We review them and we look at them primarily for two

reasons. One to see if they are management and the other to see

if they violate the requirement that the tribe has the sole proprietary interest in the gaming.

The CHAIRMAN. Do you know of any tribe that has had to void

a contract because of your determination?

Ms. COLEMAN. Yes.

The CHAIRMAN. Go ahead, please.

Ms. COLEMAN. So besides management contracts, on occasion we

do have site-specific tribal ordinances that we have to approve or

disapprove. So if the ordinance is site-specific, we will also have to

make a decision on those.

The CHAIRMAN. How large is your staff?

Ms. COLEMAN. There are approximately 10 attorneys.

The CHAIRMAN. And there are how many Indian gaming operations?

Ms. COLEMAN. There are approximately 404.

The CHAIRMAN. We have 10 attorneys monitoring the activities

of 404?

Ms. COLEMAN. Yes, sir.

The CHAIRMAN. Please proceed.

Ms. COLEMAN. Thank you.

Now, we offer advisory opinions also on these Indian lands, the

Office of General Counsel does. The reason why we do that is for

a couple of reasons. One is that if the tribe wants to go ahead and

game, it is in their best interest and everyone’s best interest to find

out beforehand whether or not they are going to be able to game

on that particular piece of property. So we will review those for

them.

Also, though, we will review Indian lands when the tribe has already opened a facility and we have a reason to believe that the

property may not be Indian lands. So we need to do that in order

to make sure that they are gaming in accordance with IGRA. There

have been occasions where they have not and we have had to tell

tribes to shut down. That, of course, is not the way to go, to have

a facility already in place before you have that kind of determination made.

The CHAIRMAN. Have they fought you in the courts?

Ms. COLEMAN. Pardon?
16

The CHAIRMAN. When you tell them they have to shut down,

have they fought you in court?

Ms. COLEMAN. Absolutely.

The CHAIRMAN. Have they won or lost?

Ms. COLEMAN. Well, there is one that is still pending. In Miami,

we won. What other ones have we had?

The CHAIRMAN. Don’t look at him. [Laughter.]

Ms. COLEMAN. George is my memory.

Senator DORGAN. You would remember your losses, wouldn’t

you? Wouldn’t you remember your losses?

Ms. COLEMAN. Yes; so we must not have had any. [Laughter.]

The CHAIRMAN. Submit that for the record, would you please?

Ms. COLEMAN. Absolutely.

The CHAIRMAN. Thank you. Go ahead.

Ms. COLEMAN. The reason why I am looking at George is because

we share this responsibility with the department. Obviously, the

department has a really important role in this. So we entered into

a memorandum of understanding with the Office of the Solicitor to

share our work and to work together on these issues. The Division

of Indian Affairs has a few people who work on these issues.

George, of course, does, and then our office. And we provide drafts

and we share information. The Bureau of Indian Affairs obviously

has the copies of the deeds and a lot of the relevant information

we need to make these decisions. So we try to work very closely

together.

For many years, the department assumed the primary role for

making these decisions, but a gaming has expanded, as there has

gotten to be more and more facilities, as we have needed more and

more to make these decisions, the Office of General Counsel started

writing more of the opinions. It was rather a natural transition. I

worked in the Office of the Solicitor before I worked in the Office

of General Counsel. So we know and understand what the department’s issues are. We try to work really closely with them.

Nonetheless, we wanted to let you know that this is not a small

undertaking; that this is difficult; that we have altogether in the

last 10 years have probably only issued about 50 full-blown opinions, and that is with the department, too. We have about 50 pending right now, somebody counted them for me. And some of these

are really simple. If it is trust land and it is on the reservation,

no problem. It is Indian lands. We do not have to spend a lot of

time looking into this issue. We do not have to write a full-blown

opinion. All we have to do is determine it is.

But there are other ones that are very complex and difficult. The

one that was alluded to by George, the restored lands, that exception to the general prohibition for gaming on after October 1988

when lands are taken into trust as part of the restoration of a tribe

when it has been restored to Federal recognition.

To fall within the restored land exception, a tribe must establish

that it is restored and then it must establish that the parcel has

been restored. So to be restored to Federal recognition, you must

have been recognized at one point; you must have been terminated;

and then you must be re-recognized. Being recognized right now is

usually pretty easy. We can look to the Secretary’s list of recog-
17

nized tribes or we can look to recent enactment of Congress where

the tribe has been restored to recognition.

But to determine whether somebody has been previously recognized is a lot more complex. There are tribes that are recognized

through the BIA’s BAR process that were not necessarily previously recognized, but they are now recognized. So we have to look

at their relationship back in the 18th and 19th century. We have

to look to their political history, their ethnographic history. We

work with the tribe. We work with the department. We work with

the State. We work with historians and archivists, and just pull all

of that information together.

And then we have to go even further when we are trying to determine whether lands are restored. Just because you reacquire

lands does not mean that they are restored lands. Every time a

tribe acquires land into trust does not mean that just because they

are a restored tribe that the lands are restored. We have had several court cases on this, so we have some real guidance on what

restored lands means now.

What we do is we look to the factual circumstances of the acquisition. We look to the location of the acquisition. For instance, the

location of the acquisition, if the tribe is located in California, are

they seeking to acquire the land a mile away from where their population base is? Or are they looking to get it in Nevada? Well, we

would say that if they are trying to acquire it in the next State,

that is way too far afield. We are looking to where the population

base is.

And we are looking to whether or not this land is important to

the tribe, whether they still have some relationship with that land;

whether it was important to them throughout history; if that was

the place where they had village settlements; where they did their

hunting and fishing; whether they have burial grounds; whether

they have this really important historical nexus besides the present

day nexus to the land.

And we look to the temporal relationship to the acquisition. So

a tribe that was restored to recognition 40 years ago and acquired

land 2 years later, that is going to be its restored lands. The fact

that it has been restored to recognition and wants to acquire land

now, that does not make it restored lands because that is just too

far after the fact. So it has to be close in time.

So for instance in the litigation that we are in in Wyandotte, Ok,

the tribe had acquired land into trust in the State of Kansas. We

said, population base is in the State of Oklahoma. This land was

not important to the tribe as a general matter. They were only located on that property for 11 years. It was transitioning through,

essentially, through Kansas. It was 18 years after their restoration

that they actually acquired this land into trust, so we concluded

that these were not restored lands.

So we are looking very closely at all of this. To do that, the tribe

has to provide voluminous historical documents, archaeological evidence. It takes tribes time and money to submit this information.

It takes time for us to review it.

Does it mean that we have a really broad exception to the general prohibition? Absolutely not. It is a very narrow exception and

there have only been a few that have come within these guidelines.
18

As George mentioned, most of the restored tribes are actually

congressional actions. It is not an action based on looking at IGRA

and trying to determine what the terms mean. It is statutory construction instead.

Now, with respect to your notation that there is only 10 of us,

we have been criticized by the Office of Inspector General because

we are not making these decisions on Indian lands before a tribe

opens the gaming facilities, and because we do not really have a

systematic approach to making these decisions. We are making the

decisions as we determine that they are important, and when we

find out that there might be a big problem. That is not necessarily

great government.

So we have do share the Inspector General’s concern on this.

What we are moving to do is to fix that within our office. So just

a couple of weeks ago, a team from the Office of General Counsel

went down to Oklahoma. We started pulling deeds for the Oklahoma facilities. Our regional director in California hired a title

search company to do some title searches. We are developing files

with the goal that at some point we will have a file on all 404 and

we will be able to pull a file at any point and be able to tell you

whether or not it is on Indian lands. We will now whether or not

we should be regulating and know whether we should be attempting to close it down.

If we do not make these decisions before the tribe opens, well

then we will have litigation. It is just going to be guaranteed. A

tribe is going to have to fight us if they have already opened their

facility and we say you cannot have a facility. And so consequently

one of the things that we are looking at is developing regulations

that ties the licensing of the facility to an Indian lands determination. So that we can ask tribes to notify us ahead of time that they

are planning on opening. And I don’t mean the day before. I mean

enough time so we can actually determine this and get all of the

information we need to make sure that they are gaming on Indian

lands.

So that is our involvement in Indian lands determinations. I

thank you very much. If you have any questions, please ask.

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

The CHAIRMAN. Thank you very much.

Mr. Skibine and Ms. Coleman, I get the impression from your

statements that you think that perhaps the danger here has been

somewhat exaggerated, or the problems have been somewhat exaggerated. Is that accurate?

Mr. SKIBINE. Well, I do not think that there has been the problems in the past. As my testimony indicates, we have followed

IGRA very carefully and it has not resulted in that many casinos

proliferating everywhere. I think potentially we are concerned

about what is in the future because of the potential for abuse that

is there under the Act currently, but we have not seen that. As I

said, with some of these they are to us just rumors and we have

no involvement so we do not know for a fact that that is an issue.

The CHAIRMAN. Which means that perhaps some legislation may

be necessary in order to prevent some of these things from happening. Do you agree with that?
19

Mr. SKIBINE. It may be. As I stated, we would be willing to discuss with you what would be the appropriate mechanism and

where it needs to change to tighten things up.

The CHAIRMAN. We need to do that, but let me give you examples

of why there seems to be concern. Stories about a member of the

Bureau of Indian Affairs literally signing recognition papers on his

way out the door in his car. I mean, that is a fact. Those were rescinded because of those circumstances of his last day in office. Rumors or stories that are carried that a tribe is willing to trade their

claims for half of the State of Colorado, as Byron Dorgan mentioned, so they could establish a casino in downtown Denver.

When these stories start circulating like that, people area asking,

what is this all about? You see my point?

Mr. SKIBINE. Yes; and that is an issue. I was in Colorado. The

Governor of Colorado had a conference regarding that. I think it is

a real issue. With respect to the Colorado issue, I think the department has determined that the claim that is asserted by the tribe

is not genuine and lacks merit. So for purposes of the settlement

of a land claim, the reason we have only had one so far is that our

view is that the settlement of a land claim has to be a settlement

that is ratified by Congress, as the Seneca claim was. As a result,

there is a phenomenal check on an abuse of that exception. If it has

to come before this body, it will be scrutinized to the nth degree

so that the settlement legislation is not enacted willy-nilly here.

The CHAIRMAN. So Senator Voinovich’s concern about a casino in

downtown Cleveland is not, his concern is not as compelling as perhaps we might think?

Mr. SKIBINE. Perhaps. That is right. In our view, there would

have to be settlement legislation introduced in Congress. That is

our view, and we have a Solicitor’s opinion that states that. Now,

potentially some tribes may disagree with the view of the department on that and challenge it in court if they apply for settlement

of a land claim, and we say you do not have congressional legislation, goodbye. And they may sue us because of that.

So I do not know where that would go. Maybe the act could be

tightened on that score to make sure that we are talking about settlement legislation that is ratified here.

The CHAIRMAN. Let me go back with you to one of the fundamentals. When IGRA was passed, as we all know, it was as a result

of the Cabazon decision, which said that if a State allows a certain

level of gaming, then Indian tribes that reside within that State

would certainly have the right to engage in gaming at that level.

Isn’t that a proper interpretation of the Cabazon decision in your

view?

Mr. SKIBINE. Yes; that is correct.

The CHAIRMAN. But then there was a decision that was made

that if a charitable organization has a Las Vegas night once a year

where gaming is conducted, therefore you can have a 24–7, 12-

month a year gaming operation on an Indian reservation. That

changed things rather dramatically, didn’t it?

Mr. SKIBINE. Well, yes. The view of the department is really to

follow the decision of the Ninth Circuit in the Rumsey decision that

was appealed to the Supreme Court and the cert was denied, but

I think the Solicitor General filed a brief in support of that deci-
20

sion. Under the Ninth Circuit reasoning, I think that the scope of

gaming has to be by activity, so that for instance the issue there

was, let’s say the State of California authorizes horse racing, which

is class III gaming activity. Well, that would mean that all class

III gaming activities are open, like slot machines. The court said,

no, that gaming activity has to be authorized, and that is our view

right now.

Senator DORGAN. But that is not responsive to the question that

the Senator asked. He asked the question about a State that allows

a Las Vegas night once a year.

The CHAIRMAN. For charitable purposes.

Senator DORGAN. For charitable purposes.

Mr. SKIBINE. Right.

Senator DORGAN. And the consequences of that of triggering an

opportunity in a State for something broader.

Mr. SKIBINE. That is correct, because charitable gaming nevertheless is gaming, and if that gaming activity is authorized by

charities, then it will be authorized for Indian tribes under IGRA.

I think that is our view and certainly would have been the view

of the courts right now.

The CHAIRMAN. Is it the department’s view that the land claim

exception authorizes a tribe to open a casino in geographic locations it has not been possibly more than 100 years? In other words,

Ms. Coleman mentioned that one of the reasons why they did not

approve of a Kansas acquisition is because they had passed

through. In other words, what is the criteria here? Many of these

tribes tragically moved all the way from our east coast out to the

west, not of their own volition, by the way, but they had various

stops along the way.

Mr. SKIBINE. Right. The settlement of a land claim, which as I

said we have applied once, I think the way that would work is that

the settlement legislation that is introduced in Congress, and if it

is eventually passed, will in all likelihood specifically say we settled this land claim, and as part of the claim the Secretary of the

Interior is mandated to take land in trust, and it will probably say

specifically where it is, by county or even by lot. So that in the Seneca Land Settlement Act, for instance, it was specifically stated in

the Act where the land could be taken into trust. That is what we

would be looking for.

So what we think is really not important because we would be

following what Congress tells us to do in the settlement legislation.

With respect to the Eastern Shawnee, if there is legislation that

says that Congress sells the claim, and in exchange for whatever

reason, but the Secretary has to take land in trust in Ohio in a specific community, then we will have to do that. But we will look to

you to tell us how to interpret that in the law.

The CHAIRMAN. Ms. Coleman, it sounds to me like you could use

some more help.

Ms. COLEMAN. Absolutely.

The CHAIRMAN. Thank you very much.

Senator Dorgan.

Senator DORGAN. Ms. Coleman, let me ask a question about licensing. If I am a tribe and there aren’t any of these land issues
21

and I just want to open a casino and our State has gaming, so I

want to develop a compact. I have to get a license from whom?

Ms. COLEMAN. From the tribe’s regulatory authority.

Senator DORGAN. So that license, based on your testimony, that

license may be granted in other circumstances before land claims

are settled?

Ms. COLEMAN. Well, as Mr. Skibine testified, the settlement of a

land claim exception is so rare, it has only happened once, that it

really has not come up. The one time it did come up is the same

Wyandotte, KS situation where the land was already acquired into

trust and the tribe argued that that acquisition was a settlement

of a land claim. We determined that it was not because there was

an ICC case and we concluded that ICC cases are not settlement

of land claims; that they are settlement of money damages against

the Federal Government, but not actually for settlement of a land

claim.

Senator DORGAN. But with the size and the growth of Indian

gaming, my expectation and I assume yours would be that these

things will come up more and more often because the stakes are

so high.

Let me just mention, Mr. Chairman, last evening or yesterday

late afternoon we finished in the Interior Appropriations Subcommittee, I am the ranking member on that, we finished that

piece of legislation. My colleagues from Oklahoma were trying to,

and we were not able to do this, I wish we had been, but we were

not able to put this in an appropriations bill, but there is an issue

which you are probably familiar with in Oklahoma dealing with the

Shawnee Tribe Status Act.

That act was passed and somehow it gives the Shawnees, and

this is according to the Senators from Oklahoma, it gives the Shawnees the ability to take land into trust so long as it does not interfere with other tribal jurisdictions, and requires the Secretary to

approve the land in trust, ‘‘shall’’ versus ‘‘may,’’ and they say this

loophole would allow the Shawnees to take land into trust within

Oklahoma County, in the middle of a major city, and the Secretary

would have to approve it.

They say that circumvents existing law and regulation and normal land and trust application. And they feel that is a self-executing circumstance currently in law and they are trying very hard to

change it.

The CHAIRMAN. Which I might add was put in an appropriations

bill.

Senator DORGAN. Right.

The CHAIRMAN. An omnibus appropriations bill.

Senator DORGAN. Right. But my point about is, there is a powerful reason for tribes to try to find ways through these exceptions

to locate a casino in the middle of a major population area. I understand that. If we were able to and our purpose was to be able to

run a casino, we would want to be in the middle of a population

center. That is a natural market.

And yet we have certain guidelines and restrictions and we rely

on our regulatory agencies to deal with them appropriately. We

also rely on the Congress to make the right decisions on these

things. Occasionally, we do not make the right decisions.
22

I think one of the things that I have learned from your testimony, Ms. Coleman, is that this issue of the resources that are

available to respond to the needs to effectively regulate a very

growing industry is an important consideration for this Congress.

I think we need to get additional information from you. You indicated that you have not really had a system by which you move

things out the door, make judgments and move things, but you are

now developing that system. I would say hurry because I think

there are going to be enormous pressures from many different directions to find ways through the exceptions.

Mr. Chairman, I have to leave at 11 o’clock, but I know that we

have another panel coming and I will be able to hear part of that

panel. I thank the two witnesses. Mr. Skibine, thank you again for

being with us, and Ms. Coleman, thank you.

Ms. COLEMAN. Thank you.

The CHAIRMAN. Senator Smith.

Senator SMITH. Thank you, Mr. Chairman and Senator Dorgan.

Mr. Skibine, in May you testified that IGRA’s two-part determination suggests that Congress sought to establish a unique balance in determining exceptions. Only three tribes, as I understand

it, have acquired exceptions under that provision since 1988. But

those are in–State, and yet a lot of concerns remain.

My question is, would restricting the two-part determination exception only to in-State lands remedy most of the concerns that remain?

Mr. SKIBINE. I think it will help remedy some of the concerns.

I do not think it will certainly address the issue with the settlement of a land claim that was raised by Senator Voinovich here.

That tribe would be taking exception of another exception, the land

claim exception where there is no restriction on State boundaries

under that exception either.

The fact is, we of course have only approved three two-part determinations for tribes since 1988, all within the State where they

are located. We currently have eight that are pending, and of those

I think all are within the State where they are located except for

one, which is the Stockbridge-Munsee community of Wisconsin. At

this point, that application is for land in the Catskills and it is submitted as a two-part determination for land in New York, but in

fact I think if this goes through, it probably would go through as

a settlement of land claim rather.

So in fact, if you discount this one, we really do not have any

that are pending under the two-part determination for out-of-State

tribes.

Senator SMITH. A question for both of you. I think one of the

most unseemly things that has happened on Capitol Hill in a long,

long time, frankly seems to grow out of IGRA and the number of

developers apparently seeking Indian tribes to pursue gaming interests.

Frankly, that has led to some very shameful things happening.

These developers often are looking for a tribe. They pay for the

lawyers. They pay for the up-front lobbyist costs. I wonder if this

is just perceptional on my part, or are you seeing more applications

that are driven by these kinds of non-Indian interests on behalf of

tribes to pursue their gaming interests?
23

Mr. SKIBINE. I am not sure if there is an increase in that. I think

if you look back to some of the earliest applications, also the tribes

were supported by outside developers. Let’s take for instance the

Mohegan Tribe of Connecticut was supported by a large gaming

corporation out of South Africa. I think that part of the reason for

that is that some of the tribes, new tribes especially, have very little means and they essentially are pretty much penniless on their

own. I think it is not necessarily what they want to do to come into

a partnership with an outside group, but it is certainly something

that is, when it is offered, they can see it as an easy way to access

capital and to essentially move their applications along and move

their plans along.

Whether there is an increase, it could be, based on the rumors

that are out there, but we do not really have a handle on that specifically at the BIA. I am not sure, maybe the commission can address that.

Ms. COLEMAN. I don’t know as there is an increase. We do know

that the harder we make it for tribes that are landless to get land

into trust, the more dependent they have to be on the outside resources because tribes that do not have money and have to go

through the process, who have to go through the department, go

through the NIGC, to acquire land into trust, to get it to be designated Indian lands, that takes time and that takes money. And

so they need to look to the outside interests.

In some of these, as I said earlier, they are very difficult. They

do take a lot of money. If you have to hire an ethno-historian, if

you have to hire an environmentalist to do all of the NEPA work

and prove it is restored lands, it is going to require somebody to

put up the money.

Senator SMITH. I assume, though, that there is a concern in the

Department of the Interior about it. Is there any effort made to

identify the tribal interest from the developer’s interest and to provide some level of direction that gets in the way of some abuse of

tribes?

Ms. COLEMAN. We definitely are aware of that issue all of the

time. We want to make sure that tribes do not end up in a situation where it is not really the tribe’s gaming anymore. It is one of

the driving forces behind our sole proprietary interest advisory

opinions, that we have kind of tried to draw a line, saying to a

tribe if you give this much of your gaming to this company, well

then you are no longer the sole proprietor of this. You have to retain the bulk of it. IGRA is intended for the tribes. They are to be

the sole beneficiaries.

So we have taken a pretty hard line on this sole proprietary interest issue. I think it has really helped. We have also been talking

to Senator McCain about more background investigations for a

larger number of people who are involved in gaming. I think that

makes a lot of sense. You want to make sure you have good guys

in gaming. A lot of tribes do really good background investigations.

Not all tribes have access, though, to like the FBI criminal history

checks and the fingerprint checks and all of those kinds of things

that the Federal Government has access to.

The CHAIRMAN. Thank you very much. We will look forward to

continuing to work with you as we contemplate some legislation to
24

address some of the issues that continue to come before the committee.

Thank you both for coming.

Mr. SKIBINE. Thank you, Mr. Chairman.

Ms. COLEMAN. Thank you.

The CHAIRMAN. Our next panel is Walter Gray, who is the tribal

administrator of the Guidiville Band of Pomo Indians; Christine

Norris, principal chief, Jena Band of Choctaw Indians; John

Barnett, chairman, Cowlitz Indian Tribe; and Charles D. Enyart,

chief, Eastern Shawnee Tribe of Oklahoma.

As you take your seats, I would like to say, Chief Norris, I have

read your testimony and let me make a couple of points for the

record. First, this hearing is not about Jack Abramoff or the investigation this committee is conducting into his activities. Second, I

am particularly concerned about the possibility that this hearing

may be used to cast aspersions on the integrity of, in particular,

the Senator from Louisiana.

To assure that there will be no further discussion of this issue,

I will say the following: Incidental to its reviews of matters within

its jurisdiction, the Committee has seen absolutely no evidence

whatsoever that Senator Vitter’s opposition to the Jena Band’s attempt to obtain a gaming facility in Louisiana had to do with anything other than his longstanding principled opposition to the expansion of gaming in that State. I would like to make that very

clear.

We will begin with you, Mr. Gray, and thank you and the witnesses for coming. All four of your written statements will be made

part of the record.

STATEMENT OF WALTER GRAY, TRIBAL ADMINISTRATOR,

GUIDIVILLE BAND OF POMO INDIANS

Mr. GRAY. Good morning, Mr. Chairman. I am Walter Gray. I

serve as the tribal administrator for the Guidiville Band of Pomo

Indians of California. I would like to thank you for the opportunity

to testify this morning.

The Guidiville Band was illegally terminated and is now seeking

to restore its land base. We believe that the restored lands provisions of IGRA work and we are here to explain why.

Historically, the Pomos used and occupied land that extends from

the San Francisco Bay Area north to what is now Mendocino County. In 1851, the Pomos entered into a treaty with the United States

ceding over two million acres of land in exchange for a reservation

of 254,000 acres. Unfortunately, at the request of the State of California, these treaties were never ratified and the Pomos, as well as

the majority of other California Indian tribes were left landless and

without means of support.

The California Indian population was decimated by the deliberate policies of the State of California. As a result, the California

Indian population, estimated to be 200,000 at the time of statehood

in 1850, was reduced to a mere 15,000 by the year 1900.

In 1915, the Guidiville Rancheria was established by the Federal

Government. However, in 1962, the Rancheria was illegally terminated. In 1987, before passage of the IGRA, the tribe filed its lawsuit challenging the Federal Government’s actions. In 1991, a Fed-
25

eral court reversed the wrongful termination, but to date no significant funds have been appropriated for the tribe to reestablish the

lands which were wrongfully taken.

When Congress enacted IGRA in 1988, it understood that there

were tribes like Guidiville who were terminated and landless at the

time of its passage. We believe the exceptions in IGRA demonstrate

Congress’ commitment to treat tribes equally. As a restored tribe

struggling to reestablish a land base and achieve economic self-sufficiency, we applaud Congress’ concern about equity when enacting

IGRA and we urge this committee not to lose sight of this concern.

As the Federal courts have held, the exceptions in IGRA serve

purposes of their own, ensuring that tribes lacking reservations

when IGRA was enacted are not disadvantaged relative to more established ones. The tribe is now faced with the daunting task of restoring its land base. Guidiville has looked hard for nearly a decade

to find lands in what may be the most expensive market to purchase lands in the continental United States.

Recently, the tribe has found land which it can purchase, the

now-closed naval fuel depot in Richmond, California. The site is

several hundred acres and will allow for open spaces and parks,

gaming, hotel, and retail facilities, and land for tribal administrative and cultural uses.

Guidiville has worked with the city of Richmond in a transparent

process. The city of Richmond held five public hearings with regard

to our purchase of the land. This land acquisition will restore the

tribe’s terminated lands, remediate the environmental contamination on the land resulting from the Navy’s use of the property, and

produce over 6,000 jobs to help revitalize the local community.

We think that the Congress may be interested in how we have

structured our contractual agreement with the city of Richmond.

This agreement affords other tribes, local governments, and California citizens the same level of legal protections as non-tribal developments in California. Most importantly, we have accomplished

this without infringing upon the sovereignty of the tribe or the city

of Richmond.

Though there may be a number of gaming projects that have

been proposed, few will meet the high standards required by the

Federal agencies. We believe that the current regulatory process is

rigorous and will safeguard against ill-conceived projects. Interior

and the National Indian Gaming Commission require that a restored tribe show historic and contemporary ties to the land in

order for the land to qualify as restored. To our knowledge, there

are no gaming projects that have been built after restored lands

approval that are causing any significant public policy problem.

In short, the restored lands provisions of IGRA work. They are

not broken, nor will they result in the proliferation of tribal gaming

facilities. Illegally terminated tribes like Guidiville did not choose

to be terminated, nor did they choose to lose their lands. Left to

find a solution for ourselves, the Guidiville Tribe has decided to use

tribal governmental gaming as a tool to acquire a land base.

We are not here today to ask that the law be changed to benefit

the Guidiville Band of Pomo Indians. We are here to let you know

that the current law can and does work and that the Guidiville
26

Band should in all fairness be allowed to complete the restoration

of its lands.

It would simply be unfair to change the rules when the tribe is

so close to correcting the wrong that was perpetrated 40 years ago

when the tribe was illegally terminated.

Thank you.

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

The CHAIRMAN. Thank you very much.

Christine Norris. Welcome.

STATEMENT OF CHRISTINE NORRIS, PRINCIPAL CHIEF, JENA

BAND OF CHOCTAW INDIANS

Ms. NORRIS. Mr. Chairman, thank you for giving me this opportunity to come before you. My name is Christine Norris. I am tribal

chief of the Jena Band of Choctaw Indians.

I have been privileged to serve for the past 30 years in the tribal

government of my tribe. I thank you for letting me share with you

briefly our experience with the fee-to-trust process and IGRA’s section 20 process. The Jena Band was recognized through Interior’s

Federal acknowledgment process in 1995. Because we were a landless tribe, all of our lands that were sought were considered off-reservation. The majority of our tribal members live within the three

parishes designated by the Bureau of Indian Affairs as the Jena

Band Service Area.

The Jena Band needs a reservation land base where we can provide health, housing, education benefits, social services, as well as

land to develop a gaming facility for my tribe because my tribe has

almost no other means to generate revenue to fund our government. After recognition, we began to work to identify lands within

our service area that could be proclaimed our reservation.

However, the three parishes that compose our service area lie

within a very conservative, a very religious part of our State. All

three of these parishes voted out gaming in a referendum.

Because of this referendum, former Governor Mike Foster refused to negotiate a gaming compact for a facility located within

this three parish service area. He threatened to actively oppose our

efforts to acquire trust land for non-gaming purposes within our

service area if we persisted in locating a gaming facility. He insisted that we find an alternative parcel in a parish that supported

gaming.

In order to cooperate with the government, with our Governor,

we worked to identify an alternative site for our gaming facility

outside the service area. This was not an effort to forum shop that

we have been accused of. To even address Senator Vitter’s comments about the Jena Band looking to Texas, looking to Mississippi, we did accept an invitation from Chief Philip Martin of the

Mississippi Band of Choctaw to come to his State in a collaborative

effort to look at gaming with his tribe. This did not work out.

We did look at areas in Texas. We do say that this was a mistake

on our part. We were beginning to worry that we would never find

a place to establish a gaming facility. We are pleased that Interior

is drafting regulations to govern section 20 exceptions. This will

give newly recognized tribes much better guidance as to what is
27

deemed acceptable. There was not a clear guidance 10 year ago

when we started this process.

To work with the Governor, we satisfied three criteria that he

had. He said the land had to be not too distant from our service

area; the land had to be within a parish that supported gaming;

and in our project in particular, the land had to be within an area

with which we could demonstrate a historical Choctaw connection.

We did this in Logansport, LA.

Logansport is located approximately 64 miles from our service

area. Our land there was located in an area with strong Choctaw

historical connections. The local municipal and parish government

supported us with our facility there. We applied to the Department

of the Interior asking that the Logansport land, along with several

other non-gaming parcels located within our service area, be taken

into trust and proclaimed to be our reservation. In addition, we

submitted extensive documentation demonstrating that the Logansport parcel also met the requirements for the restored lands exception in IGRA.

However, the department declined to accept the Logansport parcel into trust as part of our initial reservation. It also declined to

issue an opinion as to whether the Logansport parcel qualified for

the restored lands exception. Rather, Interior suggested that it

would consider our Logansport request under IGRA’s two-part determination exception.

At great expense to the tribe, we submitted such an application

to the department. Governor Foster repeatedly expressed his support for our two-part application to the tribe, to Interior, throughout the media in Louisiana. With that support, Interior issued a

positive two-part determination in December 2003. To our disappointment and surprise, Governor Foster left office a few weeks

later without concurring with the Secretary’s determination.

Immediately after Governor Kathleen Blanco took office, I asked

to meet with her about the two-part determination and about a

gaming compact; 15 months later, Governor Blanco sent the tribe

a letter stating that she would not support the establishment of another gambling casino. A few weeks before we received the Governor’s letter, Senator Vitter had come out in the media warning

her not to sign a compact with the Jena Band, whether for Logansport or any other area, even located in our service area.

It appears, or I feel like the Governor’s response was influenced

by Senator Vitter. He further urged the Governor not to negotiate

with the tribe in good faith pursuant to IGRA. Senator Vitter has

been a constant and vocal opponent of our efforts in establishing

a gaming facility. He put language to be included in Interior’s appropriation report that would have prevented Interior from acquiring land for us. He has introduced legislation designed to ensure

that we will never have the opportunity to engage in the same economic endeavor that has been allowed the other three federally recognized tribes in Louisiana, and 16 non–Indian gaming facilities in

Louisiana.

His bill eliminates the initial reservation exception altogether. In

its place, he inserts a provision that would require the Jena Band

and other newly recognized Federal acknowledgment process tribes

to satisfy a modified version of the two-part determination. It
28

would require showing that the proposed gaming facility would

have no impact whatsoever on the surrounding local, tribal or State

government.

This bill also requires the preparation of a costly environmental

impact statement regardless of whether the impact of the proposed

casino is expected to be significant or not. This requirement is contrary to NEPA’s general approach of first preparing an environmental assessment to determine whether preparation of an EIS is

necessary.

Finally, Senator Vitter’s proposed legislation attempts to rewrite

State law for Louisiana and all the other States by mandating that

the tribal State gaming compact be approved by both the Governor

and the State legislature. Every existing tribal-State compact in

Louisiana was executed by the Governor without approval of the

State legislature. We respectfully ask that Congress reject these

proposed amendments to section 20’s initial reservation exception

and instead please consider some small amendments that would

make it more fair and efficient.

First, Congress we ask impose hard deadlines on the Department

of the Interior for taking land into trust for landless tribes. No

tribe in the United States is more needy or is more worthy of the

department’s focus and prioritization than a landless tribe which

has survived decades in the Federal acknowledgment process. Congressional direction requiring early designation of a service area

and strict time deadlines for initial land acquisition would also go

a long way to taking out some of the politics that is fostered by letting fee-to-trust and reservation proclamations linger for extended

periods of time.

My second request is that Congress amend the initial reservation

exception to clarify that the first parcel or parcels of land taken

into trust by the Secretary shall be automatically deemed the

newly recognized FAP tribe’s initial reservation. This would spare

tribes like ours the great expense and the frustration of being

made to jump through the hoops that serves no purpose other than

to further delay the day when we are put on a level playing field

with other tribes.

With these constructive changes, Congress can help, not hinder,

newly federally recognized tribes.

Thank you so much for the opportunity to come before you this

morning.

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

The CHAIRMAN. Thank you very much.

John Barnett. Welcome.

STATEMENT OF JOHN BARNETT, CHAIRMAN, COWLITZ INDIAN

TRIBE

Mr. BARNETT. Thank you, Mr. Chairman.

Chairman McCain, Vice Chairman Dorgan and respected members of this committee, I thank you for the opportunity to testify

this morning.

Mr. Chairman, as you have spent your whole life serving our

country, I have spent my whole life serving my tribe. I devoted almost one-third of my life to the fight to regain recognition for the

Cowlitz Tribe through Interior’s Federal acknowledgment process.
29

I traveled to Washington, DC more than 50 times over the last

quarter-century to represent my people before the Federal Government. I have paid for those trips out of my own pocket.

Now, I have one last goal, one last promise to my people, to regain a homeland so that we may live and prosper on our own lands

as our ancestors did before our land was taken from us. Maybe

then they will let me retire.

For this reason, I greatly appreciate the opportunity to share our

views about the crucial importance of IGRA’s initial reservation exception. When Congress passed IGRA in 1988, it understood that

newly recognized tribes would be unfairly disadvantaged and thus

carved our a limited exception that allows these newly acknowledged tribes to conduct gaming on their initial reservations, just as

if that reservation had been in existence in 1988.

By doing so, Congress tried to put newly acknowledged tribes on

a level playing field with previously recognized tribes. However,

newly acknowledged tribes are significantly disadvantaged in the

current fee-to-trust process. The Cowlitz emerged penniless from

decades of struggling through the bureau’s administrative recognition process only to find that they have no reservation from which

to generate revenue to run social, health, and governmental services for our people, or on which to conduct the only form of economic development which almost universally has been proven to be

successful, Indian gaming.

As a result, the Cowlitz and other newly acknowledged tribes are

immediately thrust into the political controversy surrounding offreservation land acquisition and Indian gaming. Consider this: Interior’s off-reservation fee-to-trust regulations simply were not

drafted with landless newly recognized tribes in mind.

Among other things, those off-reservation regulations specifically

give greater weight to the views of the local jurisdictions in which

the land is located. Consider further that either the community is

generally opposed to gaming and so will fight the tribe’s fee-to-trust

acquisition, or the community may support gaming in which case

there likely are established competing gaming interests that will

devote significant financial and political resources to fighting the

newly recognized tribe’s proposed land acquisition.

This presents a terrible no-win situation for the newly recognized

tribes. The Cowlitz Tribe has worked hard navigating the fee-totrust process in an honorable way. We chose a parcel of land located within the service area designated exclusive Cowlitz by both

HUD and IHS so it is well placed to serve the modern-day needs

of tribal members who live in the surrounding area.

We chose a parcel squarely located within an area where we

have strong historical ties, ties that are documented in the Bureau

of Indian Affairs’ recognition documents and in our Indian Claims

Commission land claim litigation. We chose a parcel in a local community that has demonstrated its tolerance for gaming by allowing

four non–Indian card rooms to operate there. By choosing a parcel

of land with which we have demonstrated modern and historical

connections and which is located in a community tolerant of gaming cannot fairly be called reservation shopping.

Congress needs to reject proposed amendments to section 20 that

would eviscerate the initial reservation exception. I would respect-
30

fully suggest a few improvements to the current initial reservation

provision.

First, newly acknowledged tribes currently must apply for a reservation proclamation pursuant to section 7 of the Indian Reorganization Act before we may game on that trust land. Did Congress

really intend to impose this additional administrative hurdle on

newly recognized tribes? We ask that Congress clarify that the first

land taken into trust under the exception automatically becomes

the tribe’s initial reservation so that the tribe is not subjected to

yet another expensive time-consuming process.

Second, Congress should impose time deadlines on Interior’s

processing of fee-to-trust and section 20 applications. The process

now takes years to complete and costs millions of dollars. We think

the only way to protect the integrity of the system is to require Interior to make decisions within 2 years of receiving the application.

In closing, I would like to recognize the Snoqualmie Tribe from

Washington State, whose Chief Jerry Kanim is sitting behind me

today. The Snoqualmie, too, are a landless newly recognized tribe

struggling with many of the same land acquisition issues as do we.

In addition, I would like to recognize Mark Brown, chairman of

the Mohegan Tribe and Tribal Councilman Bruce Two Dogs

Bozsum. The Mohegan Tribe completed the Federal acknowledgment process 10 years before we did, and today they are working

with us to reinvest in Indian country. We hope that our partnership will show that Indian tribes can and will reach out to help

each other. I would hope that the Mohegan’s example will encourage other successful tribes to help those who are less fortunate.

All my life, I have served my tribe in the pursuit of what is right

and what is just. I have grown old, but my purpose is not complete.

That day will come when the Cowlitz have a federally protected

homeland that will ensure a brighter day for our future generations.

The Cowlitz Tribe thanks you for the opportunity to provide this

testimony and we offer our continuing assistance to the committee

as it considers whether and/or how to amend section 20 of IGRA.

Thank you.

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

The CHAIRMAN. Thank you very much.

Charles Enyart. Welcome.

STATEMENT OF CHARLES D. ENYART, CHIEF, EASTERN

SHAWNEE TRIBE OF OKLAHOMA

Mr. ENYART. Thank you.

Mr. Chairman, I have oral testimony here, but with your permission I would like to address a couple of comments that the Senator

from Ohio made at the end of this, if I may.

Good morning, Chairman McCain. My name is Charles Enyart.

I am the chief of the Eastern Shawnee Tribe of Oklahoma, a federally recognized tribe whose aboriginal homeland was in what is

now the State of Ohio. I appreciate the opportunity to be here

today to explain the importance of our land claims in Ohio for our

people.

I am here for three reasons: No. 1, to ensure that we have the

opportunity to return to our aboriginal homeland in present-day
31

Ohio; No. 2, to ensure that we have the same rights as other Indian tribes to conduct Indian gaming on our lands under current

laws; and No. 3, to advocate for the rights of tribes, States and

local communities to work together for their mutual benefit.

The Shawnee want to return to Ohio. Our historic cultural ties

to Ohio are undeniable. It was 150 years ago that the tribe was

driven out of its homeland in the State of Ohio. Violence against

our people, disruptive raids, and the burning of Shawnee Indian

villages by the U.S. Army was methodical.

The unauthorized taking of the Shawnee lands by encroaching

occurred. Our people were forcibly removed from their villages and

sent to reservations first in Ohio, then in Missouri, and ultimately

Oklahoma. It was an ugly and shameful time in American history

in which our people endured unspeakable fear, intimidation and

military violence by the United States and the early Ohioans.

When we return to Ohio, we wish to do so on the same legal

basis as other federally recognized tribes. That is, we want the

right to conduct activities on our land that would be permissible for

any other recognized tribe anywhere in the United States. We do

not want to return as a second-class citizen by only being allowed

to conduct certain activities. Thus, we would strongly oppose any

legislation that would bar a federally recognized tribe with legitimate claims from regaining land in its historical area and using

that land for any permissible tribal activities, including gaming.

I am sure you would agree that to bar a tribe such as the Shawnee from using any land it may gain in its aboriginal homeland for

federally recognized purposes would create a group of second-class

Indians who are only allowed to do limited things on that land. It

is clear the people of Ohio are receptive to the establishment of Indian lands and Indian gaming. They desire the introduction of

gaming for the unquestioned economic benefits that it produces.

There are many reasons for them to prefer Indian gaming over alternatives.

First, there are numerous controls on the scope of tribal gaming

which diminish the potential for uncontrolled expansion. Only so

many tribes have a historical or cultural connection to any given

State. Second, tribal gaming revenues as a matter of law may only

be expended for social benefit purposes approved by Congress.

Commercial gaming only benefits private interests.

In historic contrast, tribal gaming lifts entire communities out of

poverty, educates children who once had little hope for higher education, builds schools, roads, bridges, funds law enforcement and

emergency services, preserves languages and cultures, builds clinics and hospitals, and provides dialysis and diabetic centers, and

funds charitable activities of every kind.

Gaming has yielded economic benefits to our tribe. Until very recently, our historic legacy was one of poverty and isolation. Left

virtually landless for over 11⁄2 centuries, our people had very little

realistic hope that things would ever improve. Like other tribes in

similar circumstances, we had no economy and no tax base.

Indian gaming has changed our bleak outlook as to our future.

The revenues from our modest gaming operation, Bordertown Casino, located in West Seneca, OK, has provided us the means to
32

make improvements in the lives of our people and to rekindle the

hope for a better life for our children and grandchildren.

However, the rural character of the land we now occupy, combined with the economic conditions in the surrounding area, severely restrict our economic potential. The lot of the Eastern Shawnee people has improved, but we have a long way to go to achieve

the level of prosperity that once was ours.

Our interest in returning to Ohio is to establish a mutual benefit

political and economic relationship with the State of Ohio and the

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

possible. We do wish to fully resolve our outstanding land claims,

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

Those with whom we have established a relationship understand

our intentions and have welcomed us into their communities to discuss the potential for tribal gaming.

In fact, local communities in the State of Ohio have recently

sought out the tribe and asked us if they could help bring the

Shawnee back to our homeland. We are committed to working

through appropriate governmental channels in Ohio to ensure that

we are welcomed back to our homeland.

On June 27, 2005, we filed a valid land claim in Federal court

in Ohio. The tribe brought the action to vindicate our aboriginal

land rights. We further seek damages for wrongful possession and

trespass on our former reservation lands in Ohio. These violations

continue today. The tribe has sought redress for these wrongs from

the State of Ohio. The State of Ohio has refused to take any action

to redress these wrongs or even discuss the matter with us. We had

no choice but to take our valid claims to the court for redress.

The full explanation of these claims is contained in material from

our attorneys which I have submitted with my written remarks for

the record. Tribes with legitimate claims should be allowed to regain portions of their homeland and should be allowed to enter into

agreements including gaming agreements that promote economic

development and benefit tribal, State and local economies.

Thank you, Mr. Chairman, for this chance to testify to the committee.

Again with your permission, if I may address a couple of comments. The Senator made a comment about secret negotiations.

Senator, there have been no secret negotiations. It has been in the

newspaper. It is all over TV in Ohio. He talked about the agreements we have with certain communities. That is true. We have

four. Only one of the agreements did we pursue ourselves. The

other three pursued us, these communities.

He also talked about economic blackmail. Senator, our land claim

has never been intended to be blackmail. We have been up front

with the State of Ohio. In fact, I have mailed, I think it was in

April, a letter to the Governor, Governor Taft, and to Attorney

General Petro explaining that we would like to meet with him and

discuss our land claim to see if there is something we can work out.

At no time was this blackmail.

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

The CHAIRMAN. Thank you very much, sir.

Mr. Gray, prior to termination, where was your Band located?
33

Mr. GRAY. When you ask prior to termination, do you mean when

the original lands were ceded? Which territory are you searching

for?

The CHAIRMAN. No; the termination that took place in the 1950’s,

I guess it was.

Mr. GRAY. Okay. The original rancheria is located in what is now

Ukiah, CA.

The CHAIRMAN. Which is near?

Mr. GRAY. Mendocino County.

The CHAIRMAN. Do any of the tribe still reside in that area, or

do they live in the Bay Area?

Mr. GRAY. When you ask ‘‘any of the tribe,’’ are you asking specifically about Guidiville? There are several tribes in the area.

The CHAIRMAN. The Department has testified that it applies a

rigorous historical nexus test for restored lands. How do you think

you are going to be able to meet that historical nexus test?

Mr. GRAY. Well, it is very difficult, as they testified, and very expensive and time-consuming. The tribe would not pursue this particular piece of land if it did not believe that it had a strong historical tie to the property. So what we would like to see happen is that

the exception under which we fall would be left alone as it is and

that we be allowed to go through that rigorous process. The tribe

is willing to live with the end result.

The CHAIRMAN. How do you answer the charge that your interest

in the off-reservation sites is only in conducting gaming?

Mr. GRAY. Well, off-reservation, just the term alone presupposes

that the tribe has a reservation.

The CHAIRMAN. But you are interested in off-reservation sites,

are you not?

Mr. GRAY. We do not have a reservation. I understand your question. This is within our historical area, and we firmly believe that.

But in California where we are from, it is simple economics. In an

area where lands at our northern boundary of our territory and

lands that are at our southern boundary of our territory are approximately the same, well in excess of $200,000 an acre. It will

take us over $100 million just to do the land purchase.

So you have to be able to draw enough people to the casino to

make enough money to be able to pay just for the land. That is not

infrastructure or any of the other things that need to occur.

The CHAIRMAN. Chief Norris, you indicate that the Department

declined to consider your request to have land in Logansport declared restored lands. What was the basis for their decision?

Ms. NORRIS. On Logansport?

The CHAIRMAN. Yes; was it due to a lack of sufficient historical

nexus?

Ms. NORRIS. We proved that there were ties to the port in Logansport. We were not saying it was the Jena Band that were

originally there, but we were saying that it was the Choctaw Nation. We proved through documentation that there were Choctaw

people there during the removal period from the east to Oklahoma.

With the Logansport package, they did give us a two-part determination in that, with the support of our Governor from Louisiana

at the time. Unfortunately, all indications were that we were going

there for the two-part determination which Interior did issue that
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proclamation, but the former Governor Foster did not carry

through with his decision before leaving office.

The CHAIRMAN. You state in your testimony that you have a

three parish or county service area. How was that service area determined?

Ms. NORRIS. It was determined by the Bureau of Indian Affairs

when we began our process for the Federal acknowledgment process. The people in my tribe resided in Grant, Rapides and La Salle

Parishes. This is where we would have a delivery service area for

health services for our tribe.

The CHAIRMAN. Did the Department indicate that this was the

area in which you could have an initial reservation? Or did the Department tell you that there was a certain area where it would

take land into trust for your initial reservation?

Ms. NORRIS. No, sir; it did not. It only deemed this area for delivery of services to my people for health care, education, and social

services.

The CHAIRMAN. Obviously, you have had a very difficult time.

Ms. NORRIS. Yes.

The CHAIRMAN. If you had to do it over again, what would you

have done differently? Anything?

Ms. NORRIS. I think that my tribe I feel during the relationship

that I have had in Government for the 30 years, we worked with

our State, we worked with our Governor. Perhaps there lies the

reason that we have been criticized most in the media because we

went to the areas where our Governor, he very adamantly came out

and said, I will not give you a compact in those service areas of

the three parishes in which you reside because those areas voted

out gaming. If you will go where they want you, where the people

will accept you, where they already have a form of gaming, I will

support you.

Because of that statement that was issued, we sought to seek

these places. The three parish area that voted out gaming is where

we reside, where we live and go to church. We go to school with

these people. We wanted to be good neighbors. I would have not

chosen any other course than what we participated in. I believe it

was right. I believe we worked with our local government to get to

these areas, to get to where we are today.

The CHAIRMAN. You must feel a little betrayed.

Ms. NORRIS. Of course I do. I feel betrayed by the administration

in my own State, because of the other three federally recognized

tribes. As a leader, as you have heard from the testimony of these

other tribal leaders, it is up to me to give my people a better way

of living, to improve their quality of life.

That is what I am here for and that is my journey and that is

what my mission is to my people. My story has been an open book.

It has been published in the media around the country. We have

everybody looking at the decisions that are made today based on

the Jena Band of Choctaw. It is before you to see and everyone else

to see. We have tried to work with governments and with local bodies to do what is right, to do the right thing.

The CHAIRMAN. Chairman Barnett, welcome back.

Mr. BARNETT. Thank you, sir.
35

The CHAIRMAN. You state that the site you are proposing is 14

miles from the territory identified by the Indian Claims Commission as the traditional territory of the Cowlitz. Why did the tribe

not seek a site within the traditional territory as identified by the

Indian Claims Commission?

Mr. BARNETT. In 1973, we went through the process, a hearing

with the Indian Claims Commission. We were awarded $1.5 million

for 1,716,000 acres of land. We were not allowed to include Clark

County because we could not at that point in time prove exclusive

use and occupancy. There is a reason for that and I think it is a

very important reason. The Cowlitz Tribe has always been since

time immemorial the resident tribe all the way down to the Columbia River.

When the Hudson’s Bay Company built Fort Vancouver, which is

just north of Portland, OR, across the river, it changed things, because other tribes, for instance the Umatilla, the Nez Perce, Grand

Ronde, those tribes came to Fort Vancouver for the benefits of

trade or to get supplies or whatever it happened to be. The Cowlitz

were already there. These tribes came, did their business and went

back home. We did our business and we stayed there because that

is where we were from.

The CHAIRMAN. But the Indian Claims Commission does not acknowledge that.

Mr. BARNETT. That is right. They did not acknowledge that fact

that we were there and we have proven all along. And that is one

of the problems that we have had with Clark County is that these

four card rooms there are throwing tons of money to try and say

we do not belong in Clark County, when we have documented proof

that we do.

I think that is a very valid point that has to be considered here

is that we are different. We are within our aboriginal area, even

though the difference between exclusive use and occupancy and

just being there, use and occupancy in the area because of the

other tribes coming in, makes it a little bit different ball game.

The CHAIRMAN. Does the local community support your efforts to

get land and a casino?

Mr. BARNETT. Some do, some don’t. I think we are making some

progress. There has been a lot of misinformation that is coming

out. We have always tried to take the high road and not get into

defensive battle with Clark County. I think we are going to have

to go on the offensive a little bit here to explain truthfully to the

people of Clark County just exactly why we are there. There are

some people that say you belong up in Toledo, way up in the middle of Washington, things like that. We find that hard to swallow,

but it is something we just have to deal with, and we will be coming out with documentation before this fee-to-trust issue is done

that will conclusively prove that this is our aboriginal area, even

though we were not paid for it.

I might mention that approximately 500,000 acres of land we are

talking about here that were not included by the Indian Claims

Commission as a result of this distinction between use and occupancy.
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The CHAIRMAN. Chief Enyart, you filed your land claim on June

27 of this year. Isn’t that a long time to have waited after you were

removed from Ohio?

Mr. ENYART. Yes; it is, Senator, but let me give you a little history of our tribe. We were removed from Ohio in 1832. We eventually wound up in Oklahoma. We were awarded approximately, not

quite 59 acres. That is what we had for our tribal headquarters.

The only income that the tribe had was moneys that farmers would

pay to farm that 59 acres. We had no income. The tribal leaders

had to meet in churches, in courthouses, and their budget in the

1940’s and 1950’s was $50, and that was to get stamps.

So then in the 1980’s, we were able to get grants to build some

buildings where have a tribal headquarters down there now. And

then also the 1980’s, we went into gaming. To go on, we did not

have the resources to do it. It is only through the gaming that we

have been able to have some monies that we can be doing things

that we were not able to do at that time.

Gaming has been very good to the Eastern Shawnee. We put our

money right back into the tribe. We have all kinds of social programs for our tribal members such as children having clothing allowances, scholarships for people going to college, a trade school. So

this money goes right back in.

Yes, it was a long time, Senator, but we did not have the resources then.

The CHAIRMAN. How would you answer people who say you are

just looking to leverage a better, more lucrative gaming location?

Mr. ENYART. I would say this, let me tell you my vision for the

Indian tribes. I foresee the day, and part of it is now, the Federal

dollar is getting harder to get, drying up. In my opinion, the tribes

that want to make it in the future need to be self-sufficient. There

is only one way that we can do this and that is to use our profits

from gaming to get into other businesses so that down the line we

can become self-sufficient. We would no longer be dependent upon

the Federal Government to take care of us.

It is our homeland. We do want to go back. Is it lucrative? Sure

it is, but we are also willing to share in this with the State, with

the community. We are not just trying to take all of this for ourselves. We have been very open about this in the press and on TV

coverage, too.

The CHAIRMAN. So people are correct when they say you are looking to leverage a better, more lucrative gaming location?

Mr. ENYART. The terminology gets me, Senator. Are we looking

for a better economic place to build, yes, but again the funds are

going to be used in the State and also in the community and the

tribe, so this would not only benefit us, but the State and the community as well. So to put that in, is it 100 percent, I could not say

that, no.

The CHAIRMAN. Assuming you obtain the land, are you confident

the Ohio Governor would sign a compact with your tribe?

Mr. ENYART. The present Governor? No, if Governor Taft is in

there. I am sure you are familiar with a famous Oklahoman, Will

Rogers. Well, Will Rogers used to say, all I know is what I read

in the paper. Well, that is all I know about the Governor and the
37

Attorney General because we made an effort to meet with them.

They didn’t even respond to my letter.

So the only thing I know is what I see in the paper and what

I read and what is forwarded to me. He has made comments that

he would not sign that. Again, I understand that he made the same

comments when the lottery was coming in. He made the same comments, but lottery was approved.

The CHAIRMAN. Are there any limits to where a tribe should be

able to return to exercise sovereignty either in geography or in the

amount of time that has elapsed?

Mr. ENYART. I think if you have a legitimate land claim, you

have historical data that proves that you were there, I don’t think

there should be any limits on it.

The CHAIRMAN. Shouldn’t that be a decision of the Indian Claims

Commission?

Mr. ENYART. Well, I am sure that they would like to have part

of that, but also it is a legal question. If we have legal reasons to

go and file land claims, why can’t we pursue those legal reasons?

Now, it would be determined in court anyway.

The CHAIRMAN. Do you want to respond to that question also,

Chief Barnett? Are there any limits to where a tribe should be able

to return to exercise sovereignty?

Mr. BARNETT. Sovereignty is an issue I think that all tribes,

whether we are federally recognized at one time, restored through

the acknowledgment process. Senator Inouye told me at a fundraiser for Maria Cantwell, I sat next to him for dinner. He was the

keynote speaker and he said two things and they really impressed

me. He said, always protect your sovereignty and always protect

your traditions. Those words I think are true and I think all Indian

tribes adhere to those words, that if we are going to survive as

tribes, we have to do that.

But in this day and age, we do have to make certain adjustments

to the way we do things. Indian gaming is one of the things. As

a landless tribe, you might say, well, are we reservation shopping?

Well, how can you be reservation shopping when you do not have

a reservation to begin with? That is our problem and it is the problem of having to say that we are in our own aboriginal area, and

I think that ‘‘aboriginal’’ word is important because that means

that we have been there since time immemorial.

The CHAIRMAN. I was speaking because of the odious practices of

the Federal Government tribes were moved from east to west and

resided in certain areas for long periods of time before they were

finally relocated, if that is the right word. Do you see my point?

Mr. BARNETT. Yes; I do. In our situation, for instance, we did not

sign a treaty. The reason we did not sign a treaty was because we

were asked to move by Governor Isaac Stevens, 200 miles away

over to the coast of Washington, to be on the Quinault Reservation

with eight other tribes. At that point in time in our history, there

was slave-taking between the Cowlitz and the Quinaults. You

know, it was a situation where we would not even consider those

types of things. We stayed on our aboriginal lands because that is

where we wanted to be, and that is where we want to make our

living and that is where we want our children to come.
38

I agree with you on reservation shopping, if there are valid reasons, this gentleman here, I do not know that much about his situation, if there are valid reasons and if the legal situation is there

to take it to court, I think that is certainly their prerogative to do.

I think the big issue here on reservation shopping is the opportunists that get involved. They are there for one reason, to convince

tribes that may not have as much smarts that this is the way you

are going to make yourselves lots of money. And oh, incidentally,

we might make some at the same time. And there is a lot of that

going on. I do not know how you people are going to handle it, but

I know that you will handle it in an equitable way. I am confident

of that.

The CHAIRMAN. We have seen ample evidence of what you just

stated.

What is your next step, Chairwoman Norris?

Ms. NORRIS. Our next step is to pursue gaming in one of our

home parishes of Grant Parish. We went the route, as I explained

earlier, with the Governor and the movement of the State. We are

back home in our parish area. How can they deny us a gaming facility, Federal land to be taken into trust?

We are waiting for it to be declared initial reservation. With the

three other tribes who are federally recognized that have gaming

facilities in Louisiana, we will be the next. I do not look at it as

a form of expansion of gaming. I look at it as this is our right to

be there to pursue this economic development.

Unfortunately, gaming is the most lucrative in economic development. I wish it wasn’t. I wish there was something else. I feel like

we are put in a box.

The CHAIRMAN. I think that is their view in New Orleans.

Ms. NORRIS. Yes; I feel we are put in a box by these gaming developers with the money. Unfortunately, as everyone has stated

here before, landless tribes, we do not have any money to pursue

economic development. We do have to depend on, but we still maintain our Indian sovereignty by making these decisions to accept or

not to accept.

So my next move will be to establish a facility in the Grant Parish area.

The CHAIRMAN. Thank you.

Again, since you mentioned Senator Vitter, I would repeat the

committee has seen absolutely no evidence that Senator Vitter’s opposition to your attempt to obtain a gaming facility has had to do

with anything other than his longstanding principled opposition to

the expansion of gaming.

Mr. Gray, what is your next move?

Mr. GRAY. Hopefully with the assistance of the committee, we

will continue to pursue the project that we have proposed under

the existing rules. We hope that they are not changed. We have

made extreme investments of money and time into the process and

we feel we are halfway there. We do not feel that the rules are broken and we hopefully will be able to continue to pursue the project

under those rules.

The CHAIRMAN. Thank you.

I thank the witnesses. It has been very helpful.

This hearing is adjourned.
39

[Whereupon, at 11:50 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

(41)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

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

Senator INOUYE. Thank you Mr. Chairman.

Today is the sixth hearing of the 109th Congress in which the committee will receive testimony about off-reservation gaming, with today’s hearing focusing on the

exceptions specified in the Indian Gaming Regulatory Act.

As the original sponsor of the Indian Gaming Regulatory Act, I want to assure

everyone that the exceptions for conducting off-reservation gaming were thoughtfully considered and deliberately included. At the time the act was drafted, the committee was well aware of the United States’ responsibilities to, and past actions toward, the Indian tribes.

I am sure that most of those present today know that history but it is important

that it be restated. For the Federal Government’s past treatment of Indian tribes

was a shameful period in our history and is part of the reason that the exceptions

were included in the Indian Gaming Regulatory Act.

Indian tribes were forced to sell millions of acres of land to the U.S. Government

through treaties that were never honored. Some treaties were not even signed without providing any notice to the signatory tribes, thus leading them to believe that

they had a valid agreement with the United States.

Lands reserved by the Indians were usually the lands that the United States felt

were the least undesirable as were the lands upon which the United States forced

other Indian tribes. Even then we did not stop our dishonorable treatment. Many

of the lands reserved by Indian tribes were divided up and provided to the individual Indians in an attempt to break tribal ties. So-called excess lands were sold to

non-Indians.

But we did not stop there.

We went through an era of terminating our government-to-government relationship with some tribes and continued to ignore our obligations to others. Although

we restored our relationship with some tribes, others were and are still forced to

go through an administrative process at the Department of the Interior in order to

gain Federal recognition.

But gaining Federal recognition does not ensure that the United States will honor

its responsibilities and obligations to tribes. It does not guarantee that a tribe has

the land or the tools necessary to fully exercise its sovereignty or to provide for its

members.

And that is why we purposefully included a mechanism for off-reservation gaming. The exceptions were intended to acknowledge the Federal Government’s dishonorable treatment of Indian tribes. They were intended to be a mechanism for Indian

tribes to gain a measure of economic self-sufficiency and to further tribal self-governance and self-determination.

I am confident that the exceptions have not been abused. It is estimated that

since 1988, approximately 27 applications have been approved pursuant to the exceptions. A few months ago, the Department of the Interior testified that only eight

land into trust applications under the section 20 exceptions have been approved
42

since 2000, and three of those applications were on-reservation. Under the two-part

determination exception, State Governors have only concurred in three of the decisions by the Secretary of the Interior. While the Department testified that there are

11 pending applications, the Department also testified that it is a lengthy, time-consuming process.

Some tribes have been criticized for attempting to conduct gaming off-reservation

while others have been accused of abusing the exceptions. I am confident that the

exacting processes established by the Department of the Interior will prevent any

such abuse.

It saddens me that there are those who ignore the purpose of the exceptions included in the Indian Gaming Regulatory Act. For doing so seems to also ignore Congress’ continuing responsibilities, the Federal Government’s past actions, the sovereign status of Indian tribes, and the benefits that gaining provides to Indian

tribes.

I have repeatedly made it clear—I do not support gaining. But Indian gaming is

about tribal sovereignty and the Federal Government needs to start living up to its

responsibilities. While it must be well-regulated, I am confident that the regulatory

mechanism included in the Indian Gaming Regulatory Act does that.

Indian gaming has provided the resources necessary for Indian tribes to strengthen their governments. It provides jobs in Indian country. It has helped to alleviate

the deplorable conditions that exist in Indian country. Most of all, it has helped

tribes meet the needs of its members for which the Federal Government is responsible but has failed to do. Yet there is still so much more that needs to be done.

Thank you.

PREPARED STATEMENT OF PENNY J. COLEMAN, GENERAL COUNSEL [ACTING],

NATIONAL INDIAN GAMING COMMISSION

Chairman McCain, Vice Chairman Dorgan and members of the committee: My

name is Penny Coleman. I serve as the acting general counsel for the National Indian Gaming Commission. Thank you for allowing us to speak with you today. We

appreciate the opportunity to testify today about the Commission’s involvement in

Indian lands questions.

Indian land is the foundation upon which Indian gaining is built. The Indian

Gaming Regulatory Act [IGRA] defines Indian lands; it requires that gaming take

place on Indian lands; it limits the National Indian Gaming Commission’s regulatory authority to gaming that takes place on Indian Lands; it establishes a prohibition against gaming on trust lands acquired after October 1988; and it exempts

many lands from that general prohibition.

Thus, Indian lands are central to many of the Commission’s functions. The Commission must determine whether gaming facilities are located on Indian lands in

order to determine whether the IGRA permits gaming on those lands and permits

the Commission to regulate it. If a facility is not located on Indian lands, the NIGC

has no authority whatsoever over any gaming occurring there or any jurisdiction to

stop the activity. The Commission is also required to decide whether a specific parcel is Indian lands when a management contract or a site-specific tribal ordinance

has been submitted to the Commission for approval; such determinations are part

of our final agency actions on management contracts and tribal ordinances.

The Office of General Counsel also issues advisory opinions on Indian lands.

These opinions are often intended to advise tribes whether they should attempt to

proceed with gaming on a given site. Sometimes our opinions confirm that a specific

parcel is Indian lands. Sometimes they warn a tribe that we do not consider the

gaming to be legal.

We share the responsibility for deciding Indian lands questions with the Department of the Interior. The Department makes decisions on lands when a tribe seeks

to acquire land I

into trust, seeks a trust-to-trust transfer for gaining, or seeks approval of a land

lease or a tribal-State compact.

For many years, the Department of the Interior assumed the primary responsibility for making Indian lands determinations. However, as gaming expanded in recent

years, the Commission’s need to make such decisions became more and more pressing. The Commission thus began making these decisions on its own. Because of the

shared responsibility with the Department, we entered in a Memorandum of Understanding that requires each agency to notify the other when Indian lands questions

are pending and to provide advice and assistance on the Indian lands determinations.
43

This is not a small undertaking. Altogether, the Department’s Office of the Solicitor and the Office of General Counsel have issued over 50 written opinions and the

Commission has made decisions on over 40 management contracts.

Right now, the Commission has approximately 50 Indian lands determinations

pending. Some of these will be simple decisions. The land will be held in trust and

within the tribe’s reservations boundaries, and no lengthy analysis will be required.

Many Indian lands determinations, however, are complex and difficult. For example, IGRA exempts from the general prohibition of gaming on lands acquired after

the date of its enactment when ‘‘lands are taken into trust as part of...the restoration of lands for an Indian tribe that is restored to Federal recognition.’’ To establish

that a tribe’s lands fall within the restored land exception, a tribe must establish

that it is a tribe restored to Federal recognition and that the parcel on which the

gaming is being conducted is restored land.

For a tribe to be restored to Federal recognition under the IGRA, it must have

been previously recognized; it must have lost its recognized status; and it must be

returned to a recognized status. This last can be straightforward, for, in most instances, it will or will not have been included by the Secretary of the Interior on

her list of federally recognized tribes. The first two elements, however, require much

delving into our history. Beyond looking to 18th and 19th Century Treaties and

laws, the specific political and ethnographic history of the tribe must be reviewed.

Just gathering the relevant information requires a large, cooperative effort among

the tribe, various divisions within the Department of the Interior, and perhaps historians and research archives.

Beyond all of that, determining that lands are restored lands requires the casting

of an even broader research net, for not all lands re-acquired by a tribe are ‘‘restored’’ lands within the meaning of IGRA. Whether lands are restored lands requires a case-by-case determination.

We must look to the factual circumstances of the land acquisition. We must look

at the location of the acquisition and consider such questions as whether it is close

to the tribe’s population base and important to the tribe throughout its history. We

must look at the two temporal relationship of the acquisition to the tribal restoration (in other words, was this land acquired 1 year after the tribe was restored to

recognition or 30 years later and after the tribe acquired 20 other parcels). All of

this requires the tribe to hire historians and ethnographers and also to produce voluminous historical documents and archaeological evidence, which, of course, can

take time to assemble and submit, not to mention time for the NIGC to digest.

A number of our determinations have also resulted in litigation, which slows down

our ability to make decisions even further, and to add to the complexity, Congress

has the ability to, and occasionally does, legislate the status of lands belonging to

individual tribes, and that can change the Indian lands analysis completely.

The Commission and the Department have been criticized by the Department’s

Office of Inspector General for failing to decide the Indian lands questions before

a facility opens and for failing to have a systematic approach to making such decisions. We share the Inspector General’s concern on this. Good government requires

that regulators know the extent of their jurisdiction. Furthermore, if we decide that

a tribe should not have opened a facility because the lands did not qualify for gaming under the act, extensive litigation is guaranteed and, if the Commission is correct, the tribe will have incurred millions of dollars in debt with few options for repaying the debt.

We are, therefore, developing a system which is designed to track Indian lands

determinations and to identify new problems quickly. Recently, we sent a team to

the State of Oklahoma to obtain copies of deeds, maps and other documentation on

some of the gaming sites. In California, we also hired a title company to conduct

title searches on some sites. This information as well as other information we obtain

will be used in establishing the central file system for the Indian lands documentation. We hope to convert this file system into an electronic system in the near future. We are also considering regulations that would require a tribe to establish that

a gaming operation is on Indian lands before it licenses the facility.

We thank the committee members and staff and stand ready to assist you as you

continue to review these Indian lands questions. If you have any questions, I would

be happy to answer them.
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Æ