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27-014 PDF 2006

H.R. 4893, TO AMEND SECTION 20

OF THE INDIAN GAMING

REGULATORY ACT TO RESTRICT

OFF-RESERVATION GAMING

LEGISLATIVE HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

Wednesday, April 5, 2006

Serial No. 109-46

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

or

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

(II)

COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

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

Don Young, Alaska

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Barbara Cubin, Wyoming

Vice Chair

George P. Radanovich, California

Walter B. Jones, Jr., North Carolina

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Jim Gibbons, Nevada

Greg Walden, Oregon

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

Jeff Flake, Arizona

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Luis G. Fortun ̃ o, Puerto Rico

Cathy McMorris, Washington

Bobby Jindal, Louisiana

Louie Gohmert, Texas

Marilyn N. Musgrave, Colorado

Vacancy

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Grace F. Napolitano, California

Tom Udall, New Mexico

Rau ́l M. Grijalva, Arizona

Madeleine Z. Bordallo, Guam

Jim Costa, California

Charlie Melancon, Louisiana

Dan Boren, Oklahoma

George Miller, California

Edward J. Markey, Massachusetts

Peter A. DeFazio, Oregon

Jay Inslee, Washington

Mark Udall, Colorado

Dennis Cardoza, California

Stephanie Herseth, South Dakota

Steven J. Ding, Chief of Staff

Lisa Pittman, Chief Counsel

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

(III)

CONTENTS

Page

Hearing held on Wednesday, April 5, 2006 ........................................................... 1

Statement of Members:

Cole, Hon. Tom, a Representative in Congress from the State of

Oklahoma, Prepared statement of ............................................................... 28

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

Michigan ........................................................................................................ 3

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

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

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

Statement of Witnesses:

Arnold, Donald, Chairman, Scotts Valley Band of Pomo Indians ................ 11

Prepared statement of ............................................................................... 12

Response to questions submitted for the record ..................................... 78

Davis-Van Huss, Jacquie, Tribal Secretary, North Fork Rancheria of

Mono Indians of California, Oral statement of ........................................... 15

King, Randy, Chairman, Board of Trustees, Shinnecock Indian Nation ..... 61

Prepared statement of ............................................................................... 62

Osmond, Hon. Jo Ann, State Representative, 61st District, State of

Illinois ............................................................................................................ 45

Prepared statement of ............................................................................... 47

Shagonaby, John, Treasurer, Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians, Gun Lake Tribe ....................................................... 3

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

Sheen, Hon. Fulton, Michigan State Representative, Representing 23 is

Enough! .......................................................................................................... 38

Prepared statement of ............................................................................... 40

Worthley, Steven, Tulare County Supervisor, and Member, Indian

Gaming Working Group, California State Association of Counties .......... 49

Prepared statement of ............................................................................... 51

Additional materials supplied:

Conway, Connie, CSAC President, California State Association of

Counties, Letter submitted for the record .................................................. 73

Cowlitz Indian Tribe of Washington, Statement submitted for the record . 74

Fink, Elaine, Tribal Chairperson, North Fork Rancheria of Mono Indians

of California, Statement submitted for the record ..................................... 17

Ho-Chunk Nation Legislature, Statement submitted for the record ........... 77

(1)

LEGISLATIVE HEARING ON H.R. 4893, TO

AMEND SECTION 20 OF THE INDIAN GAMING REGULATORY ACT TO RESTRICT OFFRESERVATION GAMING.

Wednesday, April 5, 2006

U.S. House of Representatives

Committee on Resources

Washington, D.C.

The Committee met, pursuant to call, at 11:04 a.m. in Room

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

[Chairman of the Committee] presiding.

Present: Representatives Pombo, Kildee, Cardoza, Faleomavaega,

Costa, Pallone, Christensen, McMorris, Kind, Inslee, Gibbons, Cole,

and Dent.

STATEMENT OF THE HONORABLE RICHARD W. POMBO, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

CALIFORNIA

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

The Committee is meeting today to hear testimony on H.R. 4893,

a bill to amend the Indian Gaming Regulatory Act, to restrict offreservation gaming. Under Rule 4[g] of the Committee Rules, any

oral opening statements at hearings are limited to the Chairman

and the Ranking Minority Member. This will allow us to hear from

our witnesses sooner, and help Members keep to their schedule.

Therefore, if other Members have statements, they can be included

in the hearing record under unanimous consent.

At this time I ask unanimous consent to allow Mr. Cole of Oklahoma and Mr. Dent of Pennsylvania to participate in the hearing

today. Without objection, it is so ordered.

Today, the Committee Members will receive a second round of

testimony on H.R. 4893, a bill to restrict gaming on certain kinds

of newly acquired lands for Indian tribes. By now, many are familiar with my reasons for sponsoring this bill.

H.R. 4893 establishes a new set of rules for tribes that want to

acquire gaming rights on newly acquired trust lands by invoking

an exception under Section 20[b] of the Indian Gaming Regulatory

Act.

Since the time H.R. 4893 was introduced, a number of tribes

seeking Section 20(b) exceptions have expressed great concern.

Some with pending applications have spent considerable sums of

2

money and worked for a long time under the existing process to acquire their gaming rights. They argue the bill’s effective date

changes a set of rules just as they are nearing the finish line, forcing them to start over or even lose an opportunity to have gaming

altogether. Others argue that unique historical, legal, or geographic cir- cumstances warrant special exceptions for them, and some will

argue that all they seek is a more favorable market. For the sake

of simplicity, I will refer to the tribes in this category as tribes who

seek a grandfathering amendment. On the other side, some tribes, as well as local elected officials

and private citizens groups, say the bill should not include any

kind of grandfathering language. In their view, IGRA is not an entitlement to riches. It does not contain a guarantee that every tribe

in the country can and will prosper from gaming. They say under

the current law many local communities do not have a strong

enough voice in the process of considering off-reservation casinos,

and to begin carving out exceptions is to defeat the purpose of passing H.R. 4893.

Finally, a number of those submitting comments have views that

fall somewhere in the middle. Continuing a policy of fairness and

allowing all sides to have a say in the crafting of this legislation,

I am hopeful today that my colleagues on the Committee will hear

from witnesses representing those varying positions on what is

clearly a complex set of issues.

I would now like to recognize Mr. Kildee for his opening statement.

[The prepared statement of Mr. Pombo follows:]

Statement of The Honorable Richard W. Pombo, Chairman,

Committee on Resources

Today, the Committee Members will receive a second round of testimony on

H.R. 4893, a bill to restrict gaming on certain kinds of newly acquired lands for

Indian tribes. By now, many are familiar with my reasons for sponsoring the bill.

H.R. 4893 establishes a new set of rules for tribes that want to acquire gaming

rights on newly acquired trust lands by invoking an exception under Section 20(b)

of the Indian Gaming Regulatory Act.

Since the time H.R. 4893 was introduced, a number of tribes seeking a Section

20(b) exception have expressed great concern. Some with pending applications have

spent considerable sums of money and worked for a long time under an existing

process to acquire their gaming rights. They argue the bill’s effective date changes

the set of rules just as they’re nearing the finish line, forcing them to start over

or even lose an opportunity to have gaming altogether. Others argue that unique

historical, legal, or geographic circumstances warrant special exceptions for them.

And some will argue that all they seek is a more favorable market.

For the sake of simplicity, I will refer to tribes in this category as tribes who seek

a ‘‘grandfathering’’ amendment.

On the other side, some tribes—as well as local elected officials and private citizens groups—say the bill should not include any kind of ‘‘grandfathering’’ language.

In their view, IGRA is not an entitlement to riches. It does not contain a guarantee

that every tribe in the country can and will prosper from gaming. They say that

under current law, many local communities do not have a strong enough voice in

the process of considering off-reservation casinos, and to begin carving out exceptions is to defeat the purpose of passing H.R. 4893.

Finally, a number of those submitting comments have views that fall somewhere

in the middle.

Continuing a policy of fairness and allowing all sides to have a say in the crafting

of this legislation, I am hopeful today that my colleagues on the Committee will

hear from witnesses representing these varying positions on what is clearly a

complex set of issues.

3

STATEMENT OF THE HONORABLE DALE E. KILDEE, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

MICHIGAN

Mr. KILDEE. Thank you, Mr. Chairman. Mr. Chairman, while I admire your effort to take on the com- plicated and controversial issue of off-reservation gaming, I have

serious reservations about the bill, but will continue to work with

you on this issue, and you have shown nothing but goodwill from

the very beginning as you approach this issue. Fundamental concerns I have about this bill relate to the numerous requirements that this country’s poorest tribes, the landless

tribes, would have to meet in order to obtain trust land in which

to conduct gaming; second, the veto authority granted to state legislatures and involvement of county government; and third, the requirement that an applicant tribe would have to foot the bill to pay

for a local advisory referendum. While I remain reluctant to open up IGRA to attack by our colleagues who want to harm Indian gaming, I would like to work

with you to improve the bill so that it supports tribal selfdetermination rather than hinder it. I look forward to hearing from

the witnesses today, and again, Mr. Chairman, I thank you for this

hearing and for the process which you are using. I yield back the balance of my time.

The CHAIRMAN. Thank you, Mr. Kildee. I would now like to call up our first panel of witnesses. They are: John Shagonaby, Donald Arnold, and Jacquie Davis-Van Huss.

They represent the Gun Lake Tribe, the Scotts Valley Band of

Pomo Indians, and the North Fork Rancheria, respectively.

Let me take this time to remind all of today’s witnesses that

under our Committee Rules oral statements are limited to five minutes. Your entire written testimony will appear in the record.

Mr. Shagonaby, we will begin with you.

STATEMENT OF JOHN SHAGONABY, TREASURER, MATCH-E-BENASH-SHE-WISH BAND OF POTTAWATOMI INDIANS, GUN

LAKE TRIBE

Mr. SHAGONABY. Good morning, Chairman Pombo, Ranking

Member Rahall, and Members of the Committee.

My name is John Shagonaby. I am a tribal counsel member and

Treasurer with the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians located in southwestern Michigan. Most people

know us as the Gun Lake Tribe.

We appreciate the Chairman’s invitation to appear today. We are

a federally recognized tribe but currently have no land base. Although we are landless, we have finished the regulatory process.

The Department of Interior, in May of 2005, after four years issued

a final determination to acquire 146 acres of land in trust as our

initial reservation upon which to build our gaming project.

Mr. Chairman, we would have those 146 acres as our initial reservation in trust today but for a frivolous lawsuit that is holding

it up.

When Congress enacted Section 20 of IGRA, it clearly stated that

newly acknowledged tribes should have the opportunity to realize

congressional goals of IGRA, that is, utilize gaming as a means of

4

economic development and self-sufficiency. We are concerned that

some provisions of H.R. 4893 place our tribe’s final determination

to take land in trust at risk, and it will forever deny the Gun Lake

Tribe and what Congress clearly intended in IGRA, the opportunity

for economic development through gaming.

Let me turn to the legislation by recognizing the straightforward

and transparent process in which this Committee has proceeded

over the past year. We appreciate the hard work of the Chairman

and the Committee in addressing the issues of off-reservation gaming, reservation shopping that is going to be raised by some witnesses.

Let me be clear, as a landless tribe we are not going off-reservation, and are not reservation shopping. We are merely seeking to

have land placed in trust as our initial reservation on our historic

Pottawatomi homeland.

Our written statement offers two recommendations for amendments. This morning, however, I will focus on one—the absolute

need for a grandfather clause to exempt certain tribes from

H.R. 4893. Our tribe presents a textbook example of on why the

grandfather clause is not only fundamentally fair, but warranted.

After achieving Federal recognition in 1999 through the Federal

acknowledgment process, which is very difficult to get through, we

decided to pursue gaming as a form of economic development. In

2001, we applied to the Department of Interior for an initial reservation, and we stated on our application we intended to operate

gaming on this reservation just like the 11 other federally recognized tribes in Michigan.

We identified a site within our original homelands and only three

miles from our ancient burial grounds. We did not engage in reservation shopping. We played by the rules. We selected a parcel of

land that was already zoned by the local government for commercial development, an abandoned manufacturing facility. We entered

into cooperative agreements with local governments for police, fire,

and emergency services.

As a part of the fee-to-trust application submitted in 2001, the

tribe and the BIA conducted an environmental assessment to assess the potential impacts of our proposed project which is required

by the National Environmental Policy Act.

We went through an extensive and atypically long 75-day public

comment as compared to the Department’s 30-day practice. We

went above and beyond what the rules required. Many Michigan

citizens and local government officials submitted comments to the

BIA. We enjoy overwhelming support from local governments,

chambers of commerce, and a grass roots group consisting of over

10,000 citizens of Michigan. There is not one single unit of government that opposes this proposed casino. All support comes as no

surprise since the Gun Lake Casino will bring many high-paying

jobs to an area that badly needs it.

After an exhaustive review of the evidence and the extensive

public comment period, the BIA concluded that our proposed casino

would have no significant impact. On May 13 of 2005, nearly four

years after we started the journey, the BIA issued its final determination to acquire land in trust for gaming purposes.

5

As I testified a moment ago, our land would be in trust today but

for a frivolous lawsuit filed last June against the Department of Interior seeking to block this project. The Department of Justice is

defending litigation against the plaintiff, which is anti-gaming

group in Michigan. They are not a local government.

The Gun Lake Tribe has intervened to support the Department

of Interior’s decision and Wayland Township, the local government

with jurisdiction over the land has joined the lawsuit along with

groups to support the tribe and the BIA.

Now, let me be frank with the Committee. As we read

H.R. 4893, the Gun Lake Tribe may have more hurtles to clear if

the bill is enacted prior to the final order in our litigation. It is our

understanding that without clarification by the Committee we

could be pulled back into the regulatory process and meet many

new requirements of the bill. This scenario will lead to substantial

new delays and an incredible expense for the tribe.

Most importantly, further delay would impede our tribe’s hopes

for the future and our ability to provide some badly needed services

to our members. Therefore, a provision that would exempt tribes

that have pending trust applications must be included, and especially for my tribe which has already received a decision from the

administration to acquire land for our initial reservation.

Let me leave you with this final thought. We know that Congress, when it enacted IGRA, carefully considered the unique history of tribal-Federal relationship. We hope it would do the same

when it considers the special circumstances of tribes like mine who

have spent many years playing by the rules. Please do not change

the rules for us at the eleventh hour.

It is our honor and privilege to testify before the Committee

today. I am happy to answer any questions you may have.

[The prepared statement of Mr. Shagonaby follows:]

Statement of John Shagonaby, Treasurer,

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, Gun Lake Tribe

Chairman Pombo, Ranking Member Rahall and respected Members of the Committee, thank you for the opportunity to testify today regarding H.R. 4893. My

name is John Shagonaby and I am a tribal council member and Treasurer of the

Match-E-Be-Nash-She-Wish Band of the Pottawatomi Indians, also known as the

Gun Lake Tribe. Our Tribal homeland has always been in Western Michigan. We

are a landless tribe, but have received a final determination from the United States

Department of the Interior to place 146 acres of land in to trust in Allegan County,

Michigan for the benefit of the Tribe. A private organization has challenged Secretary’s decision in federal court and the United States Department of Justice is defending the Department’s decision to acquire the lands.

First, let me express my appreciation to the Members of the Committee, and specifically the Chairman, for the straight-forward, cooperative and open process in

which this Committee has proceeded over the past year regarding potential amendments to 25 U.S.C. § 2719 of the Indian Gaming Regulatory Act. Indian Country has

had significant opportunity to work with the Committee on the review of this legislation through two draft bills, many consultations at various Indian association

meetings across the country and several oversight hearings. Our Tribe, in particular, has enjoyed a solid working relationship with many of the Committee Members and staff, including Representative Dale Kildee (D-MI), who has always maintained an open door to our Tribe. We recognize the Committee’s hard work on addressing concerns with the so-called reservation shopping and off-reservation issues

and understand the goals of H.R. 4893. In the spirit of cooperation, we would like

to offer two recommendations for amendments and share our general concerns about

certain provisions of the bill.

6

H.R. 4893 IMPOSES NEW REQUIREMENTS ON LANDLESS TRIBES

H.R. 4893 expressly prohibits newly recognized landless tribes from acquiring any trust land on which those tribes may conduct gaming unless the tribe can meet the

following new requirements: First, the Secretary of the Interior must determine that

the proposed gaming is not detrimental to the surrounding community and nearby

Indian tribes. Next, this determination must be approved by the Governor, the State

Legislature and any other Indian tribes within a 75 mile radius. Finally, the petitioning Tribe must pay for a local ‘‘advisory’’ referendum and enter into a memorandum of understanding with the county or parish where the land is located. These

additional requirements pose new and we believe unintended challenges to those

landless tribes seeking to reclaim their homelands as an initial reservation. While

our overall preference would be to exclude landless tribes altogether from these requirements, we offer the following comments for the Committee’s consideration.

PROPOSED AMENDMENT: INCLUDE A GRANDFATHER CLAUSE

If the proposed legislation moves forward, our primary recommendation is the in- clusion of a so-called ‘‘grandfather clause’’ to exempt tribes like ours that have completed or nearly completed the federal regulatory process. As the Committee is

aware, many Indian tribes across the country have made tremendous investments

into their gaming projects—both financially and in terms of the time and effort of

tribal members. This should not be overlooked by Congress. In fact, one need only review the five year history of our land-to-trust application to appreciate the need for such a grandfather clause: At every step of the process we have followed the rules. After finally gaining fed- eral acknowledgment in 1999, our Tribal Council identified suitable land for economic development that is only three miles from our ancient tribal burial grounds.

The land has an existing industrial warehouse on it and is zoned light industrial.

It was always our intent to use this land and the building to develop a casino. The

Tribe submitted its fee-to-trust application pursuant to 25 C.F.R. § 151 et seq., to

the Minneapolis Area Office of the Bureau of Indian Affairs on August 12, 2001. As

part of the fee-to-trust application to acquire land into trust for gaming purposes,

the Tribe and the Bureau of Indian Affairs (BIA) conducted an Environmental Assessment (EA) in satisfaction of the requirements of the National Environmental

Policy Act (NEPA). Our Tribe is highly sensitive to our natural environment. This

is why the Tribe made every effort to be extraordinarily cooperative and responsive

to the Bureau of Indian Affairs during the agency’s determination of whether our

casino project might pose any significant impact on the environment of West

Michigan. As the Committee is aware, federal regulations require that our Tribe comply with NEPA in order to have land acquired in trust for our benefit. Compliance with

NEPA is achieved if an EA of the proposed project results in a Finding of No Significant Impact, to the environment by the BIA ‘‘often referred to as a ‘‘FONSI’’. NEPA

requires, however, that if the BIA finds that a project has a significant impact on

the environment, an Environmental Impact Statement must written by the agency.

Over a three year period, beginning in mid-2002, the Tribe worked closely with the

BIA Regional Office’s environmental resources experts to produce an EA. The Tribe

and its consultants prepared several revisions of the EA following comments from

both the BIA and the public.

During an extensive and atypically long 75-day public comment period (November

2002—February 2003), Michigan citizens and local government officials submitted

over 300 letters to the BIA containing project comments and concerns. Each public

comment, as reflected in the administrative record, was painstakingly reviewed by

the BIA. In the end the EA examined everything from the project’s effects on the

water supply, traffic and air quality to the effects on animals in the surrounding

area. In addition, since such great scrutiny is placed on casino projects, the EA examined the effects of secondary development resulting from the casino and its operations and examined potential alternatives to this project.

After an exhaustive review of the evidence and the extensive public comment, the

BIA concluded that a FONSI was appropriate, and with this finding of no significant

impact, an EIS was not required. The BIA issued the FONSI on February 27, 2004.

More than a year later, on May 13, 2005, the BIA published in the Federal Register

its final determination to acquire the land in trust for the benefit of the Tribe.

Mr. Chairman, our land would be in trust today but for a lawsuit filed June 13,

2005 against the Department of the Interior seeking, among other things, to enjoin

the Secretary from moving forward with her decision to acquire land in trust for

our Tribe. As I mentioned above, the Department of Justice is defending that litigation. The Plaintiff in this action is a private anti-gaming group from West Michigan.

In fact, the attorneys representing the plaintiffs challenging the Secretary’s

7

determination are the same attorneys that lost a challenge to the previously landless Pokagon Tribe in Michigan on nearly identical causes of action. Today, the

Pokagon lands are now in trust. Our case is nearing completion and we are confident that we will also prevail.

If H.R. 4893 is enacted prior to a final order in our litigation, it is our understanding that without clarification the Gun Lake Tribe could be pulled back into the

regulatory process and required to meet many of these new criteria. This scenario

would lead to substantial additional delays and incredible expense for the Tribe.

Most importantly, such further delay would seriously impede our Tribe’s hopes for

the future and our ability to start to provide some of the services so badly needed

by our tribal members. Therefore, we respectfully request that a provision exempting tribes like ours from this new legislation be included in H.R. 4893.

PROPOSED AMENDMENT: ALLOW FOR ALTERNATIVE COMPACTING

As you know before a Tribe can conduct Class III gaming, it needs a gaming compact with the State—for which the state is required to negotiate in good faith. Eleven federally recognized Tribes in Michigan have gaming compacts, some of which

were negotiated by former Governor John Engler and subsequently approved by the

Michigan Legislature.

The United States Supreme Court in Seminole Tribe of Florida v. Florida, 517

U.S. 44 (1996) ended a tribe’s right to bring a cause of action in federal court

against a state that refused to bargain in good faith for a tribal state gaming

compact—unless that state waives its sovereign immunity. There is currently no

remedy for an Indian tribe to sign a compact with a state refusing to negotiate in

good faith. Our recommendation would be the authorization of the Department of

the Interior to issue alternative compacts when a state Governor or state legislature

refuses to negotiate in good faith a compact with an Indian tribe. This amendment

would promote intergovernmental cooperation between states and tribes and result

in the furtherance of a cooperative relationship between the states and tribes. Specifically, such an amendment would codify by statute the authority of the Secretary

to issue the Class III gaming procedures of 25 C.F.R. Part 291 et seq.

GENERAL CONCERN WITH H.R. 4893: THE ADVISORY REFERENDUM

IMPOSES A DIFFICULT CHALLENGE

We are concerned that the ‘‘advisory referendum’’ requirement creates a significant impediment to Indian tribes. First, H.R. 4893 does not impose deadlines requirements on the county officials to act and there are no federal or state regulations in place for such an event. Also there needs to be clarification of whether the

election could be called as a special election or held in regular course during the

Primary or General elections.

Next, the Committee may want to consider exempting the tribe from state laws

addressing the qualification of a referendum for the ballot. Most states require the

collection of hundreds of signatures and payment of a filing fee. Another related concern is that not all states allow local referendum and, as such, those local officials

may be ill-equipped to hold and manage a ballot initiative. Third, a tribe would need

to reach a financial arrangement with the county on the cost of the election for its

particular referendum. Perhaps the Committee can offer guidance as to what costs

would or could be included or limited by this arrangement.

Fourth, the element of campaign costs associated with a referendum should be

carefully weighed by the Committee. A tribe would need to hire public and political

relations experts to campaign for its side of the referendum. This creates a new significant financial investment for the tribe. Fifth, there is a general concern that

Congress does not possess the constitutional authority to compel a local government

to act. Finally, the results of this election, as stated in H.R. 4893, are only advisory

and have no impact on the mitigation of public concerns about proposed gaming

projects. In other words, is it the intent of the Committee to require that tribes and

local governments conduct what is essentially a very expensive public opinion poll?

GENERAL CONCERN WITH H.R. 4893: PROPOSED TWO-PART DETERMINATION IS UNFAIR TO INITIAL RESERVATION TRIBES

This new two part determination in the initial reservation exception appears contrary to basic elements of fundamental fairness. Such a determination would create

an uneven playing field and further disadvantage the most disadvantaged tribes in

America. Landless restored and newly acknowledged tribes have been without land

and the benefits of federal recognition for significant periods of time. These tribes

are forced to carve out small pieces of their original homeland from local jurisdictions that typically are not eager to lose land from their tax rolls and regulatory

authority. Indeed, the very reason IGRA contains exceptions for the initial

8

reservations of a tribe is because Congress did not want to penalize those tribes that

were not yet recognized by October 17, 1988.

GENERAL CONCERN WITH H.R. 4893: INTERFERENCE BETWEEN

TRIBAL SOVEREIGNS

H.R. 4893 requires the concurrence of other Indian tribes within seventy-five (75)

miles of the applicant project site to concur with the proposed acquisition for gaming

purposes. Such a provision, for the first time under Congress’ plenary authority, enables neighboring Indian tribes to interfere with another tribal sovereign’s internal

decision-making and self-determination. Allowing and requiring concurrence by

neighboring tribal governments is tantamount to economic warfare between neighboring tribal governments.

In fact, the application and effect of this provision will be uneven in various regions in the nation and undermine economic development. For example, California

tribal projects under this provision may be required to seek upwards of twenty-five

(25) concurrences from neighboring tribes while Tribe in the mid-west might have

merely one (1) or no tribes required to concur because shear geographic distance

gives these tribes a free pass. In practical terms such a concurrence is a death-blow

to a gaming project. Why would those other tribes agree to allow a competing casino? Their market shares will inevitably be cut. Landless tribes, like ours, are recognized by the federal government with the same privileges and immunities as

other tribes with land prior to October 17, 1988. This provision in its present form

makes landless tribes a different class of tribes because is denies us the ability to

have an opportunity to use IGRA under the same rules as everyone else.

In short such a provision undermines the spirit of IGRA: economic development

through self-determination.

GUN LAKE MEETS THE PRIMARY GEOGRAPHIC, SOCIAL, HISTORICAL,

AND TEMPORAL NEXUS TEST

The legislation also creates a new test for tribes seeking their initial reservation.

Under H.R. 4893, the Secretary is required to determine that the tribe has its primary geographic, social, historical and temporal nexus to land. Although we are uncertain how these terms may ultimately be defined in light of case law and Departmental practices, we firmly believe that Gun Lake Tribe has such a nexus to the

land.

In fact, we have long and established ties to an area that is now Western

Michigan. The Gun Lake Tribe descends primarily from the Pottawatomi Band, led

by Chief Match-E-Be-Nash-She-Wish. Prior to European contact, the Gun Lake

Tribe used and occupied lands in the Great Lakes, in what is now known as

present-day Michigan Lower Peninsula. This is where we are today. In the late

1700s, the Gun Lake Tribe lived under the direction of Chief Match-e-be-nash-shewish at a village at Kalamazoo, which we called ‘‘Kekamazoo,’’ and which is located

near where Michigan Highway 43 crosses the Kalamazoo River.

In 1821, the Michigan Indian Tribes and the United States entered into the 1821

Chicago Treaty, under which the tribes ceded all Michigan land south of the Grand

River to the United States. Match-e-be-nash-she-wish signed this treaty on behalf

of the Gun Lake Tribe, and as a realization from stipulations from the 1795 Treaty,

he and his band were provided a 3-mile square of land at Kalamazoo. The northeast

corner of the reservation was a short distance northeast of present day Michigan

Avenue Bridge which crosses the Kalamazoo River as part of Michigan Highway 43.

Today, Western Michigan University’s main campus is located approximately in the

center of the 3 square mile area which was known as the Match-E-Be-Nash-SheWish Reservation.

Despite previous treaties between the United States and the Michigan tribes, and

despite the huge amounts of land ceded, pressure continued on the tribe to cede

more land. In 1827, Match-e-be-nash-she-wish agreed to cede his small reservation

at Kalamazoo for an equal size land base adjacent to the Nottawaseppi Reservation

near Mendon. However, the Tribe was never paid for the land cession and they did

not move to this location. Before the land could be surveyed and provided to Matche-be-nash-she-wish and his Tribe, all the major chiefs in southwest Michigan except

Match-e-be-nash-she-wish signed the 1833 Chicago Treaty, ceding their land rights

to the United States. To avoid a forced removal to Kansas as a ‘‘hostile’’ Band,

Match-e-be-nash-she-wish moved the Tribe north, first to Cooper, then Plainwell,

then Martin, and finally to Bradley in 1839. Tribal members maintained a connection with the Kalamazoo area into the 20th century, as residents of the Bradley settlement would collectively move south to the Kalamazoo River during the summer

months to camp, fish, and socialize. The United States never fulfilled its treaty obligation to make payment for the Gun Lake Tribe’s Kalamazoo land cession.

9

In 1839 in Bradley, Allegan County, the Tribe placed itself under the protection of an Episcopalian Mission while the Tribe occupied what was known as the Griswold Colony, or Bradley settlement. Indian colonies like the Griswold Colony were

established pursuant to the 1819 Civilization Act, which allowed five participating

denominations to establish trust agreements, in which the missionary societies

would hold land in trust for the Indians, build churches and schools, clear and fence

fields, teach farming techniques, and make blacksmiths and mills available to the

tribes.

Funding for the Griswold Colony had been set by treaty for 20 years. In 1855, the assistance provided by the treaty came to an end and a new treaty was made

with the Tribe whereby they were granted outright ownership of lands in Oceana

County near Pentwater, Michigan. The majority of the Griswold Indians took advantage of the provisions of the new treaty and moved northward, while a few families

stayed behind. Within 10 years, however, most of the Griswold Indians had lost

their lands in Oceana County, and many returned to the mission grounds, which

had not been disposed of, despite the fact that the work there had come to an end.

The Indians lost their lands in Oceana County not to taxes, but because the patents

to the lands were never delivered to those that held land certificates, and thus the

land selection process in Oceana County was never legally completed by the United

States government. When the land patents were not delivered, the Gun Lake tribal members returned

to Allegan County, to the 360 acre reservation which was still in trust with Bishop

McCoskry. However, during the period when some members lived in Oceana, the

reservation members that remained behind refused to pay Allegan county taxes on

the reservation lands, based on treaty rights. Tribal members returning from

Oceana County met with court action by Allegan County and the reservation land

was put up for sale for back taxes. Within a few years, practically all of the Tribal

members had lost their land to non-Indians for failure to pay their taxes.

In 1890, pursuant to federal law allowing the ‘‘Pottawatomi Indians of Michigan

and Indiana’’ to receive a payment from the United States for past annuities, the

Pokagon Band and Nottawaseppi Pottawatomi filed cases in federal court. However,

only the Pokagon Band was paid, and not the Allegan County Pottawatomies, our

Tribe. In 1899, the Supreme Court ruled that the Allegan County Indians were also

eligible to share in the judgment. The Taggart Roll was developed to establish the

additional parties to be paid, and it contains 268 Pottawatomi Indian names, many

of whom are descendants of Match-E-Be-Nash-She-Wish’s Band. The Bradley Indian

community used the funds to expand and acquire land in the area.

The Tribe had unambiguous previous Federal acknowledgment, which is demonstrated by treaties extending at least through the 1855 Treaty of Detroit with the

Ottawa and Chippewa Indians of Michigan, to which the Tribe’s chief was a signatory, through the 1870 date at which annuity payments under prior treaties were

commuted. There was never an express congressional legislation terminating the

Tribe; the Tribe was simply passed over for a Treaty before treaty making ended

in 1871

Over one hundred years later, in 1992, the Gun Lake Tribe petitioned the Bureau

of Indian Affairs for acknowledgment. In August of 1999, the Tribe was acknowledged as a federally recognized Indian Tribe, re-establishing their government-togovernment relationship with the United States. Since restoration as a federally recognized tribe, the Tribe has identified a site in Allegan County within the Wayland

Township as a proposed site to place in trust for the benefit of its members. In fact,

most of the Tribal members currently reside in the Allegan area. The Tribe chose

to remain in Allegan County because it is part of the Tribe’s aboriginal lands and

the land on which the Tribe has lived since 1839.

It is also important to highlight that on June 25, 2003, the Tribe received a Department of the Interior Solicitor Opinion that acknowledged Gun Lake Tribe’s historical nexus to proposed land acquisition site and determined that land acquired

in trust for the land would be proclaimed the Tribe’s initial reservation. The opinion

concluded that the Tribe could conduct gaming activities on the land under the ‘‘initial reservation’’ exception in Section 20 of the Indian Gaming Regulatory Act.

THE GUN LAKE PROJECT IS WIDELY SUPPORTED

As Senate Committee on Indian Affairs Chairman, Senator John McCain (R-AZ)

observed during the May 18, 2005 committee hearing on trust lands, the Gun Lake

Tribal project has received ‘‘a pretty impressive display of local support.’’ This is

quite true, as part of the public comment period for the Environmental Assessment,

the Bureau of Indian Affairs received letters supporting the Tribe’s proposed land

acquisition and development from the following groups/individuals:

• Wayland Township

10

• International Brotherhood of Electrical Workers

• Michigan House of Representatives

• City of Wayland

• Allegan Public Schools

• Barry County Economic Development Center

• Gun Lake Area Chamber of Commerce

• Allegan County Health Department

• Wayland Area Chamber of Commerce

• Plumbers/Pipe Fitters Union

• Wayland Union Schools

• Dorr Township

• Barry County Area Chamber of Commerce

• Allegan County Board of Commissioners

• Wayland City Police

• Deputy Sheriff’s Association of Michigan

• Michigan House Democratic Leader Buzz Thomas

• Michigan State Majority Floor Leader Randy Richardville

Unfortunately, there are a small handful of detractors such as MichGo and 23 is

Enough!—a witness testifying in the second panel today. We understand that these

two organizations are led and funded by a small collection of businessmen who operate their companies regionally. We also believe that 23 is Enough! has not opposed

any other gaming projects in Michigan aside from the Gun Lake project—not even

the commercial gaming operations recently opened in Detroit. This group seems

solely focused on our Tribal project.

Furthermore, none of this group’s leaders submitted comments during the lengthy

environmental review conducted by the Bureau of Indian Affairs. This raises a legitimate question of whether this group has gathered to oppose Indian gaming in

the State or to oppose what promises to be a significant local competitor for the job

base in Western Michigan. After all, the Gun Lake Casino is expected to bring 4,300

new jobs to the area, as well as local supplier purchases, local and state revenue

sharing, a proven recreational attraction, and other economic development to the depressed area.

As a final thought, we know that Congress, when it enacted IGRA, carefully considered the unique history of tribal-federal relationship and we hope it will do so

when it considers the special circumstances of landless tribes affected by this legislation. It is an honor and privilege to present testimony to Committee today and

I am happy to answer any questions you have of me.

11

The CHAIRMAN. Thank you.

Mr. Arnold.

STATEMENT OF DONALD ARNOLD, CHAIRMAN,

SCOTTS VALLEY BAND OF POMO INDIANS

Mr. ARNOLD. Good morning, Honorable Chairman Pombo, and

Members of the House Resources Committee.

My name is Don Arnold, Chairman of Scotts Valley Band of

Pomo Indians. Also with me today is our Vice-Chairman, Crista

Ray, and also Dore Bietz of the Indian lands consultant.

As a small landless tribe in California, we have an application

in with the Department of Interior to place in trust restored land

for gaming purposes and economic development.

The tribe has expended a considerable amount of time and resources toward this project. We were one of 41 tribes that California terminated pursuant to the Rancheria act of 1958. Termination means we lost our property rights.

During the ’60s and the ’70s, the Federal government then implemented the relocation, relocating Indians to the Bay Area. The majority over the Scotts Valley Band of Pomo Indians relocated to the

Bay Area. I, myself, was relocated to San Francisco.

Twenty-seven years later, in 1992, Scotts Valley was restored to

recognition by court order along with three other tribes, Guidiville,

Mechoopda and Lytton. The court precluded us from returning to

our former Rancheria area, our land base.

In 2000, BIA recognized that the majority of our tribal members

live in the Bay Area. Contra Costa County has been designated our

service population, service area. Our tribe has researched and have

documents, ethnohistory, facts linking Contra Costa County to our

historical Pomo site. The territory ceded to the United States in the

Nineteenth Century.

Based on this history, and our modern ties, the tribe has decided

to seek restoration in our land base in Contra Costa County. Our

application was submitted in January of 2005. Our tribe has offered the county a limited waiver of sovereign immunity to make

enforceable the terms of our MSA with these agreements.

The tribe currently is negotiating with the City of Richmond, although our site is in an unincorporated area of Contra Costa County. The tribe wants to be a good neighbor. We continuously reach

out to the community for communications with them.

Concerns: We would now like to express our ideas on the legislation.

First, there must be a mechanism for landless and newly restored and recognized tribes. California tribal history is unique and

complex as you mentioned earlier, Congressman. There must be a

way to combine, protect for the small, needy, unjust landless tribes

while ensuring that requirements should be in place for historical

claims that the tribe must meet. Every tribe should have the same

rights as others.

Second, we need to maintain the standard and process for acquisitions, and without having to change the long-standing Federal

policy, and recognizing tribal sovereignty. We have concerned while

giving veto power to local governments and other tribes. However,

we do recognize the need for local community involvement.

12

Finally, there needs to be a grandfather clause for those tribes already in the process. Many of these tribes have exhausted much

time and resources like Scotts Valley. Changing the rules to the

game is unfair. Any grandfathering should be inclusive in any tribe

who has an application in for the purpose of gaming on the date

of enactment of any new bill. This is the only fair and equitable

remedy for those tribes, all tribes that have spent any time in the

process.

Grandfathering does not guarantee approval as you know, and Scotts Valley will continue to follow the process as outlined. What about other tribes who do not have an application in? Their

rights should also be protected. In closing, the rules of the game should not be changed midway through the seventh inning. Let us say a rancher has spent several

years and hundreds of thousands of dollars in working through the

local zoning regulations so he could put a new building on his property. Toward the end of the process the local government changes

the law and does not grandfather his application. He has to start

all over again and jump through this even higher hurtles. The result is that he will lose his investment, the time and money just

like tribes will if we are not grandfathered. Grandfathering language is critical for landless tribes, and I want to thank you for your time and the Committee. We are open

for questions and answers. Thank you. [The prepared statement of Mr. Arnold follows:]

Statement of Donald Arnold, Chairman,

Scotts Valley Band of Pomo Indians,

Introduction

Honorable Chairman Pombo and members of the Committee, my name is Don Ar- nold and I am the Chairman of the Scotts Valley Band of Pomo Indians. Thank you

for the opportunity to speak in front of you today on such an important issue.

Scotts Valley is a small landless Tribe in California that has an application with

the Department of Interior to have land placed into trust as a restored tribe for

gaming purposes. To date, the Tribe has expended a considerable amount of time

and resources in order to comply with the federal fee to trust and restored lands

applications process. I hope that I can provide some valuable information about the

unique history and needs of California Tribes as well as update you as to where

we are in our project and why we are concerned with the proposed legislation. We

also would like to specifically speak to the issue of grandfathering and why Scotts

Valley and other tribes should not have the rules changed in the seventh inning of

the game.

Scotts Valley History

The Scotts Valley Band of Pomo Indians of California is a federally recognized

Indian tribe, which has absolutely no trust land base. The Tribe’s status as a federally-recognized Indian tribe was illegally terminated in 1965 under the California

Rancheria Termination Act, and restored in 1992 pursuant to a judgment of the

Federal District Court for the Northern District of California. The Judgment, however, specifically precludes the Tribe from re-establishing our former Rancheria.

As a result of the Federal Government’s termination and relocation policies

throughout the 20th century, the vast majority of tribal members were relocated to

the San Francisco Bay area, and, in 2000, the Bureau of Indian Affairs designated

Contra Costa County, California as the Scotts Valley Band of Pomo Indians ‘‘service

population area.’’ Because a large percentage of tribal members reside in and

around the County and the County has been designated as the Tribe’s service population area, the Tribal Council has determined to restore the Tribe’s trust land base

in the County, and to fully establish the Tribal Government and Tribal community

in Contra Costa County. The Property is located in the extreme western end of the

County close to the sites of historic Pomo villages and trails and the territory the

Pomo ceded to the United States in the 19th century. The Property is thus the

13

closest part of the Tribe’s present day service population area to historic Pomo territory. As a result, the Tribal Council has determined that the development and operation of a gaming facility on the Property is an important Tribal Government project

designed to improve the economic conditions of the Tribe and its members, increase

tribal revenues, enhance the Tribe’s economic self-sufficiency and promote a strong

Tribal Government capable of meeting the social, economic, educational, cultural

and health needs of the tribal members. Accordingly, the Tribe has requested that

the Secretary of the Interior acquire title to six (6) parcels of real property totaling

approximately 29.87 acres located within an unincorporated area of the County in

trust for the benefit of the Tribe.

Application for Land Into Trust

After much time and resources, the Scotts Valley Tribe submitted an application

under 25 C.F.R. 151 on January 25, 2005 This application is an extensive compilation of both required and submitted documents filling numerous binders that includes a narrative addressing all requirements within 151 such as need, authority,

impacts on the State and Political Subdivisions jurisdictional issues and title requirements.

In addition, a detailed Environmental Impact Statement (EIS) was developed

which identifies a range of measures necessary to mitigate significant impacts our

project will have on the local community. Not only has the Tribe publicly agreed

to mitigate those impacts, but also has offered the County in which our restored

trust land base would be located a limited waiver of sovereign immunity in order

to make fully enforceable the terms of a Tribal-County agreement regarding the

mitigation of impacts to the County.

The Tribe also is currently in negotiations with the City of Richmond to develop

an MSA that addresses the mitigation of the impacts to the City of our proposed

project. Quite simply, the Tribe wants to be good neighbors of the community in

which our restored trust land base is located, and continuously reach out to the

community to ensure that happens.

Since Congress included the ‘‘restored lands exception’’ when it enacted IGRA, it

is clear that Congress knew and understood the plight of landless illegally terminated tribes, such as Scotts Valley. Congress did not give landless, illegally terminated tribes a free pass. Instead it created a rigorous mechanism for a landless, illegally terminated tribe, like Scotts Valley, to restore its trust land base and operate

a gaming facility as a means of promoting tribal economic development, self-sufficiency and a strong tribal government. Scotts Valley is following this mechanism;

the only mechanism which can provide our Tribe assurances of its sovereign survival.

Concerns with H.R. 4893

In 1988, Congress saw Indian gaming as an appropriate expression of tribal sovereignty and, accordingly, Congress enacted IGRA to protect and regulate that activity. It is clear, however, that, with certain exceptions, Congress intended to limit

Indian gaming to Indian lands that existed on the date of enactment (October 17,

1988).

The problem was that not all tribes held tribal lands in 1988. Congress very specifically intended to assist such disadvantaged tribes by providing that, when they

finally obtained land, their land would be treated as if it effectively had been in

trust since before October 17, 1988. In other the words, Congress provided the restored lands exception of Section 20 (b) (1)(B)(iii) of IGRA so that eligible tribes such

as Scotts Valley could be placed closer to the position they would have been in had

the Tribe been restored and held lands in trust prior to1988. By so doing, Congress

provided a mechanism by which newly restored tribes would be on a more level

playing field with the tribes that were lucky enough to have been restored and had

a land base on the date of IGRA’s enactment. Congress knew that locking restored

landless tribes out of the economic development opportunities made available by

IGRA would do an incredible injustice to those tribes.

The purpose and intent of IGRA’s restored lands provision is informed by the

opinions of the federal courts that have considered this issue. In 2003, in a case involving a California tribe, the D.C. Circuit (in an opinion joined in by now Chief

Justice Roberts) explained that the restored lands and initial reservations exceptions ‘‘serve purposes of their own, ensuring that tribes lacking reservations when

IGRA was enacted are not disadvantaged relative to more established ones.’’ City

of Roseville u Norton; 348 F.3d 1020, 1030 (D.C. Cir. 2003). In 2002, in an opinion

involving a Michigan tribe that was later affirmed by the Sixth Circuit, the District

Court said nearly the same thing, saying that the term ‘‘restoration maybe read in

numerous ways to place belatedly restored tribes in a comparable position to earlier

14

1See 25 U.S.C. § 476(f).

recognized tribes while simultaneously limiting after-acquired property in some

fashion.’’ Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Attorney

for the Western District of Michigan, 198 F. Supp. 2d, 920, 935 (W D. Mich. 2002),

aff’d 369 F.3d 960 (6th Cir. 2004) (referring to the factual circumstances, location,

and temporal connection requirements that courts have imposed). The restored

lands provision ‘‘compensates the Tribe not only for what it lost by the act of termination, but also for opportunities lost in the interim.’’ City of Roseville, at 1029. Only rarely does Congress provide the Secretary with special authority or direc- tion to acquire trust land for a particular restored tribe. Therefore, newly restored

tribes like Scotts Valley must rely on the general discretionary land acquisition authority given to the Secretary pursuant to Section 5 of the Indian Reorganization

Act. (25 U.S.C. 465) As a consequence, landless restored tribes must submit to Interior’s usual process for reviewing fee-to- trust applications, including complying with

the requirements of Interior’s fee-to-trust regulations (25 C.F.R. Part 151). H.R. 4893 would amend Section 20 to impose on newly recognized, newly restored and landless tribes an extensive laundry list of new requirements before those tribes

could obtain trust land for gaming. Such comprehensive requirements have never

been imposed on tribes with reservations in existence in 1988. Indeed, on its face,

H.R. 4893 appears to conflict with Congress’ own policy direction to the federal

agencies that they may not promulgate regulations or make any determination that

‘‘classifies, enhances or diminishes the privileges and immunities available to the

Indian tribe relative to other federally recognized tribes.’’ 1

Section 20 is working as Congress intended. The Section 20 exceptions were in- tended to place tribes that were either unrecognized or landless in 1988 (Scotts Valley was both) on an equal footing with recognized tribes that had established trust

land bases. The exceptions were not intended for recognized tribes with established

land bases to improve their competitive environment, and therefore these tribes

should not be attempting to use the exceptions for such purposes.

Grandfathering Tribes already in the process

Scotts Valley is a landless illegally terminated/restored tribe that is following the federally established procedures for taking land into trust for gaming purposes, and

it is truly hurtful when the illegal termination of our Tribe and the relocation of

our people are ignored and we are accused of ‘‘off reservation shopping.’’ We are not

‘‘reservation shopping’’, instead we are following the very vigorous requirements the

Congress established for restored tribes to restore their trust land base. The tens

of thousands of pages included in the Tribe’s trust application will show that the

Tribe has both a strong historic connection to our proposed restored trust land and

an even stronger modern day connection to that same proposed trust land. Our tribe, as it always has, will tenaciously move forward in its fight for its sur- vival, this time by following the federal procedures set forth for establishing a restored land i.e. pursuant to the provisions and case law governing Section

20(b)(1)(b)(iii) of IGRA and 25 C.F.R. 151. This section provides adequate safeguards

for tribal, state and local governments, and should not be changed. There are considerable provisions under current law for public input into the

Tribe’s restored lands application. In addition to the public consultation and comment requirements built into the fee to trust process, there are a significant number

of opportunities for public participation required by the National Environmental

Policy Act (‘‘NEPA’’). The Department of the Interior has made clear in its recently

revised guidelines for gaming acquisitions that most tribal casino projects will require preparation of an EIS to assess a wide range of potential impacts, including

ecological, social, economic, cultural, historical, aesthetic, and health impacts. The

Scotts Valley project is no exception. The enormous amount of public opinion that is made a part of the NEPA and EIS

processes is perhaps best demonstrated by walking through the extensive process

in which Scotts Valley has been engaged: • On July 20, 2004 the Bureau of Indian Affairs (BIA) published a notice of intent

to prepare an EIS in the Federal Register describing Scotts Valley’s proposed

project, explaining the NEPA process, announcing a scoping meeting, and soliciting written comments on the scope and implementation of the proposed

project. Public notices announcing the proposed project and the scoping meeting

also were published in local papers. The scoping process was intended to gather

information regarding interested parties and the range of issues that would be

addressed in the EIS.

• The BIA held the public scoping meeting on August 4, 2004 in Richmond, California, and received comment letters during the scoping process. In December

15

2004 the BIA issued a scoping report describing the NEPA process, identifying

cooperating agencies, explaining the proposed action and alternatives, and summarizing the issues identified during the scoping process. • The BIA then prepared a preliminary draft EIS, which was circulated to the

cooperating agencies for comment. Cooperating agencies for the Scotts Valley

project included the County of Contra Costa, California, the City of Richmond,

California, the California State Department of Transportation and the Environmental Protection Agency. • Based on the comments received from the cooperating agencies, the BIA then

prepared a draft environmental impact statement which was released for public

comment on February 17, 2006. The BIA also held a public meeting in Richmond, CA on March 15, 2006 after the draft EIS had been made available to

the public. At that meeting, several members of the community commented on

the draft EIS; many of them positively. • All the comments on the draft EIS, whether received in writing or through the

public meeting, are being considered and addressed in the final EIS. The information included within that final EIS will be considered by the Secretary while

he/she determines whether or not to take the Scotts Valley parcel into trust.

Therefore, the views of local elected officials, local citizens, and even the card

rooms will be available to the Secretary for consideration before he/she makes

a decision as to whether to take this land in trust for Scotts Valley.

• Finally, after the Secretary of the Interior has considered all the public comments, including information about impacts and mitigation, if he/she does decide to acquire trust title to the land, Interior’s regulations provide the public

with a very clear and very unambiguous opportunity to challenge the Secretary’s decision in federal court before he/she implements that decision. 25

C.F.R. 151.12(b) requires the Secretary to give the public at least 30 days notice

of his/her decision to take land into trust before he/she will actually take the

action to acquire trust title. Accordingly, if the public ultimately is not satisfied

that its concerns have been addressed through either the fee to trust, the NEPA

or EIS processes, it can exercise all available remedies at its disposal to prevent

the Secretary from taking the land into trust.

In summary, I am here today to advocate among other things for the insertion

of ‘‘grandfathering language’’ in H.R. 4893 that protects those illegally terminated

landless tribes, who like Scotts Valley have already gone to considerable effort in

their petitions to the federal government for a land base, on which to conduct gaming under the original provisions of IGRA. In conclusion, we hope that if passed,

the Pombo Bill will add such ‘‘grandfathering language’’ and cut off dates to its final

form before enactment to protect the Tribes who have followed the process and been

engaged with time and resources.

Thank you for your attention to this testimony.

The CHAIRMAN. Thank you.

Ms. Davis-Van Huss.

STATEMENT OF JACQUIE DAVIS-VAN HUSS, TRIBAL

SECRETARY, NORTH FORK RANCHERIA OF MONO INDIANS

OF CALIFORNIA

Ms. DAVIS-VAN HUSS. Thank you, Chairman Pombo, for the opportunity to appear before the Committee today.

While my tribe has concerns about the specific proposals contained in this legislation, we understand the circumstances that

have caused the Chairman to introduce this bill. I would like to

focus my statements on what we believe are unintended consequences of this bill, and specifically how it would preclude my

tribe from engaging in gaming on restored lands located within our

modern day and ancestral homelands, an effort that we have pursued with strong local support for over two years.

Our tribe is the largest restored tribe in California. We have

1,386 tribal citizens, and we are growing. For several years, we

have been engaged in a process to acquire gaming-eligible lands to

provide our tribal citizens the same economic development opportuVerDate 11-MAY-2000 13:37 May 25, 2006 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6602 J:\DOCS\27014.TXT HRESOUR1 PsN: HRESOUR1
16

nities as enjoyed by other tribes. We are proceeding through this

difficult process because the only gaming-eligible lands available to

us, the North Fork Rancheria, sits on a rocky hillside adjacent to

the Sierra National Forest, and is in trust for six individuals, not

the tribe.

Neither the tribe, the local community, nor the State of California considers the Rancheria to be appropriate for commercial development, and any such development would do little to advance

the needs of either the tribe or the larger community.

In 2003, we began working cooperatively with Madera County to

identify an appropriate location for a gaming facility on our historical lands in Madera County. We eventually identified a 305-acre

parcel on an unincorporated area just north of the City of Madera.

The parcel is located within lands set aside under the unratified

treaties of 1851 and near the reservation operated for our ancestors

in the 1850s.

Our proposed gaming and entertainment project is consistent

with the county’s land use and development plans for the location.

Further, the location avoids impacts to the environmentally sensitive foothills and minimizes the impact on gaming operations of

neighboring tribes.

In August 2004, the Madera County Board of Supervisors unanimously approved an MOU with the tribe under which the tribe will

provide $87 million over 20 years for mitigation of project impacts

on the county, and for sustained charitable contributions.

A year later the county passed a second resolution in support of

the tribe’s proposals project at the proposed location. I believe the

Committee is in receipt of written testimony from Madera County’s

Supervisor Gary Gilbert that outlines the county’s support of our

project.

The North Fork project has become something of a model for responsible development, one where the tribe working with the county has identified an environmentally and economically viable location within our homeland to provide sorely needed economic resources through the creation of living wage, full benefit jobs, sustained charitable contributions, and significant shared revenues.

Our project is distinguished by its strong local support, its emphasis on collaboration, its adherence to the spirit and letter of the

law, and its goal for improving the lives of all Madera County residents.

Yet despite all this, our project would never be able to satisfy all

of the requirements in this proposed legislation. Indeed, it seems

unlikely that any tribe in the country, particularly in California,

could satisfy the requirements of the legislation. Most problematic

is the requirement that requires the concurrence of any tribe within 75 miles of the proposed site. This provision is anti-competitive.

It effectively provides other tribes without jurisdiction or land-use

authority over the lands the power to veto another tribe’s gaming

project simply to protect their market share.

There are 107 federally recognized tribes in California, and five

are within 75 miles of our proposed site. The two tribes with the

largest gaming facilities in our area, despite our best efforts, oppose our project for competitive reasons.

17

While we agree that these tribes should be consulted as part of

the Federal process, they should not have the same power as the

Secretary or the Governor.

We also request that the Committee eliminate the requirement

for concurrence by the state legislature of the Secretary’s decision

to approve an application. This bill already provides for concurrence by the Governor, which has only occurred three times in 18

years since IGRA was enacted. Given the Governor’s role as chief

executive of the state, it is unlikely a Governor would concur in a

decision by the Secretary without strong local support. Requiring

additional concurrence of the state legislature simply provides successful gaming tribes who enjoy tremendous influence, especially in

California, with the state legislature additional power to veto

projects that threaten their competitive position.

We also question the need for a countywide referendum. We elect

our officials to make tough decisions concerning land use and development. Those officials already have the power under California

law to call for an advisory vote when appropriate. Madera County

does not require an advisory vote or referendum when approving

large or controversial developments, whether that be a new WalMart or a rock quarry, and we do not see why the Federal government should impose such a requirement on a gaming development.

A referendum simply creates another opportunity for competitive

interest to spend hundreds of thousands of dollars in creating a

high-profile political campaign that ultimately has little to do with

what the residents of the affected community want.

As you can see, this well-intentioned legislation will have significant unintended consequences on my tribe. Our tribe has been following the spirit and letter of the law for over two years, and the

process we, along with local elected officials and business leaders,

have invested an enormous amount of time and resources. It would

be unfair to change the rules on us and the community at this

stage.

We urge the Committee to consider adding a grandfather provision that would allow us to continue through the process under the

existing law.

I appreciate this opportunity and thank you very much.

[A statement submitted for the record by Ms. Davis-Van Huss on

behalf of Elaine Fink, Tribal Chairperson, North Fork Rancheria of

Mono Indians of California, follows:]

Statement submitted for the record by Elaine Fink, Tribal Chairperson,

North Fork Rancheria of Mono Indians of California

Introduction

The North Fork Rancheria of Mono Indians first wishes to thank Chairman

Pombo for the opportunity to appear before the Committee today and provide our

Tribe’s story as well as our perspectives on H.R. 4893, a bill to amend the Indian

Gaming Regulatory Act of 1988. While the Tribe has concerns about the specific proposals contained in this legislation, we understand the circumstances that have

caused the Chairman to introduce this bill and also understand his perspectives in

wanting to further tighten the authority of restored and newly-recognized tribes to

acquire land for gaming beyond those already contained in section 20 of the IGRA.

I would like to focus my statements on what we believe are unintended consequences of this bill and specifically, how it would preclude the Tribe from engaging in gaming on restored lands located within our modern day and ancestral homelands—an effort that we have pursued with strong local support for over two years.

18

Tribal History

The North Fork Rancheria of Mono Indians is a federally recognized Indian tribe

with governmental offices in Madera County, California and the largest restored

tribe in California. Our ancestors were Northfork Mono, and also included members

of local Yokut and Miwok tribes. Historically, our ancestors used and occupied overlapping territories of the San Joaquin Valley tribes, gaining access to specific regions through a complex and interdependent system of social, political, and economic ties between Native groups.

The arrival of non-Natives in the San Joaquin Valley, as early as the 1810s, thoroughly disrupted our life there, as our ancestors were pushed farther and farther

into the foothills and mountains, in order to flee from the kidnapping, violence, and

disease which decimated our populations. With the 1849 California Gold Rush, tensions between Native peoples and miners as well as settlers escalated rapidly in the

San Joaquin Valley, and culminated in the Mariposa Indian War of 1850-51. The

Gold Rush accelerated the destruction of Native society to a pace never before seen

in North America, as literally a million new immigrants came to California in the

span of a few years to seek gold on our lands. In response the federal government

sent three treaty commissioners to California to negotiate treaties for peace and the

cession of land in exchange for the establishment of reservations. The interests of

the Northfork Mono were represented directly in the ensuing treaty negotiations by

trusted chiefs of neighboring Mono and non-Mono tribes with whom we had kinship

and socio-political ties. The April 29, 1851, treaty expressly provided that our ancestors were intended beneficiaries of the treaty. This and two other treaties reserved

adjacent tracts of Native lands on the Valley floor where the present-day City of

Madera is located and near the site for our proposed gaming facility.

The lands reserved in these treaties were quickly overrun by settlers, ranchers,

miners and, later, farmers, leaving only a series of small ‘‘Indian farms’’ operating

over a large area. One of these, the Fresno River Farm, was located in the immediate vicinity of the present-day City of Madera and later became the headquarters

for the entire reservation. Although Congress eventually refused to ratify the treaties based on objections from the California Legislature, by 1854 the Fresno River

Farm or Reservation was viewed as one of the five reservations authorized by Congress a year earlier. In 1856, the Indian Agent for the Fresno River Reservation

identified a significant number of our tribal ancestors who lived on, visited, and recognized the Reservation as their home and headquarters. At the same time, most

of our ancestors integrated the Reservation into their yearly subsistence cycle,

spending part of the year on reservation lands cultivating crops and collecting treaty-stipulated goods, and part of the year off reservation grounds hunting, gathering,

and fishing. Operation of the Reservation was plagued with problems, however, and

in 1860 the Reservation was closed. Our tribal ancestors subsequently integrated

into the mining, lumber, ranching, and agricultural economies, thereby adapting

their use and occupancy of the Valley floor and foothills to supply their subsistence

in new ways.

Beginning in the 1890’s, the federal government made a limited number of land

allotments to Native people. Because very few public domain lands were available,

the government turned to the National Forests for lands that could become Indian

allotments. Consequently, most lands allotted to Tribal ancestors were in the Sierra

National Forest, although some were within approximately 18 miles from the City

of Madera. In 1903, a Presbyterian Mission was established in the town of North

Fork. Native parents began sending their children to be educated and sheltered at

the Mission while continuing their migratory patterns by working as wage laborers

on farms and logging operations in the San Joaquin Valley. In 1916, at the urging

of the Mission, the Federal Government purchased the 80-acre North Fork

Rancheria next to the Mission to provide shelter to Indian families whose children

were attending the Mission. The rocky soil and precipitous landscape were unsuitable for farming, however, and the Rancheria never was able to support more than

a few families.

In 1961, the federal government terminated the Tribe’s federally recognized status

and transferred the Rancheria land to fee for the lone resident then living on the

Rancheria. The Tribe’s status as a federally recognized Indian tribe was restored in

1983 under a stipulation for entry of judgment in Tillie Hardwick v. United States

of America, No. C-79-1710-SW (N.D.Cal 1983). Four years later, the lands within

the Rancheria boundaries were restored to the status of ‘‘Indian Country’’ as part

of the same lawsuit under a stipulation for entry of judgment for Madera County.

The lands within the Rancheria boundaries were subsequently transferred into trust

for the benefit of the six individuals who had been residing on the land, not for the

Tribe.

19

The Tribe subsequently opened an office in rented quarters in the early 1990’s,

adopted its Constitution in 1996, and since then has used its limited funding to establish a modern tribal government. We have purchased lands for tribal housing

and are currently constructing a community center and single-family homes for tribal citizens on those lands. Our tribe has also assumed responsibility for administering Temporary Aid for Needy Families for Indians residing in Madera, Merced,

and Mariposa Counties. We have an active environmental deqpartment and are

working to maintain our language and culture. I am very proud that today, our

Tribe is the largest restored tribe in California with some 1380 tribal citizens.

Economic Self Sufficiency

Like other California tribes whose restored reservations are nothing more than

several dozen acres of inadequate lands, and which are held in trust for a few tribal

members, we have sought to acquire gaming-eligible trust lands on which to provide

economic development opportunities for our tribal citizens. Our own Rancheria sits

on a rocky hillside adjacent to the Sierra National Forest about a 40 minute drive

from Yosemite National Park, and can only be accessed from a dirt road. Neither

the Tribe, the local community, nor the State of California consider the Rancheria

to be appropriate for commercial development, and any such development would do

little to advance the needs of either the Tribe or the larger community.

Consequently, in 2003, the Tribe approached its local district supervisor for the

County of Madera about working cooperatively to identify an appropriate location

for a gaming facility on historical tribal lands in Madera County. The County

agreed, recognizing the opportunity to diversify its agriculturally based economy and

to lower unemployment rates that hover around 12% in the County and as high as

25% in the City of Madera. Working cooperatively with the County, the Tribe eventually identified a 305 acre parcel in an unincorporated area just north of the City

of Madera in Madera County, California,. The parcel is located near the former reservation where our ancestors worked and lived in the 1850’s . Developing our proposed gaming and entertainment project at this location would be consistent with

the land use and development plans of the County. Further, it would avoid impacts

to the environmentally sensitive foothills and minimize the impact to the gaming

operations of neighboring tribes. Although the lands may qualify as restored lands

under Section 20, we have requested the Secretary to make a determination that

the lands are eligible for gaming under the two-part process under Section

20(b)(1)(A) of IGRA.

Community Benefits

In August 2004, following two well publicized and attended public meetings, the

Madera County Board of Supervisors unanimously approved a Memorandum of Understanding with the Tribe in which the Tribe has agreed to provide $87 million

over 20 years for mitigation of project impacts on the County and for sustained

charitable giving. A year later, in August 2005, the Madera County Board of Supervisors passed a second resolution in support of the Tribe’s proposed project at the

proposed location. I believe the committee is in receipt of written testimony from

Madera Supervisor Gary Gilbert that outlines the County’s support of the Tribe’s

project.

In October 2004, the Bureau of Indian Affairs issued a Notice of Intent to prepare

an environmental impact statement for the project pursuant to the National Environmental Policy Act. Once the draft environmental impact statement is issued

early in the summer of 2006, the Tribe also expects to enter into additional agreements with the City of Madera and Caltrans, and likely other entities, to mitigate

any project impacts on roads and other resources within their respective jurisdictions which are identified in the report.

The North Fork project has become something of a model for responsible development—one where the Tribe, working with the County, has identified an environmentally and economically viable location within our homeland to provide sorely

needed economic resources to a struggling local economy. The proposed destination

resort and hotel is expected to create 1500 living wage jobs plus 750 additional construction jobs. The majority of jobs are expected to be secured by Madera residents.

The project is also expected to stimulate an additional 2100 jobs and provide increased discretionary spending from payroll and additional income to local businesses.

The Tribe’s announcement has resulted in a significant number of proposals for

large retail and other commercial development in the immediate vicinity of the

Tribe’s proposed site. Development of any one of the proposals would result in millions in sales tax revenue for the cash-strapped City of Madera and hundreds of new

jobs in an area with one of the highest unemployment rates in California. However,

20

potential developers have indicated that their projects will not be built unless the

Tribe is able to construct its proposed resort. Much is at stake here both for the

Tribe’s nearly 1400 citizens and for thousands of area residents looking for jobs and

a better life for their children.

Community Support

As I have indicated, our project is distinguished by its strong local support, its

emphasis on collaboration, its adherence to the spirit and letter of the law and its

goal of improving the lives of all Madera County residents. It offers the promise of

economic vitality for the Tribe, the community and the state through the creation

of living-wage/full-benefit jobs, sustained charitable contributions and significant

shared revenues.

Concerns Regarding H.R. 4893

Yet despite all this, our project would never be able to satisfy all of the requirements in the proposed legislation. Indeed, it seems unlikely that any tribe in the

country, particularly in California, could satisfy the requirements of this legislation.

Most problematic is the requirement that requires the concurrence of any tribe

within 75 miles of the proposed site. This effectively provides other tribes without

jurisdiction or land use authority over the lands the power to veto another tribe’s

gaming project for competitive reasons. There are 107 federally recognized tribes in

California, and five are within 75 miles of our proposed site. The two tribes with

the largest gaming facilities in our area, despite our best efforts, oppose our project

for competitive reasons. We believe this provision is anti-competitive, in that it provides tribes the power to stop any project that might compete with existing gaming

facilities. The nearby tribe requirement usurps the land use and development planning authority of local jurisdictions by providing a nearby tribe the power to veto

a project supported by a local jurisdiction. While we agree that nearby tribes can

and should be consulted by the Secretary as part of the process, they should not

have the same power as the Secretary or the Governor.

We also request that the Committee eliminate the requirement for concurrence by

the state legislature of the Secretary’s decision to approve an application. This bill

already provides for concurrence by the Governor, which has only occurred three

times in the eighteen years since IGRA was enacted. Given the governor’s role as

chief executive of the state, it is unlikely a governor would concur in a decision by

the Secretary without strong local support. Under his May 2005 proclamation, California’s Governor states that he will consider concurring in determination by the

Secretary only when there is local support and the project satisfies an independent

public policy. Requiring the additional concurrence of the state legislature simply

provides successful gaming tribes, who enjoy tremendous influence with the state

legislature, additional power to veto projects that threaten their competitive position.

We also question the need for a county wide referendum. We elect our officials

to make the tough decisions concerning land use and development. Those officials

have the power under California law, and presumably in other states, to call for an

advisory vote when appropriate. In Madera County, the Board of Supervisors does

not require an advisory vote or referendum when approving large or controversial

developments, whether that be a new Walmart or rock quarry, and we do not see

why the federal government should impose such a requirement for a gaming development. This is particularly true for our project where the County has thoroughly

considered the issue and entered into a binding agreement with our Tribe regarding

future land use, development, and jurisdictional issues. A referendum simply creates

another opportunity for competitive interests to spend hundreds of thousands of dollars in creating a high profile political campaign that ultimately has little to do with

what the residents of the affected community want.

As you can see, this well-intentioned legislation will have significant unintended

consequences on our tribe. Our tribe has been following the spirit and letter of the

law for over two years. In the process, we, along with the County and the local community, have invested enormous time and resources. It would be unfair to change

the rules on us and on the community at this stage, particularly given our inequitable land situation and the fact that our proposed site is within our home county

and on lands which our people have used and occupied for centuries. We urge the

Committee to consider adding a grandfather provision that would allow us to continue through the process under existing law.

I appreciate this opportunity to submit comments to the Committee.

21

The CHAIRMAN. Thank you. I thank the entire panel for your testimony.

I would like to begin the questioning and start with Ms. DavisVan Huss.

In your written testimony and in your oral testimony you spoke

of your concerns over having the state legislature, having concurrence from the state legislature. Can you expand on what those

concerns are?

Ms. DAVIS-VAN HUSS. I believe my tribe’s concerns with the state

legislature, especially in California, is as of late you know that it

has been very difficult for new compacts to get through the legislature and to get ratified. I mean, I attended last week an informational hearing with the GO committee, and the actual informational hearing was over four hours.

And I think our concern is because there is influence from the

large gaming tribes, the big gaming tribes, that it is very difficult

to have a project heard on its own merits.

The CHAIRMAN. And why would that be any different with the

Governor?

Ms. DAVIS-VAN HUSS. Well, the law already allows the Governor,

the existing Section 20, the two-part determination under IGRA

already says the Governor has to give concurrence for your project.

The CHAIRMAN. Do you believe that under the current rules your

tribe would be able to negotiate all of the hurtles that are in front

of you and that you could have this land taken into trust for gaming proposes?

Ms. DAVIS-VAN HUSS. Yes. We are completely confident that we

can go through the process and be successful.

The CHAIRMAN. Mr. Arnold, do you believe that under the current rules that your tribe could negotiate all of the hurtles that

currently exist, and that the land could be taken into trust in

Contra Costa County for gaming purposes?

Mr. ARNOLD. I do. I think that Scotts Valley is a unique case in

the fact that we have moved forward with this for the last two

years, dotting the i’s and crossing the t’s in a fashion to abide by

the process that is in place.

One of the reasons where our site is is because exactly Contra

Costa County is one of our service population areas. Therefore we

are not reservation shopping. We don’t have a reservation. A lot of

the termination of other discussions were that we were reservation

shopping. That is not a true statement, sir.

The CHAIRMAN. You mentioned that the judgment of 1992 restoration case precludes your tribe from reestablishing your former

Rancheria. Why is that?

Mr. ARNOLD. Well, unfortunately, a lot of the litigation was done

by the California—what is it—the California Lawyers Association

there, and some of the practicing lawyers were new to the cases.

They were all mitigated differently. There was no process of understanding the findings of the tribe itself.

As you could see, Guidiville, Mechoopda, Scotts Valley and

Lytton, we were all different findings in the courts, so the process

was not—there was no process in the fact of going through the

process.

22

Now we have a lot more knowledge of what is happening, and

so therefore in working with Congress and understanding the process and policies of Section 20, everybody should move forward with

the understanding that there is a process. A lot of the people in

right now do not understand that there is a policy.

The CHAIRMAN. Where was the original Rancheria?

Mr. ARNOLD. Our Rancheria was ours, given to us in 1906 in

Lakeport, California, 57 acres, and the topo of the land was between two hills.

The CHAIRMAN. Well, that is fairly typical.

Mr. Shagonaby, you obviously believe that you are close to getting approval on your application.

Mr. SHAGONABY. Yes, we do have our final determination and if

we did not have a lawsuit pending, it would be in trust.

The CHAIRMAN. What was the basis of the lawsuit?

Mr. SHAGONABY. The basis of the lawsuit is pretty much typical

of the challenge that the Pokagon Band of Pottawatomi Indians,

our sister tribe, just resolved. They did win their court litigation

and are moving on. But basically we didn’t do a thorough enough

job to take the land in trust on environmental concerns. They challenged whether the Secretary even has the authority to take land

into trust for tribes. There are some other points that they do raise,

but we feel that all those issues have been successfully litigated already, so we feel we are in a very strong position to win this lawsuit.

The CHAIRMAN. I will tell the three of you that you do all have

compelling testimony and it is something that obviously we have

taken into consideration and will continue to do that in working

with you, but I have heard testimony so many times that there is

only three tribes that have negotiated the process up to this point,

and all three of you believe that you will be successful in negotiating the process, and that alone would double the number that

claim that they have gotten through the process right now, and we

all know that there are dozens of tribes that are somewhere in the

process of moving forward with this, and that is one of the reasons

why this bill ended up being introduced to begin with.

Obviously, you all believe that you have unique situations, and

have been working with the current rules, and that is something

that we are trying to address.

I appreciate you being here and sharing your testimony. This is

important to the Committee to hear this side of it as we move forward with this legislation. So thank you for that.

I am going to recognize Mr. Kildee for his questions.

Mr. KILDEE. Thank you very much, Mr. Chairman. I would like

to address my questions first to Chairman Shagonaby.

I was there the night or the day when your tribe had finished

the arduous BRAC process and got your recognition, the reaffirmation of a recognition of your sovereignty and attended the social

event that evening, and been close to the tribe since that time. I

think it was in 1999, wasn’t it?

Mr. SHAGONABY. Yes, it was.

Mr. KILDEE. The process was, it was a very, very arduous process, and you have waited now for about seven years now to really

get to the next step, the big step that will enable you to exercise

23

your sovereignty, and the elements of sovereignty as defined by the

Cabazon decision of the U.S. Supreme Court.

What is the current financial state of your tribe at the present

time?

Mr. SHAGONABY. Right now, it is not very good. The tribes in

Michigan are successful today because of the economic development

that they have brought to their homelands. We are on the short

end when it comes to appropriations, the BIA, HUD, EPA. We do

not get very much funding right now.

We operate out of a strip mall in Dorr, Michigan, and lease

space. We really need resources to fully service our membership

with housing, with health care, with a clinic. I mean, there are a

lot of things, as you well know, Mr. Kildee, that tribes can do with

revenues that they generate from their economic development

through gaming.

So right now our financial situation is not strong at all.

Mr. KILDEE. How much land are you seeking to put into trust,

to have put in the trust?

Mr. SHAGONABY. We are seeking to 146 acres placed in the trust.

Mr. KILDEE. Have you acquired that land in fee now or are you

seeking to acquire it?

Mr. SHAGONABY. It is in fee simple right now.

Mr. KILDEE. Fee simple.

Mr. SHAGONABY. Yes.

Mr. KILDEE. And that would be basically the land in which you

would construct whatever needs your tribe might have, including

a casino and housing?

Mr. SHAGONABY. That land is just slated for economic development purposes right now. We hope to have revenue to purchase

other lands and place them into trust for those type of services.

Mr. KILDEE. OK, for housing and———

Mr. SHAGONABY. Correct.

Mr. KILDEE.—maybe a medical facility or school or whatever you

might———

Mr. SHAGONABY. Well, we have a little master plan that we put

together to hopefully implement those services soon.

Mr. KILDEE. You never lost your connection with Michigan, have

you? I mean, your———

Mr. SHAGONABY. No.

Mr. KILDEE.—history goes way, way back, I know, and I have

worked with your cousins, the Pokagon Band. They are on the

Michigan/Indiana border. The court decision just within the last

few weeks would really probably spill over into your final decision,

would it not?

Mr. SHAGONABY. Yes, it would. We feel it is the same type of lawsuit. It is from the same law firm that filed suit against the

Pokagon Band. So we feel confident that the Pokagon decision has

really cleared up all the issues that are out there as far as the lawsuit. We feel we just have to go through the motions, and make our

arguments, and we feel that we are backed up pretty solidly by

case law.

Mr. KILDEE. I have followed gaming in Michigan since the time

I used to work at the bingos at St. Mary’s Church in Flint,

24

Michigan. We used to have pretty well the monopoly on gaming,

the churches.

[Laughter.]

Mr. KILDEE. We lost that in 1972, when they changed the constitution of Michigan. All gaming was forbidden until about 1974,

give or take a year. So all gaming was forbidden, and had they not

changed the constitution, then no one could game in Michigan.

There are two states where native gaming cannot take place,

that is Utah and Hawaii. Michigan would have been one of those

states, the third one, were it not for the fact the people amended

the constitution of Michigan, removing the prohibition on gaming

and letting the legislature pass whatever laws would be necessary

after that.

But the fact of the matter was those who are against gaming

probably should more broaden their—if they really are against on

moral grounds, broaden their view and say let us outlaw all gaming. But very often it is the Indian gaming that irritates them, but

not the St. Mary’s.

I was a good runner at those bingo games.

[Laughter.]

Mr. KILDEE. And got the cash back to them fast. I was in the

seminary, studying to be a priest at the time. Of course, it was almost part of our training then to do that.

[Laughter.]

Mr. KILDEE. With that, I yield back the balance of my time, Mr.

Chairman.

The CHAIRMAN. I think that is a good time.

[Laughter.]

The CHAIRMAN. Mr. Gibbons.

Mr. GIBBONS. Thank you, Mr. Chairman, and I first want to

admit that I have never been a bagman for the gaming.

[Laughter.]

Mr. GIBBONS. Well, I appreciate the panel being here. Thank you

very much for your testimony. You know, there has been a great

deal of discussion before this Committee for the need to accommodate those tribes that have already begun the IGRA process, and

some claim that this legislation is or will unfairly penalize those

tribes who have already begun or invested in that process.

I can appreciate the value of that philosophical argument, and

that it is not right for the government to change the rules in those

entities that have abided by those rules since they were created in

1988.

However, I also believe that it is important for this Committee,

that if this Committee adopts any grandfather language, we do so

in a way that does not create a significantly broad definition that

does not properly curb the off-reservation issue.

Now with that being said, I have a couple of ideas that I want

to run by you and to see what your thoughts are about certain restrictions that could be adopted in this legislation, and if you will

tell me what your belief is, your position is on these issues, that

would be great, if you do agree with them or if you don’t agree with

them.

First let me say that I think providing tribes with the ability to

fund economic development and investment is important. Once a

25

tribe has already established a gaming industry, let me ask this

question, and I will begin with Ms. Davis Van-Huss.

Should Congress bend the rules to allow for this same tribe to

build additional facilities? In other words, a tribe that already has

economic benefits from one casino, why should they be allowed to

build another?

Ms. DAVIS-VAN HUSS. As you know, that already happens in

California. There is a tribe that I know that has two facilities.

I believe, I think my tribe’s stand would be that as long as it was

on their reservation, that that would be acceptable. Does that answer your question?

Mr. GIBBONS. Well, I am just asking for your input.

Mr. Shagonaby?

Mr. SHAGONABY. Yes, I have already gave a whole lot of thought

about that. I guess if you go through the regulatory process and follow the rules, if you did want to choose a second site, then I guess

that is the prerogative of the tribal government.

And the purposes of Gun Lakes, we are just looking to create our

initial reservation, and then just enjoy the economic development

that tribes in Michigan have already recognized.

So with the off-reservation controversy, I just want to make a

point is that we are not—I don’t feel we are embroiled in that controversy of a tribe already having a casino, and then going for a

second one. I mean, we are in the process of just working on our

sole casino.

The way the compacts in Michigan work and the way that we

have already passed a compact in 2002, and waiting for final ratification, is that the state negotiated that provision one per customer.

So if we ever wanted to go back and I am not saying we would ever

do that, but if we did want to go back for a second gaming facility,

the state has all the leverage in the world to say yes or not to that

position. So I think that falls within the state compact process if

you are going to have another casino.

Mr. GIBBONS. Mr. Arnold?

Mr. ARNOLD. Thank you. We believe that if in fact you have an

opportunity to do that, then we should also give thought to the reason why IGRA was created in 1988, the gaming process, and that

is to benefit the Indians.

So the fact that if you get an opportunity to build a second casino, you must give it back to the people that are to benefit from

that, and that is the Indian people.

We do have a lot of people right now that got their hands out

that are in Indian gaming right now that shouldn’t have their

hands out.

Mr. GIBBONS. OK.

Mr. ARNOLD. We believe that the money should go back to the

oversight of health care, the process of health services for the

Indian people, and donate that money toward them. They should

give it back from what they received. Thank you.

Mr. GIBBONS. Mr. Chairman, would you indulge me for just one

more question on this? I realize my time has expired on this, but

I have just one follow-up question with regard to this if I could just

begin. I know there is a need for some to test the historical nexus

of distance to a tribe and its efforts in economic development.

26

My view is that distance shouldn’t be 200 miles. It should be

more like closer to 50 miles. What do you think of that historical

nexus being limited to something like 50 miles, and I will start

with Mr. Shagonaby.

Mr. SHAGONABY. I would support that provision of the 50 miles.

At the outskirts of our service area is probably about 50 miles. Just

for purposes of our personal application our original settlement is

less than three miles and our offices are about eight miles, and the

majority of our membership lives within the county that we are

proposing it, so I would support a 50-mile radius.

Mr. GIBBONS. Mr. Arnold.

Mr. ARNOLD. We also support the 50-mile radius. We believe that

the input from these people and the concerns from community

should also reach there. Thank you.

Mr. GIBBONS. And finally, Ms. Davis Van-Huss.

Ms. DAVIS-VAN HUSS. We would also support the 50 miles.

Mr. GIBBONS. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Faleomavaega.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman, and I want to

thank the members of the panel for their testimony. Certainly

would like to offer my personal welcome to Congressman Cole joining us in our hearing this afternoon. Proud member of the Choctaw

Nation from Oklahoma. Very happy to———

No, Chickasaw.

[Laughter.]

Mr. FALEOMAVAEGA. Well, they are good friends anyway.

[Laughter.]

Mr. FALEOMAVAEGA. Well, as a member of the Samoan Tribe.

[Laughter.]

Mr. FALEOMAVAEGA. Mr. Chairman, I certainly want to thank

you for your leadership and the attention that you have given since

holding the chairmanship of this committee and your sensitivity to

Native American issues. Certainly also the same can be said for

our Senior Ranking Member, Mr. Rahall, West Virginia. And I

would be remiss if I don’t also offer my commendation to Senator

McCain as Chairman of the Indian Affairs Committee.

It is quite obvious that what has happened in most recent

months or the last year that we hit a very sensitive nerve here ever

since the situation with Abramoff and the problems that he has

had in terms of tribal contributions not only to campaigns of

Members of Congress, but something is being triggered here, and

I hope that we are not going fishing just to make it more difficult

for the members of the Native American community that do participate in the gaming operations.

I know that members have very strong feelings. Some are very

much against gaming on moral grounds, and I know my good

friend from Nevada has questions of that too given the fact that

states are totally free to do lottery and the multi-billion dollar industry that does provide needs for the state’s educational programs, and so we are in a quandary here, sometimes where do you

put your values and how do you really get to understand what we

really are trying to address here.

In the years that I have served here, I have hardly seen any real

serious amendments brought for any changes to IGRA. This is

27

what, 18 years now that IGRA has been in operation, and I want

to ask the members of the panel your take in terms of any provisions in IGRA that you find deficient that we need to address seriously, also the Chairman’s proposed bill provide for that, to facilitate more the allowing our Native American communities to participate in gaming operations?

I would like to ask the members of the panel if you feel that the

current provisions of IGRA adequately addresses your needs, or if

not, obviously the Chairman definitely has strong feelings about

why he has introduced this legislation, and I wanted to ask the

members of the panel if you could respond to that.

Mr. SHAGONABY. Thank you for that. My tribe is on record, along

with many tribes across the country, that the Seminole decision in

1996 basically said, it gave states, we feel, that leverage over the

tribes in a sovereign-to-sovereign negotiation process.

So we feel that amendment to IGRA should include a fix, the

Seminole fix to make compacting with states and tribes on a level

playing field as the original intent of IGRA was supposed to be.

Mr. ARNOLD. As to the answer to that question, we do have—the

Supreme Court has touched basically on that policy that what is

in place today is adequate for a land acquisition, although a lot of

the confusion is between a gaming acquisition and a housing acquisition is well noted that we have confusion there.

But as it may remain in effect, these regulations are suitable for

Scotts Valley. Thank you.

Ms. DAVIS-VAN HUSS. I will radiate the same sentiments on behalf of the North Fork Rancheria. We feel that IGRA is working.

In our particular instance we are going through the process. We

are following the letter of the law just how it was intended, and

we feel that at the moment it is working on behalf of our tribe, and

we don’t feel IGRA should be amended.

Mr. FALEOMAVAEGA. I know the gentlelady had expressed concerns about requiring state legislative approval and also a county

referendum. You don’t agree to the provisions of the proposed bill

to that effect, and I wonder if the other two gentlemen also agree

to that concern.

Mr. SHAGONABY. No is, I guess, the short answer. You know, a

tribe is sovereign. We have a relationship with the Federal government, and I think that relationship is—I mean the Federal government understands the relationship with the tribes, and I think that

is the best place to do it. Local and state governments is a huge

education process on tribal sovereignty. You know, we spend a lot

of time consulting with the local community and the state, and we

feel we have a great relationship, and we don’t think we need any

regulation to force that. We are already doing it, so we feel it is

fine the way it is.

Mr. ARNOLD. Good question. I think that Scotts Valley is in a position to—our sovereignty is very important. Congress understood

that in 1988. That is why they afforded the tribes that right of sovereignty.

As it is today, the cities and counties and states are not looking

at tribes with same sovereignty situations before them. We are

treated like second-class citizens. We need that understood that we

are sovereign nations.

28

With that, we concur with the older regulations as it stands today. With all due respect to Chairman Pombo, I think that the

bill stipulates more regulation and overdue process that we need

to jump through that higher hoop to create our same sovereignty

and retrieve land into trust on behalf of tribes. Thank you.

Mr. FALEOMAVAEGA. Well, this has always been one of the unique features of our system of government. It is gray area when

you talk about sovereignty, and I think that is the reason why over

the years you have had to go to the Supreme Court to get a decision, and they also at times have been contradictory in their statements as well.

With that, Mr. Chairman, thank you.

The CHAIRMAN. Ms. McMorris, did you have questions?

Ms. MCMORRIS. No.

The CHAIRMAN. Mr. Cole.

Mr. COLE. Thank you, Mr. Chairman. Thank you, first of all, for your indulgence in letting me participate as a non-member. I would

like to ask unanimous consent to submit a statement for the

record.

The CHAIRMAN. Without objection. [The prepared statement of Mr. Cole follows:]

Statement submitted for the record by The Honorable Tom Cole, a Representative in Congress from the State of Oklahoma

Chairman and distinguished Members of the Committee:

Thank you for allowing me to participate in this important hearing today. As an enrolled member of the Chickasaw Nation, Native American issues are something

that I truly hold dear to my heart, and I sincerely appreciate all the hard work the

House Resources Committee does on behalf of the Native American community. In

particular, I would like to thank you, Mr. Chairman, for your willingness to work

with tribes as you have carefully re-drafted this bill a number of times in hopes of

allaying as many tribal concerns as possible while still achieving the intended purpose of the bill. In addition, Mr. Chairman, I greatly appreciate your thoughtfulness

in allowing me to share my views.

As Members of the House and representatives of diverse constituencies, we each

feel a powerful sense of responsibility to our constituents and seek always to address their concerns responsively. The bill before the Committee today presents even

greater difficulties in this regard than is typical in that it affects relationships between governmental entities, each of which are accorded certain legal prerogatives

and often have competing interests.

The need to balance the tribal, state, and federal interests is evident in the very

structure of the Indian Gaming Regulatory Act, otherwise known as IGRA. By striving to achieve this balance, enactment of IGRA is consistent with basic tenets of

federal Indian law and the fundamental principles of modern federal Indian policy

as well as principles of federalism. Provisions for federal oversight of tribal gaming

and federal approval of—gaming compacts reflects the primacy of the federal-Indian

relationship, but by leaving to state and tribal governments a large measure of freedom to negotiate specific compact terms, subject to federal review and approval,

IGRA was crafted to minimize federal intrusions into either tribal or state sovereignty.

Under current law, a state governor negotiates the tribal-state compact. In some

states, there are even constitutional restraints on the power of the governor to bind

the state, requiring gaming compacts to be authorized by state legislatures as well.

It is perfectly legitimate for each individual state to determine whether or not the

state legislatures have a say in such matters.

Mr. Chairman, I must confess the current law works just fine as it is. There has

not been one instance in which a tribe has opened a casino without the consent of

the local community, the state governor, and the Secretary of the Interior. Creating

additional levels of local bureaucratic approval for a state-tribal compact seems to

be a solution looking for a problem, and treads on tribal sovereignty.

In my opinion, this bill goes too far by extending to county-level governments the

authority to affect federal decisions. The granting of such authority to local units

29

of government is unprecedented in federal Indian law and policy. County and parish

governments are instruments of state government, deriving their authority by operation of state law. Empowering a local government to influence negotiations between a tribe and state directly diminishes tribal sovereignty.

In addition, I disagree with the federal government mandating that the state legislature should be involved in such a decision making process. Again, this is a matter of state jurisdiction, and one which each state has dutifully addressed when necessary. I cannot help but question the propriety of federal legislation subjecting federal decisions to local referenda or mandating how a state should manage its own

affairs.

Another portion of the bill seeks to allow tribes to co-locate their casinos on the

land of just one tribe. While I share your belief that tribes, working with their local

and state counterparts, should be able to respond to the demands of the market,

I am concerned that the current proposal is overly prescriptive.

Mr. Chairman, I also believe it is extremely important that this bill not negate

any aspect of a tribal-state compact already in existence. As you know, tribal economic development and diversification relies heavily on the agreements within these

compacts. Extensive planning and resources are invested in the future of a tribe

based on its agreement with the state. In order to avoid inadvertently harming the

future vitality of a tribe, I believe it is important that nothing in this bill adversely

affect existing tribal-state compacts.

I will close by commending the Committee for the manner in which it has approached this subject matter. Regardless of how strongly the Native American community may feel about the bill’s content, everyone appreciates the manner in which

the Committee has proceeded by first circulating drafts and affirmatively listening

to the feedback from Indian country. Without question, this process reflects this

Committee’s commitment to the principle of government-to-government consultation, a cornerstone in the federal Indian relationship. I wish to express my profound

appreciation to the Committee for the opportunity to share my views on behalf of

Indian Country on this critical matter.

Mr. COLE. Thank you. Thank you for your testimony. Let me, if

I may, add a preface. You all have very specific tribal concerns obviously with how this legislation might impact you. I represent a

state with 39 tribes, only two of which are indigenous. So all of

them theoretically have claims beyond their borders, although most

of them are not involved in trying to do anything outside the State

of Oklahoma. Again, there are some notable exceptions to that, and

some of them, frankly, are like your situation. Some of them have

land. Some of them are landless even though they have maintained

their tribal identity. They were taken from areas, moved onto existing reservations, told that they could negotiate with the existing

tribe for a land base, and that never happened for whatever reason.

There just simply wasn’t a large enough land base for them to purchase.

So a lot of the problems that we are confronting in this legislation, I really want to commend the Chairman for trying to take a

stab at something that is tough because it does set tribe against

tribe. You are trying to untangle really difficult historical patterns

of removal and resettlement that were unjust at the time, and we

are trying after the fact to deal with the consequences.

Let me just pull you all back from your concerns because there

are some areas, and you have addressed this, that I have specific

questions about, want to know what you think.

First of all, and I would appreciate it you just answer this in

turn, maybe starting with you, Ms. Davis Van-Huss, and kind of

go across the panel. Would you prefer that the system just simply

not be changed? I mean, would you prefer that the existing laws

regulate everything, that we not legislate in this area?

30

Ms. DAVIS-VAN HUSS. Well, specifically in the case of my tribe,

the North Fork Rancheria, we feel like, as I stated earlier, we feel

that the process is working, especially we are, you know, halfway,

maybe three-quarters of the way going through it with the amount

of money that we have expended, the time, the energy, the dedication by our tribal council. So we feel that the process is working

and we feel that it should not be amended.

Mr. ARNOLD. Scotts Valley also agrees with that. We have been

through meetings clear across the United States from California to

New York addressing the same issues. All tribes, I am saying all

tribes that I have talked to across the United States have indicated

that we do not want to open IGRA at this time. Thank you.

Mr. SHAGONABY. I would concur with the panel on that. I think

obviously there are a lot of issues out there that are the hot topic,

you know, a second casino is going offsite, far from your homelands. You know, we are not really in that fight, but we feel that

IGRA should not be open at this time to do that, but we just wanted to make sure with respect to the Committee and the Senate

Committee that we are just telling our story on that situation, and

providing our input, but we would have to concur with a lot of

tribes across the country that it would be a dangerous time to open

up IGRA.

Mr. COLE. So it seems fair to say, and correct me if I am wrong,

that while you are here all of you seeking to be grandfathered in

in one way or the other, that is sort of the secondary solution. The

preferred solution would not to be in the position of petitioning to

be grandfathered in.

Second question. I particularly have the same concerns that a

number of you expressed about local governments being empowered

to basically make decisions where tribes are concerned. We have a

recognized sovereign-to-sovereign relationship between tribal governments and state governments. Counties, in particular to me, are

an extension of state sovereignty, and if there is a difference between what a county and the state wants, that is something for the

state to resolve internally. That is not something for us to legislate

either in a specific geographic area, and what I am worried about

is to press it more broadly for Indian country.

In Oklahoma right now, our tribes negotiate sovereign to sovereign to with our state government. We have a very good relationship, although we certainly have our differences. They don’t have

to go down to the county level to negotiate. They try to take those

things and concern.

Do you have the same set of concerns that all of a sudden you

will be trapped into multiple negotiations with different entities

that have almost been elevated to a sovereign status?

Mr. SHAGONABY. Yes, I would concur with that. I think when it

comes to gaming, you know, there is a state compact process in

play here, and I mean, the state—you know, the county being, I

guess, a creature of the state government, then the county has a

lot of say to the state on how the compact should be negotiated.

So with that being said, we stress the importance of governmentto-government relationships in cooperation with the county and all

governments. I think if you sit at the table and talk about that

issue without being mandated or given, I guess, a veto power over

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what a tribe wants to do, I think that wouldn’t be in the best interest of the tribe.

Mr. ARNOLD. Scotts Valley believes that there is a mechanism

here to negotiate with cities, counties, and states, just like the Federal government deals with tribes. It is government to government.

There is a mechanism at work here that would resolve all the problems, but you have to sit down and talk about it. You cannot not

ask the question and assume that that is the way it is.

So many of our counties and cities assume that is what is going

to happen, and they project the obvious downfall of the community

when an Indian casino is in their neighborhood. So what we have

is a lack of communication in this area. We need to more or less

negotiate with the cities and counties and sit down and talk. They

need to be open just like the tribes. Tribes are here to build a

building that is safe for everybody. We are here to enact the same

laws that state, county, and cities enact when they are in that position. Why would we do a less than adequate job of doing that?

Our governments are the same. We have the same concerns as

everybody else, and that is the safety of the patrons. Thank you.

Ms. DAVIS-VAN HUSS. I just want to make the comment on behalf

of North Fork. We did sit down with our local government probably

the beginning of 2004, to identify an environmentally appropriate

and economic area within our historical land in Madera County.

We worked with the local government right at the beginning of

2004. We sat down with them. We negotiated a memorandum of

understanding to mitigate the impacts off of the reservation that

would take place. We have a very good working relationship with

the county.

Even in our MOU that we negotiated, if there is future development on the site, we would have to renegotiate. We agreed to renegotiate the MOU with the county so any future development or

any expansion we would have to sit back down at the table with

the county before anything else would transpire, so we have a very,

very good relationship with the county.

Mr. COLE. May I ask one last question, Mr. Chairman? I yield

back. I am sorry.

The CHAIRMAN. Mr. Kind.

Mr. KIND. Thank you, Mr. Chairman. I appreciate another opportunity to have a hearing on this very important piece of legislation.

I want to thank the panels for your testimony here today, and this

is a complicated issue because of the varying degrees of interest

that tribes from across the country have. Each of you have expressed your own individual concerns in regards to the pending legislation, and because of that there has been kind of a lack of uniformity in regards to tribes throughout the country in light of this

legislation, which makes our job all the more difficult and more

complicated.

But I think we do have a very solemn obligation as members of

this Committee with jurisdiction over Native Americans to do our

best to make sure that whatever we do is fair, as equitable, that

it respects the sovereign rights of tribes across the country.

So what I would like to have you focus on right now is the sovereignty issue. I think legislation can be introduced with the best

of intentions, and have local input in a project may make sense.

32

Having a Governor’s approval or state legislative approval before

any project moves forward intuitively makes sense, but it may not

be consistent with the sovereign rights of Native Americans in this

country as granted under the U.S. Constitution, the recognition of

sovereign in the U.S. Constitution.

So if each of you could kind of come back to the sovereignty issue

because I think that is something that all tribes across the country

are going to have an interest in. They are not going to want to see

any type of diminishment in regards to sovereign rights in regards

to any type of legislation, let alone this one.

I know there have been some expression of concern just through

your own testimony in regards to local veto power for instance, and

the requirement under the bill requiring not only Governor approval but also state legislative approval.

So could you address that briefly just to highlight any sovereignty concerns that you have with the pending legislation?

Mr. SHAGONABY. I guess we do have a lot of concerns about putting up more hurtles to get the project going. I just know working

with the counties and the states and being aware of what goes on

across the country is that it would make more politics in play with

the tribe.

I mean, the tribe, we have a clear case, I mean, there are 11 or

12 tribes, we are the twelfth, and we just wanted to be on the same

par playing field with the rest of the tribes, and I feel that it would

be harder for us to exercise our sovereign right to game with more

hurtles involved with it, and it would just delay and cost the tribes

more, and that many more years that we will go without services

that are enjoyed by other tribes across the country.

Mr. KIND. Mr. Arnold?

Mr. ARNOLD. One of the things that we would beg the Committee

to look at is the sovereignty of a tribe is looking at the Federal government sovereignty of the United States in comparison. Whenever

you chip away, when another country chips away at the United

States, we are irritated, and the same thing happens with sovereignty of Indian tribes. If you take an inch, you take a yard.

As it continues to wear down the sovereignty of Indians, what do

we have left? We do not have the power, and this is what is happening locally in your cities and counties. Understanding of the

sovereignty and the reason why we have it, Native American tribes

have sovereignty. We need to compare that in the thought pattern

of making the law so it is a level playing field for all. The sovereignty of cities and counties is the same situation. So impeding

on sovereignty of Indian tribes is very harsh. Thank you.

Mr. KIND. Thank you. Ms. Davis Van-Huss.

Ms. DAVIS-VAN HUSS. I believe the legislation represents a significant shift in the historical relationship between tribes and the

Federal government, and it represents a diminishment of sovereign

rights.

And to touch on what you said about other tribes’ sovereign

rights, what it does, especially in my area, is it ends up pitting a

sovereign government against a sovereign government, and I am

speaking of it pits another tribe against another tribe, and I don’t

feel that another tribe should have the veto power. They should—

you know, I am responsible, I am an elected official for my tribe

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to represent the best interest of my tribe. I don’t feel it is right for

another tribe to come in and tell me what is right for my own

people. So I think that is another issue that I know the North Fork

Rancheria has a grave concern with.

Mr. KIND. What I have heard from your previous testimony is a

recognition that any land acquisition or any project before it moves

forward you necessarily have to have local and state community acceptance, and developing that relationship otherwise, and I am not

aware of any project moving forward if there is great local opposition to it, to begin with, and I think your previous testimony was

recognizing that reality.

I thank you all again for your testimony. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Pallone.

Mr. PALLONE. Thank you, Mr. Chairman.

I guess I should say initially that I am sympathetic to the idea

that we should not be opening IGRA at all. I am concerned about

the impact of opening IGRA, and you know what the consequences

would be, so I am sympathetic to some of the statements that have

been made in that regard because I think the process is working

for the most part.

The way I read the proposed changes though in the legislation

under certain circumstances a tribe that does not have gaming but

wishes to have gaming would have to locate their casino on another

tribe’s land and pay up to 40 percent of their revenues to the landholding tribe.

My question is, is there any evidence—I guess this would be to

Chairman Arnold or to Tribal Secretary Davis Van-Huss, is there

any evidence that a tribe with an existing reservation and casino

would want to have other tribes locate casinos on their land? Isn’t

this just a windfall for the existing tribe which basically does nothing but is able to collect royalty payments that could be worth millions of dollars? And why wouldn’t the landholding tribe simply

build itself another casino?

Mr. ARNOLD. One of the unique things that we have in the State

of California is that there is 109 federally recognized tribes there,

and in 1999 compact, we have a situation where they help the nongaming tribes. The process works. As you could see around, we do

have better education programs. We do have better health care to

the other tribes that need help. It is working. It is going to take

awhile to build but the process is working.

The whole point of what Congress did in 1988 was to provide

self-sufficiency for the Native American. If in fact this is working,

and it is going to take time, in doing so the second casino or the

assistance of another tribe helping another tribe, this is what we

believe it is all about.

Where the revenue does, that is the big problem that the government is trying to tell us where to send it to how, how to spend our

money. These are infringements of our sovereign rights.

But as the process is working, the intent of 1988 is working. You

may not see it as big and gigantic as it is today, but it is working,

and we have looked into it. We have seen it work. There is a lot

of tribes out there, Table Mountain for example has extensive dental care, they have child care, they have education programs that

34

are working. I am very proud of these tribes that have looked into

the process and health care of what it was all meant to be. Thank

you.

Mr. PALLONE. Did you want to say anything, Ms. Davis? Go

ahead.

Ms. DAVIS-VAN HUSS. Mr. Pallone, I believe upon reading the

provision that is set forth in H.R. 4893 in reference to what your

statement was about pairing up another tribe, I believe in California what Chairman Arnold stated is that California is unique,

and I believe reading the provision that it makes an exception for

a tribe in California, the Viejas Band that is teaming up with, I

believe it is the Ewiiaapaayp Tribe to locate their future casino site

on Viejas’s reservation. I don’t believe that will happen again in

California. I don’t believe so.

Like I told you earlier about North Fork, we have 1,386 tribal

members and we are growing. Chairman Arnold alluded to the revenue-sharing trust fund that comes to non-gaming tribes in California. We get $1.1 million per year from the gaming tribes.

With our tribe, we have 1,386 people. $1.1 million does not benefit our tribe that much for education, health care, child care. A lot

of tribes in California disburse that $1.1 million to their tribal

members. Some tribes in California, as you are very well aware of,

Chairman Pombo, they might have six tribal members. Some tribes

have 18. Like ours, we are one of the largest—well, we are the

largest restored tribe in California. You know, we are pushing

1,500 tribal citizens. Economic development is needed by my tribe.

Mr. PALLONE. OK. I was going to ask another question. There is

not much time here. But Mr. Shagonaby, if I am pronouncing it,

you gave several good suggestions for amendments in your testimony with regard to grandfathering and alternative compacting.

You recommend that the Secretary of the Interior be authorized to

approve a compact if the Governor and state legislature is not negotiating in good faith.

We know that the Secretary has this authority which would kick

in only after a state refused to waive its sovereign immunity to

enter court over a compact. But how would we gauge when a legislature is not acting in good faith? What if one entity supports but

the other will not? How would that be handled under what you are

suggesting?

Mr. SHAGONABY. Well, I think a Seminole fix would address that

situation. I guess that just for the instances of our tribe we got

through the process of the legislature, overwhelming majority on

both houses voted for it, but then the Governor refused to—declined to sign it on the way out the door so it is pending for another

Governor.

I think for the best interest of tribes in the way we, I guess the

spirit of IGRA, and Congress’s intent was to make sure that it is

a level playing field, and then the tribes and the states sit down

and negotiate, and not take a long time to do it.

I would be happy to provide some written testimony to this committee addressing that issue in depth, but off the top of my head

I don’t really have any.

Mr. PALLONE. With the Chairman’s permission if we could have

him respond in writing, I would appreciate it.

35

The CHAIRMAN. Absolutely.

Mr. PALLONE. That would be fine. Thank you.

The CHAIRMAN. I recognize Mr. Cole who had another question.

Mr. COLE. Thank you very much for your indulgence, Mr. Chairman.

I had a question that is really—I am not sure it is quite fair to

address it to you because really you have got a concern about it,

but it relates to the approval process for compacting inside a state.

Right now this legislation would mandate that state legislatures

participate in that compacting situation. I know in my own state

their participation is relatively minor. It is the Governor to—it is

an executive agreement by and large with a legislative committee

that approves the final result, but it doesn’t even go to the full legislature. That is the way we chose to set it up in our state.

There are other states where full legislative approval is required.

There is some where no legislative input is required.

So number one, I think at least one of you, I think Ms. Davis

Van-Huss addressed this. How do you feel about the prospect of

legislative approval?

Then number two, whether you oppose it or favor it, do you see

it is within the right of the state to decide how it wants to approve

a compact, or is that something we should mandate at the Federal

level so there is uniformity on a state-to-state basis?

Mr. SHAGONABY. Well, I guess we feel that the compact process

is a tough one. In the State of Michigan, there are 11 tribes. There

are 11 compacts. We are still waiting for our compact. There is also

commercial gaming. I mean, it is legal. The way we read IGRA is

that if it is allowable within a state, the tribe has a right to do it

also, and anything that could help streamline the process and not

take such a long time I think would be very supportive, our tribe

would support that.

On how you do that, I think if similar fix is a good way to do

it, but if Congress isn’t amenable to taking a harder look at that

and make sure the process is fair, I feel that IGRA’s intent was is

to—you know, if the state allows it and it is legal, then the tribe

and the state should sit down in a timely manner and negotiate the

agreements, but I feel that it would be beneficial for the tribe for

that to happen.

Mr. COLE. Just to clarify my question before we move on because

you got part of it, but the real question is whose right is it—we

have the ability if there is deliberate obstructionism to stop that or

to intervene. But whose right do you think it is to decide how the

state from its side is to negotiate or approve a compact?

Is that something that ought to be uniform across the board or

again is that something that is a state prerogative and each individual state ought to be free to do what they want to do?

Mr. ARNOLD. Are you———

Mr. COLE. Yes.

Mr. ARNOLD. OK. We believe that it is mandatory that the states

be regulated in that fashion. What it is now is dollar sign out there

that is holding Governors at bay as they can hold up a compact,

and get the tribes to come to an understanding of unfair practices.

There has to be a mechanism that holds the state accountable to

the tribes, like in the State of California we have the compact. In

36

that compact it states that you must negotiate a fair compact, but

in doing so there is no limit on the dollar sign amount. There has

got to be a percentage that is standard across the United States,

and take that—carry it away from the states as to gigging the

tribes or taking their sovereignty right away, and getting the job

done. Thank you.

Ms. DAVIS-VAN HUSS. Thank you, Mr. Cole. I think North Fork

Rancheria’s position would be, especially in California, we would

hope that the Governor would work with the legislature and work

with the tribes on coming up with some kind of amicable procedure

on negotiating a compact, like Chairman Arnold said about the percentages, but I feel each state should have their own.

Mr. COLE. Their own. That, just for the record, I think would be

the position in our state, Mr. Chairman. We would prefer that

somebody not tell us from Washington about how we want to approve individual contracts. We would want to have that procedure.

Can I ask you just a question for clarification? It is the last question I have. It is my understanding that the bill does not affect existing compacts that are already in place, negotiated, and approved.

Is that correct?

The CHAIRMAN. That is correct.

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

The CHAIRMAN. Mr. Kildee, you had a follow up?

Mr. KILDEE. Yes, just briefly. We thought when we wrote IGRA,

and I helped to write IGRA back in 1988, we thought we put a

Seminole fix in before there was a Seminole problem.

[Laughter.]

Mr. KILDEE. And Babbitt actually wrote the rules and regulations on how to—when the state government was not negotiating

in good faith, but that got held up in the courts. Just about two

weeks ago the Senate voted on a Seminole fix which would have

put in some regulations, but that went down by one vote, so it is

still of interest to the Congress that Seminole situation.

Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Cardoza, did you have a question at this

time?

Mr. CARDOZA. No, I abstain.

The CHAIRMAN. I will tell the panel that there may be further

questions that the Committee has, and they will be submitted to

you in writing, and if you could answer those in writing so that

they can be included as part of the hearing record.

I think that as we have gone through this whole process in trying to move forward with this bill many of the issues that you have

brought up obviously are issues that we have concerns over in trying to move forward with this, so I appreciate you being here and

sharing your testimony with us.

Mr. Costa has joined us, and I wanted to give him an opportunity

if he had a question before I dismiss the panel.

Mr. COSTA. Thank you very much, Mr. Chairman. I appreciate

your focus and attention on I think what is an important issue in

states that have Class III gaming throughout the country, and

what the policy is both on the national level and what individual

state policies are, and that has been really at the crux of a concern

that I have had for several years.

37

As I have shared with members of the Committee, my experience

is somewhat similar to Congressman Cardoza in the sense that we

were in the state legislature for a number of years, and I saw a

policy evolve over 15 years.

So let me begin by asking our witness from California who I am

somewhat familiar with if she could describe to us what she believes the policy is in California toward Class III gaming as best

you know it.

Ms. DAVIS-VAN HUSS. Can you elaborate on your question a little

bit?

Mr. COSTA. Well, I mean, you are going through a process now,

I am somewhat familiar with that process you are going through,

not obviously every detail as it relates to your tribe, and your particular circumstance, but it seems to me that going back to the

early 1990s we had one set of policies within Governor Wilson

under the flexibility given him under the national act. We had another policy under Governor Davis, and we have a third policy

under the current Governor, Governor Schwarzenegger.

Ms. DAVIS-VAN HUSS. So are you referring to the compact negotiations?

Mr. COSTA. Right.

Ms. DAVIS-VAN HUSS. How you enter into that?

On my tribe’s part, we have met with the State of California. We

have met with the Governor’s Office, but those negotiations are

confidential. As far as his policy, he came out with his proclamation that kind of outlines what he will and will not accept.

Mr. COSTA. What do you believe are the differences between this

policy and the policy of previous administrations?

Ms. DAVIS-VAN HUSS. Well, that is hard for me to answer. I have

only been in Indian politics and tribal council for the last three

years, but I see that—some tribes don’t agree with this, but I think

our opinion is that the Governor is trying to do the best he can

with volatile situations being there is, you know, the big dollar

tribes fighting against the smaller tribes such as ours, and I think

he tries to stay out of the fight but he tries to do the best he can

for the state, and I can just say he has worked well with my tribe.

I don’t know if that quite answers your question.

Mr. COSTA. Well, I think it points out to the fact of a belief that

I have, and I have related it to the Chairman and to others who

are willing to listen, that, frankly, we don’t have a consistent policy

in California, and maybe it is different in other states. But I think

the biggest thing that we could do on the national level is to really

require all states that have Class III gaming come up with a defined policy prospectively, I mean, because my view is that we have

had one set of arrangements or ‘‘let us make a deal’’ time under

Governor Wilson, and then we had another set of agreements

under Governor Davis in terms of ‘‘let us make another deal’’ time,

and now we are on to a third variation of policies.

It seems to me unless we clearly outline a requirement that

states ought to come up with a policy that relates to how much

gaming you are going to have in your state, how you are going to

spread it geographically throughout the state, how you are going

to spread the benefits between the large tribes, the medium, and

the smaller ones, and have some clarification on how you are going

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to regulate it in the future all together, that you are going to continue to have a different policy from administration to administration.

I think it is incumbent upon us to set some standards, some criteria both on the Federal level to states with their legislatures and

their Governor to define what gaming policy in their state is going

to be if they have Class III gaming.

Mr. ARNOLD. As Scotts Valley looks at that, we do have several

policies. We have three in the State of California. The Governor

right now refuses to agree to a compact or to negotiate a compact

if you don’t have land in trust. So that is one of his points.

But if you would surround that with a grandfather clause and

that would be the negotiating point for negotiating with your state,

they can’t use it against you and you would be on the same level.

Mr. COSTA. No, in draft legislation that I have looked at, I have

always assumed that there would be a grandfather clause, if you

will bear with me, Mr. Chairman, because whatever previous

agreements have been made, I think need to be honored and kept,

unlike many of the treaties that we have had with Native Americans historically, but that is another matter.

But I think these compacts that have been made should be honored and kept, but I think the policy ought to be required as we

go forth prospectively and every state that has Class III gaming

ought to have one, and clearly define what their policy is in the future.

Thank you, Mr. Chairman, for your time.

The CHAIRMAN. Thank you, and I thank the panel for your testimony. I am going to dismiss this panel, and call up our second

panel of witnesses. They are Representative Fulton Sheen of the

Michigan Legislature; Representative Jo Ann Osmond of the

Illinois Legislature; Steven Worthley who represents the California

State Association of Counties; and Randy King of the Shinnecock

Indian Nation.

The CHAIRMAN. I want to thank our witnesses for joining us. I

would like to take this time to remind all of our witnesses that

under Committee Rules your oral statements are limited to five

minutes. Your entire written statement will appear in the record.

Representative Sheen, we are going to begin with you.

STATEMENT OF FULTON SHEEN, MICHIGAN STATE

REPRESENTATIVE, REPRESENTING 23 IS ENOUGH!

Mr. SHEEN. Thank you, Mr. Chairman, and thank you to the

Committee for being able to speak to you.

My name is Fulton Sheen. I am the State Representative from

Michigan’s 88th District. I was County Treasurer previous to being

elected state representative, and my wife and I have a financial

planning business there, and I talk with many small businesses

who are my clients in Allegan County.

I commend the Chairman and the Committee for their foresight

in tackling this long overdue issue. IGRA has not changed since

1988 and this industry has gone from $100 million then to nearly

$20 billion now. Reservation shopping needs to stop, but it is only

one part of the problem.

39

The casino concept that we are dealing here with today I do not

think was on the minds of the people signed the treaties on either

side originally, and then this concept was manufactured, I think,

out of thin air in the 1970s by attorneys and then IGRA took hold

of it in 1988.

But specifically, I would suggest a two-year moratorium to thoroughly study this issue and find a full solution. Twenty-three

Michigan casinos is more than enough, and so is the $18.5 billion

that we spend at the Indian casinos. I believe Congress needs to

get their arms around this while they still can.

Michigan is in an economic and employment crisis right now.

Tribal casinos are booming, but our economy is probably the worst

in the nation. Unemployment is high, manufacturing jobs that

make up 25 percent to the nation’s total loss of its manufacturing

base are leaving our state as well, and our 23 casinos don’t seem

to be helping that bottom line, and I would venture to say it is

hurting it.

Casino proliferation will perpetuate these problems and threaten

our recent investments and our progress toward trying to fix the

situation that we have in our state. And because of the sovereign

nation status, I believe we have no recourse once that casino comes

into place. Currently we have 23 total casinos, 17 Native American

casinos, only three of which are still paying the State of Michigan

or have to pay into their local communities, and now those three

are now suing the State of Michigan because of the lottery/Keno

gambling plan that was put into effect that constitutes statewide

gambling, and so soon we will have no Native American casinos

contributing to the state at all.

So what was considered to be an asset by some now becomes a

liability to all.

In August of 2001, the Gun Lake Tribe filed plans to build a

Class III casino in Allegan County in my district. Grand Rapids

commissioned an independent study by the Anderson Group which

you have, and in that study interestingly enough it found that two

jobs were lost for every one job that was created, and that found

that there would be a net loss of 800 million, affecting not only

Allegan County but all the counties that surround Allegan County.

We wanted to slow down this process and get a full understanding of the consequences. IGRA has not allowed us to do this.

It has ignored the voters in the state and the local officials. Only

one municipality out of 34 in my county is supportive of the Gun

Lake Tribe coming in officially.

The fact that I am testifying here before you today basically is

the testimony of the sentiment of the people in my county because

there were options. When I ran in 2002, there was 11,000 signatures collected on a petition against the casino. However, they

couldn’t even collect 1,000 supporting it, and that was in 2002. The

majority of those signatures came from Allegan County, but there

were some input from around us as well.

Almost all of West Michigan officials oppose it, as do the majority

of Michigan Federal officials. The Detroit casinos who we voted

somewhat 10 years ago to put into effect, we have referred to that

vote a number of times, they have had their time there, but now

in 2004, we also had a vote, Proposal 1, which was against any

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more expansion of gambling in our state and 64 percent of the

people voted they didn’t want any more. The State Senate rescinded its previous support of the casino.

The house refused to take it up, or will follow the lead in the senate. The survey recently showed that 85 percent say 23 casinos are

enough and 64 percent oppose the Gun Lake casino. The people of

Allegan County don’t want the casino. Yet it seems to be being

shoved down our throats.

Less than half of the states have Native American casinos, thus

it doesn’t seem to be what I can see to be mandatory, and to my

knowledge I know of no state that has ever been forced by the Federal government to have one. These facts should influence the decision in Washington but they have not. Something is wrong when out-of-state interests like Station Ca- sino can override the voters and state officials. In my county, the

current homebuilder association director was for a time the director

of tourism in Las Vegas. He then went from the tourism in Las

Vegas to go to Mount Pleasant and became the tourism director

there. At that point in time he talked to the very same people and

he knew them all by name that he talked to in Las Vegas. These Michigan details, I think, show a need for a moratorium. The current laws are not working. How can the government in good

faith allow a single new tribal gaming development to go forward? Current and future casinos don’t want IGRA opened because

after almost 20 years the people don’t like the results. I urge you

to consider the following sets of specific reforms: Mandatory requirement of a comprehensive, regional Economic, Environmental and Social Impact Statement for all land-in-trust

applications;

Mandatory reporting and full disclosure of financial and legal records of non-tribal casino management companies; Local government, state, legislative, and gubernatorial approval for land-in-trust;

Local and statewide voter approval for any land-in-trust applica- tion for the purposes of a Class III casino gambling license; Clarification of Class II gaming to eliminate abuses and loop- holes in electronic bingo games; And I reiterate my plea for a moratorium and a reform to take care of this problem before more jobs are lost and more families are

put at risk.

Thank you.

[The prepared statement of Mr. Sheen follows:]

Statement of The Honorable Fulton Sheen, State Representative,

State of Michigan

Good morning. Thank you Chairman Pombo and members of the House Committee on Resources for the opportunity to testify today. My name is Fulton Sheen and I’m the State Representative from Michigan’s 88th District. This district is largely rural, and contains the land that has been slated

for casino development by the Gun Lake Tribe. I have served in the Michigan State

Legislature since 2003, and held the position of Allegan County Treasurer prior to

taking state office. Since this casino was proposed some five years ago, my position

as an elected official as well as my deep ties to Allegan County have caused me to

spend a great deal of time and effort studying the issue of tribal gaming and realizing the deep need for IGRA reform.

I want to commend the chairman and members of this committee for their leadership and foresight in tackling this issue that has been ignored for far too long. The

41

rampant proliferation of tribal gaming is running roughshod over states’ rights and

local control and is jeopardizing everything from my own neighborhood to, as the

Jack Abramoff scandal has demonstrated, the very integrity of our federal political

system. In 1988, Congress passed the Indian Gaming Regulatory Act (‘‘IGRA’’) in an effort to control the development of Native American casinos, and, in particular, to make

sure that the States had a meaningful role in the development of any casinos within

their borders. At that time, Native American gambling accounted for less than 1%

of the nation’s gambling industry, grossing approximately $100 million in revenue. Since that time, the Native American casino business has exploded into an 18.5

billion dollar industry that controls 25% of gaming industry revenue, with no end

in sight. Despite this unbridled growth, IGRA and the land-in-trust process remains

basically unchanged, and the body charged with oversight of this industry, the National Indian Gaming Commission (‘‘NIGC’’) limps along with 78 employees and an

annual budget of $10.5 million. In contrast, the State of Nevada runs its oversight

agency with 439 employees and an annual budget of $36.4 million. While I wholeheartedly agree that ‘‘reservation shopping’’ is an activity that must be stopped, it is just one tiny component of the full legislative overhaul that is needed. My message to you today is that IGRA and its associated land in trust process

is outdated, broken, open to manipulation by special interests and in desperate need

of immediate reform. It has unfairly and inappropriately fostered an industry that

creates enormous wealth for a few select individuals and Las Vegas interests at the

expense of taxpaying families, small businesses, manufacturing jobs, and local governments. My plea to you is that you study these issues in depth, and that you impose an immediate two-year moratorium on any further casino expansion pending

the results of your study, as suggested by Michigan Congressman Mike Rogers.

Twenty-three casinos in Michigan is more than enough, and so is the $18.5 billion

this nation already spends in American Indian casinos. Congress needs to get its

arms around this while it still can.

In my home state of Michigan, we are in the midst of a fiscal and job crisis. While tribal casinos are booming, our state economy lags among one of the worst in the

nation. Michigan has been among one of the hardest hit states in the nation due

to new global market forces, outsourcing of jobs, and skyrocketing labor and health

care costs.

Michigan ranks among the top in the nation with the most number of casinos, with 20 existing facilities (17 tribal, 3 non-tribal) and three approved tribal facilities

for a total of 23 casinos. Unfortunately, Michigan also ranks top in the nation for

our unemployment rate, with manufacturing job losses in Michigan alone accounting

for approximately 25% of our nation’s lost manufacturing base. Discretionary spending is down, bankruptcies are up, and several cities, including Detroit, are on the

verge of receivership.

Casino proliferation is bound to make the economic picture even worse for

Michigan. Our research shows that Michigan has reached a saturation point in casino gambling and any jobs and money tied to new tribal gaming will only displace

jobs and consumer spending that would otherwise occur in traditional taxpaying entertainment-related industries. In other words, further casino development will not

add jobs and value to the Michigan economy. Rather, it will shift jobs and money

from existing taxpaying businesses to tribal operation that do not pay state or local

taxes.

Our research also shows that while local and state governments receive some revenue sharing percentages from tribal gaming, the dollars pale in comparison to the

overall new costs to government and social service agencies from increased infrastructure demands, traffic, bankruptcies, crime, divorce, and general gambling-related ills.

The bright lights, big numbers, and empty promises of casino gambling have

blinded too many local and state governments. In Detroit, the three proposed casinos were hailed as new economic engines that would revitalize the downtown area

with new jobs, new buildings, and spin-off entertainment businesses. They promised

new hotels, new restaurants, new entertainment, and more tourists from outside of

the area. Five years since the casinos opened, the promises remain empty or broken.

According to a recent Detroit Free Press article, ‘‘beyond the casinos walls, little

spin-off is evident.’’ The Michigan Restaurant Association reported that there has

been little to no new restaurants and many restaurants that were on the brink have

shut down. Analysis also reveals that an overwhelming majority of the dollars spent

in Detroit casinos are siphoned from individuals located within a 50-mile radius.

Bankruptcy has doubled, crime has risen, and the city is running a $1.2 million

budget deficit on police, fire, and gambling-related services, even after receiving

their revenue sharing payments.

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Uncontrolled proliferation of casino gambling will also threaten the investments that we have made in Michigan to transform ourselves in the wake of manufacturing losses. We are cultivating innovative economic development opportunities in

the areas of life sciences, advanced manufacturing, and information technology. We

are also investing billions to revitalize our core cities with new and improved arts,

cultural, and entertainment related activities to curb sprawl and draw in more tourist, homeowners, businesses, and tax revenue. In Grand Rapids alone, more than

$1 billion in public and private investments has been spent in the last two decades

to revitalize our core city. The proliferation of casino gambling threatens to suck

jobs and dollars away from these emerging economic development efforts. I am presenting you with these Michigan-specific details because I believe it dem- onstrates the urgent need for you to act swiftly and decisively to impose a two-year

moratorium, to study the issues thoroughly, and then to craft a new solution that

takes into account the new realities of the Native American gambling business as

it exists today. The existing laws and regulatory tools are not working. We cannot

afford to let casinos proliferate while this study goes on because the costs will be

too high. In August 2001, the Match-E-Be-Nash-She-Wish Band or Gun Lake Tribe of Pottawatomi Indians filed an application to put 10 parcels of land into federal trust

with the Bureau of Indian Affairs and released plans to build a 180,000 square foot

Class III casino with 2,500 slot machines, 75 game tables, a hotel, convention center, golf course, specialty restaurants, and entertainment facilities in Allegan County, which is my district, between the core cities of Grand Rapids and Kalamazoo.

The casino would operate around the clock.

Following this announcement, myself along with a group of concerned community leaders turned to the Grand Rapids Area Chamber of Commerce with questions

about the impact the proposed Gun Lake casino would have on the region. The

Chamber commissioned the Anderson Economic Group to conduct an independent

economic impact study to assess the impact of the proposed tribal casino in Allegan

County. The economic impact study revealed that for every one job created by the casino, more than two jobs would be lost in the surrounding counties. The study also found

that the surrounding counties of Kalamazoo, Kent, Ottawa, and Barry would suffer

an economic hemorrhage of more than $880 million lost over 10 years. The net economic loss to the entire region significantly outweighs the modest localized gains in

the immediate area around the casino.

The independent economic research underscored what similar studies have found.

Unlike the destination casinos in Las Vegas, most casinos in places like Michigan

do not generate new dollars or new jobs; rather they siphon off jobs, money, and

economic vitality from surrounding communities in a 50-mile radius and increase

costs to government and social service agencies. In fact, the vast majority of casino

revenues come from the surrounding communities. Almost all of those dollars would

have been spent in other local, taxpaying businesses in the absence of the casino.

As this Committee knows, any major new federal project—and that is what this

casino will be if the federal trust process goes forward—must complete an Environmental Impact Statement (‘‘EIS’’). The only way a project can avoid this requirement of the law is by demonstrating that there is no conceivable way in which the

project will have a significant impact on the host community. The Bureau of Indian

Affairs made this finding for the Gun Lake project—erroneously in our view—in

early 2003.

On February 10, 2003, the Grand Rapids Chamber objected to the finding and to

the Environmental Assessment that supposedly supported it. At a minimum, the

Chamber urged the BIA to complete a full scale EIS for the project. Incidentally,

a tribe promoting a casino project in Battle Creek, about 70 miles or so from the

Gun Lake project, is now completing a full scale EIS after a Judge Penfield Jackson

here in Washington rejected the Environmental Assessment the BIA had relied

upon to evade the EIS requirement in that case. But at Gun Lake, the BIA persisted

in its refusal to proceed with an EIS for the Gun Lake project and published its

decision to proceed with a trust acquisition for the Gun Lake tribe.

The Gun Lake Tribe’s environmental assessment was an incomplete and inaccurate reflection of the regional economic, environmental, and social impacts associated with the proposed casino. The Tribe’s study took a cookie-cutter approach to

a very complex issue, basically stating that this proposed government-subsidized development would have no negative impact on the surrounding community and would

result in the creation of 4,500 jobs.

Of course, the BIA-approved study did not consider the associated economic hemorrhage for the entire region, as shown by the Anderson study. It will now be necessary for citizens like me, who are determined to spare my community the negative

43

effects of this casino project, to resort to litigation, as citizens have done elsewhere

in my State and throughout this Country. I do not think this is what Congress had

in mind when it adopted IGRA almost 20 years ago for a then-struggling Native

American casino industry.

Unfortunately, IGRA and the rules pertaining to the Land-in-Trust process for casino site acquisitions do not require a comprehensive, regional environmental impact study and instead only require a pin-point study of the proposed development.

Nor does the process include a failsafe process for ensuring that the will of the citizens in the host community is carefully considered. Our polling demonstrates that

over 64% of the citizens in the region are opposed to the casino development. In fact,

my State recently voted overwhelming 58%-42% to subject any new non-Indian casino gambling in the State to a vote of the people. And yet, we are now told by the

BIA and others that this overwhelming voice of the citizenry—supported as it is by

solid economic and social research—cannot be heard at all, and will have nothing

to do with whether this project is rammed down the throat of an unwilling host

community.

This is not the way it should be, and I do not think this is what Congress had

in mind when it passed IGRA. In fact, when Congress originally enacted IGRA, it

provided that, as a general rule, casino gambling would not take place on newly acquired trust land. There were, of course, some exceptions, but the general rule was

no casino gambling on new trust acquisitions. I believe Congress passed this general

rule to prevent precisely what we see actually happening now: namely, a mad and

largely unregulated land rush pushed by casino developers eager to cash in on a

profitable revenue stream that is not burdened by the same tax rates or regulations

that other businesses have to incur. Somewhere along the way, the good intentions

of Congress have been hijacked, and it is time for this body to re-assert control over

this process.

Since 1988, Las Vegas investors and tribal casino owners have become wealthier,

smarter, and better equipped with new technology and a barrage of lawyers and lobbyists to manipulate the federal gaming law. Casino stakeholders and special interests have started ‘‘tribe-shopping’’ and existing tribal casinos have stretched the limits of the law with ‘‘off-reservation casinos,’’ something this committee has realized

must be stopped. Casino stakeholders and tribal casino owners have manipulated

the definition of Class II gaming by introducing slot-machines that somehow supposedly meets the definition of Class II bingo-style gaming. When Congress approved the definition of Class II gaming in 1988, a bingo-hall meant a bingo-hall.

They did not intended for slot machine like to pass as a bingo-machine without regulation or oversight from appropriate authorities, and without the approval of a

valid state compact.

Tribal leaders and their Las Vegas investors have also become brazen in their

threats to open casinos with or without state approval. They have used ethically

questionable promises of contracts, marketing, and charitable giving as a means to

foster support. And, in the case of Gun Lake, threats to only use contractors that

are members of the Kalamazoo Chamber vs. the Grand Rapids Chamber because

one supported the project and one opposed it.

As Senator John McCain recently stated in an AP story, ‘‘he never envisioned the

explosive growth’’ triggered by the federal Indian gaming law. It is fair to assume

that seventeen years ago, the other Members of Congress also likely did not foresee

nor consider the potential negative regional impacts of tribal casinos. The current

law reflects an outdated form of thinking and rules that desperately need reform

and updating to require a comprehensive and regional environmental, economic and

social impact assessment for any and all land-in-trust applications.

IGRA, as currently implemented by BIA, also ignores and ultimately disregards

the will of the voters, the sentiment of state and local elected officials, state legislative action opposing a tribal casino development, and/or regional opposition to a proposed tribal casino project. Case in point is the proposed Gun Lake tribal casinos:

First, every state and several of the federally elected official in West Michigan

wrote to the BIA opposing Land-in-Trust for the proposed Gun Lake casino. I was

deeply involved in these efforts and was amazed at the resounding unity expressed

by my colleagues. However, the casino project is going forward.

Second, Michigan voters established an overwhelming public mandate against the

expansion of casinos in the state with 58% approval of Proposal 1, a constitutional

amendment requiring a local and statewide vote of approval before any new nontribal casino gambling will be allowed to operate. In Allegan County and the counties surrounding the proposed Gun Lake tribal casino, the margin of voter approval

for Proposal 1 was even greater (Allegan County 64-36, Kent County 63-37, Kalamazoo 59-41, and Ottawa County 70-30). The project is going forward anyway.

44

Third, in December 2004, the Michigan State Senate rescinded support for the Gun Lake tribal casino compact, citing voter sentiment in Proposal 1 and the Anderson Economic study results. The project is going forward anyway. Fourth, 23 is Enough just released an independent public opinion poll conducted by Harris Interactive, one of the nation’s largest and most respected polling firms,

to assess public support for the proposed Gun Lake casino.

The results reveal strong opposition to the proposed Gun Lake casino among West Michigan voters in Kent, Kalamazoo, Ottawa, Allegan Counties. Most notably, 85%

polled said 23 casinos are enough (47% too many casinos, 38% just enough casinos).

59% said Governor Jennifer Granholm should not negotiate a compact with the Gun

Lake Tribe (59% not negotiate, 36% negotiate). 64% oppose Gun Lake casino after

being informed about the positive and negative impacts (64% oppose, 33% support).

Women 35+ years old are among the core group of opponents to the casino. The

project is going forward anyway. These polling results, coupled with the overwhelming statewide voter approval of Proposal 1, action by the State Senate, and overwhelming opposition among state

elected officials in West Michigan are considered meaningless and are disregarded

in the Land-in-Trust application process. This is important and meaningful information that bears significant weight and demands consideration. This is not the way

it should, nor the way it was intended to be. In summary, IGRA is broken, outdated, and after 17 years without review or up- dating, needs significant overhaul and reform. While I commend Chairman Pombo’s

initiative to remove ‘‘reservation shopping,’’ much more is needed. I urge this committee to take its reforms one step further by imposing a moratorium on all landin-trust applications, including the Gun Lake Tribe’s land acquisition, until a thorough debate and comprehensive review is conducted and IGRA is updated and reformed to address the following concerns: 1. Mandatory requirement of a comprehensive, regional Economic, Environ- mental, and Social Impact Statement for all Land-in-Trust applications. The

Tribes should be required to account for and project the regional economic, social, and environmental impacts of a proposed casino. Indicators could include

job creation/loss, business investment creation/loss, absenteeism, productivity,

tardiness, bankruptcy rates, crime rates, divorce rates, abuse/neglect rates, and

overall rate increase of problem/addicted gamblers. 2. Mandatory reporting and full disclosure of financial and legal records of non- tribal casino management companies. With a growing number of tribal casinos

declaring bankruptcy and record level of fines for improper conduct being assessed to casino management companies, full disclosure should be mandatory

on all financial and legal records and issues. 3. Local government, state legislative, and gubernatorial approval for land in trust. Congress should amend IGRA to require that a Governor must concur

in all cases before state lands are put into trust for the purposes of gambling.

There should also be a provision that requires the support of the state legislature and affected local units of government before land is removed from the

tax rolls. Mechanisms such as this will go a long way to restoring the general

rule Congress established in 1988 against casino gambling on newly acquired

trust land.

4. Local and statewide voter approval of any Land-in-Trust application for the

purposes of Class III casino gambling. In Michigan, precedent was first set in

the local and statewide vote on the Detroit casinos, and then in 2004, Michigan

voters established a public mandate by requiring a local and statewide for any

casino-style expansion. Tribal casinos were exempt because of federal constitutionality issues. The federal law should follow Michigan’s lead and apply the

same voter approval standards to tribal casinos.

5. Clarification of Class II gaming to eliminate abuses and loopholes for ‘‘electronic bingo games’’. In order to get around the compact requirements of IGRA,

many tribes and their non-Indian sponsors have turned to ‘‘gray games’’ to

open or expand a casino. Class II gaming allows bingo to be played on tribal

lands even without a state-tribal compact. Slot machines, however, are a Class

III device and require a compact. Manufacturers of slot machines have now

created electronic bingo games that look and feel like a slot machine, but that

the gambling industry is trying to pass off as allowable Class II bingo. The

Class II loophole has created a difficult situation for states either trying to halt

the expansion of casinos or regulate them in a responsible manner. I recognize

that the NIGC is trying to address this problem, but frankly it cannot wait.

NIGC does not have the resources to reign in this problem. Indeed, it lacks the

resources to effectively regulate an expanding $18.5 billion industry, much less

take on this added regulatory burden. Congress needs to re-assert its express

45

intent to forbid slot machines of any kind—whether tagged with a ‘‘bingo’’

name or not—in the absence of a valid state compact

In closing, I reiterate my plea to you to study these issues in depth, and urge you

to take immediate action and impose a moratorium on any further casino expansion

pending the results of your study. It is imperative that Congress takes swift and

decisive steps today to get its arms around this issue before more jobs are lost and

more families are put at risk.

The CHAIRMAN. Thank you.

Ms. Osmond.

STATEMENT OF THE HONORABLE JO ANN D. OSMOND,

STATE REPRESENTATIVE, STATE OF ILLINOIS

Ms. OSMOND. Good afternoon, Mr. Chairman and members of the

Committee. I wish to thank you for allowing me to appear before

you on the matter of the Wisconsin, Kenosha casino, and its potential impact on Lake County, Illinois.

I am Jo Ann Osmond. I am the Illinois State Representative for

the 61st District. The 61st District has Lake Michigan boundary on

the east and the State of Wisconsin on the north. Several towns in

my district are within a six-mile radius of the Kenosha casino. The

61st District is part of Lake County, an urbanized county of

665,000 residents just north of Chicago.

The Federal Indian Gaming Regulatory Act requires that the

Secretary of the Interior consult with appropriate state and local

officials in order to determine whether a tribal casino on newly acquired land would not be detrimental to the surrounding communities. The Bureau of Indian Affairs’ checklist for gaming-related

acquisitions specify that communities within 10 miles of the proposed casino are part of the surrounding community, and must be

consulted.

This 10-mile radius includes the northeastern part of the 61st

District. It includes the towns of Zion and Winthrop Harbor. This

10-mile radius is too small when you consider the impact of the

massive casino. Most casinos consider their marketing area to be

within an hour’s drive of the casino and the environmental impact

statement required for the Indian casinos consider economic markets as far away as 75 to 100 miles.

Indeed, according to the Kenosha’s own plan, approximately 71

percent of the revenue projected from the casino and 62 percent of

the customers will come from outside the Kenosha area, most of

which will come from northern Illinois. Despite this overwhelming

evidence suggesting that most of the casino’s impacts will come

from northern Illinois and despite the fact that my district lies

within the BIA’s 10-mile radius, the Kenosha draft EIS makes only

a small reference to it in over its 100 pages of reference.

As to consulting, none of the towns in my district within the 10-

mile radius of the casino were consulted by the BIA. Lake County,

which has repeatedly written to the BIA expressing its concerns,

was also ignored by the BIA.

Since the BIA would not hold a hearing in Illinois, would not

study or consider northern Illinois impacts, I held a hearing on

March 6th and invited the BIA to attend. They did not, but did say

that they would accept the comments as part of the record.

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At the hearing on March 6th, a representative from Congresswoman Melissa Bean’s office was present, and made testimony.

Letters expressing serious concern from the proposed casino were

read into the record from State Representative Mark Beaubien,

52nd; Ed Sullivan, 51st; Kathy Ryg, 59th, Robert Churchill, 62nd.

All are elected Lake County representatives.

Over the last seven years, 16 letters from elected public officials

have been written to the BIA raising concerns about the project,

and I have copies of them if you wish to put them into your record.

The Menominee Tribe of Wisconsin wants approval of 223 acres

in Kenosha, Wisconsin, to Indian lands. The Menominee Tribe Reservation is 200 miles from Kenosha. The tribe, in partnership with

the Kenosha businessmen, who was part of the first failed attempt

to build a Kenosha casino, and the Mohegan Tribe of Connecticut,

want to build an $808 million casino, giving 3,100 positions, casinohotel entertainment project. The Mohegan Tribe has been hired to

run the casino.

When completed, this project will be the largest in the Midwest,

and will rival the size of Las Vegas’ largest casinos.

First, the problem that was identified in the meetings where the

Menominee Tribe estimates that the facility will offer 5,000 jobs.

The jobs will be given, in priority, to Kenosha, Racine, and Milwaukee Counties, next to all other residents of Wisconsin. There is

no mention of Illinois in any of their plans.

Illinois, once again, would be denied the jobs. They would have

the benefits.

The environment, there is 3 million visitors from my district

traveling through the district to the casino. Both Lake County and

Kenosha Counties are non-attained areas for ozone. What happens

to the ozone level when these people begin to drive through my district?

Then there is the traffic congestion, which is a huge problem.

Lake County politicians are more identified as being pro- or

anti-growth than Democrats or Republicans, with an estimated

3 million visitors to the Kenosha casino annually from the south

anticipated, this is a very big problem. Illinois taxpayers are

expected to carry the burden for road repairs, traffic management,

police, and first responders without any support from this casino.

I know I am out of time so I am trying to go to my final statement. I apologize.

Our local services, social services will also have the burden.

My fellow representative, Mark Beaubien, has repeatedly made

a point that the Menominee are trying to locate a casino in an area

outside of the traditional and historic homeland. This doesn’t make

sense to me. If a tribe can locate casinos outside their traditional

homelands, then can they locate casinos anywhere, including casinos in our largest city, Chicago, New York, Miami?

Finally, I worry about the Indian casinos coming to Illinois. Several tribes like the Ho-Chunk and the Prairie Band Potawatomi

have tried to put casinos in Illinois. We really have a well regulated commercial gaming industry and do not need poorly regulated, huge Indian casinos coming from out of state.

In closing, I understanding, Mr. Chairman, that your casino bill,

H.R. 4893, addresses the problems that we have in Illinois, and

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with the Indian casinos. Further, unlike Senator McCain’s legislation, it would not grandfather in flawed sitting process we have experienced in Illinois.

On behalf of my constituents, I wish to thank you in allowing me to speak today. [The prepared statement of Ms. Osmond follows:]

Statement of The Honorable JoAnn Osmond, State Representative,

61st District, State of Illinois

Good morning Mr. Chairman and members of this committee. I wish to thank you for allowing me to appear before you on the matter of the Wisconsin, Kenosha casino and its potential impact on Lake County, Illinois. I am Jo Ann Osmond, Illinois

State Representative for the 61st District. The 61st District has Lake Michigan

boundary on the east and the State of Wisconsin on the North. Several towns in

my district are within 6 miles of the Kenosha casino. The 61st district is part of

Lake County, an urbanized county of 665,000 just north of Chicago. The federal Indian Gaming Regulatory Act requires that the Secretary of the Inte- rior consult with ‘‘appropriate state and local officials’’ in order to determine whether a tribal casino on newly acquired land ‘‘would not be detrimental to the surrounding community’’. The Bureau of Indian Affairs’ Checklist for Gaming Related Acquisitions specifies that communities within 10 miles of a proposed casino are part of the surrounding

community and must be consulted. This 10-mile radius includes the northeastern

part of the 61st District, including the towns of Zion and Winthrop Harbor. This

10 mile area of impact seems very small to me when you are considering the impact

of a massive casino. Most casinos consider their marketing area to be within an

hour’s drive of a casino and the Environmental Impact Statement required for

Indian casinos considers economic markets as far away as 75-100 miles. Indeed, according to Kenosha’s own study, approximately 71% of the business projected from

the casino and 62% of the customers will come from outside the Kenosha area, most

of which will come from Northern Illinois. Despite this overwhelming evidence suggesting that most of the casino’s impacts will come from Northern Illinois and despite the fact that my district lies within the BIA’s 10 mile radius, the Kenosha

Draft EIS makes only an off hand reference to Illinois on one of its hundreds of

pages. As to consultation, none of the towns in my district within 10 miles of the

casino were consulted by the BIA. Lake County, which has repeatedly written the

BIA expressing its concern, was also ignored by the BIA. Since the BIA would not

hold a hearing in Illinois and would not study or consider Northern Illinois impacts,

I held a hearing on March 6 and invited the BIA to attend. The BIA did not attend

the meeting, but did say they would make the comments part of the record. The

hearing transcript and all the exhibits were then submitted to the BIA for the

record.

At the hearing on March 6th, a representative from Congresswomen Melissa Bean’s office was present. Letters expressing serious concerns with the proposed casino were read into the record from State Representative Mark Beaubien -52nd District, State Representative Ed Sullivan -51st District, State Representative Kathy

Ryg-59th District and State Representative Robert Churchill-62nd District. All are

Lake County representatives. Over the last 7 years, 16 letters from elected public

officials have been written to the BIA raising concerns about this project. Among

those writing have been Congressman Mark Kirk, Former Congressman Phil Crane,

Congresswoman Melissa Bean and Lake County Board Chairman Suzi Schmidt. The Menominee Tribe of Wisconsin wants approval to change 223 acres in Kenosha, Wisconsin, to Indian lands. The Menominee Tribe’s Reservation is 200 miles

from Kenosha. The Tribe, in partnership with a Kenosha businessman, who was

part of a first failed attempt to build a Kenosha Casino, and the Mohegan Tribe

of Connecticut, want to build an $808 million, 3100 position casino-hotel entertainment project. The Mohegan Tribe has been hired to run the casino. When completed,

this project will be the largest in the Midwest and will rival the size of Las Vegas’

largest casinos. Through our public hearing and comment process, we have identified a number of concerns. First, there are jobs. The Menominee Tribe estimates

that when the facilities are fully up and running that approximately 5,000 people

directly and indirectly could be employed. As part of the Tribe’s intergovernmental

agreement, 80 percent of the facility’s workforce must come from Kenosha, Racine

and Milwaukee counties. The agreement, which has been adopted by the Menominee

Legislature and the tribe’s Kenosha Gaming Authority, gives first preference to

Kenosha County Residents, followed by Racine and Milwaukee counties. Fourth

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preference will go to Wisconsin residents outside of those three counties. No consideration will be given for Illinois Residents which are just 6 miles away. According to comments made by former Menominee Chairman Michael Chapman to the Kenosha News:

‘‘The tribe’s commitment is to Kenosha and southeastern Wisconsin. It was

never the tribe’s intent to employ an Illinois resident-dominated workforce.

The tribe will also work with potential retail and commercial leaseholders

to encourage them to do the same.’’ In short, we provide the casino revenues, Wisconsin keeps all the jobs.

Next, there is the environment, which does not respect state borders. The problem

here is 3 million visitors from my district and traveling through my district to reach

the casino. Both Lake County and Kenosha County are non attainment areas for

ozone. What happens to the ozone level when all these people begin driving to the

new casino?

The National Environmental Policy Act establishes procedures for Federal agen- cies to follow to ‘‘insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken’’. The combination of these two federal laws requires that the Department of the Interior investigate and disclose to Illinois citizens and local governments exactly how this

$808 million casino project, expected to attract 4.9 million visitors annually, will impact Illinois and its environment. Yet, our worsening ozone problem has been ignored by the BIA in the Draft EIS. Then there is the traffic and congestion, which is such a huge problem Lake County politicians are more identified as being pro or anti growth than they are

Democrats or Republicans. With an estimated 3 million visitors to the Kenosha casino annually coming from south of the casino site, one can imagine what impact

that the traffic is going to have on Lake County’s already clogged major arteries into

Wisconsin, including Hwy 41, Sheridan and Green Bay roads. Illinois taxpayers will

be expected to carry the burden for road repairs, traffic management, police and

first responders without any support from the casino. Yet, the BIA doesn’t even

bother to examine or consider these problems.

Then there is drinking and driving. Prior to the standardization of the drinking age in both Illinois and Wisconsin at the age of 21, the townships of Illinois just

south of the Wisconsin state line were known to professionals as the ‘‘Blood Border’’.

In January 1980, legislation signed by former Gov. James R. Thompson(R-IL) increased the drinking age in Illinois from 18 to 21. Wisconsin, however, refused to

voluntarily enact a parallel law until September 1986. For more than 6 1/2 years,

from January 1980 until September 1986, the minimum legal drinking age was 21

in Illinois but only 18 in Wisconsin. This irrational disparity in these two laws gave

thirsty young Illinoisans a lethal incentive to try to go north to Wisconsin, drink

and drive home while intoxicated. Victims of the ‘‘Blood Border’’ included young

adults southward after a night of drinking in Wisconsin bars and taverns just across

the state line. The Alliance Against Intoxicated Motorists counted 65 separate victims of ‘‘Blood Border’’ in the early 1980’s. My late husband, Tim Osmond, was a

volunteer paramedic with the Antioch Rescue Squad who spent many Friday and

Saturday evenings in the Squad building waiting for the siren calling them to the

scene of another accident. In those days drinking seemed to be the main factor. You

are no doubt asking why I am bringing this up for your consideration. The estimation of the amount of traffic coming thru the 61st district can only bring to mind

how will the district cope with traffic control, accidents and the need of paramedics?

Some Casino goers, like the young driver many years ago, will enjoy their gaming

too much and head home drunk thru the 61st District. Then, we will have the blood

border once again.

Finally, there is the increased need for Illinois social services for our problem

gamblers frequenting the new casino. The Kenosha casino is going to provide this

support to Kenosha residents but will not give any support to Illinois governments.

Our own local social service agencies, which are already being asked to do more

with fewer resources, will be charged with picking up the pieces for any number of

Illinois residents and their families that may be negatively impacted by compulsive

gambling. Illinois also has a self-exclusion list for problem gamblers that bars these

individuals from betting at any of our nine casinos and those in northern Indiana.

The mega casino being planned in Kenosha may be too close and too tempting for

those individuals on the self-exclusion list. There are no efforts being made to screen

or recognize known problem gamblers crossing state lines.

While I think of all the difficulties this proposed casino will cause for my district

and the problems I have had being heard by the BIA, I was alarmed to learn that

this project would be grandfathered under Senate Bill S. 2078 which just passed out

of the Indian Affairs Committee. How can you grandfather a proposal, which

49

excludes local input and ignores local community impacts? This Kenosha Casino

project, which has been pursued for 7 years, is the poster child for how not to site

a casino.

Then there are all the press reports alleging organized crime ties for the first

group of Kenosha Casino developers. While most of these first developers are no

longer part of the project, others still remain. I worry that the procedures which allowed the first developers to be a part of this project will be inadequate to protect

my constituents from being exposed to criminal elements.

Also, my fellow representative Mark Beaubien has repeatedly made the point that

the Menominee are trying to locate a casino in an area outside their traditional or

historic homeland. This doesn’t make any sense to me. If tribes can locate casinos

outside their traditional homelands, they can locate casinos anywhere including casinos in our largest cities like Chicago, New York or Miami.

Finally, I worry about these Indian Casinos coming into Illinois. Several tribes

like the Ho-Chunk and the Prairie Band Potawatomi have tried to put casinos in

Illinois. We already have a well regulated Commercial gaming industry and do not

need poorly regulated, huge Indian casinos coming from out of state.

In closing, I understand Mr. Chairman that your Casino reform bill, HR 4893 addresses the problems we have had in Illinois with Indian Casinos. Further, unlike

Senator McCain’s legislation, it would not Grandfather in the flawed sitting process

we have experienced in Illinois. On behalf of my constituents, I thank you for pursuing the right kind of reform legislation and for holding this hearing.

[NOTE: Letters submitted for the record by Representative

Osmond have been retained in the Committee’s official files.]

The CHAIRMAN. Thank you.

Mr. Worthley.

STATEMENT OF STEVEN WORTHLEY, TULARE COUNTY

MEMBER, INDIAN GAMING WORKING GROUP, CALIFORNIA

STATE ASSOCIATION OF COUNTIES

Mr. WORTHLEY. Thank you. On behalf of the California State Association of Counties, I would like to thank Chairman Pombo,

Ranking Member Rahall, and the other Distinguished Members of

the Committee on Resources for providing us with the opportunity

to submit testimony on H.R. 4893.

Chairman Pombo, I also would like to thank you for your considerable outreach to CSAC throughout the development of this important legislation.

I am Steven Worthley, 4th District Supervisor for Tulare County.

I want to disclose I am not a member of the CSAC Indian Gaming

Working Group, but I am very happy to pinch hit for them today.

I am in my second term of office, and I am here representing the

entire CSAC represented body.

CSAC is the single unified voice speaking on behalf of all 58

California counties and the issues raised in this hearing and addressed by this legislation has a direct and unique bearing on counties, more so than any other jurisdiction of local government.

Because of this, CSAC had devoted considerable staff time and

financial resources to address the impacts of Indian gaming on

county services and affected communities.

CSAC’s approach to the issue of Indian gaming is simple: To

work on a government-to-government basis with gaming tribes who

have followed the provisions of IGRA and to seek a mechanism that

allows local governments to work with tribes to mitigate any offreservation impacts from proposed casinos.

Examples of our approach are numerous in California where

comprehensive agreements between tribes and counties, each

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addressing the unique concerns of the tribe and the community,

have been negotiated in the past few years.

I want to quickly mention the model for negotiation between

local government and tribes provided by the most recent state tribal compacts negotiated by the Schwarzenegger Administration. The

result of this model has been improved government-to-government

relationships and the successful incorporation of major gaming facilities into counties and communities.

Now to comments specific to H.R. 4893. Chairman Pombo, CSAC

is pleased to support your off-reservation gaming legislation which

includes provisions that would require tribes seeking to acquire

trust land for purpose of gaming to negotiate judicially enforceable

mitigation agreements with counties as a condition to having trust

land acquisitions approved by the Department of Interior.

This provision largely addresses the overriding principal supported by CSAC in its tribal lands policy. Please note that CSAC

recommends that the language of H.R. 4893 be modified to further

clarify the legislation’s meaning of ‘‘direct effects of the tribal gaming activities on the affected county or parish infrastructure and

services.’’

We recommend that the definition of infrastructure and services

include but not be limited to infrastructure maintenance and improvements, health and welfare service, law enforcement and emergency services, and environmental services such as air quality, watershed management and erosion control. Enumerating the specific

costs and services impacts would help to ensure that sound mitigation agreements are developed between county and tribal governments.

In addition to the mitigation agreement requirements of

H.R. 4893, CSAC is supportive of provisions of the Pombo bill that

would require more extensive oversight with respect to casino proposals for newly recognized landless tribes. While we support giving local communities a seat at the table to decide whether or not

a casino should be located in a particular area, CSAC supports giving county boards of supervisors, which represent all county residents, the right to consent to gaming-related trust acquisitions.

A countywide advisory referendum as called for in the bill represents a prudent step in gauging a community support or opposition to a particular gaming proposal. However, CSAC believes that

a vote by elected county boards of supervisors represents an equally critical component in the process of determining the viability and

suitability of a casino proposal.

Because counties would ultimately be responsible for negotiating

mitigation agreements with tribes under H.R. 4893, CSAC urges

you to consider modifying the legislation to allow county or parishelected bodies to have the right to concur with the Department of

Interior’s prescribed determinations.

With regard to the bill’s tribal gaming consolidation proposal,

CSAC is supportive of the legislation’s language that would require

all consulting gaming operations to take place on already existing

reservation lands deemed suitable for such operations in accordance with IGRA.

CSAC also believes that there is an opportunity to clarify

H.R. 4893 to ensure that tribes that are allowed to consolidate

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gaming operations are required to negotiate judicially enforceable

agreements with the affected county for the mitigation of all offreservation impacts, and that such agreements must be reached

each time tribes agree to consolidate gaming operations.

In conclusion, CSAC is pleased to support H.R. 4893 which represents a significant improvement over the provisions of current

law. Additionally, CSAC believes that with necessary and appropriate revisions, such as enumerating services and cost impacts of

mitigation agreements, as well as allowing county boards of supervisors to determine the viability and suitability of a casino proposal, H.R. 4893 would further the original goals of IGRA while

also helping to minimize the abuses that have proven to be detrimental to those tribes in full compliance with applicable Federal

laws.

I want to thank again Chairman Pombo and members of the

Committee for their prolonged attention to this important issue.

CSAC looks forward to working with you to ensure the best

possible outcome for tribal governments and those communities

affected by Indian gaming. Thank you.

[The prepared statement of Mr. Worthley follows:]

Statement of Steven Worthley, Supervisor, Tulare County, and Member,

Indian Gaming Working Group, California State Association of Counties

On behalf of the California State Association of Counties (CSAC) I would like to

thank Chairman Pombo, Ranking Member Rahall, and the other distinguished

members of the Committee of Resources for giving us this opportunity to submit testimony as part of the hearing to consider Chairman Pombo’s legislation (HR 4893)

to restrict off-reservation gaming. I am Steven Worthley, District 4 Supervisor for

Tulare County and a member of the CSAC Indian Gaming Working Group.

CSAC is the single, unified voice speaking on behalf of all 58 California counties.

The issue raised in this hearing, and those addressed by H.R. 4893, have direct and

unique bearing on counties, more so than any other jurisdiction of local government.

There are two key reasons off-reservation gaming is of heightened importance for

California counties. First, counties are legally responsible to provide a broad scope

of vital services for all members of their communities. Second, throughout the State

of California and the nation, tribal gaming has rapidly expanded, creating a myriad

of economic, social, environmental, health, safety, and other impacts. The facts

clearly show that the mitigation and costs of such impacts increasingly fall upon

county government.

For the past three years, CSAC has devoted considerable staff time and financial

resources to the impacts on county services resulting from Indian gaming. We believe that California counties and CSAC have developed an expertise in this area

that may be of benefit to this Committee as it considers amendments to the Indian

Gaming Regulatory Act.

Introduction:

At the outset, the California State Association of Counties (CSAC) reaffirms its

absolute respect for the authority granted to federally recognized tribes. CSAC also

reaffirms its support for the right of Indian tribes to self-governance and its recognition of the need for tribes to preserve their tribal heritage and to pursue economic

self-reliance.

However, CSAC maintains that existing laws fail to address the off-reservation

impacts of tribal land development, particularly in those instances when local land

use and health and safety regulations are not being fully observed by tribes in their

commercial endeavors. As we all know, these reservation-based commercial endeavors attract large volumes of visitors.

Every Californian, including all tribal members, depends upon county government

for a broad range of critical services, from public safety and transportation, to waste

management and disaster relief.

California counties are responsible for nearly 700 programs, including the following:

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sheriff

jails

roads & bridges

fire protection

indigent health

probation

alcohol & drug abuse rehabilitation

elections & voter services

public health

flood control

welfare

family support

child & adult protective services

Most of these services are provided to residents both outside and inside city limits. Unlike the exercise of land use control, such programs as public health, welfare,

and jail services are provided (and often mandated) regardless of whether a recipient resides within a city or in the unincorporated area of the county. These vital

public services are delivered to California residents through their 58 counties. It is

no exaggeration to say that county government is essential to the quality of life for

over 35 million Californians. No other form of local government so directly impacts

the daily lives of all citizens. In addition, because county government has very little

authority to independently raise taxes and increase revenues, the ability to adequately mitigate reservation commercial endeavors is critical, or all county services

can be put at risk.

CSAC fully recognizes the counties’ legal responsibility to properly provide for and

protect the health, safety, and general welfare of the members of their communities.

California counties’ efforts in this regard have been significantly impacted by the

expansion of Indian gaming.

Certainly compounding this problem is the fact that the expansion in gaming has

led some tribes and their business partners to engage in a practice that is sometimes referred to as ‘‘reservation shopping’’ in an attempt to acquire land not historically tied to these tribes but which has considerable economic potential as a site

for an Indian casino. CSAC opposes ‘‘reservation shopping’’ as counter to the purposes of the Indian Gaming Regulatory Act (IGRA). ‘‘Reservation shopping’’ is an

affront to those tribes who have worked responsibly with local, state and federal authorities on a government-to-government basis in compliance with the spirit and intent of IGRA as a means of achieving economic self-reliance and preserving their

tribal heritage.

CSAC commends Chairman Pombo and the other Members of the House Resources Committee for seeking to curb the increasing practice of ‘‘reservation shopping.’’ This written testimony is in support of H.R. 4893, which would preserve the

original goal of IGRA while minimizing the impacts of ‘‘reservation shopping’’ on

local communities. CSAC offers its assistance to Chairman Pombo and the House

Resources Committee as H.R. 4893 is advanced through the legislative process.

Background:

A. The Advent of Indian Gaming

Even before the enactment of IGRA in 1988, California counties were experiencing

impacts in rural areas from Indian gaming establishments. These early establishments were places where Indian bingo was the primary commercial enterprise in

support of tribal economic self-reliance. The impacts on local communities were not

significant in large part because the facilities where Indian bingo was played were

modest in size and did not attract large numbers of patrons. Following enactment

of IGRA, the impacts to counties from Indian gaming establishments increased with

the advent of larger gaming facilities. Even so, the impacts to local communities

from these larger gaming facilities were generally manageable except in certain

instances.

Over the last six years, the rapid expansion of Indian gaming in California has

had profound impacts beyond the boundaries of tribal lands. Since 1999 and the

signing of Compacts with approximately 69 tribes and the passage of Propositions

5 and 1A (legalizing Indian gaming in California), the vast majority of California’s

counties either have a casino, a tribe petitioning for federal recognition, or is the

target or focus of a proposed casino plan. As the Committee is aware, many pending

casino proposals relate to projects on land far from a tribe’s ancestral territory.

A 2004 CSAC survey reveals that 53 active gaming operations exist in 26 of California’s 58 counties. Another 33 gaming operations are being proposed. As a result,

35 counties out of 58 in California have active or proposed gaming. Most important,

of those 35 counties impacted by Indian gaming, there are 82 tribes in those counties but only 20 local agreements for mitigation of the off-reservation impacts on

services that counties are required to provide.

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B. Development of CSAC 2003 Policy

In 1999, California Governor Gray Davis and approximately 65 tribes entered into Tribal-State Compacts, which permitted each of these tribes to engage in Class III

gaming on their trust lands. The economic, social, environmental, health, safety,

traffic, criminal justice, and other impacts from these casino-style gaming facilities

on local communities were significant, especially because these gaming facilities

were located in rural areas. The 1999 Compacts did not give counties an effective

role in mitigating off-reservation impacts resulting from Indian casinos. Consequently, mitigation of these impacts could not be achieved without the willingness

of individual tribes to work with the local governments on such mitigation. Some

tribes and counties were able to reach mutually beneficial agreements that helped

to mitigate these impacts. Many counties were less than successful in obtaining the

cooperation of tribes operating casino-style gaming facilities in their unincorporated

areas.

The off-reservation impacts of current and proposed facilities led CSAC, for the

first time, to adopt a policy on Indian gaming. In the fall of 2002, at its annual

meeting, CSAC held a workshop to explore how to begin to address these significant

impacts. As a result of this workshop, CSAC established an Indian Gaming Working

Group to gather relevant information, be a resource to counties, and make policy

recommendations to the CSAC Board of Directors on Indian gaming issues.

CSAC’s approach to addressing the off-reservation impacts of Indian gaming is

simple: to work on a government-to-government basis with gaming tribes in a respectful, positive and constructive manner to mitigate off-reservation impacts from

casinos, while preserving tribal governments’ right to self-governance and to pursue

economic self-reliance.

With this approach as a guide, CSAC developed a policy comprised of seven principles regarding State-Tribe Compact negotiations for Indian gaming, which was

adopted by the CSAC Board of Directors on February 6, 2003. The purpose of this

Policy is to promote tribal self-reliance while at the same time promoting fairness

and equity, and protecting the health, safety, environment, and general welfare of

all residents of the State of California and the United States. A copy of this Policy

is attached to this written testimony as Attachment A.

C. Implementation of CSAC’s 2003 Policy

Following adoption by CSAC of its 2003 Policy, the Indian Gaming Working

Group members met on three occasions with a three-member team appointed by

Governor Davis to renegotiate existing Compacts and to negotiate with tribes who

were seeking a compact for the first time. As a result of these meetings, three new

State-Tribe Compacts were approved for new gaming tribes. These new Compacts

differed from the 1999 Compacts in that the 2003 Compacts gave a meaningful voice

to the affected counties and other local governments to assist them in seeking tribal

cooperation and commitment to addressing the off-reservation environmental impacts of the Indian casinos that would be built pursuant to those Compacts.

ILLUSTRATIONS OF SUCCESSFUL COUNTY/TRIBAL COOPERATION

There are many examples of California counties working cooperatively with tribes

on a government-to-government basis on all issues of common concern to both governments, not just gaming-related issues. Yolo County has a history of working with

Rumsey Band of Wintun Indians to ensure adequate services in the area where the

casino is operating. In addition, Yolo County has entered into agreements with the

tribe to address the impacts created by tribal projects in the county.

In Southern California, San Diego County has a history of tribes working with

the San Diego County Sheriff to ensure adequate law enforcement services in areas

where casinos are operating. In addition, San Diego County has entered into agreements with four tribes to address the road impacts created by casino projects. Further, a comprehensive agreement was reached with the Santa Ysabel Tribe pursuant to the 2003 Compact with the State of California.

Humboldt, Placer, and Colusa Counties and tribal governments have agreed similarly on law enforcement-related issues. Humboldt County also has reached agreements with tribes on a court facility/sub station, a library, road improvements, and

on a cooperative approach to seeking federal assistance to increase water levels in

nearby rivers.

In central California, Madera and Placer Counties have reached more comprehensive agreements with the tribes operating casinos in their communities. These comprehensive agreements provide differing approaches to the mitigation of off-reservation impacts of Indian casinos, but each is effective in its own way to address the

unique concerns of each gaming facility and community.

54

After a tribe in Santa Barbara County completed a significant expansion of its existing casino, it realized the need to address ingress and egress, and flood control

issues. Consequently, Santa Barbara County and the tribe negotiated an enforceable

agreement addressing these limited issues in the context of a road widening and

maintenance agreement. Presently, there is no authority that requires the County

of Santa Barbara or its local tribe to reach agreements. However, both continue to

address the impacts caused by the tribe’s acquisition of trust land and development

on a case-by-case basis, reaching intergovernmental agreements where possible.

The agreements in each of the above counties were achieved only through positive

and constructive discussions between tribal and county leaders. It was through

these discussions that each government gained a better appreciation of the needs

and concerns of the other government. Not only did these discussions result in enforceable agreements for addressing specific impacts, but enhanced respect and a renewed partnership also emerged, to the betterment of both governments, and tribal

and local community members.

ILLUSTRATIONS OF CONTINUED PROBLEMS ADDRESSING CASINO IMPACTS

On the other hand, there are examples of Indian casinos and supporting facilities

where a tribal government did not comply with the requirements of IGRA or the

1999 Compacts. In Mendocino County, a tribe built and operated a Class III gaming

casino for years without the requisite compact between it and the California Governor. In Sonoma County, a tribe decimated a beautiful hilltop to build and operate

a tent casino that the local Fire Marshal determined lacked the necessary ingress

and egress for fire safety.

In other California counties, tribes circumvented or ignored requirements of IGRA

or the 1999 Compacts prior to construction of buildings directly related to Indian

gaming. In San Diego County there have been impacts to neighboring water wells

that appear to be directly related to a tribe’s construction and use of its water well

to irrigate a newly constructed golf course adjoining its casino, and several other

tribal casino projects have never provided mitigation for the significant traffic impacts caused by those projects.

In 2004, the focus of CSAC on seeking mechanisms for working with gaming

tribes to address off-reservation impacts continued. Since that time, Governor

Schwarzenegger and several tribes negotiated amendments to the 1999 Compacts,

which lifted limits on the number of slot machines, required tribes to make substantial payments to the State, and incorporated most of the provisions of CSAC’s 2003

Policy. Of utmost importance to counties was the requirement in each of these

newly amended Compacts that each tribe be required to negotiate with the appropriate county government to develop local agreements for the mitigation of the impacts of casino projects, and that these agreements are judicially enforceable. Where

a tribe and county cannot reach a mutually beneficial binding agreement, ‘‘baseball

style’’ arbitration will be employed to determine the most appropriate method for

mitigating the impacts.

D. The Advent of ‘‘Reservation Shopping’’ in California

The problems with the original 1999 Compacts remain largely unresolved, as most

prior Compacts were not renegotiated. These Compacts allow tribes to develop two

casinos and do not restrict casino development to areas within a tribe’s current trust

land or historical ancestral territory. For example, in the Fall of 2002 a Lake County band of Indians was encouraged by East Coast developers to pursue taking into

a trust land in Yolo County for use as a site of an Indian casino. The chosen site

was across the Sacramento River from downtown Sacramento and was conveniently

located near a freeway exit. The actual promoters of this effort were not Native

Americans and had no intention of involving tribal Band members in the operation

and management of the casino. In fact, one promoter purportedly bragged that no

Indian would ever be seen on the premises.

In rural Amador County, starting in 2002 and continuing to the present, a tribe

being urged on by another out-of-State promoter is seeking to have land near the

small town of Plymouth taken into trust for a casino. The tribe has no historical

ties to the Plymouth community. The effort by this tribe and its non-Native American promoter has created a divisive atmosphere in the local community. That new

casino is not the only one being proposed in the County; a second, very controversial

new casino is being promoted by a New York developer for a three-member tribe

in a farming and ranching valley not served with any water or sewer services, and

with access only by narrow County roads. The development of these casinos would

be an environmental and financial disaster for their neighbors and the County,

which already has one major Indian casino.

55

1 Cabazon, The Indian Gaming Regulatory Act, and the Socioeconomic Consequences of American Indian Governmental Gaming—A Ten Year Review by Jonathon Taylor and Joseph Kalt

of the Harvard Project on American Indian Economic Development (2005) at p. 9 (citing Sen.

Frank Padavan, Rolling the Dice: Why Casino Gambling is a Bad Bet for New York State at

ii (1994). 2 CSAC Fact Sheet on Indian Gaming in California (11/5/03) (attached as Attachment C.)

In the past two years in Contra Costa County, there have been varying efforts by three tribes to engage in Indian gaming in this highly urbanized Bay Area county. The possibility of significant economic rewards from operating urban casinos has

eclipsed any meaningful exploration of whether these tribes have any historical connection to the area in which they seek to establish gaming facilities. In addition, in 2004, California counties faced a new issue involving tribes as a result of non-gaming tribal development projects. In some counties land developers

were seeking partnerships with tribes in order to avoid local land use controls and

to build projects that would not otherwise be allowed under local land use regulation. In addition, some tribes were seeking to acquire land outside their current

trust land or their legally recognized aboriginal territory and to have that land

placed into federal trust, beyond the reach of a county’s land use jurisdiction.

CSAC’S 2004 POLICY REGARDING DEVELOPMENT OF TRIBAL LANDS

To address these issues, the CSAC Board of Directors adopted a Revised Policy Regarding Development on Tribal Lands on November 18, 2004 (attached as Attachment B). The Revised Policy reaffirms that: • CSAC supports cooperative and respectful government-to-government relations

that recognize the interdependent role of tribes, counties and other local governments to be responsive to the needs and concerns of all members of their respective communities.

With respect to the issues specifically now before the Committee the following new Revised Policies apply: • CSAC supports federal legislation to provide that lands are not to be placed in

trust and removed from the land use jurisdiction of local governments without

the consent of the State and affected County. • CSAC opposes the practice commonly referred to as ‘‘reservation shopping’’

where a tribe seeks to place lands in trust outside its proven aboriginal territory over the objection of the affected County.

Importance of County Involvement in Developing Mitigation:

The history and examples provided above illustrate the need for counties to be in- volved in developing appropriate off-reservation mitigations related to Indian casino

activities. There is not yet a definitive study on the impacts of gaming on local communities. However, in those counties that are faced with large gaming projects, it

is clear that the impacts on traffic, water/wastewater, the criminal justice system

and social services are significant. For non-Indian casinos it is estimated that for

every dollar a community collects from gambling-related taxes, it must spend three

dollars to cover new expenses, including police, infrastructure, social welfare and

counseling services. 1 As local communities cannot tax Indian operations, or the related hotel and other services that would ordinarily be a source of local government

income, the negative impact of such facilities can even be greater. This is one reason

that CSAC sought amendments to California Tribal-State Compacts to ensure that

the off-reservation environmental and social impacts of gaming were fully mitigated

and that gaming tribes paid their fair share for county services. In 2003 CSAC took a ‘‘snapshot’’ of local impacts by examining information pro- vided by eight of the then twenty-six counties (the only counties that had conducted

an analysis of local government fiscal impacts) where Indian gaming facilities

operated. 2 The total fiscal impact to those eight counties was approximately $200 million, including roughly $182 million in one-time costs and $17 million in annual

costs. If these figures were extrapolated to the rest of the state, the local government fiscal costs could well exceed $600 million in one-time and on-going costs for

road improvements, health services, law enforcement, emergency services, infrastructure modifications, and social services.

Even when a particular gaming facility is within a City’s jurisdictional limits, the impacts on County government and services may be profound. Counties are the largest political subdivision of the state having corporate authority and are vested by

the Legislature with the powers necessary to provide for the health and welfare of

the people within their borders. Counties are responsible for a countywide justice

system, social welfare, health and other services. The California experience has also

made clear that particularly large casino facilities have impacts beyond the

56

immediate jurisdiction in which they operate. Attracting many thousands of car

trips per day, larger facilities cause traffic impacts throughout a local transportation

system. Similarly, traffic accidents, crime and other problems sometimes associated

with gaming are not isolated to a casino site but may increase in surrounding communities.

As often the key political entity and service provider in the area, with a larger

geographic perspective and land use responsibility, county involvement is critical to

ensure that the needs of the community are met and that any legitimate tribal gaming proposal is ultimately successful and accepted. Local approval and mechanisms

that create opportunities for negotiation are necessary to help insure a collaborative

approach with tribes in gaming proposals and to support the long-range success of

the policies underlying IGRA.

Comments on H.R. 4893:

CSAC fully understands that addressing the impacts of Indian casinos has been

a contentious subject in some California communities. In an attempt to minimize

this contentiousness, CSAC has focused on resolutions that show proper respect for

all governments with roles in Indian gaming. Ultimately, as described in previous

pages, the two most involved governments are tribal governments and county governments.

The overwhelming majority of Indian casinos are in rural areas. Accordingly,

county governments are those local governments in California who find themselves

most often in the position of needing to address off-reservation impacts from Indian

casinos. Current federal law does not provide counties an effective role in working

with tribes to address off-reservation impacts from Indian gaming.

In California, through the most recent State-Tribal Compacts negotiated by the

Schwarzenegger Administration, counties and other local governments have been

provided an appropriate opportunity to work with gaming tribes to address off-reservation impacts. The result has been improved government-to-government relationships between tribes and county governments and the smooth incorporation of major

gaming facilities into counties and communities.

Also in the vein of improved relationships, CSAC recently worked with several

tribes to stage a day-long forum on ‘‘Government-to-Government Relationships: A

Forum on Indian Gaming,’’ which was very well attended and featured topics such

as negotiating memorandums of understanding, implementing public safety protocols, and additional opportunities for tribes and local governments to work collaboratively. This and other recent events demonstrate that, contrary to possible fears

of tribal leaders, local governments have not acted arbitrarily or capriciously in

their dealings with tribes. In fact, the improved relationships are the result of each

government gaining a better understanding of the responsibilities and needs of the

other.

Because we in California have several positive examples of counties and tribes

working together for the betterment of their respective communities, CSAC supports

Chairman Pombo’s efforts to address the practice of ‘‘reservation shopping.’’ Below

are specific comments on key provisions of H.R. 4893.

Judicially Enforceable Agreements

As stated in CSAC’s most recent Policy on Tribal Lands (adopted February 23,

2006), ‘‘the overriding principle supported by CSAC is that when tribes are permitted to engage in gaming activities under federal legislation, then judicially enforceable agreements between counties and tribal governments must be required in

the legislation. These agreements would fully mitigate local impacts from a tribal

government’s business activities and fully identify the governmental services to be

provided by the county to that tribe.’’

CSAC is pleased that H.R. 4893 would require tribes seeking to acquire trust

land for purposes of gaming to negotiate judicially enforceable mitigation agreements with counties as a condition of having trust land acquisitions approved by

the Department of Interior. CSAC recommends, however, that the language of

H.R. 4893 be modified to further clarify the legislation’s meaning of ‘‘direct effects

of the tribal gaming activities on the affected county or parish infrastructure and

services.’’ We recommend that the definition of infrastructure and services include

but not be limited to infrastructure maintenance and improvements, health and welfare services, law enforcement and emergency services, and environmental services

such as air quality, watershed management, and erosion control. Enumerating the

specific costs and services impacts would help to ensure that sound mitigation

agreements are developed between county and tribal governments.

57

Increased Oversight of Gaming Proposals

In addition to the mitigation agreement requirements of H.R. 4893, CSAC is sup- portive of provisions of H.R. 4893 that would require more extensive oversight with

respect to casino proposals for newly-recognized or landless tribes. While we support

giving local communities a seat at the table to decide whether or not a casino should

be located in a particular area, CSAC supports giving county boards of supervisors

the right to consent to gaming-related trust acquisitions. A county-wide advisory referendum—as called for in the bill—represents a pru- dent step in gauging a community’s support or opposition to a particular gaming

proposal. However, CSAC believes that a vote by elected county boards of supervisors represents an equally critical component in the process of determining the viability and suitability of a casino proposal. Because counties would ultimately be responsible for negotiating mitigation agreements with tribes under H.R. 4893, CSAC

urges you to consider modifying the legislation to allow county or parish elected bodies to have the right to concur with the Department of Interior’s prescribed determinations.

Consolidation of Gaming Among Tribes

CSAC does not oppose the concept of gaming consolidation among tribes, and sup- ports the bill’s language reaffirming the fact that all Indian gaming operations must

take place only on lands deemed suitable for such operations in accordance with

IGRA. CSAC also believes that there is an opportunity to clarify H.R. 4893 to ensure that tribes that are allowed to consolidate gaming operations are required to

negotiate judicially enforceable agreements with the affected county for the mitigation of all off-reservation impacts, and that such agreements must be reached each

time tribes agree to consolidate gaming operations.

Primary Geographic, Social and Historical Nexus

When the phrase ‘‘primary geographic, social and historical nexus’’ is used in the bill, CSAC recommends that it be based on objective facts that are generally acceptable to practicing historians, archeologists, and anthropologists. If there is a question by a tribal, state or local government as to whether the nexus has been established, the bill should provide for a judicial determination in either federal or state

court on the issue, where the tribe would have the burden of showing the requisite

nexus by a preponderance of evidence. This would provide a credible mechanism for

determining a tribe’s primary geographic, social and historical nexus and allow for

judicial review of the facts in cases of doubt.

Conclusion:

CSAC presents this written testimony in support of H.R. 4893, and we stand ready to assist Chairman Pombo and Committee Members in their efforts to modify

IGRA to address the increasing practice of ‘‘reservation shopping.’’ In California, the

Chairman’s bill—with the aforementioned necessary and appropriate revisions—

would allow counties a voice in matters that create impacts that the county will ultimately be called upon by its constituents to address. This voice is critical if California counties are to protect the health and safety of their citizens. Otherwise,

counties find themselves in a position where their ability to effectively address the

off-reservation impacts from Indian gaming is extremely limited and dependent on

the willingness of individual tribes to mitigate such impacts. In those instances in California where tribal governments and counties have met to work together to resolve issues of concern to each government, responsible decisions have been made by both governments to the benefit of both tribal members

and local communities. Enactment of this legislation would create a mechanism and

increased opportunities for these governments to work together. Such a mechanism

would further the original goals of IGRA while also helping to minimize the abuses

of IGRA that have proven to be detrimental to those tribes in full compliance with

all applicable federal laws.

We wish to thank Chairman Pombo and members of the Committee for their consideration and acknowledgment of the impact of this important issue on the counties

of California. We look forward to continue working together to ensure the best possible outcome for all tribes, local governments, and communities.

ATTACHMENT A:

CSAC POLICY DOCUMENT REGARDING COMPACT NEGOTIATIONS FOR INDIAN GAMING

Adopted by the CSAC Board of Directors

February 6, 2003

58

3 As used here the term ‘‘reservation’’ means Indian Country generally as defined under federal law, and includes all tribal land held in trust by the federal government. 18 U.S.C. § 1151.

In the spirit of developing and continuing government-to-government relationships between federal, tribal, state, and local governments, CSAC specifically requests that the State request negotiations with tribal governments pursuant to section 10.8.3, subsection (b) of the Tribal-State Compact, and that it pursue all other

available options for improving existing and future Compact language.

CSAC recognizes that Indian Gaming in California is governed by a unique structure that combines federal, state, and tribal law. While the impacts of Indian gaming fall primarily on local communities and governments, Indian policy is largely directed and controlled at the federal level by Congress. The Indian Gaming Regulatory Act of 1988 is the federal statute that governs Indian gaming. The Act requires compacts between states and tribes to govern the conduct and scope of casino-style gambling by tribes. Those compacts may allocate jurisdiction between

tribes and the state. The Governor of the State of California entered into the first

Compacts with California tribes desiring or already conducting casino-style gambling in September 1999. Since that time tribal gaming has rapidly expanded and

created a myriad of significant economic, social, environmental, health, safety, and

other impacts.

CSAC believes the current Compact fails to adequately address these impacts

and/or to provide meaningful and enforceable mechanisms to prevent or mitigate impacts. The overriding purpose of the principles presented below is to harmonize existing policies that promote tribal self-reliance with policies that promote fairness

and equity and that protect the health, safety, environment, and general welfare of

all residents of the State of California and the United States. Towards that end,

CSAC urges the State to consider the following principles when it renegotiates the

Tribal-State Compact:

1. A Tribal Government constructing or expanding a casino or other related businesses that impact off-reservation 3 land will seek review and approval of the

local jurisdiction to construct off-reservation improvements consistent with

state law and local ordinances including the California Environmental Quality

Act with the tribal government acting as the lead agency and with judicial review in the California courts.

2. A Tribal Government operating a casino or other related businesses would

mitigate all off-reservation impacts caused by that business. In order to ensure

consistent regulation, public participation, and maximum environmental protection, Tribes will promulgate and publish environmental protection laws that

are at least as stringent as those of the surrounding local community and comply with the California Environmental Quality Act with the tribal government

acting as the lead agency and with judicial review in the California courts.

3. A Tribal Government operating a casino or other related businesses will be

subject to the authority of a local jurisdiction over health and safety issues including, but not limited to, water service, sewer service, fire inspection and

protection, rescue/ambulance service, food inspection, and law enforcement,

and reach written agreement on such points.

4. A Tribal Government operating a casino or other related businesses would pay

to the local jurisdiction the Tribe’s fair share of appropriate costs for local government services. These services include, but are not limited to, water, sewer,

fire inspection and protection, rescue/ambulance, food inspection, health and

social services, law enforcement, roads, transit, flood control, and other public

infrastructure. Means of reimbursement for these services include, but are not

limited to, payments equivalent to property tax, sales tax, transient occupancy

tax, benefit assessments, appropriate fees for services, development fees, and

other similar types of costs typically paid by non-Indian businesses.

5. The Indian Gaming Special Distribution Fund, created by section 5 of the Tribal-State Compact will not be the exclusive source of mitigation, but will ensure

that counties are guaranteed funds to mitigate off-reservation impacts caused

by tribal gaming.

6. To fully implement the principles announced in this document and other existing principles in the Tribal-State compact, Tribes would meet and reach a judicially enforceable agreement with local jurisdictions on these issues before a

new compact or an extended compact becomes effective.

7. The Governor should establish and follow appropriate criteria to guide the

discretion of the Governor and the Legislature when considering whether to

consent to tribal gaming on lands acquired in trust after October 17, 1988 and

governed by the Indian Gaming Regulatory Act. 25 U.S.C. § 2719. The

59

Governor should also establish and follow appropriate criteria/guidelines to

guide his participation in future compact negotiations.

ATTACHMENT B:

CSAC REVISED POLICY DOCUMENT REGARDING DEVELOPMENT ON TRIBAL LANDS

Adopted by CSAC Board of Directors

November 18, 2004

Background

On February 6, 2003, CSAC adopted a policy, which urged the State of California

to renegotiate the 1999 Tribal-State Compacts, which govern casino-style gambling

for approximately 65 tribes. CSAC expressed concern that the rapid expansion of

Indian gaming since 1999 created a number of impacts beyond the boundaries of

tribal lands, and that the 1999 compacts failed to adequately address these impacts.

The adopted CSAC policy specifically recommended that the compacts be amended

to require environmental review and mitigation of the impacts of casino projects,

clear guidelines for county jurisdiction over health and safety issues, payment by

tribes of their fair share of the cost of local government services, and the reaching

of enforceable agreements between tribes and counties on these matters.

In late February, 2003, Governor Davis invoked the environmental issues re-opener clause of the 1999 compacts and appointed a three-member team, led by former

California Supreme Court Justice Cruz Reynoso, to renegotiate existing compacts

and to negotiate with tribes who were seeking a compact for the first time. CSAC

representatives had several meetings with the Governor’s negotiating team and

were pleased to support the ratification by the Legislature in 2003 of two new compacts that contained most of the provisions recommended by CSAC. During the last

days of his administration, however, Governor Davis terminated the renegotiation

process for amendments to the 1999 compacts.

Soon after taking office, Governor Schwarzenegger appointed former Court of Appeal Justice Daniel Kolkey to be his negotiator with tribes and to seek amendments

to the 1999 compacts that would address issues of concern to the State, tribes, and

local governments. Even though tribes with existing compacts were under no obligation to renegotiate, several tribes reached agreement with the Governor on amendments to the 1999 compacts. These agreements lift limits on the number of slot machines, require tribes to make substantial payments to the State, and incorporate

most of the provisions sought by CSAC. Significantly, these new compacts require

each tribe to negotiate with the appropriate county government on the impacts of

casino projects, and impose binding ‘‘baseball style’’ arbitration on the tribe and

county if they cannot agree on the terms of a mutually beneficial binding agreement. Again, CSAC was pleased to support ratification of these compacts by the

Legislature.

The problems with the 1999 compacts remain largely unresolved, however, since

most existing compacts have not been renegotiated. These compacts allow tribes to

develop two casinos, expand existing casinos within certain limits, and do not restrict casino development to areas within a tribe’s current trust land or legally recognized aboriginal territory. In addition, issues are beginning to emerge with nongaming tribal development projects. In some counties, land developers are seeking

partnerships with tribes in order to avoid local land use controls and to build

projects, which would not otherwise be allowed under the local land use regulations.

Some tribes are seeking to acquire land outside their current trust land or their legally recognized aboriginal territory and to have that land placed into federal trust

and beyond the reach of a county’s land use jurisdiction.

CSAC believes that existing law fails to address the off-reservation impacts of

tribal land development, particularly in those instances when local land use and

health and safety regulations are not being fully observed by tribes in their commercial endeavors. The purpose of the following Policy provisions is to supplement

CSAC’s February 2003 adopted policy through an emphasis for counties and tribal

governments to each carry out their governmental responsibilities in a manner that

respects the governmental responsibilities of the other.

Policy

1. CSAC supports cooperative and respectful government-to-government relations

that recognize the interdependent role of tribes, counties and other local governments to be responsive to the needs and concerns of all members of their

respective communities.

60

4 As used here the term ‘‘tribal land’’ means trust land, reservation land, Rancheria land, and

Indian Country as defined under federal law.

2. CSAC recognizes and respects the tribal right of self-governance to provide for

the welfare of its tribal members and to preserve traditional tribal culture and

heritage. In similar fashion, CSAC recognizes and respects the counties’ legal

responsibility to provide for the health, safety, environment, infrastructure,

and general welfare of all members of their communities.

3. CSAC also supports Governor Schwarzenegger’s efforts to continue to negotiate

amendments to the 1999 Tribal-State Compacts to add provisions that address

issues of concern to the State, tribes, and local governments. CSAC reaffirms

its support for the local government protections in those Compact amendments

that have been agreed to by the State and tribes in 2004.

4. CSAC reiterates its support of the need for enforceable agreements between

tribes and local governments concerning the mitigation of off-reservation impacts of development on tribal land 4. CSAC opposes any federal or state limitation on the ability of tribes, counties and other local governments to reach mutually acceptable and enforceable agreements.

5. CSAC supports legislation and regulations that preserve—and not impair—the

abilities of counties to effectively meet their governmental responsibilities, including the provision of public safety, health, environmental, infrastructure,

and general welfare services throughout their communities.

6. CSAC supports federal legislation to provide that lands are not to be placed

into trust and removed from the land use jurisdiction of local governments

without the consent of the State and the affected county.

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

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

the objection of the affected county.

8. CSAC does not oppose the use by a tribe of non-tribal land for development

provided the tribe fully complies with state and local government laws and regulations applicable to all other development, including full compliance with environmental laws, health and safety laws, and mitigation of all impacts of that

development on the affected county.

61

The CHAIRMAN. Thank you.

Mr. King.

STATEMENT OF RANDY KING, CHAIRMAN, BOARD OF

TRUSTEES, SHINNECOCK INDIAN NATION

Mr. KING. Chairman Pombo, Ranking Member Rahall, and Members of the House Resources Committee, thank you for giving me

the opportunity to speak today.

My name is Randy King, and I am the immediate past Chairman

of the Tribal Trustees of the Shinnecock Indian Nation.

Last night we held our tribal elections, the latest in an unbroken

chain of annual elections that dates back to 1792. Although I chose

not to run this year, let the record state after six years in tribal

office this will be the year that I finish that screen room for my

wife.

[Laughter.]

Mr. KING. I know that our nation is in good hands and I speak

today on behalf of our nation, and with the support of our new

board of trustees.

The heritage of the Shinnecock people dates back thousands of

years. Although we once occupied a vast region of Long Island, our

property has dwindled over the years to less than 1,000 acres.

Today, almost half of our enrolled members live on this land, on

a reservation set aside under New York law. The State of New

York and its predecessors have formally recognized the Shinnecock

Nation for more than 340 years, but even though we have been

seeking Federal acknowledgment from the Bureau of Indian Affairs

since 1978, the Federal bureaucracy has yet to formally recognize

our nation. After 28 years, we are still waiting for a decision.

Despite nearly three decades of delay, the Shinnecock people are

optimistic. Last year a Federal court issued a decision holding that

we are what we have always known ourselves to be, a sovereign

Indian tribe. We remain hopeful that the Department of Interior

will add us to the list of federally recognized tribes. In the meantime, we continue to seek justice in the courts without waiting for

help from the executive branch of the Federal government.

Unfortunately, while we have remained stuck in the Federal recognition process, we have watched many other tribes achieve Federal recognition, construct casinos, and abuse the BIA process to

try to build even more casinos. Given our history with the BIA, we

are encouraged by your willingness to shake up the status quo.

As you can imagine, we are particularly pleased that you have

taken up the cause of examining the Federal recognition process.

We also deeply appreciate the thought and care taken in developing H.R. 4893. This bill can do much to level the playing field

and stop outlandish casino proposals that threaten to backlash

against legitimate tribes such as the Shinnecock.

While we support the intent of the bill to reform a flawed BIA

process, we do hope that the Committee will consider some suggestions for minor amendments to the bill. We hope that the final bill

will protect those tribal nations that, like the Shinnecock, have

played by the rules and have been met with years of bureaucratic

inaction.

62

First, let us remember that H.R. 4893 is aimed to restrict the

practice of reservation shopping, a goal all should share. The

Indian Gaming Regulation Act is meant to allow an Indian nation

to game on its own lands. The Shinnecock Indian Nation occupies

land that was ours before the first European settlers arrived on our

shores. Our land is our home and always has been.

We believe that H.R. 4893 should clarify that Indian land actually occupied continuously for all of recorded history should receive

the same treatment as Federal reservations created much more recently. The Shinnecock people have occupied our lands for centuries, and we should be able to have economic activity on our own

lands.

Even though IGRA is meant to allow tribes to use land that has

been theirs throughout the centuries, we do recognize political realities. One reality is that in some communities powerful groups

use political power to try to deny a tribe its right.

Given this reality, we believe that H.R. 4893 should preserve the

ability in narrow and limited circumstances for a tribe to agree to

alternate locations for economic activity. We believe that land claim

settlements when limited to the state in which the tribe is located

will allow tribes facing serious local opposition to achieve economic

progress.

At the same time, we recognize that there are legitimate concerns about tribes claiming reservations through arguments that

are tenuous at best. We believe that the bill should close the door

on any inappropriate manipulations of the system. We encourage

the Committee to further strengthen proposed provisions against

interstate moves by limiting gaming to the state in which a majority of the tribe’s members reside.

In conclusion, I would like once again to thank you for your courage in tacking these difficult issues when so many others stand silent. As you move forward, I hope that your reforms are a success

and that they protect the ability of tribes to use their own lands.

Thank you.

[The prepared statement of Mr. King follows:]

Statement of Randy King, Chairman, Board of Trustees,

Shinnecock Indian Nation

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

Committee, my name is Randy King, and I am the Chairman of the Tribal Trustees

of the Shinnecock Indian Nation—one of the oldest continually self-governing tribes

in the country. I would like to personally thank you for allowing me the opportunity

to address this Committee.

The heritage of the Shinnecock people dates back thousands of years. We live now

on a remnant of the lands where we lived long before the first European settlers

arrived in North America. Although we once occupied a vast region of land on Long

Island, spanning from Montauk Point to Manhattan, our property has dwindled over

the years to less than 1,000 acres, all in the Town of Southampton, New York. Beginning with the illegal seizure of our land by the first settlers, the Shinnecock

people have endured a continual encroachment on our property rights for over 360

years.

The State of New York and its predecessors have formally recognized the

Shinnecock Indian Nation for more than 340 years, and almost half of our enrolled

members currently live on a reservation set aside under state law. Despite this fact,

the Federal bureaucracy has yet to formally recognize our Nation, even though our

existence and our needs have been known to the federal government.

In 1978, we asked the federal government for assistance in filing a lawsuit to obtain justice for the theft of our lands. The Bureau of Indian Affairs decided we first

63

should be federally recognized and treated our litigation request as our petition for

federal acknowledgment. We then created the ‘‘Shinnecock Federal Recognition

Committee’’ to manage our petition for federal recognition with the Department of

Interior. That was 28 years ago—and we are still waiting for a decision. Despite nearly three decades of delay, the Shinnecock people are optimistic. On November 7, 2005, a federal court, in a case in which our tribal status was at issue,

and after receiving our petition to the Department of the Interior and thousands of

pages of legal briefs and documents, issued a decision holding that the Shinnecock

Indian Nation is what we have always known ourselves to be, a sovereign Indian

tribe as a matter of federal law. We have had a dialogue about this court decision

with the Department of Interior, and we remain hopeful that the Department may

add us to the list of federally recognized tribes. In the meantime, we continue to

seek to vindicate our rights without waiting for help from the executive branch of

the federal government, as we press forward to have the courts further confirm our

sovereignty and provide us with justice for the wrongs that have been done to us. While we have remained stuck in the federal recognition process for some 28 years, forced to defend our rights without the federal assistance enjoyed by other

tribes, the Shinnecock people have watched many other tribes achieve federal recognition, construct casinos, and exploit federal law to attempt to build even more

casinos.

Against the backdrop of bureaucratic delay and opportunistic actions by others, the Shinnecock Nation is encouraged by the Chairman’s and the Committee’s willingness to ‘‘shake up’’ the status quo. As you can imagine, we are particularly

pleased that you have taken up the cause of examining the federal recognition process. We also deeply appreciate the thought and care taken in developing H.R. 4893.

This bill can do much to level the playing field and stop outlandish proposals that

threaten a backlash against legitimate tribes such as the Shinnecock. It is from this

perspective that I respectfully ask the Committee to consider some minor refinements to the bill to protect those tribal nations which, like the Shinnecock, have

played by the rules and been met with years of bureaucratic inaction. First, let us remember that H.R. 4893 is aimed to restrict the practice of ‘‘reserva- tion shopping’’, a goal all should share. Section 20(a) of the Indian Gaming Regulatory Act (‘‘IGRA’’) is intended to allow an Indian Nation to game on its own lands.

Yet some would interpret Section 20 as limiting tribes to lands that were part of

a federal reservation. The Shinnecock Indian Nation, however, occupies land in the

heart of its aboriginal territory, land that was ours before the first European settlers arrived on our shores—and land that remains within our aboriginal territory

today. Our land is our home, and always has been. Its status as Indian land does

not stem from action of the federal government, but precedes the existence of the

federal government. We should not be denied the ability to have economic activity

on our own tribal lands, held for hundreds of years. Consequently, we propose that

H.R. 4893 add affirmative language that clarifies that Indian land actually occupied

continuously for all of recorded history be given the same treatment as federal reservations created much more recently. The Shinnecock people have occupied our

lands for centuries, and we do not believe that we should be penalized for the Department of Interior’s prolonged inaction in response to our application to acknowledge our unquestionable status as an Indian tribe.

Despite the fact that IGRA intends to allow tribes to game on land that has been

theirs through the centuries, we do recognize political realities. One reality is that

in some communities, powerful local groups and people may marshal political power

to attempt to deny a tribe its rights. Given this reality, we believe that H.R. 4893

should preserve the ability, in closely circumscribed circumstances, for a tribe to

agree upon alternate locations for economic activity. We believe that land claim settlements, when limited to the state in which the tribe is located, would allow tribes

facing serious or insurmountable opposition to achieve economic stability, while still

preventing inappropriate manipulations of the system.

At the same time, we recognize that there are legitimate concerns about tribes

claiming reservations through arguments that are tenuous at best. We believe that

the amendments we seek can fulfill the intent of IGRA without opening the door

to such spurious claims. We appreciate the effort in H.R. 4893 to tighten the rules

against such claims, and would encourage the Committee to further strengthen proposed provisions against interstate moves by limiting gaming to the state in which

a majority of a tribe’s members reside.

In conclusion, I would like once again to thank the Chairman and the Committee

for allowing me to testify and for your courage in tackling these difficult issues

when so many others stand silent. My people have lived on our land for centuries,

and I am but one person in a long line of individuals fighting for justice for our Nation. It has been a long and difficult journey to get where we are today. I simply

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ask that the Committee keep the Shinnecock Indian Nation in mind, and take our

suggestions as what they are—comments from a tribe that is only trying to avoid

being penalized for the actions of others. Thank you.

The CHAIRMAN. Thank you. I thank the entire panel for your

testimony.

Mr. King, Chairman King, I will start with you and the questions. Do you believe that there is a difference between land that

is already in trust and land that tribes are seeking to bring into

trust for gaming purposes?

Mr. KING. Well, we are still in the struggle. We recently had our

tribal status determined by a Federal judge in November, so this

is all new ground to the Shinnecock. We are still in the struggle

so I cannot have the conversations with the degree of specificity of

some of the other members of the previous panel.

But I do know this, the Shinnecock Tribe has endured for 400

years on land that has dwindled through the years, and because of

the way this bill is written it should not preclude the tribe from

gaming on lands that may be more appropriate to the local community.

We are a tribe that is sensitive to the communities’ ears, and we

are open to dialog to those communities and to those concerns, but

we should not feel after 400 years of trying to prove our tribal status that we would be shut out of any opportunities that other

tribes are able to enjoy at this point.

The CHAIRMAN. If your land were taken into trust and a decision

was made to have gaming on your land, on your historic land, and

10 years in the future another tribe came up and took advantage

of the current process and had land taken into trust that was near

you, do you believe that you should have anything to say about

that?

Mr. KING. Well, I do believe that the determination of the

Shinnecock Tribe is made by its members, and by its people by consensus, and I do not believe that any other tribe should be able to

object to us moving forward with our sovereign rights.

The CHAIRMAN. Should you have the ability to object to someone

else moving into your historic area?

Mr. KING. Well, at this point here we have endured for 400

years, and if you are talking about the State of New York, there

are tribes that are asserting land claims in the State of New York

that reside out of New York, and we believe that the resources

within New York are tenuous and limited at best, and because we

are in this struggle, and that 28 years in the BIA process, Federal

acknowledgment process, could shut the door on us, and that is

why we are here today.

The CHAIRMAN. I can tell you that in regards to other legislation

that I have introduced dealing with the recognition process and our

efforts on this Committee in dealing with that, obviously your tribe

was one of those that came to the forefront. I think 28 years is too

long to wait. Regardless of what the answer is 28 years is too long

to wait for an answer.

Mr. KING. It is.

The CHAIRMAN. And that is one of the reasons why this Committee has moved forward on that issue.

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Mr. KING. And we respect your analysis of the deficiencies in

that process.

[Laughter.]

The CHAIRMAN. I am sorry. Twenty-eight years is too long to wait

for an answer on anything.

Mr. Worthley, in terms of the counties seeking a greater input

into what happens, I believe there is a difference between existing

land that is in trust and what role the county can play in that particular instance, and land that is being petitioned to be brought

into trust, or maybe they don’t, but does the CSAC have a policy

or do they differentiate between land that is currently in trust and

land that is being petitioned to be brought into trust?

Mr. WORTHLEY. Thank you, Mr. Chairman. They do recognize

that there is a distinction and there is a concern for that because

that sort of shopping for additional real estate outside of traditional

tribal boundaries, while it may be appropriate in some circumstances, other times it represents a lot of problems.

I think that is why the proposal is to allow for counties to have

greater input into that decisionmaking process as opposed to lands

that are already in trust, understanding that the sovereign powers

of the tribes already exist in those situations. As they seek to promote those sovereign powers elsewhere, it is appropriate for counties to have more input in that process.

The CHAIRMAN. Mr. Sheen, Representative Sheen, you suggest in

your testimony a moratorium, and I am sure you are aware that

there have been efforts in numerous discussions in Congress dealing with a moratorium on new gaming. There have been even suggestions that we should completely withdraw the ability of tribes

to game. I think the people, depending on what their own districts

or their own personal beliefs are, have come up with a number of

different scenarios that this committee has had to deal with.

But in suggesting a moratorium, would you rather we have a

two-year moratorium or a moratorium of some period or would you

prefer that we come up with a long-term fix to the generic legislation?

Mr. SHEEN. Well, I would say that you would probably need some

time to do that. However, a long-term fix is something that we do

need, and I believe that is why we need to take a look at IGRA,

and we need to take a look at what has it done in the last 20 years.

So a long-term fix definitely needs to happen, and I, of course,

favor that as opposed to a short-term fix, but how long would it

take to put that forward? I guess that is the question.

The CHAIRMAN. Well, we have been doing this for two years now,

so I don’t know. Thank you.

I am going to recognize Mr. Kildee for his questions.

Mr. KILDEE. Thank you very much.

First of all, I would like to welcome Mr. Sheen, a member of the

body I served in for 10 years, and appreciate your presence here

with your rich background being the county treasurer of Allegan

before you joined the Michigan House of Representatives.

I think you and I are not in agreement on these things, but that

is the greatness of a democracy, and the greatness of the process

that Mr. Pombo has started here. We have to start out by recognizing that we, all of us up here, and you as a member of the state

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legislature take an oath to uphold the Constitution of the United

States, and the Constitution is very clear. It says the Congress

shall have power to regulate commerce with foreign nations and

among the several states and with the Indian tribes. They list the

three sovereignties very, very clearly, Article I, Section 8.

Congress takes that very seriously as I am sure you do. I have

read the Treaty of Detroit. It says, ‘‘This constitution and the laws

of the United States, which shall be made in pursuance thereof and

all treaties made or shall be made under the authority of the

United States shall be the supreme law of the land, and the judges

in every state shall be bound thereby. Anything in the constitutional laws of any state to the contrary notwithstanding.’’

Every two years I take an oath to uphold this, and it is very important. This sovereignty is not just a get well card or some little

gesture toward the Indians. It is a reality. It is the law of the land,

and that is exactly what the Cabazon decision was based upon.

Basically, and I am not an attorney, I am a Latin teacher, but

they basically said if you outlaw gaming or certain form of gaming,

then you could outlaw gaming all over the state, including on sovereign land, sovereign Indian land, which is sovereign. But if you

only regulate that gaming, then state regulations do not apply on

the sovereign land. Sovereign land is different than the rest of

Allegan County. It has a sovereignty. And as the other tribes in

Michigan have their real sovereignty.

So we have to recognize that we have to follow the Supreme

Court decision. We have to follow the Constitution. IGRA actually

in a sense really puts some restrictions, limited Cabazon because

without Cabazon we would have had probably a lot of confusion out

there, but Indians sovereign nations could have tried various and

sundry way of gaming, but we finally said no, let us get some order

here.

I almost didn’t vote for it because I thought it was putting too

many restrictions on Cabazon decision, but we did say OK, we will

compact with the state and we thought we had a Seminole fix before the Seminole problem arose, but we did do that. So it is the

law of the land upheld by the Supreme Court, and codified in law

by the Congress.

So I am sure that, knowing Allegan County, I know it quite well.

I know it is a county where probably a lot of people are just opposed to gaming. Has your organization taken any position against

the gaming which takes place in Michigan, which has really proliferated, probably proliferating more quickly as far as locations

than Indian gaming? You can hardly go into a place where one

could get a libation without finding electronic Keno where people

are just rolling the dollars back and forth.

Has your organization taken any position on repealing that 1972

amendment which permitted gaming in Michigan, or have you

taken any position of trying to limit this new gambling which takes

place in almost every tavern in Michigan? Have you taken any position on that?

Mr. SHEEN. Well, at this point in time if you are asking me how

do I feel about repealing the lottery.

Mr. KILDEE. Yes.

Mr. SHEEN. I would be happy to put that bill forward.

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Mr. KILDEE. OK.

Mr. SHEEN. As far as I am concerned, at this point I think the

main concern of 23 is Enough! is just that. It is 23 casinos is

enough. Do they support or are they against the lottery? That, you

know, they really haven’t discussed, they have focused on the issue

at hand.

Earlier you said our Constitution upholds rights, and I am a firm

believer in the Constitution, but this idea of casinos, Native American casinos is not written in our Constitution anywhere.

Mr. KILDEE. Sovereignty is though.

Mr. SHEEN. Sovereignty is written in there, but this whole concept of what we are doing here, I guess I am a firm supporter of

civil rights, but I have a difficulty with special rights, and you

know, here you have a group that for all practical purposes secedes

from the nation, secedes from the state, wants all the rights and

privilege of citizenship, but seemingly without the responsibilities

that go with it. Doesn’t that concern you?

Mr. KILDEE. Well, John Marshall in his famous decision talks

about the sovereignty as a retained sovereignty. It is not something

that we gave to them in the Constitution. It is not something that

Michigan gave to them or Congress gave to them even. John Marshall makes it very, very clear that this a retained sovereignty, and

that treaties entered into even before the Constitution still had to

be recognized. I think we have to really consider that this is a real

sovereignty. It is not just a pious saying or something to make

Indians feel good. It is a real sovereignty.

So we have an obligation. When we read this, we don’t grant

France its sovereignty. We recognize its sovereignty. We don’t

grant the Chickasaw Tribe, which Mr. Cole belongs to, we don’t

grant them their sovereignty. We recognize their sovereignty. So

we can’t just willy nilly pass legislation that doesn’t recognize the

fact that this is a genuine sovereignty, a real sovereignty, and not

just a pious thought.

So, I know you recognize it. I know you personally. I know that

you are a man of good will, but I think we just have a different

approach to this and different ideas on it. But I thank you for your

testimony.

Mr. SHEEN. Thank you.

The CHAIRMAN. Mr. Faleomavaega.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman, and I want to

thank the members of our panel for their testimony.

For the record, Mr. Chairman, I just want to associate myself

with the gentleman from Michigan and his comments concerning

the issue that we are discussing with the members of the panel.

I certainly have the utmost respect for Representative Sheen and

his opinions and sentiments expressed in our hearing this afternoon concerning this relationship that we have with the Indian

tribes. I don’t know of Representative Sheen is aware of the fact

that our country and our government negotiated and had 389 treaties with the Indian tribes, and guess what? We broke everyone of

those treaties.

I also would like to note for the record that when we have a

treaty relationship with other foreign countries, it has the same

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standing as that of the U.S. Constitution. The treaty and the constitution are equal in par in terms of our relationship.

I note also you mentioned, Representative Sheen, that I got the

impression that you feel that the State of Michigan has not benefited with these gaming operations in the State of Michigan. I am

curious who the Governor was that negotiated these compacts because as I understand it the Pequot Indians and their compact relationship with the State of Connecticut, hundreds of millions of

dollars have benefited the State of Connecticut, Connecticut has

benefited for their educational needs and so many other things that

have gone on, and very successful relationship.

I might also add that when the Pequot Indian Nation first went

out to seek assistance or funding, trying to get this enterprise

going, not one U.S. bank, whether it be from the county, the city,

or state, was willing, was willing to finance their offered enterprise.

They had to go to a foreign businessman to get some capitalization

to allow them, and now doing a very successful enterprise in the

State of Connecticut.

But I am surprised that the State of Michigan and your opinion,

Mr. Sheen, has not benefited from this. I would kind of like to

think that every compact that I am aware of, and any negotiations

that have taken place with our Indian tribes, that there has been

a mutual benefit gained for both the state as well as the tribes, and

I wanted to ask Mr. Sheen if I got the right based on your

testimony.

You are saying that the State of Michigan has not benefited from

these gaming enterprises?

Mr. SHEEN. What happens is initially there is a benefit when it

is getting built and when it started, but the fact of the matter is—

this is a record of Michigan Treasury—is that we no longer are receiving any dollars on the Native American casinos that are there.

They have ceased paying the agreed amount in the compact initially to the State of Michigan. We have 17, three are still paying.

Those three are now suing the state and soon we will most likely

have none.

Now, that is a fact whether we like that fact or we don’t like that

fact, and I agree with you, treaties are important, and treaties

should not have been broken. But again, in the treaty I saw nothing talking about casinos in that treaty, and you know, that is kind

of what I have read into the situation.

Mr. FALEOMAVAEGA. Well, I am sure that there were no anticipation of having casinos even built among the states even before our

country was founded. My understanding that we had lotteries at

the time of the Revolution. A lottery was initiated by the Colonies

to get funding to support the revolution against the British Empire,

and I don’t know if that is a form of gaming, but as I read it lottery

is a form of gaming that states throughout the country are benefiting. It is a multibillion dollar industry, and the uniqueness about

this IGRA that I want to share with my colleagues and the members of the panel is that Congress controls this, and again it is because of a government-to-government relationship that we have

with the Indian tribes.

For good or for bad, the point here is that we don’t regulate state

lotteries and the horse racing or any of the gaming that goes on

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among the states. My good friend from Nevada would be the first

one to object as a matter of state constitutional rights, I suppose,

that the Federal government is not to regulate gaming among the

states, but they sure will do it for the tribes as we are doing it now

through IGRA, and this notion that there is syndicate involvement

among the Indian gaming operation is nonsense.

How can it be when the Congress is the one that is putting controls and making sure that it is a clean operation, and that it is

done properly?

I kind of like to think that when these compact agreements are

made between the states and the tribes that the government or

whoever is representing the Governor, these negotiators will be

doing it on a fair and equitable basis so that both the states as well

as the tribes benefit.

I wanted to ask Representative Osmond when you mentioned

that certainly the State of Illinois is not benefiting with the gaming

operations that take place in Wisconsin. Am I correct, the lotteries,

it seems like all the money is going to Wisconsin and not to Illinois

because of the location of these?

Ms. OSMOND. It is six miles from my district, and the way that

it is projected is that all the revenue, 70 some percent is going to

come out of Illinois, and they are going to come through my district, and Illinois has a lottery.

Mr. FALEOMAVAEGA. Well, the State of California is also complaining because it is about a 10 to 15 billion dollar loss to the

State of California who all go to Las Vegas to gamble, and I don’t

know if California officials are complaining because it is what democracy, we are free to go wherever we want to go to participate

in the gaming process.

Ms. OSMOND. I think one of my main concerns is the sizes of this

particular casino. It is going to be the largest in the Midwest, and

if the regulations are set up that they need to look at a 10-mile radius, they have violated those regulations that you have so kindly

set forth. They are not looking at the impact that will come into

my district.

Mr. FALEOMAVAEGA. That is certainly something that we need to

look into. I want to note to Mr. King that your tribe has been waiting for 28 years. There is a tribe in North Carolina called the

Lumbees, one of the largest. They have been waiting over 100

years to be federally recognized, and I want to commend the Chairman that we are making every effort to pass legislation to provide

a much more equitable method of Federal recognition for our

Indian tribes.

I just wanted to note that, and I am afraid—I do not agree with

the proposed bill and to the fact that the counties have to be involved in this, my good friend representing the counties. I think if

we do it what is to prevent the city or how many other groupings

that we have to get approval from. It will make it almost impossible for these tribes to conduct their business.

I think just having the Governors of the various states to be the

chief negotiator ought to be sufficient.

With that, Mr. Chairman, I know my time is up, thank you.

Mr. WORTHLEY. Mr. Chairman, if I could just quickly respond to

that. From the county’s perspective, we are the ones that are

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impacted by the effects of the casinos when they are built. They affect the counties. They don’t affect the State of California as a

whole.

And as Mr. Costa noted, with changing administrations we get

different policies. Under the current administration, counties feel

rather secure about their positions in terms of knowing that our

needs will be met if there is going to be an approved compact with

a tribe. Under the previous administration we did not have that

protection, and yet we are stuck with the problems, the air quality

problems, the transportation problems, the social problems. They

affect the counties and the state is free to walk away from those

issues if they choose to.

So it is very important to the counties. We are just asking to say

you need to mitigate these things and as a condition to—again, increasing the size, going outside of their tribal boundaries into new

lands.

Mr. FALEOMAVAEGA. I also want to mention that administrations

also change here in Washington, and with a change of policies and

priorities. We go through the same problems that the counties and

the cities and the states go through. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Dent?

Mr. DENT. Thank you, Mr. Chairman, and thank you for your

courtesy in allowing me to participate in this hearing, and I do appreciate your leadership on this off-reservation gambling issue.

I come from the State of Pennsylvania, and I represent a district

where a land claim has been filed by the Delaware Tribes of Oklahoma based on a 1737 land conveyance, basically going back nearly

to the time of the Wakeen purchase, which occurred in my state,

and the fact is 25 homeowners, a crayon factory, Crayola, and other

commercial owners of property are under the situation where there

is a land claim for these few hundred acres for the purpose of establishing a casino in the Commonwealth of Pennsylvania, as I

said, in my district.

So I am deeply concerned about this issue of offsite gambling.

And again, the Delawares have not really been in my state for a

few centuries.

What I am trying to understand with this bill and this may be

a rhetorical question but feel free to answer if you think you can,

that if a tribe is recognized in another state, say Oklahoma, and

they are seeking a title to lands in my state for the purpose of placing a casino on that land, and you assume further that the tribe

were to prevail in a Federal court and be awarded title to the land

in question in my state, how would this bill impact the tribe’s ability to place a casino on that land, especially in light of this one section of the bill, I guess it is Section 1[f], subsection [f], that basically an Indian tribe shall not conduct gaming regulated by this act

on any lands outside of the state in which the Indian tribe has a

reservation on the date or the enactment of this subsection unless

such Indian lands are contiguous to such a reservation on that

Indian tribe in that state.

The bottom line is how would this legislation impact a state like

mine where there is litigation currently ongoing? I throw out that

question to any of the panelists. If you can’t answer that question,

I am not expecting you to. I was a state legislator and so that is

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how I became familiar with this issue. This is a complex and

arcane area of the law for many, and so that is question I have.

Maybe, Mr. Worthley, if you have any thoughts on this.

Mr. WORTHLEY. If the litigation is to regain fee title to the property, I think that is a separate issue from whether or not the land

would be in trust.

In other words, they can hold title to the property but that

doesn’t necessarily make it trust land. The issue is once it is in

trust then the sovereignty takes place, which would give them the

power and authority then to extend their gaming abilities or whatever else they want to do with that property.

So I think it is a very good question, but it needs further definition. Are they looking to put this land into trust or are they———

Mr. DENT. Yes.

Mr. WORTHLEY.—looking to just gain title to the property?

Mr. DENT. Trust.

Mr. WORTHLEY. In which case that is why we would support the

legislation because if it is going to be going into trust, then you are

looking at extending the sovereignty of this nation into potentially

a new area with impacts. And so how do we negotiate with those

impacts? That is why it is so important for us to be able to have

the ability to do that. Otherwise they could just step in there and

circumvent all the local rules as far as transportation, air quality,

all the types of mitigation that we would look to try to gain from

tribes as a result of the impacts that will come off the reservation

or offsite.

Mr. DENT. So you believe the language in the legislation that

would protect the community like mine from a tribe out of state,

trying to put land in trust for the purpose of establishing a casino

that may currently be involved in some kind of litigation?

Mr. WORTHLEY. As I understand the current language of the bill,

a condition to the land being put into trust would be they would

have to meet with the local government and enter into a binding

enforceable agreement to deal with offsite impacts.

Mr. DENT. The local government or the state government?

Mr. WORTHLEY. The bill says local government. I think they already have the power through the state government.

The CHAIRMAN. I can answer it. As the bill is written right now,

it would preclude them from coming into your state as you describe. In particular, in the provision that Mr. Worthley is discussing, when it comes to local impacts and mitigation, they would

have to negotiate with the local government to mitigate their impact just as any other development would.

Mr. DENT. OK. Thank you.

My second question is if the same tribe in my case, the Delawares, and again they are federally recognized, but they don’t have

a reservation in Oklahoma even though that is where they happen

to be residing, would that change the outcome in the same situation? The Delawares do not have reservations so to speak in Oklahoma. They are trying to establish this land claim or putting this

land in trust in Pennsylvania. How would that be impacted by this

legislation?

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The CHAIRMAN. If the gentleman would yield, it would not

change it. They would not have the ability to do that under the

way the legislation is currently drafted.

Mr. DENT. OK. And then the final question, there is an offshoot

of the Delawares that is not federally recognized. Would they be

able to make a similar land claim under this bill? They are not federally recognized but again with a presence in my state.

The CHAIRMAN. They would have to go through the recognition

process.

Mr. DENT. They would? OK, thank you very much for your courtesy, Mr. Chairman. Thank you.

The CHAIRMAN. Mr. Kildee.

Mr. KILDEE. Thank you again, Mr. Chairman.

Representative Sheen, we have had a good discussion here, and

your personal integrity and your ethical conduct are well known

back in Michigan, so that is not a question here. I know you feel

very sincerely on this, and sincere people can have differences.

But you did point out that casinos are not mentioned in this sovereignty clause in the Constitution, and that is true, but neither

are police, tribal police departments or fire departments or schools

or medical facilities. I mean, the Constitution gives a broad general

outline of government. So none of these things are mentioned. Yet

we know we have tribal police department, tribal fire departments

in many tribes. We have schools, not just BIA schools but schools

run by the sovereign tribe. We have medical facilities. These are

all prerogatives of sovereignty. They flow from sovereignty. They

are not mentioned.

The Constitution is a very short document. I never leave home

without it. I can carry it in my inside pocket here. So it is a very

short document. But these are all prerogatives of sovereignty, so

certainly casinos are not mentioned but neither are the other prerogatives of government mentioned there.

But I do appreciate you taking your time to come down here and

your efforts and hope to see you back in Michigan. Thank you very

much. Thank you, Mr. Chairman.

The CHAIRMAN. I want to thank the witnesses for their testimony

and for their questions. The members of the Committee may have

some additional questions for the witnesses, and we will ask that

you respond to those in writing so that they can be included as part

of the official hearing record.

Again, I want to thank both of our panels of witnesses. Obviously

this is an issue that is complex, it is difficult, and the Committee

will continue to work on this in an effort to get it right, so I do

appreciate your input into the legislation.

If there is no further business before the Committee, then the

Committee stands adjourned.

[Whereupon, at 1:27 p.m., the Committee was adjourned.]

[Additional information submitted for the record follows:]

[A letter submitted for the record by Connie Conway, CSAC

President, California State Association of Counties, follows:]

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[A statement submitted for the record by The Cowlitz Indian

Tribe of Washington follows:]

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Statement submitted for the record by The Cowlitz Indian Tribe

of Washington

Mr. Chairman, Vice Chairman, and members of the Committee, the Cowlitz

Indian Tribe of Washington (‘‘Cowlitz Tribe’’) respectfully submits the following

statement for the Committee’s consideration in conjunction with its recent and upcoming hearings concerning H.R. 4893, ‘‘a bill to amend IGRA Section 20 to restrict

off-reservation gaming.’’

Introduction

When Congress enacted the Indian Gaming Regulatory Act (IGRA) in 1988, it recognized the important role gaming played in Indian communities. Likening gaming

on reservations to state-supported lotteries, the Senate Select Committee on Indian

Affairs acknowledged that ‘‘the income [from gaming operations] often means the

difference between an adequate [tribal] governmental program and a skeletal program that is totally dependent on Federal funding’’ (P.L. 100-497, 1988

U.S.C.C.A.N. at 3072). The truth of this simple assertion has not changed in the

nearly two decades since IGRA was enacted. Many tribes have been able to use

gaming proceeds to fund better schools, improved healthcare, various social programs, and employment for tribal members. As a result, gaming proceeds have provided tribes with a means to achieve financial independence and exercise true selfgovernment.

Tribes like ours, stripped of federal recognition and a land base for many years

(in our case 150 years before we were restored to recognition in 2002), have been

unable to participate in federal programs tied to a reservation land base and have

been unable to engage in any meaningful economic development. As a result, our

tribes have the most limited economic resources and are in the greatest need of nonfederal economic development. Our tribes are the very tribes Congress was trying

to assist in 1988 when it included the initial reservation and restored lands exceptions in Section 20.

We are concerned that H.R. 4893 as currently drafted effectively will prevent

landless tribes from being able to participate in the one economic development activity that has improved the lives and livelihoods of so many other tribes and their

members. For this reason, as described in more detail below, the Cowlitz Tribe

strongly urges the Committee not to adopt H.R. 4893 as currently written.

Summary of Existing IGRA Provisions/Underlying Intent

In 1988, Congress enacted IGRA to protect and regulate Indian gaming as an appropriate exercise of tribal sovereignty. However, with certain exceptions, Congress

intended to limit Indian gaming to Indian lands that existed on the date of enactment (October 17, 1988). Hence, Section 20 of IGRA contains a general prohibition

against gaming on lands acquired in trust after October 17, 1988.

The problem was and still is that not all tribes held tribal lands in 1988, nor in

fact did they all even benefit from federal recognition in 1988. We believe that Congress very specifically intended to assist such disadvantaged tribes by providing that

when they finally obtained recognition and land, their land would be treated as if

it effectively had been in trust since before October 17, 1988. In other words, Congress included the initial reservation and restored lands exceptions in Section 20 so

that eligible tribes could be placed on a more level playing field with the tribes that

were lucky enough to have been recognized and to have had a land base on the date

of IGRA’s enactment. We believe that Congress knew that blocking newly recognized

and restored tribes from access to the economic development opportunities made

available by IGRA would be wildly unjust.

Our understanding of the purpose and intent of IGRA’s restored lands and initial

reservation provisions is informed by the opinions of the federal courts that have

considered this issue. In 2003, in a case involving a California tribe, the D.C. Circuit

(in an opinion joined in by now Chief Justice Roberts) explained that the restored

lands and initial reservation exceptions ‘‘serve purposes of their own, ensuring that

tribes lacking reservations when IGRA was enacted are not disadvantaged relative

to more established ones.’’ City of Roseville v. Norton, 348 F.3d 1020, 1030 (D.C.

Cir. 2003). In 2002, in an opinion involving a Michigan tribe that was later affirmed

by the Sixth Circuit, the District Court said nearly the same thing, saying that the

term ‘‘restoration may be read in numerous ways to place belatedly restored tribes

in a comparable position to earlier recognized tribes while simultaneously limiting

after-acquired property in some fashion.’’ Grand Traverse Band of Ottawa and

Chippewa Indians v. U.S. Attorney for the Western District of Michigan, 198 F.

Supp. 2d, 920, 935 (W.D. Mich. 2002), aff’d 369 F.3d 960 (6th Cir. 2004) (referring

to the factual circumstances, location, and temporal connection requirements that

courts have imposed for restored lands determinations). The restored lands

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provision ‘‘compensates the Tribe not only for what it lost by the act of termination,

but also for opportunities lost in the interim.’’ City of Roseville, at 1029.

From a public policy standpoint, the need for special assistance for newly acknowledged and restored tribes is clear. Newly recognized and restored tribes have

had to function without a land base and/or without federal recognition for very long

periods of time. Almost by definition, these tribes—tribes like the Cowlitz—have

been more disadvantaged and have suffered greater hardships than those that have

had trust lands and access to federal assistance for many years. Denying the Cowlitz and other newly recognized and restored landless tribes access to the one economic development opportunity that has allowed so many other tribes to find financial independence and self-determination would work yet another grave injustice on

these tribes at the hands of the federal government.

Legal and Policy Concerns with H.R. 4893

While H.R. 4893 on its face appears simply to provide a new group of standards

which must be met before newly recognized and restored landless tribes could acquire land in trust on which to game, we are concerned that as a practical matter

the new standards are so onerous and impractical that no landless tribe will ever

be able to meet them. We believe that, if left unmodified, enactment of H.R. 4893

will ensure that these tribes, which already are the poorest and most deprived of

any in the United States, will never be allowed access to the same economic development opportunity afforded to tribes lucky enough to have a land base when IGRA

was first enacted in 1988. With all due respect, rather than acknowledging the federal government’s fiduciary responsibility to assist the most vulnerable Indian tribes

in obtaining some modest land base from which these tribes can exercise their right

to self-determination and self-government, H.R. 4893’s main effect will be to ensure

that state and local governments have the greatest possible leverage to exact percentages of revenue shares and to create monopolies for established Indian gaming

facilities.

Specifically, H.R. 4893 would impose the following new requirements on newly

recognized and restored landless tribes, in addition to geographic, social, historical

and temporal nexus requirements:

• the Secretary of the Interior must determine that the proposed gaming is not

detrimental to the surrounding community and nearby Indian tribes, and

• the Governor and State legislature of the state where the gaming will be conducted must concur, and

• other Indian tribes within a 75 mile radius must concur, and

• the applicant tribe must:

Æ pay for a local ‘‘advisory’’ referendum, and

Æ enter into a memorandum of understanding with the county or parish where

the land is located by which it agrees to make ‘‘impact’’ payments to the

county or parish.

Such onerous requirements never have been and never will be imposed on tribes

with reservations in existence in 1988. This disparity of treatment between newly

recognized and existing tribes raises a number of significant legal and policy

concerns.

The requirement that the Secretary make a determination that the proposed gaming would not be detrimental to the surrounding community and nearby Indian

tribes is fundamentally unfair to newly recognized and restored landless tribes like

Cowlitz. These tribes have been without land and the benefits of federal recognition

for significant periods of time, often as a result of government wrongdoing, so they

are forced to carve out lands for themselves from existing jurisdictions. The non-Indian governments of those existing jurisdictions rarely support the loss of land from

their tax rolls and or the loss of any regulatory authority. To prohibit the Secretary

from acquiring trust land for a landless tribe absent a finding of ‘‘no detriment’’ to

the surrounding community effectively gives local governments an absolute veto and

so is almost tantamount to an outright ban on acquiring land for landless tribes.

Therefore, rather than serving to level the playing field for tribes like Cowlitz, this

provision would actually result in greater inequities for newly recognized and restored landless tribes attempting to acquire land for gaming.

The requirement of gubernatorial and state legislature approval is particularly

disturbing. Governors frequently run for office on anti-gambling political platforms,

and as a consequence, historically much more often than not have refused to concur

in two-part determinations made by the Secretary under the existing Section 20

provision (even in states where both Indian and non-Indian gaming establishments

already exist). Requiring landless restored and newly acknowledged tribes obtain

gubernatorial and legislative concurrence gives governors and state legislatures

unlimited veto power over landless tribes’ efforts to acquire a parcel of federally

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protected trust land. Moreover, joint approval by the State legislative body and the

governor will leave Indian tribes little choice but to engage in tribal lobbying of the

state legislature, further driving up the cost of land acquisition for tribes that have

no means of generating revenue and that already are struggling with the costs associated with buying land and funding the BIA’s NEPA compliance. Perversely, this

makes it even more likely that tribes will have to rely on developer funding. The requirement that tribes within 75 miles of the proposed gaming concur is equally unfair. Many tribes already engaged in gaming would not support a new

gaming tribe within 75 miles—and for competitive reasons one cannot expect them

to do so. This requirement provides competing tribes with veto authority, without

regard to whether they have any ties to the area and regardless of the applicant

tribe’s ties to the area. For this reason, the bill does not fairly balance the needs

and rights of landless tribes against those of established tribes with existing gaming

operations. Instead, it serves as market protection for established tribes and is likely to create monopolies—a result entirely unjustified by the already existing huge

disparities between rich and poor tribes.

Requiring the county or parish with authority over contiguous lands to hold an advisory referendum funded by the applicant tribe also is not fair to either the local

governments or applicant tribes. Whether a local referendum should be required before local elected officials act should be a matter left to local voters, not the federal

government. This provision suggests that Congress does not trust local elected officials to make the decisions that they are elected to make. Even more disconcerting

from the Cowlitz Tribe’s standpoint, this provision suggests a lack of appreciation

for the fact that non-gaming landless tribes attempting to acquire their first parcel

of land in trust do not have the funds to pay for such a referendum. In fact, such

a requirement just heightens the concern that ‘‘reservation shopping’’ may attract

unscrupulous developers to unduly influence the process—newly recognized and restored landless tribes forced to pay for such a referendum will again be forced to

turn to investors for financial support.

The requirement that the tribe and the county or parish must sign a memo- randum of understanding within a year of the referendum is equally problematic.

This mandates a relationship between the tribal applicant and a government entity

that may not be responsible for providing any services to a facility. The county or

parish with jurisdiction over the contiguous property may not even have jurisdiction

over the parcel that is to be taken in trust, or over the services needed by the tribe.

We do support, however, the Committee’s efforts to provide some mechanism to

break a stalemate should the tribe and the city reach an impasse in those negotiations. The Cowlitz Tribe, despite repeated good faith efforts to engage in meaningful

negotiations with a local municipality, has been unable to secure an agreement from

that municipality. Clearly, that municipality views its intransigence as a mechanism that can be used to protect local non-Indian card room operations.

In sum, while each of these requirements raises concerns when examined separately, the Cowlitz Tribe’s greatest concern is the cumulative effect and the burden

the proposed requirements create for newly recognized and restored landless tribes.

These requirements are so onerous that they will effectively prevent most or all

such tribes from acquiring land in trust for gaming, even though these tribes are

not engaging in ‘‘off-reservation gaming’’ or ‘‘reservation shopping’’ as those terms

are commonly used. As described above, we are hard pressed to find a justification

for imposing this kind of sanction on those tribes that are already the poorest and

most disadvantaged in the country.

For the above reasons, the Tribe does not support the proposed amendments to

Section 20 of IGRA. If the Committee decides to amend Section 20 of IGRA, however, we respectfully request that the legislation include a provision that allows

tribes already in the process to proceed under the current rules. Like the tribes that

testified before the Committee, our Tribe has invested many years and significant

resources to fully comply with the present law.

After we were restored to federal recognition, we requested that Interior place our

proposed site into trust and requested that the site be proclaimed our initial reservation. Our trust application was submitted to Interior over four years ago and

our request for an initial reservation proclamation was submitted over two years

ago. In November 2004, the Bureau of Indian Affairs (BIA) notified the public that

it would prepare an Environmental Impact Statement (EIS). The BIA selected a

contractor to prepare the EIS and a draft EIS was recently provided to the public

for review and comment. The Tribe is required to pay all expenses of the BIA’s

contractor—expenses that have been significant to date, and that will exceed

$1,000,000 before we have completed the process. In addition, last year the National

Indian Gaming Commission (NIGC) determined that our proposed site qualifies as

restored lands under IGRA if the Department of the Interior takes the site into

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trust. Because we are so far along in the existing process, changing the rules at this

late date would impose a significant hardship on our Tribe. We respectfully request

that this Committee, at a minimum, include a provision to allow the NIGC’s eligibility determination and our pending requests to Interior to be judged under the existing rules.

Conclusion

Chairman Pombo, the Cowlitz Tribe fervently requests that you remember that

newly recognized and restored landless tribes like Cowlitz are poor tribes in desperate need of the United States’ active assistance. We face daunting obstacles to

self-governance and self-sufficiency precisely because we have no trust land. Congress must continue to insist that there be a fair and equitable mechanism to put

newly recognized and newly restored tribes on a level playing field with tribes that

were lucky enough to have had a reservation on October 17, 1988. This bill does

not accomplish that objective, and will, in fact, have severe consequences for the

very tribes who most need your help. And while we appreciate that there have been

some abuses of the existing processes in connection with off-reservation gaming, we

would ask that you tailor any legislative response to those concerns to take into account the real hardships suffered by newly recognized and restored landless tribes,

and give those deserving tribes the same opportunity to realize self-determination

and economic independence that established tribes had when IGRA was originally

enacted.

[A statement submitted for the record by the Legislature of the

Ho-Chunk Nation, follows:

Statement submitted for the record by the

Legislature of the Ho-Chunk Nation

Thank you for the opportunity to submit written testimony for the record on behalf of the Ho-Chunk Nation on the subject of off-reservation gaming, and House

Resolution 4893, which seeks to restrict off-reservation gaming.

Fundamentally, the Ho-Chunk Nation supports the concept of ‘‘off-reservation’’

gaming, including gaming in more than one state. The Nation recognizes the importance of regulating off-reservation gaming and is therefore sympathetic to many of

the purposes of this legislation. The Ho-Chunk Nation believes that restrictions on

off-reservation gaming should be based on the concept that tribal gaming should

only be conducted in areas to which an Indian tribe has a specific historic connection, with a stipulation that tribes should not be permitted to interfere with the established gaming markets of other tribes without their express consent.

The Ho-Chunk Nation is concerned that, as introduced, H.R. 4893 may undermine already existing government-to-government agreements regarding gaming authorities. The Ho-Chunk Nation and the State of Wisconsin negotiated in good faith

a compact in 1991 that establishes parameters for Ho-Chunk gaming operations in

Wisconsin. H.R. 4893 would affect our ability to fulfill the plans and intent of that

compact—imposing significant financial hardship on the Nation for costs already assumed under the compact and disrupting carefully balanced Nation and state interests. This compact complies with current Indian Gaming Regulatory (IGRA) rules

and regulations. The Ho-Chunk Nation believes that existing compacts between

tribes and states that are consistent with IGRA should remain as they are. New

legislation should respect any existing compacts between tribes and states, allowing

them to remain in place, unaffected by new restrictions.

The Ho-Chunk Nation is further concerned that H.R. 4893 seeks to limit Indian

gaming facilities to one state per tribe. This concept is problematic, as aboriginal

territories do not fall along state lines. For the Ho-Chunk, our historic territory

includes lands across the Midwest including large areas of Wisconsin, Illinois, Iowa,

and Minnesota. In addition to cultural and historic ties, we have maintained tribal

representation in each of those states, including formal government and social

offices, as well as significant populations. H.R. 4893 limits our ability to seek lands

in welcoming communities in states other than Wisconsin for economic development.

On behalf of the Ho-Chunk Nation, thank you for the opportunity to express our

views and concerns regarding H.R. 4893. We hope that this will serve as a springboard for increasing communication on these important issues. The Ho-Chunk

recognize the importance of this legislation for restricting off-reservation gaming,

however we hope to work with the Committee to ensure that these restrictions are

fair and respectful of tribal sovereignty.

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[The response to questions submitted for the record by the Scotts Valley Band of Pomo Indians follows:]

Response to questions submitted for the record by the Scotts Valley Band of Pomo Indians

Thank you very much for allowing the Scotts Valley Band of Pomo Indians (the ‘‘Tribe’’) to testify before the House Natural Resources Committee on H.R. 4893 on

April 5, 2006.

During the Committee’s questions to our panel, there were a number of questions raised that Scotts Valley wishes to provide the Committee with additional information.

1. Congressman Kildee asked the Gun Lake Band to explain to the Committee the Tribe’s present economic situation?

As you know, the IGRA was enacted primarily to enable tribes to conduct gaming

on Indian Lands of the tribe to ‘‘promote tribal economic development, tribal selfsufficiency, and strong tribal government.’’

The Scotts Valley Band of Pomo Indian Tribe is truly landless. The Tribe lacks

the trust land base needed to support its infrastructure and the economic development programs necessary for the promotion of tribal economic self-sufficiency and

a strong Tribal Government capable of providing badly needed governmental services to tribal members. Currently, sixty-three percent (63%) of all adult tribal members are classified as unemployed, and only thirty-seven (37%) of all adult tribal

members are employed full-time. Overall, 95.5% of adult tribal members are classified as low income, and almost fifty percent (50%) of tribal members receive some

form of public assistance.

2. Congressman Gibbons (NV) asked whether Scotts Valley supports a ‘‘50

mile radius’’ provision.

During the Hearing, Congressman Gibbons (NV) asked whether the Tribe would

support a ‘‘50 mile radius provision.’’ All of the panelists replied that their Tribes

would support such a provision in any amendment to H.R. 4893 which provided the

present NIGC/BIA regulatory process continue to apply to tribes already pursuing

trust acquisitions under the IGRA. Our Tribe has spent considerable tribal resources, both in terms of time and money, pursuing the restoration of a trust land

base under the NIGC/BIA regulatory process which has been in place since the

IGRA was enacted almost 18 years ago (which is 4 years earlier than our Tribe was

even restored to Federal Recognition pursuant to an Order of a Federal District

Court). Our Tribe has always played by the established rules, and it seems unfair

and inequitable for Congress to change the rules on us now.

While our Tribe certainly believes that a ‘‘50 mile radius provision’’ is fair, Congressman Gibbons did not elaborate on the details of such a provision. Would the

limitation be within 50 miles of:

• a Tribe’s documented historic territory;

• a Tribe’s service population area;

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• where a significant percentage of the Tribe’s population resides; or

• a Tribe’s illegally terminated former Rancheria (a limitation applicable only in

California)?

The Tribe supports a geographic limitation of within 50 miles of a tribe’s: (i) documented historic territory, (ii) service population area, and/or (iii) the location of a

significant percentage of the tribal population. As explained below, given the Federal policies of Termination and Relocation during the 1950s and 1960s, Scotts Valley strongly opposes any geographic limitation based solely upon the location of a

Tribe’s former Rancheria which the United States illegally terminated. How can the

Committee even consider enacting legislation which is based upon illegal conduct of

the United States?

In addition to a Tribe’s (i) documented historic territory, (ii) service population

area, and (iii) the location of a significant percentage of the tribal population, Scotts

Valley would support geographic limitations based on additional standards, provided

that such standards acknowledge and reflect the results of Federal Indian policy

over last several decades. During the 1950s and 1960s, the dual Federal policies of

Termination and Relocation resulted in a complete dismantling of many tribal communities. This is especially true in California, and the Scotts Valley Band of Pomo

Indians is a perfect example of how the Federal policies of Termination and Relocation nearly drove many California tribes to extinction.

The California Rancheria Termination Act of 1958 provided for the ‘‘voluntary’’

termination of 41 California Rancherias, including Scotts Valley. As a condition to

termination, the United States was required to bring water and waste management

systems of those Rancherias to habitable standards. In most case, and certainly in

the case of Scotts Valley, this was not done.

When the Tribe was finally terminated in 1965 in violation of the California

Rancheria Termination Act, approximately fifty (50) tribal members continued to reside on the Rancheria. The BIA’s failure to upgrade the Rancheria’s water and sewage systems rendered the Rancheria uninhabitable, thereby creating an incentive

for tribal members to leave the Rancheria. Additionally, the educational and employment programs the BIA instituted pursuant to Section 9 of the Rancheria Act

focused on placement of tribal members in programs and jobs in the San Francisco

Bay Area, further expediting the whole scale abandonment of the Rancheria and relocation of the Tribe to the Bay Area. The uninhabitable conditions on the

Rancheria, coupled with the BIA’s relocation policies, resulted in the vast majority

of tribal members abandoning the Rancheria in favor of the urban centers of the

San Francisco Bay. By 1972, just five (5) years after termination, only three (3) tribal members of the 56 tribal members listed on the Distribution List the BIA prepared under the Termination Act, continued residing on the Rancheria.

Today, twenty-nine (29) tribal members, or slightly over fifteen percent (15%) of

the tribal population reside within Contra Costa, and ninety-four (94) tribal members, or almost fifty percent (50%) of the Tribe, reside within a fifty (50) mile radius

of the Tribe’s proposed restored trust land base. In 2002, the BIA designated Contra

Costa County and neighboring Sonoma County as the Tribe’s service population

area, recognizing the very significant tribal population residing in the Bay Area

counties.

The Bay Area is also historic Pomo Territory. Ancestors of current tribal members

have used and periodically resided in territory that includes the northern and eastern shores of the San Francisco Bay, including the coastal lands of Contra Costa

County where the proposed restored trust land base is located. Historically, several

Pomo villages existed on the southern Marin Peninsula close to the coastal lands

of the Marin Peninsula, directly across the Bay from the proposed restored trust

land base. Pomo from these villages, including ancestors of present tribal members,

along with members of other tribal groups, fished the waters of Bay and gathered

material essential for subsistence on the coastal lands of the Bay.

The official records of the BIA and the Indian Claims Commission recognized the

shores of the Bay as historic Pomo territory. Pomo tribes which included ancestors

of present tribal members signed a treaty with the United State, ceding what became known as Royce Area 296, extending from the area immediately north of Clear

Lake to the northeastern shore of the San Francisco Bay, to the United States. The

southern boundary of the lands ceded to the United States (Royce Area 296) is located just five (5) miles from the Tribe’s proposed trust land base. The ICC ‘‘adopted

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6The claims assert by the signatory tribes to the eighteen (18) treaties submitted for Senate

confirmation in 1852 were combined into a single case before the ICC. Clyde F. Thompson et.

al (Indians of California) v. United States, Ind. Cl. Comm. Docket Nos. 31 and 37. In this case,

the ICC relied upon the Royce Areas depicted in Royce California Map 1 for determining the

acreage set aside for all of the reservations provided for in the eighteen (18) un-ratified treaties.

McClurken, Ethnohistorical Report at 35. The Royce Areas included Royce Areas 295, 296 and

297.

Royce as the official legal source for recognized title,’’ clearly establishing the shores

of the Bay as traditional Pomo territory. 6

The case of Scotts Valley is representative of the historic and modern day reality

for many tribes. Indians are proud people, and any geographic limitation incorporated into H.R. 4893 must recognize the long history of our Nation’s Indian

tribes. Many tribes, such as Scotts Valley, somehow avoided extinction under the

Federal Policies of Termination and Relocation, and any geographic limitations incorporated into H.R. 4893 must also recognize the modern day situation of many

tribes resulting from those Federal Policies.

Again, I thank the Committee for allowing the Scotts Valley Band of Pomo

Indians to testify before the Committee on April 5th, and to submit this Supplemental testimony addressing some of the issues raised during the hearing.

Æ