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S. HRG. 109–298, Pt. 2

OFF-RESERVATION GAMING

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

OVERSIGHT HEARING ON OFF-RESERVATION GAMING: LAND INTO

TRUST AND THE TWO-PART DETERMINATION

FEBRUARY 28, 2006

WASHINGTON, DC

PART 2

(
COMMITTEE ON INDIAN AFFAIRS

JOHN McCAIN, Arizona, Chairman

BYRON L. DORGAN, North Dakota, Vice Chairman

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

MICHAEL D. CRAPO, Idaho

RICHARD BURR, North Carolina

TOM COBURN, M.D., Oklahoma

DANIEL K. INOUYE, Hawaii

KENT CONRAD, North Dakota

DANIEL K. AKAKA, Hawaii

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

JEANNE BUMPUS, Majority Staff Director

SARA G. GARLAND, Minority Staff Director

(II)
(III)

C O N T E N T S

Page

Statements:

Kennedy, Cheryle, chairwoman, Confederated Tribes of the Grand Ronde

Community of Oregon ................................................................................... 12

Kulongoski, Hon. Ted, Governor, Oregon ....................................................... 23

Lang, Michael, Conservation Director, Friends of the Columbia Gorge ...... 17

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

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

Schmit, Cheryl, director, Stand Up For California ........................................ 19

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

Development for Indian Affairs, Department of the Interior .................... 2

Suppah, Ron, chairman, Confederated Tribes of the Warm Springs Reservation of Oregon ........................................................................................ 10

York, Carol, commissioner, Hood River County, OR ..................................... 14

APPENDIX

Prepared statements:

Adler, Robert M., counsel to the St. Croix Chippewa Indians of Wisconsin

(with attachment) ......................................................................................... 31

Clark, Guy C., chairman, National Coalition Against Gambling Expansion ................................................................................................................. 59

Kennedy, Cheryle (with attachment) .............................................................. 62

Lang, Michael (with attachment) .................................................................... 73

Schmit, Cheryl .................................................................................................. 29

Skibine, George (with attachment) ................................................................. 99

Suppah, Ron ...................................................................................................... 105

Walker, M.D., R. Dale, director, One Sky Center, National Resource

Center for American Indian/Alaska Native Substance Abuse and Mental Health Services; president, First Nations Behavioral Health Association (with attachment) ............................................................................. 117

York, Carol (with attachment) ........................................................................ 123

(1)

OFF-RESERVATION GAMING

TUESDAY, FEBRUARY 28, 2006

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

The committee met, pursuant to notice, at 9:30 a.m. in room 485

Senate Russell Office Building, Hon. John McCain (chairman of the

committee) presiding.

Present: Senators McCain, Dorgan, Smith, and Thomas.

Also Present: Hon. David Wu, U.S. Representative from Oregon;

and Ted Kulongoski, Governor, State of Oregon

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

ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. Good morning.

When Indian Gaming Regulatory Act [IGRA] was enacted 17

years ago, following the decision of the Supreme Court in the

Cabazon case, Congress established a regulatory structure for

tribes that conduct gaming on their lands. The IGRA made clear

that, as a general rule, gaming was not to be conducted on lands

acquired after 1988, the date on which IGRA was enacted. At the

same time, however, we carved out several exceptions to this general rule.

In light of the astronomical growth in Indian gaming, both in the

amount of revenues generated and in the number of gaming operations established, it is clearly time to revisit these exceptions. Today’s hearing focuses on an exception known as the ‘‘two-part determination,’’ which allows for gaming on lands off the reservation

and potentially unrelated historically to the tribe.

This exception allows for gaming if, one, the Secretary determines after consulting with the tribe and State and local officials,

including other nearby Indian tribes, that the gaming establishment would be in the best interest of the tribe and would not be

detrimental to the surrounding community; and two, the Governor

of the State in which the property is located concurs with the Secretary’s determination.

While I believe that an assessment of the impacts of new Indian

casinos on local communities is appropriate, when siting casinos on

after-acquired land, the IGRA reform bill, S. 2078, proposes to

eliminate the two-part determination. I did this because we believe

that the proliferation of proposals by tribes with existing reservations and their developer-backers to site casinos off-reservation on
2

lands to which the tribes often bear no historic relationship is fostering opposition to all Indian gaming.

We also did this because residents and communities, including

nearby Indian tribes that thought in 1988 that by looking at a map

of established reservations they could predict where casinos would

be built, now find themselves surprised, confused and divided by

proposals to site massive gaming operations in their backyards.

I look forward to hearing from the witnesses today who will

speak to both the pros and cons of the two-part determination.

Senator Thomas, welcome.

Senator THOMAS. Thank you, Mr. Chairman.

[Remarks made off microphone.]

The CHAIRMAN. Thank you very much. I take back everything I

said about [remarks made off microphone.]. [Laughter.]

[Remarks made off microphone.]

We will have to just speak up, Mr. Skibine and I. I welcome you

back. George Skibine is the Acting Deputy Assistant Secretary, Policy and Economic Development for Indian Affairs. Among other

issues, of course, Indian gaming is one of the areas that he has

been heavily involved in and appeared several times before this

Committee.

I notice the presence of one of our colleagues from the House

side, Congressman Wu. Would you like to make any opening comments? You are welcome and I know we would be glad to hear from

you, if you would like.

Mr. WU. [Remarks made off microphone.] hear from the witness.

At some point, Mr. Chairman, if I may ask some questions, I would

appreciate it.

The CHAIRMAN. Thank you. We appreciate very much your involvement in this issue and your presence here today.

Mr. WU. Thank you very much.

The CHAIRMAN. Mr. Skibine, does your microphone work?

Mr. SKIBINE. It does.

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

FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. SKIBINE. Thank you very much, Mr. Chairman, Senator

Thomas, and Mr. Wu.

I am pleased to be here to present our views on the two-part determination.

[Remarks made off microphone.]

The last hearing focused on the exceptions for initial reservation

and for restored land for restored tribes, and today’s hearing is

going to focus on the two-part determination. My testimony is

made part of the record. I am not going to go through it again.

The CHAIRMAN. Without objection.

Mr. SKIBINE. I am just going to focus on the salient points regarding the two-part determination.

When a tribe wants to engage in off-reservation gaming, and

usually when none of the other exceptions in section 20 apply, it

can still game if, as Mr. Chairman you stated, the gaming establishment, the land is acquired in trust after October 17, 1988, and

the Secretary makes a determination after consultation with appro-
3

priate State and local officials and nearby tribes, that the gaming

establishment will be in the best interest of the tribe and its members and will not be detrimental to the surrounding community,

but only if the Governor of the State concurred in such a determination.

When the tribe submits an application, the land may already be

in trust, because section 20 is not a land acquisition authority. We

have approved applications for two-part determinations, for instance, for the Kalispel Tribe in the State of Washington, when the

land was acquired in trust after October 17, 1988, for purposes

other than gaming, and the tribe, in that particular case, decided

that it wanted to conduct gaming operations on the land, so it submitted an application for a two-part determination.

Most of the time, the application will include a land-into-trust

application and also a two-part determination application. The

processes are intertwined, and a lot of the requirements under the

25 CFR part 151 regulation are parallel in the section 20 determination. We have published a checklist since 1994, I believe, in

terms of guidance for the regional office on how to process those

applications.

Essentially, the application is submitted for the two-part determination, to the regional office and the regional office then will

have to conduct consultation with the appropriate State and local

officials, and nearby tribes. In the current checklist, we require

consultation with State and local officials that are located within

10 miles of the proposed site, and with the Governor, and we require consultation with nearby tribes located within 50 miles of the

proposed site.

The consultation is conducted by letter. The letter to the appropriate officials asks pertinent questions regarding the best interests, that is the letter to the tribe, and the not detrimental letter

to the affected officials. Usually, we give the local officials at least

30 days to submit their comments, which can be extended.

In addition, the regional office can, if it so decides, conduct additional consultation by having public hearings and public meetings,

which then have to be documented with a court reporter so that

there is a transcript, and all that becomes part of the record.

When all that is done, and at the same time, there is also a process for compliance with the National Environmental Policy Act that

goes on, usually requiring an environmental assessment or an environmental impact statement, and that goes parallel to the consultation for the two-part determination.

When all of the application is ready by the regional office, they

will submit to my office a recommendation on the two-part determination and perhaps under the 25 CFR part 151 application process, if applicable. Usually, we make our determination for the twopart determination in the central office before we make a determination to take the land into trust, if that is applicable. And that

is because usually if the Governor does not concur in the two-part

determination that is issued, then usually the tribe will not be interested in taking the land into trust. So that determination is

made first. If we receive a positive concurrence from the Governor,

then we will proceed to the 151 process, if applicable.
4

So far, since 1988, as you know, we have had only three instances where a Governor has concurred in a positive two-part determination by the Secretary. These establishments are located in

Wisconsin, in the State of Washington, and in the State of Michigan. Currently, there are, and I brought a list here that I want to

submit as part of the record, 13 pending applications under the

two-part determination. It is not included as part of my testimony,

but I would like to submit it as an update.

The CHAIRMAN. Without objection.

Mr. SKIBINE. These applications are in various stages, some of

them are pretty close to ready; some of them are not.

In addition, we are in the process of publishing regulations, as

I mentioned at the last hearing. I was hoping to have a draft done

by yesterday so that there would be a ′′dear tribal leader’’ letter

that would go out to all the leaders announcing the regulations, including a draft, and setting forth a consultation process. My boss,

the Associate Deputy Secretary, is going over the draft with a microscope.

The CHAIRMAN. That is the regulations concerning IGRA or just

the two-part determination?

Mr. SKIBINE. No; the regulation is concerning IGRA, all of section

20. That will include the two-part determination and the initial

reservation and the restored land. At this point, we hope to have

this letter out by the end of this week, and we hope to have the

consultation with tribes done by the next 2 months, March and

April, so that sets a schedule that would have proposed regulations

published in late May or June, and a final regulation sometime

over the summer. You have sent us a letter. We expect to respond

by March 3, setting forth the schedule for the development of that

regulation.

This concludes my comments. I am available for questions, if you

have any. Thank you.

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

The CHAIRMAN. Thank you.

Senator Thomas, I know you have to go to another hearing. I

wonder if you would like to go ahead and ask questions?

Senator THOMAS. Just one that I am curious about. If a tribe

wants to do gambling that is not allowed in the State, is this same

process used, even though it is on the reservation?

Mr. SKIBINE. If the gaming is not permitted in the State at all,

including class II and class III?

Senator THOMAS. The type of gambling, not all States allow for

it at all. In Wyoming, for example, they allow some gambling, but

if the tribes want to go beyond that, then it is my understanding

they can go to the Secretary and go to the Governor and so on. Is

that the same process pretty much as described here?

Mr. SKIBINE. I think the scope of gaming is decided when the

tribe enters into a compact with the State for class III gaming. If

the tribe wants to do gaming and if there is some gaming permitted, and the tribe can do class II gaming, which is bingo and

bingo-related games, then we can proceed to do a two-part determination based on the fact that the gaming is authorized.

If it is a State like, let’s say, let me take a State like Hawaii,

for instance, where there is no gaming permitted, then essentially
5

we would not take the land into trust because we know that the

purpose for which the tribe wants to use the land is not a permissible purpose. In our 25 CFR part 151 regulations, we ask for the

purpose for which the land will be used. If the tribe says gaming,

then we have to make a decision that either class II or class III

gaming is permitted. If it is not permitted, then we are not going

to be able to take the land in trust.

Senator THOMAS. Well, I am not talking about taking the land

into trust.

Mr. SKIBINE. Oh.

Senator THOMAS. There is no trust to it. It is just expanding on

the reservation more than the State allows in the State. It takes

the Governor’s approval and the Secretary.

Mr. SKIBINE. I am not quite understanding exactly.

The CHAIRMAN. I think what Senator Thomas is saying is that

additional lands within the State, taken into trust, then would

that——

Senator THOMAS. No; that is not the issue that we are going at

in Wyoming. It has nothing to do with lands. It was going beyond

what the State allows for anybody in Wyoming. The tribes want to

do something that goes beyond that. I am just asking you, is this

the same process that is used for that?

Mr. SKIBINE. No; I don’t think it is the same process. I think the

process you are talking about would be the compact approval process.

Senator THOMAS. All right. Thank you.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Senator Thomas.

There seems to be a lot of controversy surrounding this issue.

Right?

Mr. SKIBINE. Yes; there is.

The CHAIRMAN. Is it myth or fact that there are tribes that are

doing two things: one, purchasing land, sometimes not contiguous,

for the purpose of gaming operations; and two, that there are occasions where a tribe says, we are taking this land into trust and we

are not going to use it for gaming, and then some years later

change their policy that now they want to engage in gaming, which

tribal governments, like our Government, has the right to do, reverse previous policy. Are those real concerns, or are they just exaggerated, in your view?

Mr. SKIBINE. Historically it is true that tribes take land in trust

off-reservation for, let’s say, housing, and then some years later

may decide to change the use to gaming. That has happened.

The CHAIRMAN. Could I stop you there? You see, that is what

concerns us. If we think that additional land is taken into trust for

housing purposes, then there is really very little controversy associated with that. But if later on they change their mind and want

to set up a gaming operation, then that has an entirely different

effect on the surrounding community and the State in which they

exist. That is why we are looking at just doing away with the

whole process because of the controversy that has generated. Do

you see my point?

Mr. SKIBINE. Yes; I do see your point. Of course, those tribes cannot engage in gaming unless they comply with section 20 of IGRA.
6

So they will have to submit an application to the Secretary for a

two-part determination.

The CHAIRMAN. Yes; but when a tribe already owns the lands,

that is a little bit different because then you make the argument

that they should be able to do whatever they want to with what

is tribal sovereignty. That puts a different set of circumstances on

the issue, as opposed to a tribe saying, we want to take this land

into trust and we are going to game on it.

But if they say, we are going to take this land into trust and all

we are going to do is build houses or a youth center or a school,

for most people that is less than controversial. It becomes controversial when the gaming issue is taken up. If they own the land,

it is theirs to administer, and then they say we are going to start

a gaming operation, then it seems the whole burden of proof is

shifted. Do you see my point?

Mr. SKIBINE. Yes; that is correct.

The CHAIRMAN. So do you think that is a problem, both for BIA

and for us, and for the Governors and for the local people?

Mr. SKIBINE. Well, historically it has not really been a problem

because there have only been three instances where this has gone

forward. In two of the three instances, in fact the land was taken

into trust for other purposes before.

The CHAIRMAN. But now you have 18 years after IGRA, you have

13 new applications for, I think that is what you testified.

Mr. SKIBINE. Yes; we have 13 pending on the two-part determination.

The CHAIRMAN. One of the witnesses, Stand Up for California,

will say there are 40 applications pending for gambling on restored

lands just in California. Do you know how we reconcile that?

Mr. SKIBINE. I think that in California a lot of the applications

try to come under the restored land exception or the initial reservation exception. That is a separate list. We have pending under

those exceptions, I think I have this somewhere, another 11 applications that we know are pending.

The CHAIRMAN. So here we are 18 years after, and this was sort

of viewed as a bridge, the restored lands aspect of it, and now we

have more and more tribes who are applying to game on land that

they have acquired and taken into trust. True?

Mr. SKIBINE. Well, we have more, yes. But the restored land exception applies usually if there is either a restoration by traditional

determination, and in California that is the case because of what

happened to the California tribes under the California Restoration

Determination Act, and/or if Congress passes a restoration act that

authorizes the Secretary to take land in trust. We have a number

of these, not in California specifically, although there too, we have

a number of these applications that are in the case where Congress

has subsequently passed a restoration act, and those applications

fall under that exception.

I think the idea there is not to penalize new tribes and restored

tribes for being restored after the date of enactment of IGRA, when

you have all tribes that have trust lands before IGRA was enacted

that can game on their reservations. The new tribes would not be

able to engage in any gaming. My feeling was that Congress want-
7

ed to strike a balance for authorizing newly recognized tribes to be

able to engage in gaming.

The CHAIRMAN. Does consultation under your interpretation include public hearings? Under section 20, it says consultations are

required. Does that include public hearings, in your view?

Mr. SKIBINE. In my view, I think we will address this in our regulations. Right now in our checklist, we say that the consultation

is done by letter, and we leave it to the discretion of the regional

director whether to do a public hearing in addition. Now, for our

purposes, I think that if we are approached by public officials or

by members of Congress from that area to do public hearings, we

will do that.

The CHAIRMAN. Let me strongly recommend that public hearings

are important on an issue of this significant impact on the local

community. Not only should we hear from elected officials, but I

think from public officials as well.

Thank you for coming back to the committee, and thanks for

your hard work. I do not understate the difficulty and complexity

of these issues that we are dealing with, and we appreciate your

insight.

Senator Dorgan.

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

Mr. Skibine, thank you.

Let me ask a question that might seem very simplistic to you,

but I am trying to understand the two-part determination a bit better. This is a nearly $20-billion gaming economy for Indian tribes.

Let’s assume that I am an Indian tribe in a Midwestern State. We

have gaming operations, a compact with that State, but our gaming

operations are basically in rural areas and we would like to really

kind of go for the big interest here. We would like to establish a

gaming interest in Manhattan, somewhere midtown Manhattan.

Would I be able to make application under the two-part determination before we acquired land in Manhattan? Or would we have

to attempt to acquire land and then have to bring it in trust for

the purpose of gaming in Manhattan?

And my understanding is I would not necessarily have to be in

the State of New York. I could be in South Dakota, for example,

and aspiring to do this under the two-part determination because

the basis of that is economic. Is that not right? Can you respond

to all that?

Mr. SKIBINE. Yes; if a tribe in the Midwest wants to submit an

application for a two-part determination for land in Manhattan, it

can do so because IGRA, the section 20(b)(1)(A), does not impose

any boundaries. It is going to be off-reservation, but it does not say

it has to be within the State where the tribe is located, so that can

happen.

Now, if the tribe does not have land into trust in Manhattan, but

only submits a two-part determination, we will require the tribe to

submit in addition to the two-part determination a request to take

the land into trust, because we will not make, I don’t think we will

give them an opinion on the two-part determination unless we

know that there is going to be an application to take the land into

trust.
8

Senator DORGAN. That is not a requirement at the moment. It is

just something that you would do.

Mr. SKIBINE. Right.

Senator DORGAN. In the absence of regulations at this point, you

have a way of doing this. I guess you have answered my question.

My sense is that as this goes in the longer term, a $20-billion industry will attempt to seek in a more aggressive way, to the extent

it can, gaming operations in the major cities.

In this circumstance, you say under the two-part determination,

there is no requirement that that search be confined to a specific

State. It can be anywhere, although I think you have indicated that

the two-part determination, when fully framed with the acquired

land and so on, is going to have to have the approval of the Governor. Is that correct?

Mr. SKIBINE. That is correct, yes.

Senator DORGAN. One of the points that I made, and I think the

Chairman made as well previously, is the urgency of regulations.

I know some people do not like regulations, but I think regulations

are critically important in these areas in order to set the ground

rules so that everybody understands what the rules are and how

they are interpreted.

I think this is an important hearing because this exception, the

two-part determination exception, is basically driven by economics.

It is just an economic desire. I fully understand, if I were in charge

of a tribe and you had a gaming operation in a rural area, you

would very much like, if you could, to find a way to move it to an

urban area, or to establish an operation in an urban area. So I understand that.

My guess is that we will see more and more applications and desires to do that. You say you have 13 applications?

Mr. SKIBINE. We have 13 pending.

Senator DORGAN. How many have previously been approved

under the two-part determination?

Mr. SKIBINE. Three have been approved with the Governor’s concurrence.

Senator DORGAN. All within the same State of the tribe of domicile?

Mr. SKIBINE. That is correct. The Secretary since 1988 has sent

two-part determination findings, positive ones, to a Governor

maybe in half a dozen more, where the Governor has not concurred.

Senator DORGAN. Are any of the 13 crossing State lines?

Mr. SKIBINE. Yes.

Senator DORGAN. How many, roughly?

Mr. SKIBINE. There are two on our list.

Senator DORGAN. Mr. Chairman, thank you.

Mr. Skibine, thank you again for your testimony.

The CHAIRMAN. What is the rationale for allowing the gaming operation in land taken into trust in another State?

Mr. SKIBINE. What is the rationale for it?

The CHAIRMAN. Yes.

Mr. SKIBINE. Congress chose not to impose limits on that process.

Now, that is on the two-part determination. For taking land into

trust, we would look at our 25 CFR part 151 process, and I know
9

that the department is also developing new regulations to implement that aspect.

The CHAIRMAN. Senator Smith.

Senator SMITH. Thank you, Senator McCain.

I apologize for being late. I have to be in three different hearings

at once, but this is a very important hearing.

Mr. Skibine, thank you for being here.

I am interested to know, was it unusual for the BIA to require

the Warm Springs to take the land into trust before the two-part

determination was made?

Mr. SKIBINE. No; the BIA is not requiring the Warm Springs

Tribe to take the land into trust before the two-part determination

is made. What we did is we decided to disapprove their compact for

class III gaming because the land was not in trust yet. That is a

separate issue. If they get the land into trust, the tribe will have

the opportunity to resubmit their compact with the State and then

we will make a decision on that compact. That is a separate issue.

Senator SMITH. You did not require that to occur? You did not

require them to take it into trust?

Mr. SKIBINE. To take it into trust before the two-part determination, absolutely not, no.

Senator SMITH. Thank you, Mr. Chairman.

The CHAIRMAN. Congressman Wu, would you like to pose a question?

Mr. WU. Thank you very much, Mr. Chairman. I greatly appreciate your indulgence.

Mr. Skibine, I have many questions about the general issues that

you are talking about, but I would like to focus like a laser beam

on one particular instance, which Senator Smith and I care about

in common. That is the proposal of the Confederated Tribes of the

Warm Springs Reservation to build a gambling casino in the Columbia River Gorge.

For those of you in this room who are not familiar with the Columbia River Gorge, it is an 80-mile long, almost sea level cut

through the Cascades, and it is the only such cut from California

up to the Canadian border. In my view, it is truly the crown jewel

of Oregon’s natural heritage. It is like the Everglades in that it is

a national treasure adjacent to a metropolitan area, and finding appropriate human uses is very, very important. There are always

going to be human uses of that territory.

However, the gorge, it is like Yosemite Valley with a large river

flowing through it. The Warm Springs Tribe has signed a compact

with the Governor of Oregon to build a 500,000-square foot casino,

which will draw 3 million visitors and about 1 million extra cars

per year.

Now, there are alternatives to building a casino in the gorge. I

want to focus right down on the EIS process, because it is my understanding that the tribe was allowed to adjust its needs statement so that in essence the needs statement was manipulated to

exclude certain alternatives, that is under the current needs statement as adjusted by the tribe, there is only the Cascade Locks, the

site that the tribe wants; the Hood River site that the tribe threatens to build on, that no one wants a casino on; and a no-build option.
10

There are other alternative sites. The Warm Springs have the

largest reservation in the State of Oregon, and there are major

highways through that reservation, and all of those alternative

sites were eliminated by customizing the needs statement.

Are you aware of other instances in either the three that were

approved or in the 13 that are pending, where the needs statement

are manipulated to eliminate other appropriate on-reservation

sites?

Mr. SKIBINE. Off hand, I am not aware because I am not all that

familiar with the pending, with the details of the EIS. But I am

aware of the issue you raise because it was communicated to us.

We are looking into that issue right now. The EIS is not final. It

is still in draft, so I think we are looking at the technical details

to see whether the EIS will satisfy the requirements of NEPA. So

we will look precisely at the issue you are raising when we review

the documents.

Mr. WU. Very good, and if we can be of any assistance in your

review, we certainly would look forward to that.

Let me just mention, Mr. Chairman, that the House version of

the bill, well, your Senate bill, right now the House version of the

bill has a specific exemption in it for this particular casino in this

particular gorge in this particular national scenic area. We in Oregon certainly hope that the Senate side of the legislation will not

have a grandfather clause which many of us view as inappropriate.

Thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you very much.

Thank you very much, Mr. Skibine. It is good to see you again.

Thanks for being here.

Our next panel is Ron Suppah, chairman, Confederated Tribes of

the Warm Springs Reservation of Oregon; Cheryle Kennedy, chairwoman, Confederated Tribes of the Grand Ronde Community of Oregon; Carol York, commissioner, Hood River County of Hood River,

OR; Michael Lang, conservation director, Friends of the Columbia

Gorge; and Cheryl Schmit, director, Stand Up for California.

Chairman Ron Suppah, we will begin with you, sir. Please proceed, Mr. Chairman.

STATEMENT OF RON SUPPAH, CHAIRMAN, CONFEDERATED

TRIBES OF THE WARM SPRINGS RESERVATION OF OREGON

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

the committee. My name is Ron Suppah. I am the tribal council

chairman of the Confederated Tribes of the Warm Springs Reservation of Oregon. I appreciate the opportunity to be here today.

The 650,000 acre Warm Springs Reservation is located in a remote area in north central Oregon, away from major population

centers. Since the early 1990’s, our tribal government has experienced serious financial difficulties, due largely to the decline of our

timber-based economy. Our overall tribal governmental revenue

has declined by one-third. Our revenues do not meet our governmental needs and we are having to make painful budget cuts and

to draw upon our emergency reserve funds. We expect this financial crisis will only get worse in the years ahead.

To try to address our needs for additional revenue, in 1995 we

opened a casino on our reservation, but with our remote location
11

its revenues have done little to span the growing gap between our

tribe’s income and our governmental needs. In the late 1990’s, following a survey of alternative gaming sites, a tribal referendum directed the tribal council to pursue a casino on our traditional ceded

lands along the Columbia River. We first looked at a gaming-eligible 40 acre tribal trust allotment about 38 miles from our reservation, and near the city of Hood River, but Hood River and others

objected.

At that time, in 1998 and 1999, the city of Cascade Locks, about

17 miles to the west, asked us to consider their industrial park as

an alternative site. This 25 acre alternative site addresses Hood

River’s concern and makes sense to many other parties. Therefore,

we decided to forego the Hood River site in exchange for the industrial park site. We understood this would require getting the land

into trust for gaming and a positive secretarial two-part determination, including the Governor’s consent.

Before we engaged these two processes, we fully appreciated they

would not succeed without the support of Oregon’s Governor and

the local community. We decided it was best to reach all necessary

agreements first so that all the parties and the public could know

what will occur once the land is taken into trust. We started discussions with the Governor and Cascade Locks in 1999 and signed

the compact and other agreements in March and April 2005. If we

had not reached those agreements, we would not be here today.

We also appreciate that to have a chance with the fee-to-trust

process and the secretarial two-part determination, we would have

to conduct a model process. We are seeking to do so. This is an exacting and lengthy effort, but it is strengthened by the trust, common purpose and commitment with our State and local governmental partners.

All of our communities have a thorough understanding of the

project. It has been widely discussed. Although it has its detractors,

it has been endorsed by 32 Federal, State, and local elected officials, including Representative Greg Walden, who represents Warm

Springs and Cascade Locks.

In an April 8, 2005 letter to BIA, Warm Springs formally requested the land into trust process and a two-part determination.

The BIA initiated the secretarial two-part determination with a

June 15, 2005 letter asking six impact questions to all local governments within 10 miles of the site and tribes within 50 miles of the

site. The responses were broadly supportive and posed no objections.

The tribe also filed a 45-page response with hundreds of pages

of supporting documents. The BIA initiated the land-into-trust

process within an early June letter to the governments with jurisdiction over the Cascade Locks site, whose responses were uniformly supportive.

BIA is also preparing a full environmental impact statement

under NEPA, and published a formal notice of intent to conduct the

EIS on August 30, 2005. Even though the BIA administers the EIS,

our tribe has to pay its bills.

Mr. Chairman, much of the Columbia River Gorge is in a national scenic area. Our project in the industrial park inside Cascade Locks’ city limits is not subject to the Scenic Act restrictions,
12

but we are very sensitive to the environment of the area. After all,

we have lived there from time immemorial and continue to rely on

the fish from the Columbia River.

With our partners, we are dedicated to doing a good and careful

job on this project. Preparing the EIS is a very public and expensive process. BIA conducted five public open meetings in four locations last September, and held an additional public comment period

in December. A draft EIS is expected this summer and will provide

for further public input. The final EIS could be out by this fall, at

which time the Cascade Locks application packets should go to

Washington for review.

Mr. Chairman, this has been an expensive process to comply

with IGRA and land-into-trust requirements. To date, we have

spent about $4.2 million. Design has cost $8 million. This has all

been our own money. To complete the process to the point of starting construction, we expect to spend an additional $9 million. We

have committed these resources in reliance on the current process,

and welcomed the fairness provision in section 10 of S. 2078, so

projects such as ours can be finished by the rules under which we

started.

We believe the current processes for gaming land into trust, and

the two-part determination, are very demanding and exacting.

Most importantly, the two-part determination will not allow a

project to go forward without the support of the Governor and the

local community.

Since IGRA’s enactment, only three tribes have succeeded. But

the existing process could be improved with regulations which we

understand Interior may be developing. As we have stressed, we

believe reaching agreement with the Governor and local governments first before proceeding with the land-into-trust and two-part

process is the best way to proceed.

Mr. Chairman, thank you for hearing our story. We believe we

are making a model effort under the current rules. There is no

guarantee we will succeed, but Warm Springs and our State and

local government partners at Cascade Locks are giving it our best

try, and we particularly appreciate your bill’s intention to let

projects like ours complete the process without changing those

rules.

Thank you.

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

The CHAIRMAN. Thank you very much, Chairman Suppah.

Chairwoman Kennedy.

STATEMENT OF CHERYLE KENNEDY, CHAIRWOMAN, CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY OF OREGON

Ms. KENNEDY. Good morning, Mr. Chairman, members of the

committee.

My name is Cheryle Kennedy. I am the chairwoman of the Confederated Tribes of Grand Ronde in Oregon. I am proud to be here

today representing our approximate 5,000 members of the Confederated Tribes today.

On a personal note, I just want to say that I am very humbled

to be here today, given the fact that I come from a terminated
13

tribe. Back in the 1950’s, policy was made, a decision was made to

terminate tribes. There was a whole list. I think everyone is pretty

familiar, of all the tribes who were listed on that list. The policy

of Congress was to terminate all of tribes and to mainstream them

into society.

I was a young child at that time, and the humbling part of it is

that I am here today representing the Confederated Tribes of

Grand Ronde because if things continued on the path that was

there originally, I would not be here. So I am grateful to be here

representing my tribe.

Prior to termination, the Confederated Tribes of Grand Ronde

had a reservation of about 69,000 acres. All of that was done away

with. All that remained after that was our cemetery. Our ancestors

were allowed to remain in the graves that they lay at.

Since restoration, which happened in 1983, the Confederated

Tribes of Grand Ronde now have approximately 11,000 acres. Most

of the acreage is not where we live. I might say that in terms of

developing a nation and building a nation, it has been a long, hard

road. To serve about 5,000 members, we only have approximately

100 homes.

The Grand Ronde Reservation is small in comparison to other

reservations in Oregon, some of which are large and have diversified economies. Our casino is located within the heart of the current and historical Grand Ronde Reservation. We are a treaty

tribe. Our tribe has seven treaties. The lands that were ceded on

behalf of the Confederated Tribes of Grand Ronde were millions

and millions of acres, stretching from the borders of Washington

State to California State.

Today, we are here to support your efforts to address the issues

of off-reservation gaming. We know that a majority of tribes are

against opening IGRA to focus on this, or any other issue. It was

a difficult decision for our tribe to make, but after consideration

and deliberation, we believe that for the continued success of Indian gaming, these difficult issues must be addressed.

Grand Ronde’s opposition to off-reservation gaming stems from

our concern that off-reservation casinos weaken public and Government support for Indian gaming. They undermine the purpose of

IGRA, which is to promote development of strong reservation

economies through on-reservation casinos. It invites disputes

among tribes when located in areas where one or more tribe has

a significant historical connection.

As the Confederated Tribes of Grand Ronde, we look and engage

at what is happening not only with our tribe, but within the State

of Oregon. We learn that through termination, when you stand by

yourself, oftentimes bad things happen to you as it does. So we look

to our neighbors and to our fellow citizens for what they are thinking as well.

So in doing so, we conduct public opinion polls regularly to see

how the nature of things are. Oregon’s citizens are concerned about

the expansion of gaming and fear, as does Grand Ronde, that approval of an off-reservation casino under the two-part determination process will lead to a proliferation of casinos near urban areas.

As tribes and others rush to surround urban areas with casinos,

Grand Ronde and other tribes will no doubt be forced to reassess
14

their own positions on off-reservation gaming to the ultimate detriment of both tribes and the public at large. It is no secret that

off-reservation facilities proposed by other tribes and Warm

Springs in Oregon and the Cowlitz-Mohegan effort in Washington,

will have a significant impact on the Grand Ronde Tribe and the

community in which we operate. However, our concerns and Oregonians’ concerns, as we have seen through public opinion research,

are much larger.

We feel strongly that the continuation of these types of proposals

will only continue to tarnish the Indian gaming industry as a

whole, and jeopardize all of the wonderful advancements that

tribes who are abiding by the rules have been able to make for the

benefit of their people and the communities in which they operate.

This legislation and the law need to be about a policy that treats

all tribes equally. There should be no loopholes for tribes that happen to have already submitted their application for an off-reservation casino. The law should not benefit a few tribes at the expense

of the majority of tribes.

In sum, we are here today in support of eliminating IGRA’s twopart determination exception to the prohibition against gaming on

lands acquired in trust after October 17, 1988. However, the elimination of this exception should be done without a loophole that allows continued consideration of some two-part determination applications and not others.

I appreciate your time in hearing this testimony and taking it

into consideration. We have submitted for your reading the full

comments that we are providing. Again, thank you for this opportunity.

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

The CHAIRMAN. Thank you very much. Your complete statement

will be made part of the record.

Carol York, Commissioner of Hood River County. Welcome.

STATEMENT OF CAROL YORK, COMMISSIONER, HOOD RIVER

COUNTY, OR

Ms. YORK. Thank you, and good morning, Chairman McCain and

members of the Senate Committee on Indian Affairs.

My name is Carol York, and I am one of five locally elected

County Commissioners in Hood River County, OR. Cascade Locks

is in my commission district, and Cascade Locks is located about

50 miles from Portland, our metro center in Oregon.

Hood River County is also the home of Representative Greg Walden, a strong supporter of the Warm Springs proposal. I appear before you today to describe our county’s activities regarding a proposed off-reservation casino in our county. I am honored to be here

and I thank you for the opportunity to testify.

You have my written testimony, but today I would like to speak

about my experience and why there needs to be a method within

the Indian Gaming Regulatory Act for commonsense decisions for

tribes and local governments working in concert. I have discussed

the opportunities, threats, challenges and pitfalls of tribal casinos

with county officials throughout Oregon and across the Nation. I

have also visited several tribal casinos for research, although I
15

have not sampled any games or machines. I do not even know how

to buy a lottery ticket.

But whether one likes it or not, gambling is an approved form

of recreation and entertainment in nearly every State. I have also

discussed tribal casinos at great length with proponents and opponents, including highly regarded tribal law attorneys who can guarantee delaying a casino, but not preventing it from eventually happening on trust land.

The primary winners in multi-year legal battles are the attorneys. Therefore, it is necessary to take a proactive approach and

create a win-win situation by siting the casino in a community that

wants it, and in a Columbia Gorge urban area where development

is encouraged.

In my research, I found that the impacts of tribal casinos are

measurable, predictable and can be mitigated by negotiating a comprehensive agreement with the tribe before it is built. Cascade

Locks and Hood River County have done this through a long process, which resulted in a memorandum of agreement with the Warm

Springs Tribe.

I also discovered that communities benefiting the most from their

tribal casinos were those that had established relationships early

with the tribe, in the planning process, not after the casino had

opened for business. There is an overwhelming difference in local

government success with tribal casinos based on when relationships began. Those who communicated before the casino opened

were far better off than those who did not. Agreements were more

likely to be upheld and partnerships built. The difference is having

something done to you, instead of having something done with you.

Members of the Warm Springs voted to build a casino in the Columbia River Gorge without specifying a location. They have trust

land on the east side of Hood River, adjacent to the Senator Mark

O. Hatfield State Park. The historic Columbia River Highway accesses and crosses the tribe’s trust land.

George Skibine, BIA Director of Indian Gaming, has assured me

that the tribes have an absolute right to build a casino on this

trust land, which is located in the general management area of the

National Scenic Area. The National Scenic Act, section 17-7, specifically exempts trust land, therefore allowing a casino to be built

in this location.

The tribes are so certain of this that they purchased an additional 175 acres of land nearby. The tribes’ geotech analysis says

the site is buildable. The high construction cost of the project in

this location would be insignificant when considering the revenue

potential. Approving the Cascade Locks Industrial Park site, instead of the Hood River trust land, simultaneously preserves and

protects these lands within the National Scenic Area and prevents

smokestack industries from locating in Cascade Locks, both positive environmental benefits.

The now 20-year-old National Scenic Act is still the Nation’s only

national scenic area. Congress recognized that it is a national

treasure, but not a national park. Not every square inch is suitable

to be protected as if it were wilderness. It is an overlay zone over

private and public lands, with towns, a freeway, two railroads, and

State highways, not at all like Yosemite or Yellowstone. The res-
16

ervation, by the way, has only a two-lane highway and it is very

congested at the Portland end.

The second purpose of the Scenic Act specifically encourages development to occur within the urban areas of the gorge, of which

Cascade Locks is one of only four on the Oregon side of the Columbia River. Their long-vacant industrial park site, on fill from the

Bonneville Dam’s second powerhouse construction spoils, is clearly

not a pristine site. It is next to a pellet plant, construction equipment, railroad crossings and a gravel pit. You can see the photo in

my submitted testimony. If the photos were not included in your

copies, I am happy to submit these additional copies for your review.

The city and Port of Cascade Locks recognize numerous benefits,

including improved access to the industrial park, with a bridge

over the railroad tracks and a full interchange. The majority of the

community of Cascade Locks has demonstrated through surveys

and elections their approval of the Warm Springs Resort Casino.

There have been many town halls and public meetings. I have been

elected twice since this process began and local contested elections

have been won by casino supporters. I hear from my constituents

on this issue constantly.

There is significant support from local governments in Oregon

and in Washington, because Washington State is our neighbor

across the river, unanimous support from Hood River, Wasco,

Skamania, and Klickitat Counties, plus local city governments, economic development organizations and chambers of commerce. I

would like to submit these letters signed by 35 local officials into

the record.

In the current NEPA scoping process, 80 percent of the comments are from outside the gorge, many of which are form letters.

The Oregon gorge resident comments are positive, but comments

from outside the area generally are not. It is not fair for urban

dwellers outside the gorge to dictate to those of us most impacted,

who are working to create a win-win project for two economically

depressed communities.

The people who live here care about the gorge and about the future of our region. The Warm Springs are the only Oregon tribe

with trust land in the National Scenic Area, and they are also in

the unique position to be able to resolve the historic highway land

use dispute on their trust land by moving the proposed casino away

from Hood River, where it has met strong public opposition, to a

new location, an alternate location welcomed by the community of

Cascade Locks.

Therefore, allowing land in the tribe’s original homeland, aboriginal territory, and land ceded in the Treaty of 1855, now known as

Cascade Locks, to become trust land for a casino is not setting a

precedent that could be replicated by any other tribe. The economic

and environmental benefits to the people of Oregon, the region and

the community, as described in the Governor’s compact and in the

memorandum of agreement with the City of Cascade Locks, are

substantial.

The CHAIRMAN. Commissioner, you will have to summarize, since

you are 2 minutes over your 5 minute time. Please summarize. As
17

I mentioned, your complete statement will be made part of the

record. Thank you.

Ms. YORK. Okay. Regardless of whether this committee feels it

is time to amend section 20, we urge the committee to include in

any final legislative proposal a clause grandfathering certain inprocess gaming proposals. In going forward, reaching agreements

with local governments and the Governor should be first, before

proceeding with the land-into-trust and the two-part determination

process.

Then, the compact must be approved by the Secretary of the Interior, before the land-into-trust process. Otherwise, it jeopardizes

the landowner, in our case the Port of Cascade Locks, because once

the land goes into trust, it takes an act of Congress to revoke that

status. If lands are taken into trust and then the compact is denied, both the landowner and the tribes lose.

Thank you very much for the opportunity and I will look forward

to questions.

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

The CHAIRMAN. Thank you very much.

Mr. Lang, welcome.

STATEMENT OF MICHAEL LANG, CONSERVATION DIRECTOR,

FRIENDS OF THE COLUMBIA GORGE

Mr. LANG. Thank you very much, Chairman McCain, for inviting

me and Friends of the Columbia Gorge, and also sponsoring this

forum. We have submitted written comments into the record. Also,

we provided photographs that should help the committee understand the relationship between the Warm Springs Reservation, the

site that is proposed in Cascade Locks, within the heart of a National Scenic Area, and the target gaming market, which is the

Portland metropolitan area.

The CHAIRMAN. Without objection, these shall be made part of

the record. Thank you very much.

Mr. LANG. Thank you.

We believe that the Columbia River Gorge National Scenic Area

is a national scenic treasure that is worth protecting for our children and future generations, and should not be turned into a mecca

for casino gaming. We believe that the Indian Gaming Regulatory

Act has inadequacies. It does not properly allow the consideration

of the adverse impacts to communities that are outside of the 10-

mile radius circle that is put in place by rule.

We support your efforts to amend the Indian Gaming Regulatory

Act to end off-reservation casinos, to stop the practice of reservation shopping, and also provide greater community consultation

and approval generally for off-reservation casinos. We also would

support removing a loophole in the legislation that would exempt

current off-reservation proposals from the amendments.

Moreover, we support amending the Indian Gaming Regulatory

Act to prohibit Indian gaming casinos in our national parks and

our national scenic areas. Again, the Columbia River Gorge is a national scenic treasure. As mentioned by Congressman Wu, it is the

only sea level passage through the Cascade Mountains. It stretches

85 miles, with cascading waterfalls and tremendous cliffs, and a di-
18

versity in wildlife and plants, with some found nowhere else in the

world.

The Columbia River Gorge National Scenic Area Act was passed

in 1986. It is a bipartisan effort that was signed into law by President Reagan. The national scenic area would be adversely affected

by this casino proposal that started out as a 50,000-square foot facility in 1998, when it was initially proposed in the area around

Hood River, and it has steadily grown since then.

Two years ago, it was up to 500,000 square feet. The compact

signed by our Governor approved a 500,000-square foot casino, and

we are very grateful that the Department of the Interior denied

that compact. It gave us another chance to really evaluate the community impacts and the environmental impacts of this incredible

proposal.

Since that time, the proposal, according to the casino EIS

website, has grown to 611,000 square feet. Some comments were

made previously about urban areas within our national scenic

areas being intended for economic development. That is true, but

economic development that is compatible with the protection and

enhancement of the Columbia River Gorge National Scenic Area.

We had a proposal for a Wal-Mart in Hood River just a couple

of years ago, which was denied. It was 180,000 square feet. We

supported Commissioner York in voting to deny, to oppose that

Wal-Mart. That is an example of how economic development is encouraged in the urban areas, but you cannot contain the impact of

a 600,000-square foot casino with 3 million new visitors coming

into the gorge every year, dramatically increasing traffic, increasing air pollution.

There is a significant air pollution problem in the gorge already.

There are eagle nesting areas, osprey nesting areas, blue heron

rookeries, spawning habitat for salmon and steelhead, both listed

under the ESA, that are right in the vicinity of this proposal.

The Pacific Crest National Scenic Trail cuts down through the

gorge on the bluffs right above the casino proposal. The scenic impact would be tremendous and they would be adverse.

I would like to talk a little bit about the current process with

NEPA and also section 20’s two-part determination. The NEPA review so far with this proposal has been inadequate. We feel that

the BIA and the consultants working on this have tried to shape

a proposal that leads to the conclusion of an off-reservation casino

in the gorge, even to the point of proposing to eliminate on-reservation alternatives in the EIS.

The section 20 two-part determination we believe is completely

inadequate. The 10-mile radius circle fails to take into account the

concerns of the target market, and that is Portland, the Portland

metropolitan area. Make no mistake, the Portland area is the target, but it is more than 10 miles away from the proposed site center, so the comments of the people of Multnomah County, of the

city of Portland, of the surrounding communities are not taken into

account under the current two-part determination.

Furthermore, because this is a proposal in the heart of a national

scenic area, there is a national interest at stake that is not being

considered under the current two-part determination. That is why

we strongly support adding to the bill a prohibition of any casinos
19

within our national parks and national scenic areas, and also eliminating any loopholes. We feel that there is no legal basis whatsoever to have a loophole for the current proposal for a gorge casino.

It is a very speculative process. As Mr. Skibine testified earlier,

there have only been three off-reservation casinos granted in the

entire country. And also, it would be unfair to other tribes to allow

one tribe to exploit the two-part determination, slam the door on

all the other tribes in the State of Oregon who have chosen to live

by our State’s current prohibition of off-reservation casinos. So

there is no legal basis for it, and it would be unfair to other tribes

and to the State of Oregon.

I would just like to summarize, too, that Oregonians are overwhelmingly opposed to this proposal. Polling shows 63 percent of

Oregonians are opposed to an off-reservation casino, and 68 percent

would vote against this if it was put on the ballot in Oregon in the

form of a ballot measure. Unfortunately, it is not because the current law and regulations do not allow adequate consideration of the

enormous impacts of a casino in a national scenic area.

I will conclude my remarks with that. Thank you very much.

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

The CHAIRMAN. Thank you very much.

Ms. Schmit, welcome.

STATEMENT OF CHERYL SCHMIT, DIRECTOR, STAND UP FOR

CALIFORNIA

Ms. SCHMIT. Thank you, sir.

My name is Cheryl Schmit. I am director of Stand Up For California. My organization serves as an advocate and information resource for community groups and policymakers at the local, State

and Federal level, trying to understand and respond to the complexities surrounding the expansion of tribal gaming.

I thank you, Chairman McCain and Vice Chairman Dorgan and

the committee members, for the many Senate hearings in which

you have invited affected parties to participate in this policy debate

essential to ensuring fairness, objectivity and accessibility on this

complex and controversial issue.

Our organization supports the efforts of citizens who want to

make sure that there are adequate protections for all communities

potentially adversely impacted by unregulated gambling expansion.

We do not seek to impede the economic progress and advancement

of California’s native peoples. Rather, we seek regulatory reforms

that we believe are in the best interests of all the inhabitants of

our State.

Reservation shopping in California is driven by the restored

lands exception, not an abuse of gubernatorial concurrence or the

two-part determination. There are currently 40 after-acquired land

proposals in California, which tribes and gaming investors continue

to promote restored lands and other mandatory exceptions under

the section 20 of IGRA. This is being done specifically to preclude

our Governor or local governments from having any say in the

process since he has made clear his opposition to such blatant reservation shopping.

Gaming investors and tribes are intentionally seeking a restored

lands exception to avoid the rigorous two-part secretarial process,
20

as well as the substantial scrutiny involved by requiring input from

neighboring tribes, local governments, State agencies and the concurrence of the Governor.

Mandatory exceptions avoid the Office of Indian Gaming management, circumventing established guidelines and safeguards developed by that office to address the protections, involvement of affected governments and State agencies, and other nearby Indian

tribes. Clearly, there is a need for a more collaborative approach

to mandatory land acquisitions like the restored lands exception,

especially whenever proposed acquisitions present serious environmental, taxation, jurisdictional and infrastructure problems, or a

State or local community has a reasonable or legitimate objection.

Perhaps a special provision can be crafted for mandatory applications mandating that the Secretary of the Interior, upon request by

a State or its cities, counties or parishes, come together with the

affected parties early in the decision process, that there is a requirement to work out a solution to identified environmental, taxation, jurisdictional and infrastructure problems. As an incentive to

working cooperatively, a fast track process could be offered greatly

reducing the workload of the BIA officials, the need of the tribe to

request ad hoc legislation, and most importantly eliminating local

opposition and tribal gaming backlash.

We would rather the committee eliminate the mandatory aspects

of the exceptions and require that all after-acquired lands go

through the two-part determination and gubernatorial concurrence.

Gubernatorial concurrence, judiciously used, solves land use problems such as casino development in sensitive environmental locations, or placement of a casino adjacent to public parklands, or social concerns over the health and public welfare that result from

casino placements near homes, churches and schools.

Moreover, the elimination of the two-part determination creates

reverse incentives, encouraging gaming investors to rewrite tribal

histories to meet the exceptions in section 20 of IGRA, as we have

and continue to witness in California.

Stand Up For California sincerely appreciates the opportunity to

comment on off-reservation gaming and urges only a moderate

modification to IGRA so not to upset this delicate balance between

tribal, State and Federal levels of government.

Thank you.

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

The CHAIRMAN. Thank you very much, Ms. Schmit.

Chairman Suppah, the Grand Ronde Tribe has testified that the

Warm Springs Tribe proposed off-reservation would severely impact their on-reservation casino. How do you respond to that?

Mr. SUPPAH. I guess, Mr. Chairman, the simplest way is if you

compare, I guess, competition at other places, maybe a good example may be the town of Phoenix, to where you have maybe 9 to 11

casinos and maybe by 4 or 5 different tribes, and all of them make

it because I guess you could equate that to if you built a shopping

center, you don’t just put one store in there in order to attract the

customers. You put a whole bunch of different, a variety of stores

in there so that you have a better market.
21

I think that the indirect response would be along the lines of the

market is far from saturated in our area, and the competition can

only be healthy.

The CHAIRMAN. There is criticism, Mr. Chairman, that this casino would be located in a scenic area that has certain pristine

qualities, that there are neither the roads nor infrastructure to

handle the kind of traffic that patrons of a casino this size would

entail. How do you respond to all of that, particularly the impact

on what people claim, I think with validity, is one of the most

beautiful parts of the State of Oregon?

Mr. SUPPAH. Mr. Chairman, I sincerely believe that the Confederated Tribes of Warm Springs would in no way ever jeopardize the

environmental or the beauty of the Columbia River Gorge. That is

our aboriginal home, and we still live there. I guess the best response that I could give to you today is that Warm Springs has

been very proactive in putting together its gaming compact.

The EIS will ferret out all of the issues and concerns, and they

will be grouped. These issues that you talk about are among those.

So I think that the draft EIS will be out this summer and the

final EIS later on this year. So I think that it has been a very open

and public process. I think that the tribes have worked vigilantly

to respond to any and all of the questions.

The CHAIRMAN. Chairwoman Kennedy, you state in your testimony that the Grand Ronde has been historically opposed to offreservation gaming. Is that true?

Ms. KENNEDY. That is true.

The CHAIRMAN. Yet I am told the Grand Ronde has sought an

urban casino in or near Portland.

Ms. KENNEDY. That is true.

The CHAIRMAN. How do you reconcile your two statements?

Ms. KENNEDY. That is true. We originally held the on-reservation

gaming until the Governor of Oregon made his declaration that he

would approve off-reservation gaming. Of course, then as in any

business, you have to look at your strategies.

The CHAIRMAN. I don’t disagree that you have to look at your

strategies, but if you say you have been historically opposed to offreservation gaming, and then you sought a casino that was off-reservation, I do not know how you reconcile those two positions.

Ms. KENNEDY. Well, again we did, after the Governor said that,

we have since re-thought that and stick with our original declaration. Of course, when rules change mid-stream, you have to move

to protect your investment for your people. In our original testimony, we have invested over $150 million into our Spirit Mountain

Casino to keep it very prestigious, to make sure that all of the attractions are there to generate the revenue that we have. It is our

only source of revenue that we have. It is our only source of revenue. It is the engine behind which supports all of our tribal government services.

The CHAIRMAN. I understand all those things. I understand all

that. Thank you very much.

Ms. KENNEDY. Thank you.

The CHAIRMAN. Commissioner York, you indicate there has been

a lot of local discussion of the project. Many local government officials support it. Was there ever a town hall meeting?
22

Ms. YORK. Yes; in Hood River and in Cascade Locks, more than

one in each city.

The CHAIRMAN. And how was the attendance?

Ms. YORK. Attendance was quite full at both of them. In Hood

River, there is extreme opposition, particularly to the Hood River

site, where the trust land is. In Cascade Locks, all of the town

halls and all of the surveys have shown approximately 67 percent

or more in favor, and in the last Port election, the Port Commissioner race between a pro-casino candidate and an anti-casino candidate was won by over 79 percent for the pro-casino candidate.

The CHAIRMAN. Mr. Lang, you say that you have been shut out

of the NEPA process, but it appears you did participate in the

scoping session and weighed in during the process. How would you

suggest the process be changed so you are not shut out?

Mr. LANG. As far as being shut out in the process, that is in the

two-part determination in particular. We feel that the 10-mile radius circle is something that may work in the Eastern United

States, but as you well know, in the West communities are much

more disperse. You may have to drive 10 miles to get a gallon of

milk.

The CHAIRMAN. My question was, how were you shut out of the

process if you were in the scoping and in the NEPA process?

Mr. LANG. Well, within the NEPA process, there was no true

hearing. In the scoping meetings that were held, there were a lot

of——

The CHAIRMAN. Did you attend those meetings that were

scoping?

Mr. LANG. I absolutely did, but I——

The CHAIRMAN. Then I don’t think you were shut out, Mr. Lang.

Go ahead, please.

In other words, how the process should be improved, in your

view.

Mr. LANG. In the NEPA process, how it could be improved is actually hold scoping hearings where the public can speak and participate in them; to have it so that it is not run by the consultants

and the tribes. Having the attorneys for the tribe responding and

answering questions directed at the BIA does not particularly help

the public understand the BIA’s role. That would certainly be an

improvement.

Also, there were many requests for a scoping hearing near or on

the Warm Springs Reservation. None was ever held. To have a

hearing on or near the reservation allows tribal members to weigh

in on this very important proposal. Petitions circulating now I have

heard have 400 opponents, tribal members signed this petition opposed to an off-reservation casino in the gorge. So certainly holding

hearings in other communities, in affected communities particularly near the reservation, would be a definite improvement in the

process.

The CHAIRMAN. Thank you very much, Mr. Lang. If there are additional ways that you think that the process can be improved to

increase participation I would appreciate it if you would submit it

for the record. I thank you for your involvement.

Mr. LANG. Thank you very much.
23

The CHAIRMAN. Ms. Schmit, do you think the process for allowing

gaming on initial reservations and restored lands should include

gubernatorial concurrence?

Ms. SCHMIT. Definitely.

The CHAIRMAN. Do you think the legislature should play a role?

Ms. SCHMIT. Well, in California, our legislature is a bit predisposed at the moment. They are influenced significantly by campaign contributions from tribal governments. So it is very hard for

a Governor to negotiate a compact with the tribe, and then have

that compact ratified. We have two of those right now that are

ready to be ratified and one of the tribes is now going to sue the

State.

The legislature has put the State in a very difficult situation.

These are tribes that have established reservations and they are

very large tribes in very rural areas of the State. So I am not sure

if the legislature needs to do anything more than an up or down

vote.

The CHAIRMAN. I am told that the Governor of Oregon is here.

Is that correct? Governor, would you mind joining us? We would be

very honored to hear from you on this issue, if you would like to

come up here and share your views with us. We would appreciate

it. If you would like, we would be pleased if you would like to come

up.

It is good to see you again, Governor, and thank you for honoring

us with your presence. We would certainly for the record like to

hear any views or any information you could provide us that could

help us with this issue. Thank you, Governor.

STATEMENT OF TED KULONGOSKI, GOVERNOR, STATE OF

OREGON

Mr. KULONGOSKI. Thank you, Senator.

Senator Smith, Congressman Wu, if I could, from a Governor’s

perspective, and I want you to understand how I see this. I am not

a fan of gambling. If I were to try to come up with a way to give

the tribes economic self-sufficiency, I am not sure I would have chosen this route, but this was what was given to us.

We have nine federally recognized tribes in the State. The Warm

Springs are the largest land-based tribe in Oregon, with about a

620,000-acre reservation out in Eastern Oregon. They had a casino

on a resort area called Kah-nee-tah. I was the attorney general for

the State when that was put in out there. The tribe made their decision.

I want you to know that from my experience at that time, I knew

that the issue of gaming was very controversial with the tribe,

within the tribal membership itself. They took a vote of whether

they wanted to even have the casino out at the resort, at Kah-neetah. They did.

When I received the request for them to sit down for another

site, I talked to the tribe about other areas other than the Hood

River site, which is the tribal land that they have, of which you

have heard testimony on. There is a community outside of the reservation called Madras. They looked at that site.

I remember talking to them and my staff talking to them about

another site on the highway down from, and Senator Smith and
24

Congressman Wu know, from Timberline Lodge, where the reservation starts, out on that highway. They did studies of that and found

that the traffic flow was not sufficient economically to support the

investment that they would have to make in it.

They came to me. I did not want the casino in Hood River. I did

not think that was an appropriate site. There was an industrial

land site in the community of Cascade Locks. It is a difficult area

economically for the citizens in that area.

But what really drove me more than anything is the history of

the Warm Springs, the tribe. It is a confederation of three tribes.

They have some very serious problems. Their children go to school

off-reservation. They have a very large dropout from that school,

maybe somewhere between 70 percent and 80 percent.

I was driven more by the effort to give the tribe the ability to

have some economic self-sufficiency to replace the lost revenue

from their tribal general fund, which was primarily off of timber.

They are no different than the Federal Government or the State

government or the individual timber owners, that we have over-cut.

They are now trying to rebuild.

I thought that this was the best way that they would have the

ability to add additional revenue to their general fund that would

provide for the social programs on their reservation. I know they

want to have a school on the reservation to keep their kids there,

and actually make a better effort to keep them, to get them to

graduate.

Just a whole host of issues that I thought it was in the best interest of the tribe as a sovereign people and to the State of Oregon,

to this particular reservation to see that they had the opportunity

to be able to provide essential services to them. That is what drove

me more than anything else to make the decision I did.

The CHAIRMAN. Well, Governor, we are very glad you came by.

We appreciate your input.

Mr. KULONGOSKI. Thank you, Senator.

The CHAIRMAN. We appreciate your outstanding leadership of the

State of Oregon. I know that, different from members of Congress,

sometimes you have to make very tough decisions and take responsibility for it.

Mr. KULONGOSKI. I am where I am at, Senator. [Laughter.]

The CHAIRMAN. Thank you, Governor. And you are welcome to

stay for the rest of the hearing.

Mr. KULONGOSKI. I am going to sit right in the back and watch.

The CHAIRMAN. You are welcome to remain where you are if you

would like. Thank you, Governor.

Mr. KULONGOSKI. Thank you, sir.

The CHAIRMAN. Senator Smith.

Senator SMITH. Thank you, Mr. Chairman. Governor, welcome.

We really need the wisdom of Solomon on this one, Mr. Chairman. These are two great tribes in Oregon against one another, especially the Warm Springs and the Grand Ronde. To followup on

your question to Cheryle Kennedy, Cheryle, isn’t it, and this is just

a flat-out question, if the Warm Springs proposal is denied, will

you drop any pursuit of a casino in and around Portland?

Ms. KENNEDY. We certainly will. Again, it was triggered by Mr.

Kulongoski’s decision to declare that off-reservation was fair game.
25

Senator SMITH. Ron Suppah, you have heard the expression, we

understand the economic need and the advantageousness of the

site at Cascade Locks. We understand the tribal needs. You have

heard Mr. Lang and others speak to the environmental concerns in

this beautiful area of our State. The environmental impact statement and study that will be made, what special efforts will you

make to protect the environment in Cascade Locks?

Mr. SUPPAH. Senator Smith, thank you for being here today. We

appreciate your presence.

I believe, as we have worked through this process, Senator, beginning when we started negotiating with the Governor, all of

these things were kind of like included in the discussions all the

way through. Then we started meeting with the locals, again we

had several meetings with the communities of Cascade Locks and

Hood River and Stevenson, and we discussed these things at that

time, too.

But I guess if you maybe take a look at our gaming compact, you

will find that as we have built and structured our gaming compact

for approval and concurrence by the Governor, all of these things

are included in there, including the issue of the increased traffic

and the impact on the air.

I think that we intend to work not only with Oregon, but with

Washington’s Department of Transportation, and there is a regional planning group that already exists. If we work things out,

then the alternatives to individual cars versus some sort of mass

transport, or whether that is buses, you know, different alternatives to where you can maybe park and go to the casino. I think

that we are only beginning to take, we are in the initial phases of

that planning.

Senator SMITH. Ron, if eventually you are not successful at the

Cascade Locks site, will you pursue, then, your rights in Hood

River?

Mr. SUPPAH. Yes; we would have to because in the Whalen report, which did the feasibility and economic study on six different

sites——

Senator SMITH. The site that the Governor spoke of earlier, from

Timberline Lodge toward, I guess, the Bend area——

Mr. SUPPAH. If you are familiar with Highway 26——

Senator SMITH. I am. There is a lot of development in Bend. Is

the traffic sufficient now that the study would come out differently

as to the economics?

Mr. SUPPAH. No; we don’t believe it would. I think that with the

feasibility study that we have accomplished, a site on Highway 26

would not contribute anything more than the existing Kah-nee-tah

site.

Senator SMITH. The reason I am struggling, Mr. Chairman, is

polling has been mentioned. There is no question that my State is

overwhelmingly opposed to a casino along the Columbia River. But

at the same time, my State wishes no ill toward the Warm Springs.

They would like them to be successful. Finding an answer to this

is extremely difficult.

Carol, isn’t it a fact that the town halls you had in Cascade

Locks favored the casino, and as I think you indicated in Hood

River, they were overwhelmingly opposed to a casino there.
26

Ms. YORK. Yes; that is correct, Senator Smith. I think the position that we are in, as the local government that is there for both

sites, is that the tribe has trust land in Hood River, buildable for

a casino, but in nearly everyone’s mind, an inappropriate location

for the casino, which is why we have worked so hard to develop an

alternative location in Cascade Locks, to try to be proactive and

create something that will work for both the tribes and for our

county and the region and the State and the Nation, since it is a

National Scenic Area.

Senator SMITH. Well, the interests of the State of Oregon is they

really do not want off-reservation gambling. That is just a fact. I

do not think that is going to change. The difficulty is that the site

that they could do it on, you don’t want. The site that they are trying to do it on, Oregon opposes.

I think, Mr. Chairman, this is the great dilemma we have is to

craft this legislation in a way that is fair to these newly recognized

tribes, but also understand the sensitivities of the environment, the

sensitivities of the people. The Governor is in a very tough spot.

I wish both these tribes well, and I do not have an easy answer

to this. It ultimately should be allowed to run its legal course, and

it will be what it will be. But this is a case for Solomon.

The CHAIRMAN. Thank you very much.

Congressman Wu, would you like to say anything?

Mr. WU. Thank you very much, Mr. Chairman.

Chairman Suppah, you were good enough to list out some num- bers. I believe you mentioned that over $4 million has been spent

by the Warm Springs Tribes in this effort; $8 million for some

other efforts; and $9 million to take this process to completion.

Could you describe those numbers for us again, exactly what they

are, just once again for my recollection?

Mr. SUPPAH. Congressman Wu, good morning. Just generally, all

of those numbers, Chairman McCain, are listed in our written testimony. We would be willing to provide a copy to Mr. Wu. But just

generally speaking, we have been working on this site for about

seven years, and to date the tribe has spent approximately $10 million.

Mr. WU. What were the $4 million, $8 million, and $9 million

numbers that you cited earlier?

Mr. SUPPAH. The $4 million would be basically the moneys that

we have spent to date just to kind of set up for the eventual approval with the Governor and the State of Oregon, whether that

was buying chips such as the 175 acres that we purchased in and

around the Hood River site, investment in legal fees, investment in

design and conceptual work. The $8 million is pretty much what we have spent to date on the EIS process; and the $9 million would be kind of like looking further on down the road to where if our project is approved, then we

would anticipate that to finish up the environmental impact statement, et cetera, and also hire an official design company to formally say this is what you are going to have. We are anticipating

spending around $9 million more.

So we have a really high investment, not only in time, but tribal

moneys. But we feel like the investment risk is worth, I guess, the

outcome that we are looking toward.
27

Mr. WU. Yes, Mr. Chairman; so by your own numbers and my arithmetic, I am looking at a $21-million figure when this is all

said and done, if it is ever done. I also wanted to go back, when

this proposal was first brought up in 1998, if the alternative site

had been picked on Highway 26, you might have been able to get

a casino built, say, by 2000 or 2001.

So if we count up 5 years of lost revenues from full operation, let’s say that you made $2 million a year at the Cascade Locks site,

and $1 million a year on the Highway 26 site, this is a $21-million

plus $5 million lost revenue adds up to $26 million. It would probably take you 40 years with the Cascade Locks site to make up the

revenue that the tribe has lost by choosing to fight in the Columbia

River Gorge, rather than building on Highway 26.

The reason why I am going through this numerical exercise is

that in many respects, I view the tribe as an equal victim as the

Columbia River Gorge because the tribe has been paying a lot of

people fees that it would not otherwise have to pay if it had chosen

a site on-reservation on Highway 26. It will take you decades, it

will take the tribe decades to make that revenue up. I just feel

very, very badly that the tribe is victimized in the same way that

the gorge might potentially be victimized if the casino is every

built.

Mr. SUPPAH. Congressman Wu, I disagree with your math, because if we looked at the Whalen report and we looked at the investment that my tribe would have to make in building a casino

on the reservation, and the time for amortization to pay for that

back, would ultimately just would not pencil out to, I guess if we

put it in the simplest terms, avoidance of deficit budgeting, and

stabilizing our financial situation and building toward self-sufficiency.

And the options and alternatives that we had explored, the one

that is the best that would stabilize our future for many generations is the Cascade Locks site, and that is why we are aggressively pursuing trying to get this project approved.

The CHAIRMAN. Thank you very much.

Thank you very much, Congressman Wu.

I thank the witnesses for being here. The overall issue of this

two-part determination has been submerged a little bit because of

this issue, but this is I think an example of the kind of challenges

we face with this process. The witnesses have been very helpful

today. I know you have all come a long way to be here. I thank

you for your attendance today. This has been very helpful to the

committee. Thank you very much.

This hearing is adjourned.

[Whereupon, at 11:20 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

(29)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF CHERYL SCHMIT, DIRECTOR, STAND UP FOR CALIFORNIA

My name is Cheryl Schmit. I am director of Stand Up For California. My organization serves as an advocate and information resource for community groups and

policymakers at the local, State, and Federal level, trying to understand and respond to the complexities surrounding the expansion of tribal gaming.

We thank you Chairman McCain and Vice Chairman Dorgan and committee

members for the many Senate Hearings in which you have invited affected parties

to participate in a policy debate essential to ensuring fairness, objectivity and accessibility in this complex and controversial issue.

Our organization supports the efforts of citizens who want to make sure that

there are adequate protections for all communities potentially adversely impacted

by unregulated gambling expansion. We do not seek to impede the economic

progress and advancement of California’s native peoples; rather we seek regulatory

reforms that we believe are in the best interests of all the inhabitants of our State.

Reservation shopping in California is driven by the restored lands exception not

an abuse of gubernatorial concurrence. There are currently 40 after acquired land

proposals in California which tribes and gaming investors continue to promote restored lands and other mandatory exceptions under section 20 of IGRA. This is

being done to specifically preclude our Governor from having a say in the process,

since he has made clear his opposition to such blatant reservation shopping attempts.

Gaming investors and tribes are intentionally seeking a ‘‘Restored lands Exception’’ to avoid the rigorous two-part secretarial process, as well as the substantial

scrutiny involved by requiring input from neighboring tribes, local governments,

state agencies and the concurrence of the Governor.

The ‘‘restored lands’’ exception found in IGRA makes the acquisition of newly acquired lands mandatory. This mandatory exception ties the hands of a States Governor eliminating the opportunity for flexibility, cooperation or meaningful agreements. The exception reduces the decisionmaking process of the Secretary of the Interior’s involvement to nothing more than a ministerial act of approval.

Yet the process of the ‘‘restored lands’’ determination is a gray area. There is a

set of vague guidelines used as standards by the National Indian Gaming Commission and the BIA in determining restored lands. Since there is no Federal regulation

in place, this is a gray area and has left room for both political and gaming money

influence.

Determinations are often based on a ‘‘sliding scale’’ in which the relationship to

the land wanted, the intensity of the development and the availability of the alternatives all play a role. Tightening the definition of restored lands helps but potentially only increases the influence of gaming money on the process.

Currently in California the NIGC is charged with determining if a tribe meets the

criteria of a ‘‘restored tribe’’ or ‘‘restored lands’’ at the same time. These are two

separate questions that unduly affect local government’s ability to comment wholly

and fully on each question independently, and present a serious cost to community
30

taxpayers. Moreover, NIGC’s determination is not a final agency action, where is

the opportunity to challenge the determination of restored tribe or restored lands?

Mandatory exceptions totally avoid the Office of Indian Gaming Management-circumventing established guidelines and safeguards developed by that office to address environmental protections, involvement of affected governments and state

agencies and other nearby Indian tribes.

Clearly there is a need for a more collaborative approach to mandatory land acquisitions like the restored lands exception. Especially whenever proposed acquisitions present serious environmental, taxation, jurisdictional and infrastructure problems or a State or local community has reasonable and legitimate objections.

Perhaps, a special provision can be crafted for mandatory applications mandating

the Secretary of the Interior upon request by a State or one of its cities, counties

or parishes to come together with affected parties early in the decision process. That

there is a requirement to work out solutions to identified environmental, taxation,

jurisdictional and infrastructure problems. As an incentive to working cooperatively

a fast track process could be offered greatly reducing the work load of BIA officials

the need for tribes to request ad hoc legislation and most importantly eliminating

local opposition and tribal gaming backlash.

We ask that this committee give grave consideration to any language that would

limit, restrict or end the two-part determination or gubernatorial concurrence. The

problem is not gubernatorial concurrence (section 2719 (b)(1)(a)) as there have only

been three withholdings of gubernatorial concurrence in the last 17 years and more

than 35 instances of tribes acquiring land through the mandatory exceptions in

IGRA.

We would rather the committee consider eliminating the mandatory aspect of the

exceptions and require that all after acquired lands go through a two-part determination with gubernatorial concurrence.

Gubernatorial concurrence judiciously used solves land use problems such as casino development in sensitive environmental locations, or placement of a casino adjacent to public and park lands or social concerns over the health and public welfare

that result from casino placement near homes, churches, and schools.

Moreover, the elimination of the two-part determination creates reverse incentives

encouraging gaming investors to re-write tribal histories to meet the exceptions in

section 20 of IGRA as we have and continue to witness in California.

Stand Up For California sincerely appreciates the opportunity to comment on off

reservation gaming and urges only moderate modifications to IGRA, so not to upset

the delicate balance between the rights and authorities of states, tribes and the Federal Government.
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