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21-759 PS 2005

DISCUSSION DRAFT BILL REGARDING INDIAN GAMING

AND ITS NEED AND EFFECTS

IN NORTHERN CALIFORNIA

OVERSIGHT FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

Monday, June 6, 2005, in Sacramento, California

Serial No. 109-18

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 Monday, June 6, 2005 ................................................................. 1

Statement of Members:

Gohmert, Hon. Louie, a Representative in Congress from the State of

Texas .............................................................................................................. 3

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

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

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

Statement of Witnesses:

Brown, Valerie, Supervisor, Sonoma County, Northern California

Counties Tribal Matters Consortium .......................................................... 25

Prepared statement of ............................................................................... 28

Hancock Loni, Assemblymember, 14th Assembly District, State of

California ....................................................................................................... 54

Prepared statement of ............................................................................... 56

Lohse, Leslie, Treasurer, Paskenta Band of Nomlaki Indians ..................... 3

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

McGowan, Mike, Supervisor, Yolo County, and Chairman, Indian Gaming

Working Group, California State Association of Counties ........................ 17

Prepared statement of ............................................................................... 19

Mejia, Margie, Tribal Chairwoman, Lytton Band of Pomo Indians ............. 48

Prepared statement of ............................................................................... 52

Mitchum, Wayne R., Chairman, Colusa Indian Community Council .......... 7

Prepared statement of ............................................................................... 8

O’Brien, Patrick, General Manager, East Bay Regional Park District ........ 34

Prepared statement of ............................................................................... 36

Schmit, Cheryl, Director, Stand Up For California ....................................... 38

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

(1)

OVERSIGHT FIELD HEARING ON A DISCUSSION DRAFT BILL REGARDING INDIAN

GAMING AND ITS NEED AND EFFECTS IN

NORTHERN CALIFORNIA.

Monday, June 6, 2005

U.S. House of Representatives

Committee on Resources

Sacramento, California

The Committee met, pursuant to call, at 12:00 noon in the

California State Library, Conference Room, Floor 5, Sacramento,

California, Hon. Richard W. Pombo [Chairman of the Committee]

presiding.

Present: Representatives Pombo, Gohmert, and Costa.

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

The CHAIRMAN. The hearing will come to order. I would like to

have everyone take a seat, that can. Today, the Committee is

seeking testimony regarding proposals in the Northern half of

California to take land into trust for Indian gaming purposes.

Specifically, we have analyzed the need for the discussion draft

bill I authored to amend Section 20 of the Indian Gaming Regulatory Act in a way that increases local input.

Section 20 of IGRA prohibits gaming on lands taken into trust

for a tribe after October 17, 1988. At the same time, Section 20 provides several complicated exceptions to this prohibition that are

meant to balance the needs of the tribes who want to build casinos

on newly acquired lands and the concerns of State and local governments which have been exercising jurisdiction over such lands.

Today, the scope and number of Indian gaming operations are orders of magnitude larger than what they were when IGRA passed

in 1988. Indian gaming is now an $18-billion-plus industry, and experts predict there is room for substantial growth.

California’s tribes now generate more gaming revenues than

tribes in any other state. This is not inherently bad. Let’s keep in

mind that Indian gaming stems from tribal sovereignty, and there

is nothing wrong with a tribe’s desire to protect its sovereign right

to have gaming and to use it as a tool for economic development

and tribal services on reservations that have suffered acutely from

historic poverty, joblessness and privation.

2

However, when IGRA was enacted in 1988, most everyone expected that gaming would occur within the limits of tribes’ existing

reservations. With a large number of recognized tribes and tribes

seeking to be recognized or restored, the State of California has

seen a growing list of proposals to build Indian gaming facilities in

areas where they were not expected.

In many cases, the surrounding communities feel unable to absorb the social and financial impacts associated with casinos, which

can be ambitious in size and scope, yet IGRA provides only for an

analysis of the impacts on communities with no real involvement

by communities or other tribes in the process of permitting an offreservation facility.

Indian gaming should not be a source of conflict between neighbors and communities. Several recent proposals to build casinos

have generated such strong opposition and alarm in Northern California that some tribes are now pitted against other communities,

including other tribes. Some of today’s witnesses will elaborate on

this unfortunate development.

This conflict is not a matter of perception; it’s real and has real

consequences. Colleagues of mine in the House who do not have

much experience in dealing with tribes seem to take a great interest in tribal issues only when an Indian casino is proposed in their

district where a tribe does not reside.

Off-reservation gaming is not just bad publicity for tribes; it’s

sometimes the only publicity. This can affect how Members act on

bills affecting Indian tribes. Clearly, Congress has a responsibility

to examine Section 20 of IGRA so that both the tribes and the

people of California mutually prosper into the future.

I look forward to hearing more about Indian gaming in Northern

California from today’s witnesses and how the discussion draft bill

to amend Section 20 of IGRA might improve the law that has contributed to the well-being of California’s tribal members.

[The prepared statement of Mr. Pombo follows:]

Statement of The Honorable Richard W. Pombo, Chairman,

Committee on Resources

Today the Committee is seeking testimony regarding proposals in the northern

half of California to take land into trust for Indian gaming purposes. Specifically,

we will analyze the need for a discussion draft bill I authored, to amend Section

20 of the Indian Gaming Regulatory Act in a way that increases local input.

Section 20 of IGRA prohibits gaming on lands taken into trust for a tribe after

October 17, 1988. At the same time, Section 20 provides several complicated exceptions to this prohibition that are meant to balance the needs of tribes that want to

build casinos on newly acquired lands, and the concerns of local and state governments which had been exercising jurisdiction over such lands.

Today, the scope and number of Indian gaming operations are orders of magnitude larger than what they were when IGRA passed in 1988. Indian gaming is

now an $18-billion-plus industry, and experts predict there is room for substantial

growth. California’s tribes now generate more gaming revenues than tribes in any

other state.

This is not inherently bad. Let’s keep in mind that Indian gaming stems from

tribal sovereignty, and there’s nothing wrong with a tribe’s desire to protect its sovereign right to have gaming and to use it as a tool for economic development and

tribal services on reservations that have suffered acutely from historic poverty, joblessness and privation.

However, when IGRA was enacted in 1988, most everyone expected that gaming

would occur within the limits of tribes’ existing reservations. With a large number

of recognized tribes and tribes seeking to be recognized or restored, the State of

3

California has seen a growing list of proposals to build Indian gaming facilities in

areas where they were not expected.

In many cases, the surrounding communities feel unable to absorb the social and

financial impacts associated with casinos, which can be ambitious in size and scope.

Yet IGRA provides only for an analysis of impacts on communities with no real involvement by communities or other tribes in the process of permitting an off-reservation facility.

Indian gaming should not be a source of conflict between neighbors and communities. Several recent proposals to build casinos have generated such strong opposition and alarm in northern California that some tribes are now pitted against other

communities, including other tribes. Some of today’s witnesses will elaborate on this

unfortunate development.

This conflict is not a matter of perception; it’s real, and it has real consequences.

Colleagues of mine in the House who do not have much experience dealing with

tribes seem to take a great interest in tribal issues only when an Indian casino is

proposed in their district where a tribe does not reside. Off-reservation gaming is

not just bad publicity for tribes, it’s sometimes the only publicity. And this can affect how Members act on all bills affecting Indian tribes.

Clearly, Congress has a responsibility to examine Section 20 of IGRA so that both

tribes and the people of California mutually prosper into the future.

I look forward to hearing more about Indian gaming in northern California from

today’s witnesses, and how the discussion draft bill to amend Section 20 of IGRA

might improve a law that has contributed to the well-being of California’s tribal

members.

The CHAIRMAN. I want to recognize Mr. Gohmert for any opening

statement he may have.

STATEMENT OF THE HON. LOUIE GOHMERT, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. GOHMERT. Thank you, Mr. Chairman. It’s an honor to be

here. It’s great to see such public interest in any issue even when

it’s divisive, but I’m here to learn, not to speak or dictate, so thank

you. I am pleased to be here.

The CHAIRMAN. Thank you. I would like to introduce our first

panel of witnesses. We have Tribal Treasurer Leslie Lohse from the

Paskenta Band of Nomlaki Indians and Chairman Wayne R.

Mitchum, Cachil Dehe Band of Winton Indians in Colusa.

The CHAIRMAN. If I could have you stand, as is customary in the

Resources Committee, we will swear in all of the witnesses.

[Witnesses sworn.]

The CHAIRMAN. Let the record show they have both answered

affirmatively.

Welcome to the Committee hearing. It’s nice to see you both. Let

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

Committee Rules, oral statements are limited to five minutes. Your

entire written statement will appear in the record.

Ms. Lohse, we will begin with you.

STATEMENT OF LESLIE LOHSE, TRIBAL TREASURER,

PASKENTA BAND OF NOMLAKI INDIANS

Ms. LOHSE. Mr. Chairman, members of the Committee, welcome

to California. Thank you for allowing me to appear before you

today. As you said, my name is Leslie Lohse, I am a member of

the Paskenta Band of Nomlaki Indians. It is located in nearby

Tehama County. I am the Treasurer and the spokesperson for our

tribe. I serve as the Pacific Region Area Vice-President for the

National Congress of American Indians, the BIA Central California

4

Agency Policy Committee Chairperson and Treasurer of the

California Tribal Business Alliance.

Today I will present my testimony on behalf of my tribe and

based upon my own experience.

Your leadership in addressing the issue of off-reservation gaming

is a very important and critical step in the right direction and we

do support this legislation.

Unfortunately, since the passage of IGRA, many non-Native

American opportunists have sought ways to cash in, some at the

expense of the tribes that they profess that they are helping and

some at the expense of the local community.

The purpose of the law was to provide a tool that is usable to

bring tribes out of more than a century of abject poverty, fund reliable housing and protect schooling. We have seen that impact upon

our own tribal lands.

Some have taken titles to homes for the first time and some are

now able to send their children to colleges and universities to further their capabilities and their aspirations. IGRA is explicit in the

fact that Indian tribes are to be the primary beneficiaries of the

gaming revenue and its clear intent was to shield the tribes from

outside influences intent on siphoning those gaming profits away

to meet their own commercial ends.

There is a growing national concern that the inappropriate tribestalking role taken on by these wealthy investors in tribal gaming

is corrupting the very purpose if not the letter of the law. From

Connecticut to San Francisco, from Minnesota to our own Tehama

County, tribal communities are beginning to actively resist the

spread of off-reservation gaming. Within our own tribal community,

we are experiencing the threat of tribes succumbing to those pressures of outside investors who encourage them to grab at land outside their territory for the purpose of gaming.

The Greenville Maidu Indians of Plumas County, California, are

a case in point. This tribe has a great, rich history in Plumas

County, but has repeatedly attempted to claim land in Tehama

County where they have no historic aboriginal territory.

Nevertheless, encouraged by their investors, the tribes have petitioned the Board of Supervisors twice to claim a casino along I-5.

This claim has been soundly rejected twice by a vote of 4 to 1 but

that doesn’t stop the financial backers. They persist in their request, costing the community much-needed funds to maintain their

own community, and hoping to wear down the community’s resistance.

The petition rewrites California tribal history to serve the interests of the investors in picking a prime real estate site. Most importantly to us, it is decided well within our ancestral territory.

The Greenville Maidu proposal distorts history of their own and

ours and defies careful and deliberate court hearings on tribal

lands.

It is but one more chapter in a rush funded by non-Indian

gaming investors to simply bend historical truths to serve their

exploitive interests.

The Greenville Rancheria issue was settled in the Hardwick case

which identified their Rancheria as being local within Plumas

County, more than 90 miles away from their current site. But the

5

developer is blithely ignoring court rulings. These are the Wilmots

of New York, a shopping center developer that has found new goals

in developing and funding and operating Indian casinos.

Despite the Hardwick ruling and the rejection of the Board of

Supervisors, the Wilmots have gone ahead and purchased property

in the County along I-5. Their clear intention is to relocate the

Greenville Maidus to this new location because, like other tribes,

their ancestral land or their current land, which many likely will

have, are not within a good market area.

Strangely enough, some even claim that their own lands are too

environmentally sensitive, not caring about what impacts they’re

imposing upon another tribe’s ancestral land or bringing to a local

community. Members of the Committee, should just any passing investor locate a casino in your district, in your community by simply

inducing a tribe to make a falsehood and even knowingly false land

claim? I can assure you the investors’ first priority is not the welfare of that tribe or the return of that tribe to return to their ancestral land.

Investors, such as the Wilmots of New York, seem to like to buy

the land first and throw the tribe at it and see if it sticks. Rather

than reservation shopping, tribe shopping is the more appropriate

term I have seen several tribes fall victim to such exploitive actions. That’s why Federal law must be updated to prevent this kind

of exploitation and done so without delay. The legislation has certainly forced the first step that will stop the encroachment we’re

facing within the Tehama County.

Greenville Rancheria’s 275 acres is located approximately three

miles east of Greenville, Plumas County, California.

Mr. Chairman, the Paskenta Band of Nomlaki Indians is not a

great competition. We only have the best hopes for our sister

tribes, but it’s not to be at the expense of other tribes who have

stayed home or have not yet been recognized or at the expense of

local communities. Out-of-state investors should never be able and

permitted to hijack the process.

The Greenville Tribe Chairperson, Lorie Jaimes, has testified before this Committee and spoke out against your efforts to update

the reservation law proclaiming, ‘‘It is our belief that IGRA does

not need to be amended with regard to off-reservation gaming because there is no genuine problem or crisis in this area. Those who

most loudly call for amendments do so because they do not understand the process.’’

Mr. Chairman, Members of the Committee, we respectfully disagree with the Maidu’s position. In our minds there is clearly a

problem of outside interference and this legislation is working toward a fair and just solution. It is authored by people who indeed

understand the process.

Thank you for your efforts and this opportunity to testify. I ask

that my statement be entered into the record and I am happy to

answer any questions you may have.

The CHAIRMAN. Thank you for your testimony.

[The prepared statement of Ms. Lohse follows:]

6

Statement of Leslie Lohse, Treasurer,

Paskenta Band of Nomlaki Indians of California

Mr. Chairman, members of the Committee, welcome to California and thank you

for allowing me to appear before you today.

My name is Leslie Lohse, a member of, Treasurer and spokesperson for the

Paskenta Band of Nomlaki Indians of California located in nearby Tehama County.

I am also the National Congress of American Indians (NCAI) Pacific Region Area

Vice-President, U.S. Bureau of Indian Affairs Central California Agency Policy Committee Chairperson and Treasurer of the newly formed California Tribal Business

Alliance. Today I will present testimony based on my own experiences and on behalf

of Paskenta.

The Committee’s leadership addressing the issue of off-reservation gaming is a

tremendous step in the right direction and we support this legislation. Unfortunately, since the passage of the Indian Gaming Regulatory Act of 1988, many nonNative American opportunists have sought ways to cash in—sometimes at the expense of the Tribe and sometimes at the expense of the local community.

The debate over Tribal gaming and their wealthy investors is taking place in

many communities around the country. Whether in Connecticut, the San Francisco

Bay Area, or out here in Tehama County, communities are entrenched fighting the

spread of off-reservation casinos. Within our own tribal community, the Paskenta

Band also feels the impact when tribes led by investors search for land to claim for

the purposes of gaming.

The Greenville Maidu Indians of Plumas County, California, after failed attempts

to go into Oxnard, Ventura County and the Bay area, have repeatedly attempted

to claim land in Tehama County where they have no historic aboriginal territory.

The Greenville Tribe has approached the Tehama County Board of Supervisors and

was rejected twice by a 4-1 vote; has now submitted a new proposal. No consideration is being given to the fact that the proposed site is well within the ancestral

territory of the Paskenta Band of Nomlaki Indians.

The Greenville Maidu proposal presents a disturbing and exploitive picture of

Tribal Governments throughout this great nation. The Greenville Rancheria issue

was settled in the Hardwick case. The stipulation and judgment in that matter provides that the exterior boundaries of the plaintiff tribes’ individual reservations

(rancherias) would be restored to pre-termination status. Therefore, the Greenville

Rancheria’s ‘‘275 acres, is located approximately three miles east of Greenville,

Plumas County, California.’’

This indicates clearly that the United States and Greenville Rancheria recognize

that the Greenville Maidu’s proper land request should be limited to Plumas

County, California, not Tehama County, California. However, the developer, the

Wilmots of New York, have purchased property in Tehama County along Interstate

5. Therefore, the Wilmots want to relocate the Greenville Maidu to this new location. Such relocation will satisfy this out-of-state investor’s appetite for profit. No

consideration is being given to the Maidu’s true ancestral territory or the land recognition indicated in the Hardwick case. Again, the focus is on the needs of the investor, not the Tribe or surrounding community.

Legal Counsel for the Greenville Tribe, Judith Albietz, when asked why the Tribe

does not have land in Greenville and if a site-search was conducted and how this

location was chosen emphasized, ‘‘the developer approached the Tribe with this

project.’’ That is taken from the Minutes of the Meeting of the Board of Supervisors

of the County of Tehama, Tuesday, May 18, 2004. In addition, Ms. Albietz went so

far as to say, ‘‘the developer of the project, the Wilmots, will be a good partner with

Tehama County...the facility will be run by the Wilmots.’’ Notice she referred to the

New York developer and not the Greenville Maidu Indians.

Members of the Committee, should an investor have the right to place a casino

in your community, in your congressional districts, by convincing Tribes to make a

faulty land claim? I can assure you; an investor’s first priority is not that a Tribe

returns to their ancestral lands. Over the years, I have witnessed many Tribes fall

victim to empty promises made by investors—hopes shattered and communities

overwhelmed. Rather than ‘‘reservation shopping,’’ I have found ‘‘tribe shopping’’ is

probably the more appropriate term. It seems that investors, such as the Wilmots

from New York, purchase land and then throw a tribe at it and see if they stick.

Federal law must be updated through this legislation to prevent these situations

such as the one we face in Tehama County.

Mr. Chairman, the Paskenta Band of Nomlaki Indians of California is not afraid

of competition. We only have the best hopes for our sister Tribes who are less fortunate as they seek economic prosperity. But that prosperity should not be at the exVerDate 11-MAY-2000 14:20 Oct 31, 2005 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 J:\DOCS\21759.TXT HRESOUR1 PsN: HRESOUR1
7

pense of other Tribes or communities. Out-of-state investors should not be permitted

to hijack the process.

The Greenville Tribe has testified before this committee and spoken candidly

about its opposition to efforts led by Chairman Pombo and others to reform and update off-reservation gaming law. The Greenville Maidu Chairwoman, Lorie Jaimes,

testified before this committee in Washington, D.C. on March 17, 2005, proclaiming

that, ‘‘it is our belief that IGRA does not need to be amended with regard to offreservation gaming because there is no genuine problem or crisis in this area...those

who most loudly call for amendment do so because they do not understand the process.’’ Mr. Chairman, members of the committee, there is clearly a problem and this

legislation is working toward a solution—offered by people who understand the

process.

Thank you for the opportunity to testify. I ask that my statement be entered into

the record and I am happy to answer any questions you may have.

The CHAIRMAN. Chairman Mitchum, please.

STATEMENT OF WAYNE R. MITCHUM, CHAIRMAN,

CACHIL DEHE BAND OF WINTON INDIANS, COLUSA

Mr. MITCHUM. I want to thank you, Congressman Pombo, for inviting me today to give testimony on this discussion draft

amending the Indian Gaming Regulatory Act to restrict offreservation gaming.

The Colusa Indian community, along with most tribes across the

Nation, is very concerned about any effort to open the Indian Gaming Regulatory Act, no matter how noble the purpose. To do so

even in a controlled environment puts at risk the sovereign rights

of tribes across the United States.

The Indian Gaming Regulatory Act, IGRA, established a prohibition against gaming on lands acquired in trust after October 17,

1988. The procedures required in IGRA have worked successfully

for 17 years.

During this time, only three tribes have successfully taken land

into trust for gaming purposes off-reservation.

Unfortunately, when a tribe has circumvented the process defined in IGRA, it reflects negatively on all tribes. The matter is further complicated by developers who purposely seek lands in urban

areas with the hopes of capitalizing on a tribe’s ability to acquire

off-reservation lands for gaming purposes.

This practice, commonly referred to as ‘‘reservation shopping,’’ is

often promoted and financed by opportunistic non-Indian developers who seek percentages of revenue from the resulting off-reservation casinos.

This effort creates a media frenzy of speculation that tribes are

out of control in seeking lands for gaming purposes. This is not the

case.

Attempts by tribes to conduct gaming on lands outside of their

ancestral territory for the sole purpose of gaming, jeopardizes longstanding claims by tribes seeking to restore lands unjustly taken

by past Federal policies.

It has also caused significant tensions between tribal governments and created a backlash against Indian gaming by citizen

groups and leaders in the U.S. Congress.

In exchange for casino deals, tribes seeking off-reservation lands

have been willing to just cede important sovereign rights to State

8

and local governments and have entered into exorbitant revenue

sharing agreements.

The sovereignty loss and revenue sharing agreements by these

tribes become new baselines for other tribes when they seek to obtain or renew Tribal/State gaming compacts or compact amendments, therefore jeopardizing the sovereignty of tribes engaged in

on-reservation gaming and following the IGRA process.

Along with other tribal leaders, I have serious concern about the

possible negative impacts of reservation shopping on the long-term

viability of Tribal government on-reservation gaming. However, I

do not believe opening IGRA is the best answer.

Tribal government gaming has been the only vehicle that has

brought successful economic opportunity for my nation. While some

tribes have limited themselves to gaming, many others have used

the funds derived from gaming to rebuild their infrastructures, to

provide dialysis and medical facilities on their reservations, to invest in quality child care for their members and their employees,

to expand into other forms of economic opportunity such as manufacturing facilities.

Tribal government gaming has brought our members out of poverty and restored pride in their ancestry and culture. We will have

a long way to go to bring people to the levels of the financial security enjoyed by the rest of the Nation, but we are well on our way.

Unfortunately, there are many citizen groups, as well as members of the State and Federal Legislature, who would like to see

us fail. They oppose the success we have been able to reap through

tribal government gaming and do not understand the restraints

that IGRA imposes as to how our gaming revenues must be spent.

Congressman, I have a few more lines, but I know I’m running

out of time.

The CHAIRMAN. Go ahead.

Mr. MITCHUM. Rather than expose Indian Country to further erosion of sovereign rights, which will surely happen if IGRA is

opened for modification, I urge Congress to work directly with the

Secretary of the Interior to require an ancestral tie to lands in

making two-part determinations under Section 20(b)(1) of the

Indian Gaming Regulatory Act for proposed land acquisitions.

The Colusa Indian community further urges Congress to require

the Secretary of the Interior to consult with other tribes whose ancestral lands are sought for acquisition and require the concurrence

of those tribes before such lands are eligible for gaming.

Last, I encourage Congress not to approve any special legislation

that would permit gaming on lands outside of the tribe’s ancestral

territory.

Again, I thank you for this opportunity. I am available to answer

any questions.

The CHAIRMAN. Thank you.

[The prepared statement of Mr. Mitchum follows:]

Statement of Wayne R. Mitchum, Chairman,

Colusa Indian Community Council

I wish to thank you, Congressman Pombo, for inviting me to give testimony on

your Draft Discussion Document to amend the Indian Gaming Regulatory Act To

Restrict Off-Reservation Gaming.

9

The Colusa Indian Community, along with most tribes across our Nation, is very concerned about any effort to open the Indian Gaming Regulatory Act, no matter

how noble the purpose. To do so—even in a controlled environment—puts at risk

the sovereign rights of tribes across the United States. The Indian Gaming Regulatory Act (IGRA) established a prohibition against gam- ing on lands acquired in trust after October 17, 1988, with certain exceptions: 1. Where lands are located within or contiguous to a Tribe’s reservation;

2. Within the last recognized reservation of a landless tribe;

3. Oklahoma specific provisions;

4. Lands taken into trust as part of a settlement of land claims;

5. Lands that constitute the initial or restored reservations of Tribes acknowledged through the federal acknowledgment process or restored to federal recognition; and 6. The so-called ‘‘two part determination’’ process in which the Secretary of the Interior considers the best interests of the tribe and its members and the impact on the surrounding community, and the Governor of the State in which

the gaming activity is to be conducted must concur with the Secretary’s determination.

The procedures required in IGRA have worked successfully the last 17 years. Dur- ing this time only three tribes have successfully taken land into trust for gaming

purposes off reservation.

Unfortunately, when a tribe has circumvented the process defined in IGRA, it re- flects negatively on all tribes. The matter is further complicated by Developers who purposely seek lands in urban areas with the hope of capitalizing on a tribe’s ability to acquire off reservation lands for gaming purposes. This practice, commonly referred to as ‘‘reservation

shopping’’, is often promoted and financed by opportunistic non-Indian developers

who seek a percentage of revenue from the resulting off-reservation casino. Their

efforts have created a media frenzy of speculation that tribes are out of control in

seeking lands for gaming purposes. This is not the case. Attempts by Tribes to conduct gaming on lands outside of their ancestral territory for the sole purpose of gaming jeopardizes longstanding claims by Tribes seeking to

restore lands unjustly taken by past federal policies. It has also caused significant

tensions between tribal governments and created a backlash against Indian gaming

by citizen groups and leaders in the United States Congress. In exchange for casino deals, Tribes seeking off-reservation lands have been will- ing to cede important sovereign rights to State and local governments, and have entered into exorbitant revenue sharing agreements. The sovereignty loss and revenue sharing agreed to by these Tribes becomes the new baseline for other Tribes when they seek to obtain or renew tribal-state gaming

compacts or compact amendments, thereby jeopardizing the sovereignty of Tribes

engaged in on-reservation gaming and following the IGRA process.

Along with other tribal leaders, I have serious concerns about the possible negative impacts of reservation shopping on the long-term viability of tribal government

on-reservation gaming. However, I do not believe opening IGRA is the best answer.

Tribal government gaming has been the only vehicle that has brought successful

economic opportunity for tribal nations. While some tribes have limited themselves

to gaming, many others have used the funds derived from gaming to rebuild their

infrastructures, to provide dialysis and medical facilities on their reservations, to invest in quality child care for their members and their employees, and to expand into

other forms of economic opportunity such as manufacturing facilities.

Tribal government gaming has brought our members out of poverty and restored

pride in their ancestry and culture. We still have a long way to go to bring our

people to the levels of the financial security enjoyed by the rest of the Nation, but

we are well on our way.

Unfortunately, there are many citizen groups as well as members of the State and

Federal Legislature who would like to see us fail. They oppose the success we have

been able to reap through tribal government gaming and do not understand the restraints that IGRA imposes as to how our gaming revenue must be spent.

Rather than expose Indian Country to further erosion of sovereign rights—which

will surely happen if IGRA is opened for modification—I urge Congress to work directly with the Secretary of the Interior to require an ancestral tie to land in making two-part determinations under Section 20(b)(1) of the Indian Gaming Regulatory

Act for proposed land acquisitions.

The Colusa Indian Community further urges Congress to require the Secretary

of the Interior to consult with other tribes whose ancestral lands are sought for acquisition, and require the concurrence of those tribes before such lands are eligible

for gaming.

10

Lastly, I urge Congress not to approve any special legislation that would permit

gaming on lands outside of a tribe’s ancestral territory.

Again, I thank you for this opportunity to share the views of the Colusa Indian

Community. I am available to answer any questions.

The CHAIRMAN. I thank both of you for your testimony.

I’m going to begin with questions for Ms. Lohse. Just to begin

with, can you describe the history of your tribe and its experience

with Indian gaming.

Ms. LOHSE. With regard to Indian gaming in California, we were

approached by many investors when they first found out that we

had gained our recognition. They wanted to take it down to the

Bay Area, all over the place.

We said, ‘‘No. We know where we’re from. We’re from Tehama

County and we came with nothing and we’ll leave with nothing before we go and put ourselves somewhere else because we identify

ourselves with where we are.’’

Eventually, investors did come and try to relocate us. They would

offer us 25 acres, 10 acres, because that’s all you need to put a

casino on. Again, we said, ‘‘No. We’re looking toward the future and

building a future for our tribe.’’

We finally found an investor that would invest in some acreage

because we saw this gaming as a tool to spin off other things, to

make ourselves economically sound. Yet even that investor wanted

to be a Management Group. We said again, ‘‘No. We will not have

a management group take care of us. We can take care of ourselves.’’

We can be the bank and enjoy some of the revenues from here,

but we will run it because we honestly believe just exactly what

Reagan had in mind when he passed IGRA, was the fact that this

would put the future of the tribes in their own hands and we would

gain opportunities if it works.

We said, ‘‘No, we’re going to make it work.’’ So, we turned down

the management contract and they did do a consultant contract.

Since then, we bought out the investor within two years because

we were running it.

It’s not behooving the investor necessarily to work themselves

out of the contract. They want to stay there for the full seven

years. But we said, ‘‘No, we want to take control of that.’’

Instead, we’ve been able to do other things economically, build

hotels, all these kind of things, and we have turned into the bank

for some of the investors who come and we leased our property to

them.

So gaming, it has been a great tool. That’s why we said before

if it’s applied properly, IGRA does work. Unfortunately, we have

had too many lawyer lobbyists that are out there trying to lead the

tribes around and circumvent the process. That’s been our experience.

The CHAIRMAN. I understand, and I have had the opportunity to

talk to you before. I understand from your testimony your concerns

with other tribes moving in and taking—trying to establish a facility on land that you don’t believe is historically theirs.

In the draft legislation, one of the concepts that we put in dealt

with what we have referred to as an ‘‘Economic Opportunity Zone,

11

Indian Economic Opportunity Zone.’’ How do you feel—and I know

you’re familiar with the legislation—how do you feel about that

concept of being able to establish areas that would be specifically

for gaming like that?

Ms. LOHSE. I’m not real clear about how that would work. I know

that the concept itself sounds good because it would centralize and

be able to have tribes basically buy into an area, but I’m not sure

how that works.

I think some of the questions that came up were, ‘‘OK, if this is

going to be an Indian Economic Zone, I think if it’s a fee land type

of setting or a more lucrative setting, who has control of that land?

How are—what jurisdiction does that land fall under? What are

all of the rights that go with having that land? Who does that go

to? How is that protected and how is it monitored?’’ Those are probably some of the concerns.

I think conceptually it’s a good idea because then communities

know where it’s going, where the tribe is going and they wouldn’t

have so many fears as when they tribe gets re-recognized, ‘‘Oh,

gosh, here comes another casino.’’ Those are some of the questions

that I have heard and kind of pondered myself.

The CHAIRMAN. I think there are two different ones as you’re

aware. One is dealing with land that is already trust land that a

tribe already has. The other concept was to take land that is not

currently trust land and that would be taken into trust and it

would be done under the names of the tribes that would be going

in there and it would maintain the sovereignty just as it was on

current reservation land.

That would be a way of, I think, consolidating some of this so

that we don’t end up with so many different proposals in different

places. As you testified to, it seems like there are so many different

proposals for where we go it makes it difficult.

Chairman Mitchum, I wanted to ask you about that concept with

the Indian Economic Opportunity Zones and get your feedback on

that and how you feel about that.

Mr. MITCHUM. I think it’s basically the same. The concerns that

I would have, as far as mineral rights, where would that go? As

far as—I know what we have in Colusa.

If the tribes were to go to one specific place, what would happen

with those? When we purchase properties as far as my reservation

goes, we make absolutely sure that we have all those mineral

rights and everything.

I think as far as with having a group designated for a spot, that

would be my only concern.

The CHAIRMAN. In your testimony, you talk about a concern for

opening up IGRA and what some of the impacts would be or what

some of the possible amendments would be.

I’m not sure if you’re aware or not, this year as the House

Interior Appropriations bill was working its way through the

House, there was an attempt made to put a moratorium on any

new Indian gaming at all anywhere in the country.

We were able to stop that from going forward because of this

draft legislation, because of my commitment to moving forward and

under regular order and having a Committee of jurisdiction actually take control of this issue. But that attempt was made and it

12

is something that is out there. That’s not opening up IGRA to

amendments; that’s throwing it out the door.

That is what we’re faced with in the House right now and the

sense is that there is a very real concern and a very real effort to

move forward and just completely throw it away and not just look

at it and look at what any possible updates would be, or any new

amendments would be to it, but basically put a moratorium on

moving forward with anything on IGRA.

I think that’s a much more real threat to the issues that you

have raised in your testimony than moving in forward on a regular

order with legislation like this.

My time has expired and I recognize Mr. Gohmert for any questions he may have and welcome Mr. Costa to the hearing.

Mr. GOHMERT. Thank you. I appreciate the opportunity and appreciate your testimony. There’s no reason to be nervous. I don’t

wear a robe anymore like I used to, I don’t see a bailiff with a gun

and handcuffs and I can’t send anybody here to prison. I want to

learn.

Ms. Lohse, you had mentioned the purpose originally was to

bring Indians, Native Americans, out of abject poverty and I appreciate and understand your concern about outside interests being

the ones that profit and whether or not they are behind some of

the movements in this area of gaming. I don’t know, I’m still learning.

Because you mentioned it, I am curious. On the gaming on ancestral lands, you had mentioned buying out previous investors.

Overall, do you have any information, any raw data as to how individuals have benefited? I know as a Judge when I was sentencing

people, I had the impression that some of our Federal programs

had basically instead of encouraging people to develop their Godgiven talents and their—you and I know there is so much potential

in Indians, Native Americans, that is often untapped.

Do you have data that would indicate how individual Indians

have benefited and not just been enslaved to a method of getting

cheap money?

Ms. LOHSE. I’m glad you brought that up.

We put together our housing program. It’s not Federal dollars

but we adhered to the Federal system in the fact of all the requirements that you have, the requirements that you have to put forward so that we make sure that they have some ownership and responsibility.

Many times they think, ‘‘I’m Indian, I can have this.’’ That’s not

true. We have to understand there is a process. We are in government and they need to come forward and put forth their information and their application process.

Since we have just initiated this because we have just paid off

the investor, now we are making more and rather than paying him,

we were able to put aside $1 million toward our housing which assists with down payments, the first home owner’s down payment

of $10,000, but they have to show, you know, go through the

process.

They have to get qualified for a loan, so they’re not going out

there because we don’t want to put them into a losing situation

13

where they cannot sustain their home and have to have it repossessed or fail on their mortgage payments.

That has brought about some accountability on the tribal members, not just a program, but that they have to buy in, they have

a responsibility of meeting those monthly payments, those kinds of

things. Our children, we now are requiring them—they don’t get a

per capita check while they are going to school.

Once they get out of school, they have to have a high school diploma or a GED or they wait until they are 21 before they get this

amount of money because we want them to know the encouragement is to go to school. Then we make sure that they are in school

when we help them to go further with their education.

So, it’s about accountability. As far as numbers, since January,

we have six new homeowners since initiating this program. For

many of the tribal people, they don’t think that they can do this

because they are so used to someone doing it for them.

We put the onus back on them to take responsibility and it’s actually been very uplifting to see many of them now come and say,

‘‘Wow, this is really cool because now I’m no longer on welfare.’’ We

have taken poor people off welfare assistance. At first, it was very

scary for them because they were saying, ‘‘Well, gosh, I’m going to

responsible.’’

Mr. GOHMERT. How are they making a living?

Ms. LOHSE. Now they’re getting jobs within the community. They

work in our casino, on other parts of our hotels, that kind of thing.

Now they see that they can be a contributor. They are no longer

thinking, ‘‘I’m just a taker,’’ or ‘‘I can’t.’’

So, yes, the casino has offered jobs, the hotels and other economic

developments that are in their own community. They now have the

feeling like, ‘‘Wow, I’m worth something.’’ They can meet their bills

on a timely manner. Now they feel more encouraged to go out and

find work.

Mr. GOHMERT. The benefits, the financial benefits, from gaming

goes to the member government or does it go passed down to

checks to individual members? I just wasn’t sure of the structure,

if they were considered to be the actual investors——

Ms. LOHSE. Yes, they are.

Mr. GOHMERT.—and receiving like rolling checks or something

like that or if it just goes directly to the tribal——

Ms. LOHSE. You have to put together a revenue sharing allocation plan that gets approved by the Federal Government. So much

percentage goes toward education, toward housing, toward general

welfare issues.

Then, of course, there are some that you may be able to per cap

out. I know a lot of people per capita means that you—some actually cringe at that and I know that there are many that say, ‘‘How

is that right?’’

Gaming revenue is tax dollars. Those are tax dollars and yet

President Bush’s tax plan was to put money back into the consumer’s pocket to grow the economy. So any little amount that goes

back into our individual Member’s pocket grows the economy because now they are homeowners and——

Mr. GOHMERT. Thank you. My time has expired but I do really

appreciate your responses.

14

The CHAIRMAN. Now I would like to recognize a new Member of

the Committee, Congressman Costa, for any questions he may

have.

Mr. COSTA. Thank you very much, Mr. Chairman, for holding

this hearing. I think it’s fitting and appropriate given the nature

of not only gaming in California, Indian gaming, but also the

impacts that you and I have discussed across the country. So, we

appreciate your bringing the Committee here for that purpose as

you work on the legislation that you have already discussed.

I was looking at the Governor’s proclamation as it relates to his

view of what our State policy is toward Indian gaming in California. If my memory serves me correct, we have about 107 recognized sovereign nations here in California, give or plus one are two

I think, and others that are pending to seek sovereign status or

recognition and that list is longer, not longer, but it’s a significant

list.

As I read, there have been 57 tribes that have successfully negotiated compacts and another 7 plus the 1.

I guess my question to the two witnesses here is, the Tribal

Treasurer Leslie Lohse, is yours one of the ones of the seven that

have negotiated a compact?

Ms. LOHSE. No.

Mr. COSTA. You haven’t?

Ms. LOHSE. We were one of the 57 in the 1999 compact.

Mr. COSTA. So you were previously already included, all right.

Mr. MITCHUM. We’re in the same situation.

Mr. COSTA. Then you have a sense, it seems to me, based on the

fact that you have a successful compact that you negotiated.

My question to both of you is very simple: What do you believe

the State’s policy is toward the recognized sovereign nations in

California that are not part of the 64 that currently have negotiated successful compacts?

Who wants to respond first?

Ms. LOHSE. I’m not sure what you’re trying to ask, but——

Mr. COSTA. Ostensibly, if we have 64 successfully signed compacts, if you do the math and subtract 107 from 64 or 64 from—

I believe you get the balance that conceivably could have compacts

in future.

I would like to understand what your view is in terms of the policy for those recognized sovereign nations that today do not have

compacts.

Ms. LOHSE. Obviously, that’s kind of what we’re talking about

here today. IGRA obviously takes precedence over whether the land

is eligible for gaming.

Then once that becomes eligible, then obviously the State is mandated by certain stipulations adhered to, to negotiate a compact

with that tribe if they still choose to stay on the reservation and

game.

The other side of it is if they go off-reservation, then that becomes the Governor’s concurrence and the other things that are applied to it.

Mr. COSTA. What’s your position for those who seek—the balance

that do not currently have compacts and go off-reservation.

15

Ms. LOHSE. Go off reservation? I am not for that because the fact

is that if they were to—like I said, this was meant to be a tool to

be used if usable. IGRA and gaming was not to be the panacea for

all tribes but it was to be used responsibly.

Mr. COSTA. I have spent a little time in the Legislature so I’m

familiar with that.

Chairman Mitchum, do you care to respond?

Mr. MITCHUM. I can’t add too much more other than that what

Ms. Lohse said. I basically feel the same way. I think if the

Governor wants to look at tribes, he has to look at them individually. There are numerous times that we have had talks and invited these folks out to see exactly what we’re doing.

Mr. COSTA. Are either of you satisfied with the State’s policy toward Indian gaming today?

Ms. LOHSE. He just currently came up with the proclamation——

Mr. COSTA. No, I know that——

Ms. LOHSE. Up until then, who knew what the policy was so I

think——

Mr. COSTA. I didn’t know. I’m not sure we actually had a policy

based upon my previous experience over the years.

Ms. LOHSE. I think there has been great concern. You can ask

anyone in this room. The tribal leaders would like to speak with

the Governor to help them understand what policy he is establishing.

Mr. COSTA. Let me just close with another question. My time is

almost up. I am a supporter of Indian gaming. I have one facility

in my district, one nearby and three adjacent. My mother wouldn’t

let me have it any other way. It’s one of her areas of entertainment.

But I am concerned. I want every one of the subsequent witnesses to understand that I am concerned about what I believe is

a lack of State policy that has existed on this issue for many in

areas and what pertains to those tribes that are sovereign nations

but have not successfully concluded compacts.

Ms. LOHSE. We have the same criticisms. That’s one of our concerns here, that Chairman Pombo’s legislation is addressing the

fact that many maneuvers and deals that are cut off do impact all

of us here in the State, and once again that states firmly that as

tribes we don’t get to become an LLC, or whatever, somewhere

else.

We remain here, so it definitely impacts us what Indian policy,

whether it’s gaming or any other issue, is here in California. We

would like to sit down with the Governor and discuss it.

Mr. COSTA. Thank you very much.

The CHAIRMAN. Mr. Costa has taken particular interest in this

issue and has discussed with me in the past the desire to have the

states have a clearer impact and a clearer policy when it comes to

Indian gaming.

I think that’s one of the concerns that I have and the Committee

has and one of the reasons why this legislation was put out to

begin with.

Chairman Mitchum mentioned a concern about the loss of sovereignty under the possibly of amendments. I think that’s a very

16

real concern and it’s something that I think we need to address in

anything that we move forward on.

Just as a follow-up to Mr. Costa’s questions, do you feel that

some of the compacts—and I know you’re not familiar with all of

the compacts that are being signed all over the country; that’s

something that the Committee does get involved with—but are you

concerned about some of the compacts that are being signed and

the potential for loss of sovereignty under those compacts?

Mr. MITCHUM. I think there has been some sovereignty lost or—

what I’m afraid of is if they become competitors and those agreements enforce the rest of these nations to abide by it.

My parents and my grandparents fought and died for what we

have today and I am not going to allow that to happen to them if

I can help it.

The CHAIRMAN. I have one concern when it comes to the amount

of money and the percentages and how that escalates. Every new

compact that is signed becomes a benchmark for the next one that

comes along.

The purpose of Indian gaming was to build the economy of the

reservations and to try to eliminate poverty and eliminate joblessness. That was the purpose of it and if it’s seen as a source of revenue for the State or local governments it completely changes the

purpose.

I think I have a greater concern for some of the other provisions

that are being included in some of those compacts and what longterm impact that has when it comes to sovereignty.

One of the reasons why we got into this to begin with was because of some of the provisions that were being put in. The tribe,

as Ms. Lohse talks about, ends up with an outside investor who is

looking for a tribe that will do something and become—who have

different motivations than the tribe does and different things they

want to protect than the tribe does.

Sometimes they are willing to accept things that they probably

shouldn’t for short-term economic gain and it’s not worth giving up

that sovereignty. That’s one of the reasons why we got into this to

begin with.

Do the Members have any further questions of this panel?

The CHAIRMAN. I am going to dismiss this panel. Thank you very

much. If there are any further questions of you they will be submitted to you in writing and you can answer those in writing.

I will hold the Committee record open long enough to give you

an opportunity to respond in writing and it will be entered into the

record. Thank you very much.

I’m going to call the second panel, Supervisor Mike McGowan

from Yolo County; Supervisor Valerie Brown from Sonoma County;

Pat O’Brien from East Bay Regional Parks District; and Cheryl

Schmit, Director of Stand Up for California.

[Witnesses sworn.]

The CHAIRMAN. Let the record reflect all answered in the affirmative. Welcome to the hearing. As I previously stated, your oral testimony is limited to five minutes. Your entire written statements

will be included in the record.

The CHAIRMAN. Supervisor McGowan, we will begin with you.

17

STATEMENT OF MIKE McGOWAN, SUPERVISOR,

YOLO COUNTY, INDIAN GAMING WORKING GROUP

Mr. MCGOWAN. Thank you very much. On behalf of the California State Association of Counties, I would like to thank

Chairman Pombo and the other Members of Congress who are good

enough to stop and hear our testimony as you consider important

legislation. My name is Mike McGowan, Member of the Yolo

County Board of Supervisors and Chairman of the CSAC Indian

Gaming Working Group. CSAC is a single, unified voice speaking on behalf of all 58 Cali- fornia counties. That voice is essential because there really are only

two kinds of California counties today, those which are presently

impacted by Indian gaming and those that will be in the future. We would contend that the issue of off-reservation gaming raised in this hearing today has direct and unique bearing on counties,

potentially more so than any other jurisdiction of local government.

For this reason, CSAC has been very actively involved in Indian

gaming issues. As you may recall, Supervisor Richard Forster of Amador County testified on our behalf at your hearing in April in Washington, D.C.

We have also submitted written testimony on your draft bill at that

time. There are a couple of key points that I will be making today

that I think are important about this Indian gaming issue in California.

First, regardless of the location of an Indian casino, the Cali- fornia county will be confronted with significant impacts from that

casino’s operations. Those impacts include increased demands on

social services, the criminal justice system, law enforcement and

fire protection, as well as impacts to environmental resources such

as air and water.

Counties are mandated by State law here in California to meet

these impacts whether they are caused as a result of a casino within a city’s borders, in an urbanized area or in a rural area. Counties should therefore be included in all decisions related to the construction and operation of tribal casinos within their boundaries,

including those within their cities.

My second point is that CSAC can be a valuable resource to

those seeking more information about how to effectively address

the impacts of Indian gaming on local communities.

Over the past several years, CSAC has devoted considerable staff

time and financial resources to analyzing the impacts on county

services resulting from Indian gaming. Because of this, CSAC has

gained extensive knowledge that has proven helpful to Tribal governments, other local governments and the State government as

well.

CSAC has also worked closely with two California Governors to

improve government-to-government relationships between counties

and tribes which benefit the State, those tribes and county governments and the citizens.

The benefits to the State and county governments include the establishment of judicially enforced negotiated agreements for addressing the impacts from Indian casinos. Tribes are benefited because they are now viewed as part of the solution instead of part

of the problem.

18

We believe that the current Tribal/State compacts which require

negotiation between tribes and counties prior to the construction or

expansion of casinos fills a large gap in the Indian Gaming Regulatory Act, one that failed to address local impacts of Tribal

gaming.

It’s no secret that Tribal gaming has rapidly expanded in California in recent years. In fact, a survey last year revealed that 35

counties out of the 58 in California have active or proposed gaming

operations within their borders, and of those proposed, more than

30 are for off-reservation casino sites, and as this Committee is

aware, the pending off-reservation proposals relate to projects on

land far from a tribe’s ancestral territory.

If these proposals are approved, the effect would be to bring

Indian gaming to each and every one of California’s 58 counties,

with several counties juggling the effects of more than one casino.

The impacts to counties, just in financial terms, on traffic, water

resources, wastewater treatment, the environment, the criminal

justice system and on would be in the hundreds of millions of dollars. Without a requirement for negotiated and enforceable agreements between counties and tribes, counties would not be able to

mitigate all of those impacts. The result would be a significant reduction in the quality of life for all California residents.

We recognize, the counties recognize, that tribal casinos are not

simply another profit-seeking development and fully respect and

support the desire of Tribal governments to properly provide for

their tribal members.

In this regard, California counties accept that one purpose of

IGRA is to provide Tribal governments with economic self-sufficiency. For that reason, we do not oppose Indian gaming, yet it has

become increasingly apparent to CSAC that a delicate balance is

required to ensure that all forms of government, whether they are

tribal, municipal, county, State or Federal and the people that they

represent, are treated equitably in addressing the impacts of

Indian gaming.

Because we in California have several positive examples of counties and tribes working together for the betterment of their respective communities, CSAC is very supportive of Chairman Pombo’s

efforts to give local governments, particularly counties, an effective

voice in addressing the increasing practice of reservation shopping.

Reservation shopping is causing disruption and concern in counties throughout California because it is often geared at increasing

profits to non-Indian promoters with little or no consideration given

to a tribe’s heritage or historic lands or to the impacts of a casino

on local communities.

We support the Chairman’s draft legislation in its prohibition of

tribes crossing state lines to build gaming facilities in states where

those tribes do not have any trust land. We also support amendments to IGRA that would expand the two-part determination to

specifically include counties and other local jurisdictions.

To the degree that some have interpreted CSAC’s previously submitted testimony regarding the two-part determination as support

for the elimination of that two-part determination, that is not the

case at all. To the contrary, CSAC remains fully committed to the

two-part determination in IGRA but believes that it should be

19

modified so that counties and other affected local governments

must also approve all land acquisitions taken in trust by the

Federal Government for a tribe even when those acquisitions are

considered as restored lands.

I would close by thanking the Chairman again for allowing us to

speak today and for having the insight to begin the analysis of

IGRA making certain it accomplishes the purposes of providing the

income and well-being of the tribes but without jeopardizing the

health, safety and general welfare of all members of our community.

We especially appreciate the Chairman’s bill with its necessary

and appropriate revisions which will allow the counties a significant voice in matters that create impacts that counties are ultimately called upon by their communities to address. This voice is

critical if California Counties are to protect the health and safety

of their citizens.

Thank you all very much for taking your time and for giving us

this opportunity to address you today. We look forward to working

with you in this and other matters to improve this bill and move

forward with this issue.

The CHAIRMAN. Thank you.

[The prepared statement of Mr. McGowan follows:]

Statement of Supervisor Mike McGowan, Yolo County Chairman,

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 proposed legislation to

restrict off-Reservation gaming. I am Mike McGowan, a member of the Yolo County

Board of Supervisors, and Chairman 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 has direct and unique bearing on counties, more

so than any other jurisdiction of local government.

There are two key reasons this issue 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 commercial endeavors attract large volumes of visitors.

Every Californian, including all tribal members, depend upon county government

for a broad range of critical services, from public safety and transportation, to waste

management and disaster relief.

20

California counties are responsible for nearly 700 programs, including the following:

• sheriff

• public health

• fire protection

• family support

• alcohol & drug abuse rehabilitation

• elections & voter services

• jails

• roads & bridges

• flood control

• welfare

• indigent health

• probation

• 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 counties and local governments on a government-to-government basis in compliance with the spirit and intent of the 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 your efforts to craft amendments to

the IGRA that preserve the original goal of the IGRA while minimizing the impacts

of ‘‘reservation shopping’’ on local communities. CSAC offers its assistance to Chairman Pombo and the House Resources Committee in any manner determined necessary by the Chairman and the Committee in its ongoing consideration of amendments to the IGRA that balance the interests of gaming tribes with local communities and governments.

Background:

A. The Advent of Indian Gaming

Even before the enactment of the 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 the 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 five 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

21

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.

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 a tribe’s willingness 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 other counties were less 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

tribes to ensure adequate services in areas where casinos are operating. In addition,

Yolo County has entered into agreements with two tribes to address the impacts

created by casino 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 County, located on the north coast of the state, 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 imVerDate 11-MAY-2000 14:20 Oct 31, 2005 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 J:\DOCS\21759.TXT HRESOUR1 PsN: HRESOUR1
22

provements, 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, which are

similar to those in place in my county. 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 community.

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 the 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 the

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. 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 1999 Compacts remain largely unresolved, as most existing 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

23

1 Cabazon, The Indian Gaming Regulatory Act, and the Socioeconomic Consequences of Amer- ican 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.)

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. 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 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 mil- lion, 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

24

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 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

insure that the needs of the community are met and that any legitimate tribal gaming proposal is ultimately successful and accepted. Local approval is necessary to

help insure a collaborative approach with tribes in gaming proposals and to support

the long-range success of the policies underlying the IGRA.

Comments on Draft Legislation:

CSAC fully understands that addressing impacts from 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, 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-Tribe Compacts, counties and other

local governments have been provided an appropriate opportunity to work with

gaming tribes to address these off-reservation impacts. The result has been improved government-to-government relationships between tribes and county governments. 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 is very supportive of Chairman Pombo’s efforts to

give local governments an effective voice in addressing the increasing practice of

‘‘reservation shopping.’’

Two-Part Determination

Chairman Pombo’s bill would effectively end the two-part determination presently

set forth in the IGRA and prohibit tribes from crossing state lines to build gaming

facilities in states where those tribes do not have any trust land. This is a significant first step in solving a large portion of off-reservation gaming proposals considered problematic by a number of tribal leaders, Members of Congress, and State and

local government officials. CSAC wholeheartedly endorses this approach.

Newly Recognized, Restored, Landless Tribes

CSAC endorses Chairman Pombo’s efforts to clarify how and where newly recognized, restored, and landless tribes acquire lands in trust for gaming purposes. The

Chairman’s effort to first ascertain a tribe’s geographic and historical ties to a particular area of the State makes abundant sense. This approach recognizes that when

a tribe has geographic and historical ties to a community, a precedential effect to

those ties is warranted. Without those geographic and historical ties, a tribe is no

different than any other developer in seeking an economic opportunity on lands that

were not part of its heritage.

Indian Economic Opportunity Zones

CSAC does not oppose the concept of allowing two Indian Economic Opportunity

Zones per state. However, based on its experiences with Indian gaming issues,

CSAC believes that more details are needed. CSAC has several recommendations

on how to clarify this provision:

• Zones should be limited to a tribe’s trust lands, and tribes should not be permitted to merge their separate trust lands to create a mega-economic opportunity zone.

• The size of the zones should be limited to an area not exceeding two square

miles in unincorporated areas or one square mile in incorporated areas.

25

• In states where zones are created pursuant to this amendment, Indian gaming

should not be permitted on land outside of a zone or on land not already held

in trust by the federal government at the time this amendment is adopted, unless the tribe and affected state and local jurisdictions agree in writing that any

unavoidable significant adverse impacts will be fully mitigated by the tribe.

• The location of such zones should take into account the impact that the zones

could have on existing commercial endeavors.

Primary Geographic, Social and Historical Nexus

When the phrase ‘‘primary geographic, social and historical nexus’’ is used in this

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.

Suggested Revisions and Clarifications

There are portions of Chairman Pombo’s bill that CSAC respectfully suggests require clarification or modification to eliminate ambiguity, to clarify the intent of the

bill, or to avoid misinterpretation. The specific suggested revisions are shown in Attachment D. In addition to these revisions, CSAC requests that language be added

to give certainty to the date that the amendment would become applicable so that,

for example, federal agencies would know whether a tribe’s trust application filed

before the effective date of the amendment, but approved after the effective date,

would be subject to the amendment’s requirements.

Conclusion:

CSAC presents this written testimony to assist the Chairman and Committee

Members in their efforts to amend the IGRA to address the increasing practice of

‘‘reservation shopping.’’ In California the Chairman’s bill, with 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 very limited and dependent on the willingness of a tribe to mitigate these 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 amendment, with some minor revisions,

would provide for more opportunities for these governments to work together. It

would further the original goals of the IGRA while helping to minimize abuses of

the IGRA that have proven to be detrimental to those tribes in full compliance with

all applicable federal laws.

NOTE: Attachments to Mr. McGowan’s statement have been retained in the

Committee’s official files.

The CHAIRMAN. Supervisor Brown.

STATEMENT OF VALERIE BROWN, SUPERVISOR, SONOMA

COUNTY, NORTHERN CALIFORNIA COUNTIES TRIBAL

MATTERS CONSORTIUM

Ms. BROWN. Thank you, Chairman Pombo.

Thank you for being here, Congressman Gohmert and it’s nice to

see you again, Congressman Costa.

Mr. COSTA. Nice to see you.

Ms. BROWN. On behalf of the Northern California Counties

Tribal Matters Consortium, I would like to thank you for bringing

this particular hearing to Northern California because that is indeed where there is a profound influence of reservation shopping.

26

My name is Valerie Brown. I am currently a Member of the

Sonoma County Board of Supervisors and serve as Sonoma

County’s Representative to the Consortium.

The Consortium is a collaboration between Napa, Solano and

Sonoma Counties. It is a new and growing organization founded by

county governments in the northern part of the San Francisco Bay

Area, based upon the realization that we must work together to

share expertise and to respond effectively to the legal and policy

decisions at the Federal level which often drive tribal development.

Our counties are also similarly situated on the northern edge of

the lucrative San Francisco Bay area urban gaming market and

are the target for an increasing number of new gaming proposals.

The Consortium’s policies, which I gave you as an attachment,

are consistent with those of the proposed legislation in that they

make a deferential distinction for development proposals from

tribes that have significant demonstrated ties to an area. Significant ties mean more than a tribe passed through, hunted or had

some other tenuous connection to an area, but rather exercised a

tribal jurisdictional presence in a meaningful and direct manner.

The key distinction for development therefore should be not necessarily urban or rural but rather presence or absence of a documented relationship of a tribal group to the land on which it seeks

to develop.

Due to our shared proximity to the lucrative San Francisco urban

market, gaming promoters representing and loosely affiliated with

tribal clients continually approach Consortium members. These

investor-driven efforts are an affront both to locally based tribes

and to county governments that have worked with local tribes on

a government-to-government basis to mitigate the impacts of casino

development.

IGRA, as well as California Propositions I(a) and 5, were passed

with the expectation that gaming would be conducted on existing

Indian lands. Now the exceptions seem to be the tail that is wagging the dog and upsetting the carefully designed balance that afforded tribes the monopoly of Class III gaming in California.

In Sonoma, for example, I and other County Representatives

were recently approached by financial backers of an unnamed

‘‘mystery’’ tribe that wanted to establish a Sonoma County casino.

It was clear this tribe, the identity of which the investors refused

to disclose, had not consulted with locally based tribes and were interested only in finding a location that placed them within reach

of the lucrative San Francisco market.

This is but the latest of a series of overtures made to Consortium

Members and of regional reservation shopping efforts, some of

which the Committee has already heard testimony.

These investor-driven efforts have little regard for a tribe’s historic ties to an area or to true concepts of tribal sovereignty and

jurisdiction except to the extent it allows them to open a casino. In

fact, it appears that investors shop for landless tribes.

The newest California twist to the reservation shopping issue

also shows how the current law now serves to pit tribe against

tribe. The Consortium is now observing tribes with established

casinos trying to leap-frog over other tribal gaming operations to

get closer to a population center. For example, the Hopland Band

27

of Pomo Indians, a Mendocino County-based gaming tribe located

north of Sonoma County, is trying to move south along the highway 101 corridor toward San Francisco, passing a Sonoma County

tribe’s operations that apparently is reducing its profits.

The location the Mendocino tribe has chosen for its new casino

is within the historic Rancheria boundary of another Sonoma

County tribe. The Mendocino tribe has applied to the BIA and the

NIGC to transfer the land to its own tribal trust property and to

have it designated as ‘‘restored’’ so that it is eligible for gaming.

The Mendocino tribe’s Trust Transfer Application, which is opposed by other Sonoma County tribes, is currently pending before

the BIA. It has become a question of who files first.

The draft legislation before the Committee takes several important steps toward addressing this type of reservation shopping and

the Consortium endorses most of proposed language.

One amendment the Consortium would support is to have Section (1)(A), which addresses newly recognized tribes, provide for the

same type of local government input as required under Section

(1)(B) for landless or restored tribes.

It appears that the inequities and need for land and economic opportunities of newly recognized tribes is no different than the needs

of landless tribes and both similarly require local input and consultation regarding mitigation.

The unintended consequence of treating the groups differently is

to place even additional pressure on the current acknowledgment

process by providing incentives for gaming interests to promote the

recognition of new tribes to avoid the requirements faced by placing

land into trust for landless or restored tribes.

The experience in California, driven in part by the restoration of

illegally terminated rancherias, is that the restored land exception

to prohibiting gaming on lands acquired after 1988 is being misused.

This is illustrated in the Hopland tribe’s attempt to have land

found eligible for gaming under the restored land provision, despite

the fact the tribe already has land in trust upon which it operates

a casino and the land sought is within another tribe’s historic jurisdiction.

Similarly, Alameda and Contra Costa Counties have been faced

with numerous proposals to have land restored from remote tribes

for gaming purposes. These efforts are all attempts by tribes and

their investors to evade the two-part test under IGRA that provides

for consultation between local communities and local tribes and the

Secretary to determine whether gaming on newly acquired trust

lands is detrimental to the surrounding community and concurrence by the Governor in that determination. We actually would be

supportive, as CSAC is, in having a third part test and that is local

jurisdiction.

Finally, the Consortium is interested in working further with the

Committee to refine the Economic Opportunity Zone concept. It

provides a creative mechanism to facilitate the co-location of

gaming operations to help avoid the leap-frogging phenomena that

now appears to be developing while also giving tribes in remote locations an opportunity to share more fully in the economic benefits

of gaming.

28

It appears, however, that additional provisions should be considered that take into account various issues, including the potential

size of the zone, county approval and a limitation to take future

land into trust for gaming purposes outside of the created zones. Again, the Consortium is appreciative of your efforts to bring this hearing to Northern California and hear of our concerns. We look

forward to working with you as you continue to make this bill work

more amenably. The CHAIRMAN. Thank you. [The prepared statement of Ms. Brown follows:]

Statement of Supervisor Valerie Brown,

Northern California Counties Tribal Matters Consortium

On behalf of the Northern California Counties Tribal Matters Consortium (Consortium), I would like to thank Chairman Pombo, Ranking Member Rahall, and the

other distinguished members of the Committee on Resources for giving us this opportunity to testify. I especially want to thank you for making the effort to conduct

this field hearing in Northern California where the issues surrounding tribal gaming and reservation shopping have taken on such profound importance. My name

is Valerie Brown, I am currently a member of the Sonoma County Board of Supervisors and serve as Sonoma County’s representative to the Consortium.

The Consortium

The Consortium is a collaboration between Napa, Solano and Sonoma counties.

It is a new and growing organization founded by county governments, in the northern part of the San Francisco Bay Area, based upon the realization that we must

work together to share expertise and to respond effectively to the legal and policy

decisions at the federal level which often drive tribal development. Our counties are

also similarly situated on the northern edge of the lucrative San Francisco Bay Area

urban gaming market and are the target for an increasing number of new gaming

proposals. The Consortium’s Policies (attached as Exhibit A) are consistent with

those of the proposed legislation, in that they make a deferential distinction for development proposals from tribes that have significant demonstrated ties to an area.

Significant ties mean more than a tribe passed through, hunted, or had some other

tenuous connection to an area but rather exercised a tribal jurisdictional presence

in a meaningful and direct manner. The key distinction for development therefore

should be not necessarily urban or rural but rather presence or absence of a documented relationship of a tribal group to the land on which it seeks to develop. Further, the Consortium Policies recognize large-scale gaming (and other development)

projects have significant local and even regional impacts that, to be successfully addressed, require a collaborative effort involving both county governments and affected tribes.

California, more than any other state, has experienced an explosion of tribal gaming and land development since the 1988 enactment of the Indian Gaming Regulatory Act (‘‘IGRA’’). This development accelerated in California with the 1999 passage of Proposition 1A, and the 1998 passage of Proposition 5. The result is 54 operational casinos maintained by 53 tribal governments in 34 counties, with at least

25 additional tribal casinos in the planning stage. The scope of potential casino development is also reflected in the over 100 federally recognized tribes in California,

with over 60 existing compacts, many of them providing for two casinos per tribe.

As these IGRA casinos have proliferated, increased tribal gaming wealth, or its

promise, has provided capital for still more gaming and non-gaming tribal development. All levels of state government now face significant challenges raised by tribal

development initiatives.

It is often stated that when IGRA was enacted in 1988, it was intended to serve

as a delicate balance between the rights of states, tribes and the federal government

to address tribal gaming. The ‘‘delicate balance’’ is now upset. When IGRA was

passed Indian gaming was, nationally, a $100 million business. Today Indian gaming enterprises account for over $18 billion in revenues with California alone responsible for about one-third of that amount. IGRA’s original premise (and that of

Propositions 5 and 1A in California) was that, with limited exceptions, gaming

would be limited to existing reservations. Sadly, that is not how it is today.

This is especially critical in Northern California where a growing number of tribal

entities are attempting to acquire land, seek trust status, and advance development

proposals for casinos and other uses in locations based solely upon market appeal.

29

Some tribes are attempting to develop land without regard to current reservation

location or the existence of historic or other significant ties to a chosen location.

There are many legal permutations of ‘‘reservation shopping,’’ and many jurisdictions are forced to deal with the complex legal issues it raises, often on an

emergency basis. It is important to point out that the issue of ‘‘reservation shopping’’ extends beyond gaming. Developers are partnering with tribes to use the

shield of sovereignty to embark on development projects that would otherwise never

be approved due to land use inconsistencies or other impacts.

The Consortium was formed to address these challenges. With respect to the issues specifically now before the Committee the following Consortium Policies

apply: • The Consortium is opposed to any federal fee-to-trust request, for gaming or

other development purposes, on behalf of a tribe that lacks significant, longterm and documented ties to the area where the trust land acquisition or development is proposed. • The Consortium is committed to working with tribes on a government-to-government basis to consider development proposals within the Consortium’s policy

framework. • The Consortium members are prepared to work with tribes to insure that county-tribal agreements will fully mitigate environmental impacts of a proposed

project and that there will be guarantees of substantial compliance with county

ordinances, zoning and environmental policies through an enforceable Memorandum of Understanding or similar agreement.

These policies recognize counties have an obligation to work on a government-togovernment basis with tribes which have a significant historic connection to a community. Implicit in the policies, as in the proposed bill, is the recognition that the

long-term success of Indian gaming depends upon a partnership with local communities to address off-reservation impacts and work together to accomplish common

goals.

The Consortium Experience

Our participating counties are all members of the California State Association of

Counties (CSAC) and we support and endorse the testimony submitted to this Committee by CSAC. The Consortium submits its own testimony, however, to share the

unique experience of tribal gaming in the Northern San Francisco Bay Area. This

experience underscores the importance of Chairman Pombo’s legislative proposal to

address the ‘‘reservation shopping’’ issue in a manner which places significant importance on a tribe’s historic ties to a community. Like the legislation, our approach

also is deferential to tribal sovereignty and economic development but acknowledges

that the impacts of these projects are borne by the off-reservation community and,

in particular, by county government regardless of whether the proposed project is

located in a city or county. The need to form the Consortium, itself, illustrates the

breakdown of the balances struck in the enactment of the Indian Gaming Regulatory Act when tribes are allowed to move far from their ancestral territory in

search of greater gaming market share and profit.

Of the Consortium member counties, only Sonoma County has federally recognized tribes. One of these tribes has an existing casino facility and the four others

are at various stages of attempting to establish gaming operations. Napa and Solano

do not currently have any recognized tribes within their jurisdictions. Due to our

shared proximity to the lucrative San Francisco urban market, gaming promoters

representing, or loosely affiliated with tribal clients, continually approach Consortium members. Each is attempting to cash-in on the gaming market without regard

to a tribe’s connections or historic ties to a community.

These, often investor-driven efforts, are an affront both to county governments

that have worked with local tribes on a government-to-government basis to address

gaming and other tribal development issues as well as to locally based tribes. IGRA

(which was intended to have very narrowly drawn exceptions), as well as the California Propositions 1A and 5, were passed with the expectation that gaming would

be conducted on existing Indian lands. Now the exceptions seem to be the tail that

is ‘‘wagging the dog’’ and upsetting the carefully designed balance that afforded

tribes the monopoly of Class III gaming in California.

In Sonoma, for example, I and other county representatives were recently approached by financial backers of an unnamed ‘‘mystery’’ tribe that wanted to establish a Sonoma County casino. It was clear this tribe, the identity of which the investors refused to disclose, had not consulted with locally based tribes and was interested only in finding a location that placed them within reach of the lucrative San

Francisco market. This is but the latest of a series of overtures made to Consortium

members and of regional reservation shopping efforts, some of which the Committee

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has already heard testimony. These investor-driven efforts have little regard for a

tribe’s historic ties to an area or to true concepts of tribal sovereignty and jurisdiction except to the extent it allows them to open a casino.

The newest California twist to the ‘‘reservation shopping’’ issue also shows how the current law now serves to pit tribe against tribe. The Consortium is now observing tribes with established casinos trying to ‘‘leap-frog’’ over other tribal gaming

operations to get closer to a population center. For example, the Hopland Band of

Pomo Indians, a Mendocino County based gaming tribe located north of Sonoma, is

trying to move south along the Highway 101 corridor towards San Francisco, passing a Sonoma County tribe’s operations that apparently is reducing its profits. The

location the Mendocino tribe has chosen for its new casino is within the historic

Rancheria boundary of another Sonoma County tribe. The Mendocino tribe has applied to the BIA and NIGC to transfer the land to its own tribal trust property and

to have it designated as ‘‘restored’’ so that it is eligible for gaming. The Mendocino’s

tribe’s trust transfer application, which is opposed by other Sonoma County tribes,

is currently pending before the BIA.

The Draft Legislation

The draft legislation before the Committee takes several important steps towards addressing the types of ‘‘reservation shopping’’ abuses that now appear prevalent in

Northern California. The Consortium particularly endorses the need recognized in

the bill to ascertain a tribe’s historic and ancestral ties to an area as a threshold

before allowing newly recognized, restored or landless tribes to take land into trust

for gaming purposes. This approach is in accord with the Consortium policies and

explicitly recognizes a distinction between tribal entities that have significant documented historical ties to a specific area and those that do not.

Similarly, the Consortium fully endorses the need to have local government participating in the decision making process. This measure affords local government

the opportunity to work in a constructive manner with tribes to insure that projects

are appropriately sited and that the off-reservation environmental impacts of gaming development are minimized. One amendment the Consortium would support is

to have section (1)(A), which addresses newly recognized tribes, provide for the same

type of local government input as required under section (1)(B) for landless or restored tribes. It appears that the equities (and need for land and economic opportunities) of newly recognized tribes is no different than the needs of landless tribes

and both similarly require local input and consultation regarding mitigation. An unintended consequence of treating the groups differently is to place even additional

pressure on the current acknowledgment process by providing incentives for gaming

interests to promote the recognition of new tribes to avoid the requirements faced

by placing land into trust for landless or restored tribes.

The Consortium also supports amendments to the bill which clarify that a county

or similar other general government entity providing health, welfare and public

safety services to the trust land must approve a gaming trust acquisition. In California, even if a facility and trust land is surrounded by cities, it is still the county

that is responsible for many public programs that will be impacted by a gaming establishment including: emergency services, probation, jail services, child and adult

protective services, welfare, roads and bridges, alcohol and drug rehabilitation, and

indigent health. For a tribal facility to be truly successful county government must

play a role in the process.

The experience in California, driven in part by the restoration of illegally terminated rancherias, is that the restored land exception to prohibiting gaming on lands

acquired after 1988 is being misused. This is illustrated in the Hopland tribe’s attempt to have land found eligible for gaming under the restored land provision (25

U.S.C. 2719 (b)(1)(B)(iii)) despite the fact the tribe already has land in trust upon

which it operates a casino and that the land sought is within another tribe’s historic

jurisdiction. Similarly, Alameda and Contra Costa counties have been faced with numerous proposals to have land ‘‘restored’’ from remote tribes for gaming purposes.

These efforts are all attempts by tribes and their investors to evade the two-part

test under IGRA that provides for consultation between local communities (and local

tribes) and the Secretary to determine whether gaming on newly-acquired trust

lands is detrimental to the surrounding community and concurrence by the governor

in that determination. As the ‘‘restored lands’’ exception appears to be fueling much

of the reservation shopping effort, it may be appropriate to consider, at this point

in IGRA’s history, elimination or narrowing of the provision and to require local government approval of a facility as contemplated under the draft legislation.

Finally, the Consortium is interested in working further with the Committee to

refine the Indian Economic Opportunity Zone concept. It provides a creative mechanism to facilitate the co-location of gaming operations to help avoid the ‘‘leapVerDate 11-MAY-2000 14:20 Oct 31, 2005 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 J:\DOCS\21759.TXT HRESOUR1 PsN: HRESOUR1
31

frogging’’ phenomena that now appears to be developing while also giving tribes in

remote locations an opportunity to share more fully in the economic benefits of gaming. It appears, however, that additional provisions should be considered that take

into account various issues, including, the potential size of the zone, county approval

and a limitation to take future land into trust for gaming purposes outside of the

created zone(s).

Conclusion

The Consortium appreciates the sensitive nature of these issues and the controversy surrounding any amendments to IGRA. It is therefore with genuine appreciation to Chairman Pombo and the Committee for their leadership in trying to

forge a solution to the reservation-shopping problem that the Consortium appears

today to present these comments. It may be that circulation of the draft bill itself

has already had a positive effect as the BIA just recently rejected a gaming compact

in Oregon because land for the facility had not gone through the appropriate feeto-trust process or been subject to IGRA’s two-part test.

The proposed bill gives voice to local government concerns and creates an opportunity for tribes and local government to work together in a respectful constructive

manner to achieve mutual goals. The Consortium stands ready to assist the Committee as it works towards addressing the problems created by ‘‘reservation shopping’’ and to work with other interested parties to find a balanced fair resolution

that honors tribal sovereignty and respects the legal responsibility of counties to

provide for the health, safety, environment, infrastructure, and general welfare of

all members of their communities.

Exhibit A

Northern California Counties Tribal Matters Consortium

General Policy Principles

I. Introduction

California, more than any other state, has experienced an explosion of tribal gaming and land development since the 1988 enactment of the Indian Gaming Regulatory Act (‘‘IGRA’’). This development accelerated in California with the 1999 passage of Proposition 1A, and the 1998 passage of Proposition 5. The result is 54 operational casinos maintained by 53 tribal governments in 34 counties, with at least

25 additional tribal casinos in the planning stage. The scope of potential casino development is also reflected in the over 100 federally recognized tribes in California,

with over 60 existing compacts, many of them providing for two casinos per tribe.

As these IGRA casinos have proliferated, increased tribal gaming wealth, or its

promise, has provided capital for still more gaming and non-gaming tribal development. All levels of state government now face significant challenges raised by tribal

development initiatives. It is a key consideration that these tribal development proposals are generally governed by federal Indian law, which affords little protection

to communities struggling to address the profound local impacts that often accompany gaming or other large tribal projects.

A. Purpose of the Consortium

Many tribal development initiatives, particularly gaming, have regional impacts

beyond any specific jurisdiction. The Northern California Counties Tribal Matters

Consortium (‘‘Consortium’’) is founded by county governments based on the realization that they must work together to share expertise and respond effectively to the

federal legal and policy decisions driving tribal development.

Along the legal pathway to any type of tribal development, there are a series of

federal decisions and procedural steps. These steps may include tribal acknowledgment, land acquisition, fee-to-trust land conversion, approvals for gaming uses of

trust lands, and approvals for gaming itself. Most of the steps offer a role and some

measure of influence for the state and affected local governments. While this role

is not as strong as it should be, it does afford an opportunity to take action.

Proactive state and local participation is crucial as federal decisions are under consideration, because once made, jurisdiction over the tribal entity and its members

is vitiated by the tribe’s sovereign status, and key local regulatory powers are preempted once the property becomes tribal land. Formation of the Consortium is important to allow local governments to work together to understand the rules and

laws applicable to tribal status and development and to play a meaningful and

united role in shaping federal and state decisions.

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County coordination is especially critical in Northern California where a growing

number of tribal entities are attempting to acquire land, seek trust status, and advance development proposals for casinos and other uses in locations based solely

upon market appeal. Some tribes are attempting to develop land without regard to

current reservation location or the existence of historic or other significant ties to

a chosen location. There are many legal permutations of ‘‘reservation shopping,’’ and

many jurisdictions are forced to deal with the complex legal issues it raises, often

on an emergency basis. Reservation shopping is fueled by improved tribal financial

capability, usually through third-party investors. This creates the ability not only

to buy land, but also to sustain long-term procedural and political campaigns and

legal disputes, often exploiting ambiguous federal rules and policies.

Federal laws, regulations, and policies do provide states and local government

with some opportunity to influence the outcome of tribal land development issues.

Whether an affected state or local government can effectively take advantage of the

procedural opportunities available to them depends on the governmental entity’s

knowledge of federal law and procedures, its readiness to respond appropriately, and

its commitment to persevere in a position. A consortium of counties provides a more

influential body to address federal or state legislative and administrative proposals

regarding tribal matters.

B. Consortium Goals

The Consortium has been organized to inform member counties of federal Indian

law and policy so that they can effectively exercise their authority to respond to

emerging policy and tribal development proposals. Each county belonging to the

Consortium has varying degrees of experience with the conversion of fee land to federal trust status on behalf of Indian tribes and related proposals to develop that

land for gaming or other economic purposes. In almost all cases, tribal plans for

trust lands are inconsistent with the host county’s general plans, ordinances, zoning,

environmental standards or other policies. These lands and the facilities built on

them become exempt from state and local taxation, and land use control, and potentially lead to serious adverse consequences on affected communities.

The Consortium’s goal is to develop common principles that will guide the actions

of each county and enable them to influence legislative and administrative policies

in order to avoid or reduce impacts as much as possible. These general principles

are intended to provide a proactive foundation for county action regarding trust land

proposals, to give advance notice of county policies and standards to those who intend to propose tribal development on such land, and to advise federal and state

decisionmakers of a county’s position.

The Consortium approach explicitly recognizes the distinction between tribal entities that have significant documented ties to specific locations in a county and those

that do not. While federal processes may also apply to this determination, Consortium counties will make their own determination with respect to such ties. This will

guide county responses to tribal development proposals or development initiatives,

and assist the counties in taking positions in federal proceedings. The presumption

is that proposals by tribal entities without significant ties to specific locations in a

county will be generally opposed and therefore ineligible for agreements with the

counties. Those having significant documented ties will be eligible for governmentto-government discussions and potential agreements consistent with Consortium

principles.

II. Consortium Basic Principles

The following principles represent the Consortium’s general policies toward tribal

trust land acquisitions and other development proposals on trust lands:

A. The Consortium is opposed to any federal fee-to-trust request on behalf of any

tribe that lacks significant, long-term and documented ties to the specific location

in the county where the trust land acquisition or development is proposed.

The policy presumption is that each Consortium county will oppose any trust land

request, regardless of the developmental purpose, where the tribe on behalf of which

trust status is proposed, lacks significant ties. Counties will make their own determination on this issue and will be active participants in applicable federal proceedings. Until the county in question is satisfied that such ties exist, or are reasonably likely to be proven, no proposals for county-tribal agreements will be entertained, and other agreements related to the trust land proposal, such as those involving local governments or the State, will be disfavored.

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B. In circumstances where a county is satisfied that a tribe, or an unrecognized group seeking federal acknowledgment as a tribal entity, has significant ties to

a specific location, Consortium member counties:

1. Will work with the Tribe on a government-to-government basis to con- sider development proposals within the policy framework of the Consortium;

2. Will consider proposals to have land placed into trust for any develop- ment purpose in accordance with applicable legal authority on tribal

purpose, need, and other factors, and to ensure consistency with county

ordinances, zoning, environmental standards, health and safety standards, and other applicable development rules and standards;

3. Will disfavor gaming-related proposals until it is conclusively shown that the development is fully consistent with Consortium principles and is in

the best interest of the county; 4. Will reserve the right to participate actively in any tribal acknowledg- ment proceeding based on the merits of the petition; 5. Will oppose federal acknowledgment proposals by groups seeking federal recognition outside the BIA administrative process (by legislation, for example) in the absence of approval of the county or an existing countytribal agreement; 6. Will require that any county-tribal agreement will fully mitigate environmental impacts of the proposed project and that there will be guarantees of substantial compliance with county ordinances, zoning and environmental policies through a Memorandum of Understanding or similar

agreement, in which the tribe must provide a sufficient waiver of tribal

sovereign immunity to permit enforcement of the agreement; and

7. Will oppose the Congressional designation of trust land or the authorization of trust land selections in the absence of approval of the county or

the existence of a county-tribal agreement.

III. Implementation Guidelines

In carrying out these principles, Consortium counties agree that they will be committed to the following:

A. Mutual Respect. The counties will be committed to respectful government-to-government relationships with tribal entities and recognize the unique role and interest of each. The same respect extends to the affected state and local governments.

The concept of reciprocal respect will guide the actions of Consortium members.

B. Information Gathering. The counties affected by tribal development proposals will

obtain information needed to evaluate the unique character of tribal status and

the impacts of tribal development on the community, and the well-being and economic self-sufficiency of the tribal entity.

C. Education. The counties will develop, on an individual county or cooperative

basis, a public education program to promote informed decisions on tribal proposals.

D. Active Participation. To protect local interests, the counties, through the Consortium, will participate actively and appropriately in state and federal policy and

legislative processes to support the principles of the Consortium.

E. Trust Land/Development Response. The counties will ensure that any fee-to-trust

transaction or other tribal development proposal by a recognized tribe:

1. Is subject to a comprehensive agreement (e.g., Memorandum of Understanding) enforceable in federal or state court between the tribal entity

and the county;

2. Is consistent with the county’s general plan;

3. Undergoes environmental review that is at least equivalent to the level

of environmental review applicable to any comparable non-tribal proposal, including impacts, cumulative impacts, mitigation requirements,

and other factors;

4. Includes enforceable provisions between the tribal entity and the county

under which the tribal entity agrees to make payments to compensate

for the government services typically covered by applicable taxes, to provide a negotiated fair share for health, welfare, and safety services, and

to offset impacts of whatever developmental activity is proposed. This

recognizes that such costs include: a) processing and administrative costs

(such as permitting); b) impact mitigation; and c) the ongoing impacts

of the activity or development;

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5. Provides for the payment or mitigation from tribal entities to cover all

public sector costs and economic impacts (police, fire, sewer, road, education, housing and others) associated with any development on trust

lands;

6. Satisfies the health and safety standards (ordinances) of the county, either directly or by enforceable (third part enforcement) tribal ordinances;

7. Includes enforceable conditions and limitations with respect to the future

development and/or changed use of any land that is to be placed in trust

on behalf of the tribal entity; and

8. Includes a limited waiver of sovereign immunity of the tribal entity sufficient to permit enforcement of the terms of an agreement in federal or

state court, or includes acceptable alternative enforcement provisions.

F. State and Local Government Relationships. With respect to the relationship between the counties and the State of California, and with local governments in

each respective County:

1. The counties will respect and seek a partnership with the State and local

governments consistent with these principles and the legal rights and responsibilities of these other governments;

2. Wherever possible, the counties will provide support and assistance to

local governments and the State as they consider trust land and related

tribal development proposals;

3. The counties will communicate these principles and standards, once

adopted, to local governments in each county, the State, and any tribal

entity interested in land within the respective county; and

4. The counties will seek to make decisions that are consistent with the interests of local governments within the counties that are likely to be significantly impacted by any proposed development.

IV. Conclusion

Tribal gaming and economic development on trust land presents a significant

challenge to local governments. Through these principles, the counties in the Consortium will cooperate in efforts that protect the public interest, and provide information to tribal governments regarding the expectations that must be met to proceed with development activities. The ultimate goal is to establish a foundation

upon which legitimate tribal development initiatives can proceed through a process

of mutual respect and cooperation while fully protecting local community and tribal

rights and interests.

The CHAIRMAN. Mr. O’Brien, please.

STATEMENT OF PAT O’BRIEN, GENERAL MANAGER,

EAST BAY REGIONAL PARKS DISTRICT

Mr. O’BRIEN. Thank you. My name is Pat O’Brien. I’m the General Manager of the East Bay Regional Park District. Some of you

may know we cover both Alameda and Contra Costa Counties.

We’re the largest property owner in that area. We operate over

96,000 acres of property and that includes a great deal of wilderness areas and parks and trail Systems.

We also support grazing and about 50 percent of our property is

grazed which adds to the vegetation demands of the property.

We have many historical and cultural resources of the Native

Americans that we protect. We’re very supportive of the Native

American community. We do, however, have significant issues with

shopping for gaming purposes.

We are not against Indian gaming, but we are against this shopping in urban areas. It does create a lot of issues and problems;

specifically, we have two specific impacts that we have had and one

a discovery which we would like to bring to your attention which

is of extreme concern.

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The first impact is at Point Molate in the Richmond area. This

is a Master Plan Park and there have been two public elections for

funding for this park.

Both of them required a two-thirds vote and they got over twothirds vote, so a lot of support for it. When the Navy went through

a base closing process, an EIS/EIR was completed. It allowed for

or proscribed a park site on this property, 40 acres. Our Master

Plan proscribed it.

The City of Richmond approved the plan in 1997. Then came

Indian shopping and out of some sort of magic the City approved,

moved forward with a casino which was planned with the footprint

of it right on top of the park property.

The California AG’s Office has brought forward an issue and

joined in the suit on the EIR process. So it shows this shopping creates somewhat of havoc in terms of planning, public support and

we were quite concerned about the outcome of that.

The other is at Martin Luther King Regional Shoreline Park.

This is over a 1200 acre park; it’s in Oakland. It’s one of the few

soft water estuaries in Oakland still preserved. Over 300,000

people a year visit this site.

A proposal came forward to put an Indian gaming casino in a

parcel which is covered on three sides by the park. Significant impact. We objected to it. It is a big concern as to the impact to the

park. We have numerous issues with that.

However, in our discovery, there has been some very questionable actions which appear to have been taken by the previous Administration in terms of the Department of Interior in that they

confirmed sovereignty on the Lower Lake Rancheria over the objections of the Bureau of Indian Affairs officials and contrary, we believe, to Federal law and regulations.

We know that in 1994 the Tribal List Act required three ways

to be recognized: One is through an Act of Congress; the second is

by Jurisdictional Decree and the third is by Part 83 Administrative

Regulations under the Secretary. But Part 83 prohibits Administrative recognition of sovereignty if it was earlier terminated by Congress. In fact, this tribe was terminated in 1956, and yet we can

find no authority for the recognition of sovereignty of this particular tribe.

So, it’s a big concern to us and we have asked the Secretary to

provide any documentation. We did get some documentation but we

would really like this Committee to actually look into it too because

we think more documentation needs to be available for our final

judgment.

So, our issues are: Indian gaming shopping can have serious

impacts on the community. We have had in the Martin Luther

King area really a support by the whole community. The City of

Oakland, Alameda, San Leandro the County of Alameda have all

objected to this particular proposal and we think they have some

serious issues. I think your legislation is a very important first step

to really looking at this overall issue. We are very supportive of

those efforts.

The CHAIRMAN. Thank you.

[The prepared statement of Mr. O’Brien follows:]

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Statement of Patrick O’Brien, General Manager, East Bay Regional Park District

Chairman Pombo and members of the Committee, thank you for the opportunity to appear before you today. The East Bay Regional Park District (District) preserves for present and future generations a priceless heritage of natural and cultural resources near San Francisco Bay in Alameda and Contra Costa Counties, California. Today, the District manages over 95,000 acres of land consisting of 65 regional parks, recreation areas, wilderness, shorelines, preserves and land bank areas.

These areas are linked by 29 regional inter-park trials which connect to 1,150 miles

of trails within our parklands. Ninety percent of the District’s lands are protected

and operated as natural parklands. We provide recreational and educational opportunities for millions of Bay Area residents, as well as visitors from across the United

States and around the world.

The District is committed to maintaining a high quality, diverse system of inter- connected parks which balances public usage and education programs with protection and preservation of our cultural and natural resources. More than 80 percent

of District funding comes from property tax and assessment district levies in the two

counties, park user fees, and park memberships.

Our commitment to cultural resources protection is strong and ongoing. Just last December the District acquired 617 acres that creates a permanent buffer for one

of the most important Native American cultural resource sites in the East Bay, the

Vasco Caves.

My testimony today addresses two topics:

(1) the direct and adverse impact of Indian reservation ‘‘shopping’’ by gaming de- velopers on one of the crown jewels of our District parks, the Martin Luther

King Jr. Regional Shoreline Park in Oakland, and a proposed new park unit

at Point Molate in Richmond; and

(2) the discovery of unlawful administrative actions in the Department of the In- terior that conferred Indian sovereignty on the Lower Lake Rancheria over the

objections of BIA officials and contrary to Federal law and Interior Department regulations.

A third topic, the draft legislation you have prepared to address off-reservation

Indian gaming development, is the subject of separate correspondence which we will

be forwarding to you shortly.

1. Impacts Of Reservation Shopping On The East Bay Regional Park

District

a. Martin Luther King Jr. Regional Shoreline Park

The Martin Luther King Jr. Regional Shoreline Park is a 1,220-acre park visited

by more than 300,000 people annually. It protects the remainder of a once-extensive

marshland at San Leandro Bay, and is one of the last salt marshes in Oakland.

By notice of November 26, 2004, (69 Fed. Reg. 68970) the Interior Department

announced that the Bureau of Indian Affairs (BIA) would prepare an environmental

impact statement (EIS) on the proposed acquisition of land in trust for the purpose

of constructing and operating a tribal casino on 35.45 acres of land within the City

of Oakland and adjacent to the Martin Luther King Jr. Regional Shoreline Park.

The District, the Cities of Oakland, Alameda, and San Leandro all oppose the casino

development proposal. The Bureau of Indian Affairs reported that as of April 8,

2005, more than 400 letters had been received in opposition to the casino development proposal. We know of no local jurisdiction that supports it. Moreover on

May 18, 2005, Governor Schwarzenegger issued a proclamation stating that he will

‘‘oppose proposals for the federal acquisition of lands within any urbanized area

where the lands sought to be acquired in trust are to be used to conduct or facilitate

gaming activities.’’ Oakland is one such ‘‘urbanized area.’’

The District has expended tens of thousands of dollars and considerable time in

addressing the environmental impacts of the casino proposal on the Martin Luther

King Jr. Regional Shoreline Park. The burdens of the proposal are tantamount to

an unfunded mandate, or hidden federal tax, on Alameda and Contra Costa County

taxpayers. Moreover, the future acquisition in trust, if it occurs, will permanently

withdraw real property from Alameda County’s tax base.

Considerable preliminary evidence has been assembled and submitted to the Department of the Interior highlighting the potential adverse impacts that a 24-hour,

7-day per week gaming operation would have on the security of the Port of Oakland,

the safety of flight operations at Oakland International Airport, traffic circulation,

and existing commercial development. The anticipated environmental impacts associated with water and air quality, increased noise and light pollution, disruptive

37

impacts on the Martin Luther King Jr. Regional Shoreline Park, and its wetlands,

migratory birds, and shorebirds will require considerable additional time and resources to make a full assessment of the proposed casino’s impacts. It is significant

that the soils of the casino site are so polluted that the site is subject to a deed

restriction prohibiting the development of the land for human habitation. The site

is also subject to a federal consent decree agreed to by the U.S. Army Corps of Engineers restricting development to uses that would be compatible to the purpose of

preserving the Martin Luther King Jr. Regional Shoreline Park as habitat for migratory birds and waterfowl.

b. Proposed Gaming Casino at Point Molate, Richmond, CA

The former Naval Fuel Depot Point Molate (Point Molate) is a remarkable property. Despite many years of use by the Navy, Point Molate is principally comprised

of hillside and shoreline open space, with rich natural, cultural, scenic and recreational resources. Pursuant to Federal Base Closure actions, the Fuel Depot

ceased operation in 1995. A community process through the City of Richmond created a Base Re-use Plan that selected as the preferred alternative a mixed-use historical village centered around a winery, with a retreat center, education and job

training facilities, housing and light industrial land uses. The District has worked

closely with the City of Richmond on the Plan, including preservation and enhancement of the historic shoreline, with the understanding that the public benefits from

the reuse would be clear and guaranteed.

The Plan was adopted by the Richmond City Council in April 1997. The Navy

processed and completed a detailed ‘‘Reuse EIS/EIR’’ for such uses and adopted a

Record of Decision approving the document under Federal National Environmental

Policy Act (NEPA) in 2002.

In 2003, contrary to any prior planning or approvals, the City of Richmond began

a process and in fact sold the land to interests representing the Guidiville Rancheria

Tribe of Pomo Indians. The purpose was to create a major urban gambling casino

through an Indian Tribe with no apparent ties to the specific land or Richmond

area. The Guidiville Band has now proposed an ‘‘off reservation’’ casino with some

1,100 hotel rooms, 150,000 square feet of gaming and related facilities.

The prior community approved plan, and the accompanying NEPA document have

apparently been discarded, and the proposed casino located on top of a 40 acre public park site.

Point Molate has been a part of the District’s Master Plan for decades and the

recent ballot measure approved by over two-thirds of the voters in November 2004

contains funding for Point Molate projects. Moreover, as long ago as 1988, the citizens of the District voted, also by more than a two-thirds majority, to tax themselves to raise funds that would be used in part to acquire land and develop facilities for public use at Point Molate.

Opposition to build an ‘‘off reservation’’ casino at Point Molate includes community groups, environmental organizations, and the Contra Costa County Board of

Supervisors. The District, along with local community groups, has filed suit under

California’s California Environmental Quality Act in order to require an open and

public review of the project, which by law, should have occurred prior to approval

by the City. The California Attorney General has recently joined the lawsuit on the

side of our District arguing that California law has, in fact, been violated by the

actions to date allowing the casino project to proceed. We are grateful also for the

Governor’s May 18, 2005, proclamation regarding urban gaming, which reflects a

policy consistent with our community values.

Nonetheless, current federal law and regulations severely limit our ability to have

a voice in this new casino project.

2. Unlawful Administrative Actions In The Department Of The Interior

That Conferred Indian Sovereignty On The Lower Lake Rancheria

In the course of reviewing the trust acquisition and casino development proposal

at the Port of Oakland site adjacent to the Martin Luther King Jr. Regional Shoreline Park, we discovered evidence from Department of the Interior and Bureau of

Indian Affairs documents and other materials that call into question the Lower

Lake Rancheria’s status as a federally recognized Indian tribe. The results of our

research to date are set forth in the June 2, 2005, correspondence to the Secretary

of the Interior that is attached to our written testimony.

In the Federally Recognized Indian Tribe List Act of 1994, Congress specifically

limited the means by which Indian tribes may receive Federal recognition:

(1) By an Act of Congress;

38

(2) Pursuant to Interior Department and Bureau of Indian Affairs Administrative procedures in 25 CFR Part 83 (the regulations are not applicable to tribes terminated by an act of Congress); or (3) By a decision of a United States court.

In 1956, Congress terminated the Lower Lake Rancheria by disposing of the Rancheria land in fee simple and effectively terminating Federal relations with the

reservation’s lone Indian occupant. There is no record of any Indian tribe having

ever been associated with the Rancheria.

In the half century since Congress terminated the Rancheria, no court has ruled that the congressional termination was unlawful. Under the circumstances, the only

way that Lower Lake Rancheria could be restored to recognition was by an act of

Congress. Congress has not done so. Nonetheless, in December 2000, at the end of the last Administration, the Assistant Secretary for Indian Affairs issued a letter that purported to grant administrative federal recognition to the Lower Lake Rancheria. The Bureau of Indian Affairs

experts on tribal status in the Branch of Acknowledgment and Research vigorously

objected to the Assistant Secretary’s intended decision. They wrote: ‘‘Unless the Assistant Secretary-Indian Affairs (AS-IA) has clear authority to act outside the acknowledgment regulations, and has conducted a competent, neutral study of the

facts in those cases, the Department’s credibility as an unbiased agency asked with

acknowledging tribes will be damaged by arbitrary acknowledgment....’’ The experts

were overruled and Lower Lake was recognized. A subsequent Inspector General’s investigation into other questionable tribal rec- ognition decisions at the end of the last Administration found evidence of a politicized administrative process and apparent criminal conduct.

Had the last Administration followed Federal law and its own agency regulations, we would today not have to bear the burden of an unfunded mandate costing the

District tens of thousands of dollars to participate in a process that is the result

of an illegal act. Instead, the Martin Luther King Jr. Shoreline, which was thirty

years in the making, is now threatened and our confidence in the commitment of

federal officials to act within the limits of their authority is shaken. We request that the Committee review the attached information regarding the Lower Lake Rancheria, and include it in the record of this proceeding. Upon completion of that review, we ask that you join is in requesting the Secretary to retract

the invalid recognition of the Lower Lake Rancheria, suspend the pending trust

land acquisition, and remove the Lower Lake Rancheria from the list of recognized

tribes, unless and until Congress restores it to Federal recognition. The record we have examined is not complete. The District has a Freedom of Information Act request pending in the Department of the Interior. Accordingly, our

testimony is based on the record that is available at this time. Thank you for the opportunity to present this testimony: I will be happy to ad- dress any questions you may have about it. NOTE: Attachments to Mr. O’Brien’s statement have been retained in the

Committee’s official files.

The CHAIRMAN. Ms. Schmit, please.

STATEMENT OF CHERYL SCHMIT, DIRECTOR,

STAND UP FOR CALIFORNIA

Ms. SCHMIT. Thank you. Cheryl Schmit, Stand Up For California. I have already submitted my written testimony for today and my

letter from March on your original draft. I just would like to make a few points today, very briefly. Res- ervation shopping in California takes on many different forms. We

have tribes who have land acquisitions that are both mandatory

through Acts of Congress or discretionary where tribes are attempting to get restored lands. We have tribes who are making land acquisitions that are contig- uous or adjacent to existing reservations or rancherias and tribes

who are attempting to do land settlements, some that are legitimate land settlements and others that are land settlements that

again like some of the restored lands issues do not have the legitimate claims to the land.

39

Then we have a number of issues in this State where tribes have

taken land into trust under the guise of that it was going to be for

housing or for a medical clinic and instead it has turned out to be

for gaming.

Then additional pieces of ad hoc legislation which create opportunities for gaming and which, Chairman Pombo, you recognized last

year in the amendment bill, H.R. 4908, which I really appreciate

as the citizens and that Committee likewise appreciate.

Off-reservation proposals are having a domino effect of impacts

on local communities. There are political and legal impacts that are

existing. We have had referendums, recalls, County Grand Juries,

Federal Grand Jury investigations and litigation over the California Environmental Quality Act, redevelopment agencies abuse, a

number of different types.

This is also reflected in some of these very small Tribal governments that are really actually organizing for the first time. There

are internal enrollment disputes and continued conflict.

The gaming investors and clearly the list of off-reservation tribes’

proposals that we have in the State today documents that we have

investors coming into the State that are generating these proposals. These are ever-clever investors and they are constantly

finding new ways of acquiring new land in order to create new, unchallenged exceptions for gaming.

I have two examples that are in Northern California right now:

We have the Alturas Tribe who is currently constructing a

gaming facility on fractional interest allotment land over which it

has just recently begun to exercise governance, land which is a significant distance from the tribe’s established land base and recently

proclaimed to be under the tribe’s governance. They have not negotiated any type of agreement with the local government and there

are tribes in the area there that are stuck with this ongoing construction.

The second example involves the Santana family, an individual

Indian family owning trust allotment land as of 2000, which is

transferring governance of this very marketable location in the City

of Cloverdale, which is about 8,000 people, to the Hopland Tribal

Government located about 50 miles away.

Your legislation addresses some of these land schemes head on

by requiring historic tribal government nexus with the land and

local control but there are many exceptions that this legislation

may wish to give consideration to or the Committee may wish to

direct the Secretary of the Interior to begin holding consultation

hearings on the key process and in California with local government.

Your legislation addresses local control. Accepting input from

local governments and affected communities I think is significant

because in the long run it will ensure the well-being of the public

and the working order of local jurisdictions and clearly the long

term success of Tribal Governments.

The standard for California views with considerably concern the

economic zones that are set forth in the bill. CSAC has made many

suggestive revisions and modifications that support concerns of citizens and communities affected by tribal gaming.

40

But we still view these and support the revisions in general but we caution that there will be a lack of acceptance and support for

the idea of economic zones even as modified in CSAC’s language

and for three very good reasons. An Economic Zone is an incentive

to identifying an area that is not currently Indian country which

invites the abuse of land speculators and gaming developers who

will drive the decisions about the location of these zones rather

than the cool minds of policymakers. Economic zones are a recipe to bypass environmental regulations and review that will encourage the development of mega-casinos in

urban areas or in sensitive rural areas.

IGRA is already riddled with loopholes as everyone is beginning to discover like the restored lands exception in the two-part determination. It is basically promoting, at least in California, a land

draft with meaning. I would like to express my great appreciation to you for being willing to bring these contentious issues forward and to try to address it in legislation. It is something that California significantly

needs.

The CHAIRMAN. Thank you. [The prepared statement of Ms. Schmit follows:]

Statement of Cheryl Schmit, Director, Stand Up For California

My name is Cheryl Schmit. I would like to thank Congressman Pombo and other distinguished members of the Committee of resources for providing me this opportunity to speak before you today on behalf of affected community groups across this

great State of California. My organization, Stand Up for California, serves as an advocate and information resource for community groups and policy makers trying to

understand and respond to the complexities surrounding the expansion of tribal

gaming. My being here today demonstrates this committee’s recognition that all affected parties must be invited to the policy debate that is essential to ensuring fairness, objectivity and accessibility.

We support the efforts of citizens who want to make sure that there are adequate

protections for all communities 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 this State.

We sincerely appreciate the effort of Congressman Pombo to bring forward legislation in an attempt to restrict the proliferation of tribal gaming and at the same time

encourage greater local government involvement in the mitigation of impacts.

Voters were emphatically told in Propositions 5 and 1A that the ballot measures

would be a limited exception to the prohibition on casino style gaming and would

not result in the proliferation of urban casinos. Yet here we are today, with more

proposals than any other state all in varying stages of development. It is clear that

off reservation land acquisitions for gaming will undermine the constitutionality of

California’s Indian gaming industry. Moreover, off reservation casinos pose a serious

threat to the tribal gaming industry, as the public support which tribal governments

enjoyed in 2000, is evaporating. The California electorate now feels betrayed by the

broken promises of no urban casinos.

California is significantly affected by tribes continuing to reservation shop for new

casino sites off established reservations and without historic ties. Tribes and gaming

investors continue to promote numerous exceptions under IGRA for off reservation

casinos that allow for the development of gaming on lands acquired after the 1988

cut off. The list I am providing you includes land acquisitions that are mandatory

and circumvent the Governor, discretionary requiring gubernatorial concurrence and

several exceptions to acquire land for gaming in accordance with IGRA—such as

contiguous lands, land settlements through litigation or ad hoc legislation. This list

continues to document the influence of gaming industry dollars on federal Indian

policy for land acquisitions and tribal recognitions.

Many California tribal groups qualify for gaming due to the enactment of Senator

John McCain’s 1994 legislation. The unintended consequence of the List Act (Technical Corrections Act of 1994, Section 5, Pub.L.103-263, 108 Stat. 707 (May 31,

41

1994)) in California relates to Rancheria lands that were owned in fee—not in trust

by the United States. The misapplication by the BIA of the Senator’s amendment

has allowed numerous land-based groups to be elevated to the federal recognition

list despite legitimate questions that should have occurred. Many of the Rancheria

tribal groups began to organize for the first time in 1994 and to develop off-reservation casinos.

Off reservation gaming has created a domino effect of impacts. It has created numerous instances of internal enrollment disputes over Indian lands, gaming money

and power. It has set off political and legal impacts on local governments and the

surrounding communities of citizens.

But gaming investors are ever-clever, coming up with new ways of acquiring new

land in order to create new unchallenged exceptions for gaming. Two great examples

exist in Northern California today:

• The Alturas tribe is currently constructing a gaming facility on fractional interest allotment land over which it has just recently begun to exercise governance—land which is a significant distance from the tribe’s established land base

and recently proclaimed to be under the tribe’s governance.

• The second example involves the Santana family, an individual Indian family

owning trust allotment land as of 2000, which is transferring governance of this

very marketable location in a City of Cloverdale (population: 8,000) to the

Hopland tribal government located approximately 50 miles away.

Your legislation addresses some of these schemes head-on by requiring a historic

tribal governmental nexus with the land and local control. But, there are many exceptions this legislation needs to give further consideration too.

Local approval

Your proposed amendments to IGRA would protect and ensure the well-being of

the public, the good working order of affected local jurisdictions and the long-term

success of tribal governments. Your legislation addressing local input is greatly

needed.

While the amendment specifically would remove the sole discretion of the Governor to approve off reservation casinos it appears to expand the approval to all affected parties. This amendment will require precise language to clarify the approval

process.

Revisions and Zones

Stand Up for California views with considerable concern the idea of economic

zones as set forth in the bill. CSAC has made many suggested revisions and modifications that support the concerns of citizens in communities affected by tribal gaming. Stand Up For California supports these revisions in general but would also caution there is a lack of acceptance and or support for the idea of economic zones, even

as modified in the CSAC language.

• An economic zone is an incentive to identifying an area that is not currently

Indian country which invites the abuse of land speculators and gaming developers who will drive decisions about the locations of these zones rather than

the cool minds of policy makers.

• Economic zones are a recipe to by pass environmental regulations and review

that will encourage the development of mega-casinos in urban or sensitive rural

areas.

• IGRA is already riddled with loopholes—like the restored lands exception to the

two-part determination in Section 20 of IGRA—which has promoted a land grab

for gaming.

Conclusion

Overall, while we sincerely appreciate the opportunity that this draft legislation

presents for a public debate on the impacts of tribal gaming, we believe a more moderate approach will be less objectionable and consistent with the delicate balance

between the rights and authorities of states, tribes and the federal government. For

example, we believe that rulemaking at the administrative level—a formal revamping of the fee-to-trust process for all new land acquisitions is a good beginning.

It is without a reasonable dispute that ‘‘Reservation Shopping’’ is driven by out

of state gaming investors, carefully controlling their clients (a.k.a. tribes) and making ‘‘development agreements’’ rather than ‘‘management contracts’’. These gambling

interests are deliberately circumventing the National Office of Indian Gaming Management and the National Indian Gaming Commission by seeking to have land

taken into trust as restored lands. This type of abuse demands federal regulatory

action to protect the integrity of tribal gaming operations and protect state and local

governments.

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• An incremental change requiring approval of all agreements is necessary as

IGRA only requires management contracts to be reviewed and approved. Stand Up for California would like to see the full support of the Conference of

Western States Attorneys General and the support of all Governors for this legislation. We thank you for your willingness and courage to raise these timely and contentious issues in an open and respectful debate.

The CHAIRMAN. I am going to start with Mr. McGowan. Just to clarify the position of California Counties, there is not a general opposition to Indian gaming on Indian trust lands now or reservation

lands now?

Mr. MCGOWAN. No, there is not. We have chosen not to weigh in on the question of the use of the land. We do not have any formal opposition at all or any policy objection to Indian gaming, provided it’s carried out in the manner required under the State and

Federal law.

Our issue primarily has always been the impacts of on-reserva- tion activity on the surrounding lands. We are, the County Supervisors are, essentially as our State Council Members are, in their

own purview. We are the stewards of the land and protectors of the

environment except on Indian land.

Our issue is that, that activity should not be carried out in such

a way that would adversely impact the neighborhood. My rights extend to the end of my fist, but they stop somewhere short of your

chin. Our issue is that we set a level of compatibility as far as honoring and respecting Indian sovereignty, including its use of the

land for gaming purposes, but also having our responsibilities honored as well.

We believe quite frankly that through some requirements for negotiation of those impacts and for judicially enforced standards that

most if not all of the concerns between tribal wishing to engage in

gaming and the County can be met. We feel actually very confident

about that.

Our main issue is the inclusion of local jurisdiction, especially

counties, in this decisionmaking process.

The CHAIRMAN. In the draft legislation we deal with local government having a bigger voice in approving certain Indian gaming facilities, but as a Supervisor, you are aware that if a development

comes in, you have to be able to show a nexus between the impact

and what is being required of that development to pay for.

Mr. MCGOWAN. Yes, sir.

The CHAIRMAN. To expand on Mr. Costa’s idea that the State

have a policy in regards to Indian gaming, if that State policy requires a negotiation between, consultation and negotiation between

the sovereign tribal government and local government to have that

tribe pay for whatever their impacts are on traffic or what have

you, if that was part of the State compact process, would that address what the bulk of your concerns are in terms of impacts, particularly on rural counties?

Mr. MCGOWAN. It would go a long way. You’re talking about just

the compacts. We’re dealing with that right now with trying to get

these kind of provisions included in the new compacts.

Governor Davis began the process at the very end of his term

and then Governor Schwarzenegger has picked up that and has included local jurisdictions as one of the entities that must be

43

reckoned with in that fashion. That is, we have an opportunity to

negotiate to try to reach an accord. If we are unsuccessful, there

are actually repercussions for the side that is unreasonable in that

regard.

Once an agreement is reached, then there are the judicially enforceable—there will be an enforcement.

We supported that. We would like to see a policy in California

that goes beyond just a compact because at the heart of this for us

is what you mentioned in the very beginning, is this need for the

nexus. Counties and cities for that matter are very comfortable

with doing that analysis and coming to requirements for the development that meet that nexus test. We do it all the time.

So it’s not a new thing for us to deal with that, even if it’s a gambling casino in the middle of your jurisdiction. What we’re asking

for in essence is, give us that opportunity to do that which we do

very well already.

The CHAIRMAN. Before my time expires, I’m want to go to Ms.

Schmit. In regards to the Indian Economic Opportunity Zones, the

law is not guaranteeing Indian gaming success to every tribe. That

was never contemplated. But in moving forward with this legislation, I don’t want to take away the opportunity either.

So the idea of having an Economic Opportunity Zone was to try

to avoid some of the other issues that you raised in your testimony

with one tribe trying to leap-frog another, others trying to use the

system in order to be in an economically superior place, but to

work with local tribes, local government and tribes that are seeking

that opportunity and to try to consolidate that within what we call

the Economic Opportunity Zone. That is the purpose of it.

I believe if you take that out of the draft legislation, you are risking the possibility that you would be taking opportunities away

from tribes that currently exist for them. I don’t want to do that.

So we’re trying to thread this needle and say, ‘‘The opportunity is

there for those who chose to do it.’’ Not every tribe chooses to game.

As Mr. Costa talked about it, about half of the ones in California

chose not to now. If you look across the country it’s similar to that.

But those who do choose to game, I would rather have that done

in a more orderly fashion than what we’re currently experiencing

right now.

Ms. SCHMIT. Right, and I understand that in the 1999 compacts,

it was clearly in the compact that was referendumed, and it was

also I believe in Prop 5, there was the component of revenue sharing made available to the non-gaming tribes of the State and that

was supposed to be an incentive not to open up gaming.

Clearly, that revenue sharing continues today and many of the

tribes that are promoting off-reservation casinos, not all but many,

are very small numbers in the population and revenue sharing

right now is at 1.2 million.

Unfortunately, this amount of revenue when it goes to these tribal governments, one tribe that I know of specifically is splitting it

60 percent with the members and 40 percent with the Tribal Council to go out and attempt to do reservation shopping. So that incentive to decrease the proliferation of gaming has kind of backfired

on us.

44

I see the benefit to the economic zone, I truly do, but the Governor in the compact process there was the idea of—not in the compact—but there was this idea that there could be a clustering of

tribes to create an economic zone basically, and it would have State

oversight because it would be negotiated through Tribal/State

compacts.

But this is not going well. I think it can clearly be demonstrated

in Southern California between the cities of this area in Barstow

where we have five or six tribes promoting off-reservation casinos.

There is a debate between the tribes, there is a debate growing

within the cities. Clearly, the citizens are not supportive of all of

the casinos in one area.

Again, I think in my first letter I said it would need to be very

carefully crafted.

The CHAIRMAN. I understand your concern and the example that

you use as to how some of this money is being used, I’m familiar

with the number of tribes that currently have gaming that have invested millions of dollars with other tribes who don’t have gaming

to build their economic base within their reservation and I have

run into that all the time where these tribes are actually taking

their revenues that they have raised from gaming and invested it,

not just in themselves, but in other tribes. Some with great success

and they have been doing that.

So this is controversial. This is a tough issue to get around, but

I don’t want to push us into one particular box and make it look

like everybody is doing the same thing because there have been

some real success stories that are out there.

Ms. SCHMIT. A successful zone I think that has already been created within the State, we can’t really call them zones, but we have

had in the last compact process the Vian Cross partnered with the

Yuba tribe. That resolved a reservation shopping issue in San

Diego County very satisfactory. I think that says lot about progressive leadership. Some of the tribes in the State are willing to do

those types of actions.

So, maybe one of the zones that you are suggesting would be

agreeable to success.

The CHAIRMAN. Mr. Costa.

Mr. COSTA. Thank you very much.

Ms. Schmit, are you aware over the years that you have participated and been involved in this matter of any sort of clear, coherent, statewide policy as it relates to Indian gaming in California?

Ms. SCHMIT. State policy? Citizens in the early days when I got

involved with this back in 1996 and at that time under Governor

Wilson citizens had access to the Governor’s office to give comment

on what they wanted——

Mr. COSTA. I understand and I’m familiar with all of this, but I’m

talking about under either the Davis Administration or under the

current Administration notwithstanding this proclamation.

Ms. SCHMIT. At the end of the Davis Administration, yes, there

began to be a policy that was being addressed in the compacts.

With the new Administration, I know the proclamation is new, but

I have had access to numerous letters that the Governor’s office

has sent to community groups and members of City Councils.

45

Mr. COSTA. Do you think it would be more accurate to describe

over the last 15 years it’s really been more of a case-by-case basis

than individual sovereign nations that are attempting to——

Ms. SCHMIT. Right. It has been case-by-case and each tribe reasonably is geographical and culturally——

Mr. COSTA. I understand.

Supervisor Brown, it’s good to see you again.

Since you and I were both in the legislature for part of the same

time—you have your own experience based upon the time you were

there—is it clear that there has never really been any sort of a

statewide policy as it relates to Indian gaming in California?

Ms. BROWN. I think the policy has certainly changed. As Ms.

Schmit was referring, the original compact had a lot more deference to the local government than the subsequent Davis compact.

I think that Governor Schwarzenegger is trying to address some of

the issues that——

Mr. COSTA. Is there any clear State policy that you and CSAC

can put your hands on and say, ‘‘This is the policy.’’

Ms. BROWN. I would say no. I would say it changes with—just

one of the things that I would like to add is that the State of Arizona really doesn’t have a lot of the same problems that we do because their state compact doesn’t allow outside investors.

I think that’s certainly an issue that ought to be looked at in the

future in terms of how we deal with this because that has really

brought forth a lot of problems for us a lot of problems that we

never expected.

Mr. COSTA. Supervisor McGowan, do you care to weigh in?

Mr. MCGOWAN. I would love to. If you strip away the niceties,

my arrival on the scene as far as Indian gaming policies were concerned was a shock, at least I think it is. The State of California

has done a lousy job in really addressing the issue of Indian sovereignty and Indian gaming in California.

When CSAC started, we were just trying to get a little attention

here and be treated halfway decently. I think most of the policy

that has occurred here has really happened outside of the State

Legislature and the Governor’s Office.

Mr. COSTA. A number of you have spoken about reservation

shopping. As I think about it in the years that I have served, it

seems to be more like today with States in the process of issuing

franchises and every franchise is a different deal and that’s what

concerns me.

It seems to me that hopefully we’ll get your thoughts today, reflect on it and maybe help generally what could be in the future

prospectively—obviously, those that have come among the 64 compacts. Those are agreements and I don’t think you can violate them

by law.

It seems to me in the future we have to look at where we’re

going. May I add one thing?

Mr. COSTA. Yes.

Mr. MCGOWAN. It’s fundamental that we address this issue because for us to fumble around like this, suddenly can change to

cause tremendous pains and ill will between people of good intentions. That would be the tribes themselves, local jurisdictions,

State jurisdictions, Federal jurisdictions.

46

We owe it to each other to get this stuff worked out so that there

is some understandable way to proceed on the rights of sovereign

tribes and also responsibilities to State and local government.

Mr. COSTA. Quick question: Does CSAC believe that counties on

a case-by-case basis are given leverage?

Mr. MCGOWAN. Actually, when we started, that was definitely

true. As we have become, I think, more intelligent about how to

deal with these issues and how to develop a relationship with the

tribes, the counties are less and less in a situation where they get

leverage on the deal especially if they want to pay attention to

some of the successful stories from other counties and tribes, so

we’re getting better at it.

Mr. COSTA. Thank you.

Mr. GOHMERT. Thank you. I have been doing a lot of reading and

trying catch up on this issue.

It has not been a major issue in Texas. Just to make sure that

I understand and I’m on the same page and understand exactly.

My review of the draft bill indicates that this would end, and

what we have heard discussion about is the two-part determination

under IGRA. This proposed bill would end that and prohibit the

tribes from crossing the state lines and build facilities where they

don’t even have a reservation.

It would allow Economic Opportunity Zones with each State

where Indian gaming is legal, but some of the high points that

jumped out at me if I understood correctly, a zone has to be approved by the State and local government which would give, the

way I understand it, everybody including everybody here an opportunity to come and weigh in and make sure the people that they

put into office represented their interests.

With regard to landless tribes, restored or landless tribes, with

requirements for getting land for gaming, only if it is on their geographically historical area—the State and local governments once

again are the ones who have jurisdiction and have to approve that.

Is my understanding of your proposed bill correct, Mr. Chairman?

The CHAIRMAN. That’s the way the draft now reads.

Mr. GOHMERT. So, there is nothing like local control and it

sounds like there hasn’t been enough of that, working together. I’m

just curious as is my staff.

I have been a judge for many years so I’m kind of new to this.

If this is out of line, you can sure tell me, but since you don’t have

a bailiff who will put me in jail, I’ll ask it.

We have such a huge turnout here and it’s obviously a nonscientific poll, but by indication of hands, how many here feel like you

understand the draft of the proposed legislation?

Not too many, is it? From what you do understand, how many

support the legislation that appears that appears that it would

reign in some of the past abuses and allow more local control? If

I could see a show of hands in favor of that?

How many oppose the new legislation? We have a lot of those

don’t yet have an opinion; they are just here. It’s still a good indication that this many people care and will come forward and have

been looking into it. I know that you have already indicated that

you will allow additional witness statements and written questions,

47

so I would just encourage anybody that does wish to submit a written statement to do so.

From the four of you, are all four of you in favor of what you

have seen of the proposed legislation?

Mr. MCGOWAN. CSAC’s position is that we haven’t taken a

position directly on the bill. We will be prepared to do that. We’re

very happy. We like this progress. We think it is long overdue.

There is much of it that touches us in our hearts as far as local

control is concerned. We would want to work with you all about

stands versus zones. I don’t think it’s possible. CSAC does not have

a position on that.

But this is progress, to see this kind of thoughtfulness come out

of the House is very important to us. It does touch many of our

issues. We want to work with you all.

Ms. BROWN. I think the one thing that might be interesting to

share with you from the California perspective and being a supervisor in county government is that we are mandated by the State

to put together a general plan and that general plan has any number of elements dealing with infrastructure, dealing with water, agriculture, housing, all of the elements. It’s a 20-year plan.

When you have looked at your county from a 20-year perspective,

today and tomorrow you have an investor who comes in on a 50-

acre to 75-acre parcel and says—‘‘Guess what? I know that that

was previously ag, but now we see it as a 300-room hotel, an entertainment facility and a casino.’’ It hugely upsets the apple cart.

From our perspective, it’s important that they are in at the beginning.

We have five tribes in Sonoma County and I will tell you that

four of them have been very willing to work with the County, even

though one tribe is a restored tribe and has no requirement to do

that whatsoever. They can do what they want. They are sovereign.

They have insisted on having public hearings and working with the

County.

It’s been a very good lesson for us. I think what we’re trying to

do is encourage that more because we are communities that live

side by side and we are governments that work side by side. We

have to understand where that goes.

Mr. O’BRIEN. I think it’s a more profitable process. It certainly

puts a degree of rationality and planning which so far as we have

seen the reaction is that it goes against the community. Some of

them shopping but most of the time it seems to go against the community interests and understandings of work relationships.

Those issues need to be out on the table so people can deal with

them in a legitimate way.

Mr. GOHMERT. Ms. Schmit, I’m not familiar with Stand Up For

California but I assume that you do advocate more than just standing up. Are you in a position to say you support this type of legislation or you’re against it.

Ms. SCHMIT. Right. We’re not taking a position on the draft legislation.

Mr. GOHMERT. So, you’re just in a standing up mode.

Ms. SCHMIT. It’s important to recognize the vision that CSAC has

put forward in general. What we’re really supporting is the fact

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that the Congressman is willing to bring this up in debates, the

fact that it is being debated in the House.

These are very contentious issues in the community where there

is reservation shopping and it’s detrimental to the long-term success of the tribes as it is detrimental to the citizens of the community. We need some way to address these issues through policy,

through legislation, that allows us to live side by side in this.

We can do this. In my county, I live in Placer County, we faced

this nine years ago. We had a tribe who through ad hoc legislation

was restored to Federal recognition. My neighbors went crazy and

it required some people to step back with cool minds and think

about this.

We were very fortunate in our county. Our County Supervisor

and our Congressman worked very closely with our county and

agreed upon a location in an appropriately zoned area that was

consistent with the general plan of our county. The agreement that

the tribe made with our county is a comprehensive agreement. It

did not infringe upon their sovereignty. Rather, it was a very

eloquent demonstration of the exercise of our government. So, our

county is not impacted like other communities have been.

Mr. GOHMERT. One of the darkest clouds on our American history

has been a number of agreements made with Native Americans

that have been broken, just discarded. It’s a terrible testimony of

our past history.

So I appreciate input from everybody to kind of get me up to

speed. We just need a mechanism in place that allows both sides

of this issue to hold the other accountable for any misrepresentation, whether it’s the tribe holding the government accountable or

the local government holding the tribal government accountable to

the agreements. Thank you for your time.

The CHAIRMAN. I am going to dismiss this panel. Thank you for

your testimony and for answering questions. Any further questions

will be submitted to you in writing and if you will answer those

in writing I would appreciate it.

Those of you who are testifying, please stand up and be sworn.

[Witnesses sworn.]

The CHAIRMAN. Let the record show that they answered in the

affirmative.

The CHAIRMAN. Welcome to the Committee hearing, Chairwoman. We’re going to begin with you but before you start I remind you that your entire written testimony will be included in the

record. If you can summarize that and keep your oral testimony to

five minutes, it would be appreciated. Thank you.

Before you begin, if I could just have order in the room. We don’t

have any microphones in here and it’s difficult for the court

reporter to hear. I would ask you to speak up when you testify but

if I could have a little bit more order in the room, it would help

everybody here.

Chairwoman Mejia, please.

STATEMENT OF MARGIE MEJIA, CHAIRWOMAN,

LYTTON BAND OF POMO INDIANS

Ms. MEJIA. Congressman Pombo, distinguished members of the

Committee on Resources, thank you for inviting me to participate

49

today. My name is Margie Mejia and I am the Chairwoman of

Lytton Band of Pomo Indians.

To understand why we are here today, it’s important to understand something about the history of our tribe. Like most California tribes, we are a small group with about 275 members. Like

many other California tribes, most of our members live in poverty.

Many have no or inadequate health care. Alcoholism and substance

abuse are continuing problems. We have many families living

together in tiny apartments.

Until the 1950’s, we did have land. That land was in Sonoma

County. Today this is the site of some of the most prestigious

wineries anywhere in the world, but the reason that today there

are vineyards on that land instead of our homes is the result of actions taken by the Federal Government.

In the 1950’s, the Government decided to terminate the small

Native American bands like ours as part of a failed Federal experiment to abolish reservations and forcibly assimilate Native Americans into urban areas. The result was that we lost both our legal

identity and our land, but we never lost our existence as a community. Many of us continue to live together and to take care of tribal

members in need as we do to this day.

Eventually we sued the United States and the outcome of that

suit is that the Federal Government admitted it had broken the

promises it had made in the termination agreement. In 1991 our

tribal status was restored; however, that settlement effectively

barred us from returning to our private land in the Alexander Valley by prohibiting us from operating a gaming facility in the area.

We had no choice but to agree to this condition because otherwise with little or no resources of our own, we would have been

forced to fight a protracted legal battle against a group of wealthy

wineries and the County. After restoration we re-established our

Tribal Government, passed a Constitution and the right to Tribal

Council.

We also began to look for a means out of the relentless poverty

many of our members face and to rebuild our tribal community. We

turned to gaming since the Government offered that to us as

means of economic development and because it generates enough

money to allow us to get a loan and finance the rebuilding of our

tribe and tribal community.

In 1991, the restoration agreement, while barring us from operating a gaming facility in Sonoma County, did not foreclose on our

right to find another community that might welcome us as partners. We found our road to economic self-reliance in the City of San

Pablo. With the help from private investors we purchased an existing card club that had been approved by the local voters in 1994.

The City and the Tribe then negotiated a Municipal Services

Agreement. At the time, such an agreement was unprecedented in

California and was the most protected arrangement between local

interests and an Indian tribe in California.

But there were other hurdles to come. Although it was the Government’s wrongful actions which resulted in the loss of our land,

by the time the Government had admitted that and prepared to

make good on our loss, the legal landscape of the tribes had

changed.

50

The law had been passed which made it extremely difficult for

tribes to operate gaming on land taken into trust after 1988 unless

Congress made that land eligible. Even though it was not our fault

that we were in this position and although the law had not been

intended for landless tribes, but rather tribes with existing reservations, our efforts to seek help from the Department of Interior went

nowhere.

Finally, Congress acted to take that land into trust for us as it

had in the case of many other tribes in California and other states.

This was the final option after we had tried everything else.

Thanks to the efforts of Congressman George Miller, that proposal

was introduced in legislative form in October of 2000.

On December 27th of that year, the President signed the bill into

law. There were newspaper articles about this at the time, and

subsequently there were two attempts to repeal this proposal. Neither of those met with success. Relying on support of Congress, we

have made a substantial investment of time and money toward

gaming development.

We have negotiated generous agreements with both local and

State governments and have made every effort to be a good neighbor. In fact, we believe we are doing exactly what the Federal Government wanted us to do when it refused to settle our restoration

lawsuit until we agreed not to conduct gaming in Alexander Valley.

The Government told us to look elsewhere and we did.

The Feinstein legislation represents another broken promise

made to the Lytton Tribe by the Federal Government. It is nothing

short of another Congressional termination. We believe that our

right to conduct gaming is a valuable property right protected by

the United States Constitution and that this right cannot be taken

from us without substantial compensation.

In addition, this legislation represents government action and

regulation that just goes too far.

The Lytton Tribe, like all American citizens, should not be subject to government actions and regulations that deprive them of

their right to use their lands for economic development purposes.

The act of taking the land into trust for us in San Pablo was not

the beginning of the story; it was the end of a very long story, a

story of poor treatment of our tribe at the hands of the Federal

Government.

That was an act of redress making good the wrong that had been

done to us more than 50 years before. To have simply said, ‘‘We’re

sorry,’’ and offered up a paper apology for the treatment of our

tribe would have wrong. Taking that land into trust represented a

meaningful act of redress. Taking that land out of trust would

make that gesture many empty words.

This is the background to our proposal for a casino project on our

land in San Pablo. Our initial proposal in 1998 (sic.) was for a modest gaming operation with something on the order of 1,000 slot machines. In the proposed compact that we signed with the Government last year, that number was originally 5,000, which was then

revised down to 2500 machines.

Since there has been some controversy about the change, let me

address that for a moment:

51

When we made our initial proposal in 1999, no compact, not ours

or any other tribe’s, provided for any revenue sharing with the

State of California, nor did these compacts provide local and State

governments opportunity for substantial environmental review,

mitigation of local impacts or involvement in gaming regulations.

We stepped up to the plate to do just that, reaching an agreement to pay an unprecedented 25 percent of net gaming revenues

to State and local government, to pay our fair share of public

services and environmental mitigation. But that commitment also

required more slot machines than originally envisioned.

We agreed to two exhaustive impact reviews prior to anything

being built. These provisions are modeled after the, CEQA, California Environmental Quality Act, such as the inclusion of project

alternatives, mitigation and citizen participation in the process.

The compact took one step farther by requiring the Tribe to complete agreements of mitigation with its neighbors in the City of San

Pablo and the local community and State Transportation Department.

Over and above our compact obligations, the Tribe spent the past

months engaged with the community to hear their hopes and concerns about our project. We negotiated and signed a compact with

the Governor of California.

We have the strong support of the City of San Pablo where the

casinos would be located. We believe that this proposed compact

represented a good for all parties. Notwithstanding all that, as you

know, the California State Legislature has chosen not to act on the

compact.

As a result, we will now focus on our exercising our rights under

Federal law. We will renovate the interior of the existing building

to make it more attractive and to offer a wider variety of Class II

gaming activities, including Class II electronic bingo games.

These are not video lottery terminals. They will fall well within

the definition of what constitutes Class II gaming. We don’t tend

to push the envelope.

We did not ask to be in this situation. We did not ask the

Federal Government to take away our name and our land, but that

happened.

Now, decades later when the Government has finally acted to

right those wrongs, we believe it would be wrong to take away our

right to pursue economic self-sufficiency.

If this body wishes to address various issues associated with

Indian gaming, so be it. But I respectfully ask you not to go back

and retroactively change the rules for us.

What this body did in 2000 was the right thing to do. It was to

make good a wrong the Federal Government had committed

against our tribe. I ask you to let that act of justice stand. Thank

you.

Right those wrongs. We believe it would be wrong to take away

our right to pursue economic sovereignty associated with Indian

gaming, but I respectfully ask you not to go back retroactively and

change the rules for us. What this body did in 2000 was the right

thing to do. It was to make good on a wrong that the Federal Government committed against our tribe and I ask you to let that act

of justice stand.

52

The CHAIRMAN. Thank you.

[The prepared statement of Ms. Mejia follows:]

Statement of Margie Mejia, Tribal Chairwoman,

Lytton Band of Pomo Indians

Congressman Pombo and distinguished members of the Committee on Resources,

thank you for inviting me to participate today. My name is Margie Mejia, and I am

the chairwoman of the Lytton Band of Pomo Indians. To understand why we are

here today, it’s important to understand something about the history of our tribe.

Like most California tribes, we are a small group, with about 275 members. Like

many other California tribes, most of our members live in poverty. Many have no

or inadequate health care. Alcoholism and substance abuse are continuing problems.

We have many families living together in tiny apartments. Only one of our members

owns a home.

But until the 1950s, we did have land. That land was in Sonoma County, and

today this is the site of some of the most prestigious wineries anywhere in the

world. But the reason that today there are vineyards on that land, instead of our

homes—is the result of actions taken by the federal government.

In the 1950s, the government decided to ‘‘terminate’’ small Native American

bands like ours as part of a failed federal experiment to abolish reservations and

forcibly assimilate Native Americans into urban areas. The result was that we lost

both our legal identity and our land.

But we never lost our existence as a community. Many of us continued to live together, and to take care of tribal members in need, as we do to this day. Eventually,

we sued the United States, and the outcome of that suit was that the federal government admitted it had broken the promises it had made in the termination agreement. In 1991, our tribal status was restored. However, that settlement effectively

barred us from returning to our tribal lands in the Alexander Valley by prohibiting

us from operating a gaming facility in the area. We had no choice but to agree to

this condition because otherwise, with little or no resources of our own, we would

have been forced to fight a protracted legal battle against a group of wealthy

wineries and the county.

After restoration, we re-established our tribal government, passed a constitution

and elected a tribal council. We also began to look for a means out of the relentless

poverty many of our members faced, and to rebuild our tribal community.

We turned to gaming because the government offered that to us as a means of

economic development, and because it generates enough money to allow us to get

a loan and finance the rebuilding of our tribe and tribal community.

The 1991 restoration agreement, while barring us from operating a gaming facility in Sonoma County, did not foreclose our right to find another community that

might welcome us as partners. We found our road to economic self-reliance in the

City of San Pablo where with help from private investors we purchased an existing

card club that had been approved by local voters in 1994.

The City and the Tribe then negotiated a Municipal Services Agreement. At the

time, such an agreement was unprecedented in California, and was the most protective arrangement between local interests and an Indian tribe in California.

But there were other hurdles to come. Although it was the government’s wrongful

actions which resulted in the loss of our land, by the time the government had admitted that, and prepared to make good our loss—the legal landscape for tribes had

changed. A law had been passed which made it extremely difficult for tribes to operate gaming on lands taken into trust after 1988 unless Congress made the land eligible. Even though it was not our fault that we were in this position, and although

the law had not been intended for landless tribes, but rather tribes with existing

reservations, our efforts to seek help from the Department of Interior went nowhere.

Finally, Congress acted to take that land into trust for us as it has in the case

of many other tribes in California and other states. This was the final option, after

we had tried everything else. Thanks to the efforts of Congressman George Miller

that proposal was introduced in legislative form in October, 2000. On December

27th of that year, the president signed the bill into law.

There were newspaper articles about this at the time, and subsequently, there

were two attempts to repeal this proposal. Neither of those met with success. Relying on the support of Congress, we have made substantial investments of time and

money toward gaming development. We have negotiated generous agreements with

both local and state governments and have made every effort to be a ‘‘good neighbor’’. In fact we believe we are doing exactly what the federal government wanted

us to do when it refused to settle our restoration lawsuit until we agreed not to conVerDate 11-MAY-2000 14:20 Oct 31, 2005 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 J:\DOCS\21759.TXT HRESOUR1 PsN: HRESOUR1
53

duct gaming in the Alexander Valley. The government told us to look elsewhere and

we did.

The Feinstein legislation represents another broken promise made to the Lytton

Tribe by the federal government. It is nothing short of another congressional termination. We believe that our right to conduct gaming is a valuable property right protected by the United States Constitution and that this right cannot be taken from

us without substantial compensation.

In addition, this legislation represents government action and regulation that goes

‘‘too far’’. The Lytton Tribe, like all American citizens, should not be subject to governmental actions and regulations that deprive them of their rights to use their

lands for economic development purposes.

That act, of taking land into trust for us in San Pablo, was not the beginning of

this story. It was the end of a very long story—a story of poor treatment of our tribe

at the hands of the federal government. That was an act of redress, making good

the wrong that had been done to us more than fifty years before. To have simply

said, ‘‘We’re sorry,’’ and offered up a paper apology for the treatment of our tribe

would have been wrong. Taking that land into trust represented a meaningful act

of redress; taking that land out of trust would make that gesture so many empty

words.

That is the background to our proposal for a casino project on our land in San

Pablo.

Our initial proposal in 1999 was for a modest gaming operation with something

on the order of 1,000 slot machines. In the proposed compact that we signed with

the Governor last year, that number was originally 5,000, which was then revised

down to 2,500 machines. Since there has been some controversy about the change,

let me address that for a moment.

When we made our initial proposal in 1999, no compact, not ours or any other

tribe’s, provided for any revenue-sharing with the state of California. Nor did these

compacts provide local and state governments opportunities for substantive environmental review, mitigation of local impacts or involvement in gaming regulation.

We stepped up to the plate to do just that, reaching an agreement to pay an unprecedented 25 percent of net gaming revenues to state and local government to pay

for our fair share of public services and environmental mitigation. But that commitment also required more slot machines than originally envisioned.

We agreed to two exhaustive environmental impact reviews prior to anything

being built. These provisions are modeled on the California Environmental Quality

Act such as the inclusion of project alternatives, mitigation and citizen participation

in the process. But the compact took one further step by requiring the Tribe to complete agreements on mitigation measures with its neighbors in the City of San

Pablo, the local county and the state transportation department.

Over and above our compact obligations, the Tribe spent the past months engaged

with the community to hear their hopes and concerns about our project. As a result,

we reduced the size and scope of our project, to make it a better fit for the community, while still offering the creation of more than 6,600 new jobs.

We negotiated and signed that compact with the governor of California. We had

the strong support of the city of San Pablo, where the casino would be located. We

believe that the proposed compact represented a good deal for all parties. But notwithstanding all that, as you know, California’s state Legislature has chosen not to

act on the compact.

As a result, we will now focus on exercising our rights under federal law. We will

renovate the interior of the existing building to make it more attractive and to offer

a wider variety of Class II gaming activities, including Class II electronic bingo

games. These are not video lottery terminals. They will fall well within the definition of what constitutes Class II gaming. We don’t intend to push the envelope.

We did not ask to be in this situation. We did not ask the federal government

to take away our name and our land. But that happened. Now, decades later, when

this government has finally acted to right those wrongs—we believe it would be

wrong to take away our right to pursue economic self-sufficiency.

If this body wishes to address the various issues associated with Indian gaming,

so be it. But I respectfully ask you not to go back and retroactively change the rules

for us. What this body did in 2000, was to do the right thing. It was to make good

a wrong the federal government had committed against our tribe. I ask you to let

that act of justice stand. Thank you.

The CHAIRMAN. Assemblymember Hancock.

54

STATEMENT OF LONI HANCOCK, ASSEMBLYMEMBER,

14th ASSEMBLY DISTRICT

Ms. HANCOCK. Thank you very much, Chairman Pombo. My name is Loni Hancock. I represent much of the northeast section

of the San Francisco Bay Area, including the cities of San Pablo,

Richmond and Oakland where casinos are being discussed and

have been proposed.

I want to thank you for your leadership in continuing the discus- sion around the increasing controversy surrounding off-reservation

casinos and the respective roles of State, Federal, tribal and local

governments. A brief look at how we got here. In 2000 the voters of California passed a Statewide initiative, Proposition (1)(A). Proposition (1)(A)

amended the California State Constitution to provide economic development for tribes by authorizing gambling casinos on traditional

ancestral tribal lands, which were predominantly in rural areas. As

a matter of public policy, California voters made a limited and narrow exception to the State Constitution’s prohibition of Las Vegas

style gambling. In that campaign the opponents said, ‘‘You wait, urban gambling is going to be next,’’ and the proponents of Prop (1)(A) said, ‘‘Never,

it never will happen, not what we intend.’’

Given what they intended is what people voted for. Since Prop (1)(A)’s passage, we have seen a good number of tribes, more than

50 I believe, followed the Prop and opened gambling casinos on

their tribal land.

We have also seen a handful of tribes, with ambiguous ancestral ties to land, making claims on that land for the sole purpose of

opening a gambling casino. In the San Francisco Bay area alone, we face a proposed development of up to four casinos in a 15 mile radius by tribes who have

scant, if any, ancestral connection to those lands. In the case of the

Lytton Band of Pomo Indians at Casino San Pablo, which has been

designated as a reservation, it’s about 50 miles from Sonoma

County where their lands were.

In another case, the Lower Lake Rancheria Koi Nation is proposing a large casino adjacent to Oakland International Airport,

nearly 150 miles from the tribe’s traditional lands in Lake County.

These are large-scale casinos in clearly in built-up urban areas

would be a violation of the will of the voters and the intent of Prop

(1)(A).

Congressman Pombo, your legislation addresses the issues of the

importance of local community support for any proposed gambling

casinos. I would like to talk briefly about the local community response to the expansion of Casino San Pablo from a card room to

what would have been in the original compact, the third largest

gambling casino in the United States, larger than anything on the

Las Vegas Strip.

In a fully built-up area, half a block off the I-80 freeway, which

is gridlocked for a large part of every day as it is. I would also just

like to point out that in Metropolitan areas like mine, where one

city blends into another, you really would need to ask opinions of

all the adjacent cities because they will all bear negative impacts

and they will get no revenue under anybody’s scenario.

55

I sent out a survey to every household with a registered voter in

it in my district; that’s about 156,000 voters. The return survey

showed overwhelming opposition to the proposed casino. 91 percent

in opposition and even in the City of San Pablo, which had been

promised jobs and money, it was 67 percent opposed.

Later our local TV station, KPIX, did a survey and in their survey return area it was somewhat different. There was a 57 percent

opposition. In addition, the Contra Costa County Board of Supervisors passed a resolution, bipartisan, against Casino San Pablo

and opposing all urban casinos.

The Alameda County Board of Supervisors also passed a resolution against the Koi Nation proposal and cities in the surrounding

communities have done so as well.

Recently you have heard that the proponents of casinos say they

will not do Class III gambling anymore, but will do the electronic

bingo machines. There are some things you might want to look at

as well as you are considering several policies because those electronic bingo machines actually look like and act just like slot machines.

The technology is improved. The lights, the flashing, the noises.

You put money in and pull the handle just a like slot machine.

Each pull costs money; each pull is a gamble.

It is a slot machine experience with the same detrimental social

and economic impacts. The same increases in traffic, crime, blight,

unemployment, gambling addiction and adverse impacts on social

services.

The economics of urban gambling were made clear in a hearing

that we did hold in the District looking at some of the research

that has been done. There is a difference between, the distinction

between, ‘‘destination gambling’’ and what they call ‘‘convenience

gambling.’’

Destination gambling being where you go somewhere like Las

Vegas, you pay your money, you know what you’re going to spend

on your vacation. You leave your money in Las Vegas and you go

home to wherever home is.

Convenience gambling does not mean a major tourist destination,

but rather is the person on their way home from work who stops

off to pull the handle and leaves without the kid’s lunch money or

the rent money.

In fact, a recent study conducted by William Thompson at the

University of Nevada concluded that 85 percent of the money made

at Casino San Pablo, which is an example of an urban casino, 85

percent of the winnings would come from people in the Bay Area,

meaning again, their discretionary money that would otherwise be

spent in local restaurants, local businesses, local retail stores.

This may give the appearance of new economic development but

it’s not. It’s moving money around and can lead to economic losses

experienced by local families, local individuals and local businesses.

To conclude, today California is experiencing a proliferation of

proposals for Indian gambling casinos that have little to do with

tribal self-sufficiency on tribal lands.

These off-reservation casinos are, in reality, being aggressively

supported and financed by out-of-state casino developers and their

56

lobbyists who clearly hope to build casinos in every urban area of

the State.

These Las Vegas-style casinos in urban areas were never in- tended by the voters of the State of California and any urban

casino in the area creates a precedent.

Thank you again, Mr. Chairman for holding this hearing. I look forward to seeing legislation that will prevent the entrance of gambling casinos in California urban areas. The CHAIRMAN. Thank you. [The prepared statement of Ms. Hancock follows:]

Statement of Loni Hancock, Assemblymember, 14th Assembly District California

Good morning Chairman Pombo. My name is Loni Hancock, I represent the 14th Assembly District in the California State Legislature. The district includes most of

the East San Francisco Bay Area including the cities of Oakland, Richmond and San

Pablo.

Thank you for your leadership in the House on this controversial issue. It is also encouraging to see leadership in the Senate by Senator John McCain and Senator

Dianne Feinstein who has introduced legislation directly related to the Lytton Band

of Pomo Indians and Casino San Pablo.

Today’s hearing on ‘‘off reservation’’ casinos and your draft legislation is con- tinuing the discussion on the increasing controversy surrounding tribal gambling

casinos and the role of the federal, state, tribal and local governments. The expansion of tribal gambling casinos into urban areas-especially Casino San Pablo-has become one of the most controversial issues in my district and in the state. Let us look a briefly at the single most important event to the authorization and ultimately the expansion of Indian gambling casinos into urban areas. In 2000, the voters of California passed a statewide initiative—Proposition 1A.

Proposition 1A amended the State Constitution to provide economic development for

tribes by authorizing gambling casinos on traditional ancestral tribal lands. These

lands were traditionally in remote rural areas. So as a matter of public policy the

California voters made a limited and narrow exception to the state constitution’s

prohibition of ‘‘Las Vegas’’ style gambling. This was the intent of Proposition 1A. Since Proposition 1A’s passage we have seen a handful of tribes, with ambiguous ancestral ties to land, making claims to that land for the sole purpose of opening

a casino. In the San Francisco Bay Area alone we face the proposed development

of up 4 casinos within a 15 mile radius by tribes who have scant, if any, ancestral

connection to those lands. In the case of the Lytton Band of Pomo Indians at Casino

San Pablo, the casino’s location is 50 miles from Sonoma County—the traditional

ancestral territory of their tribe. In another case, the Lower Lake Rancheria Koi Nation tribe is proposing to build a casino adjacent to the Oakland International Airport. This casino proposal located in Oakland is nearly 150 miles from the tribe’s

traditional lands in Lake County. Clearly, these casino proposals into the states

largest urban areas are in violation of the will of the voters and the intent of Prop

1A.

Your legislation, Congressman Pombo, emphasizes the importance of local commu- nity support for proposed gambling casinos and I would like to talk briefly about

the local community response to the expansion of Casino San Pablo from a cardroom

to a full fledged Class 3 gambling casino. I personally sent out a survey to every household with a registered voter in my Assembly District, which contains 156,000 voters. The returned surveys showed

overwhelming opposition to the proposed casino. The survey results indicated that

91% of my district opposes the development of a casino at Casino San Pablo. Even

within the City of San Pablo-where the casino would be located- and where the city

has been promised jobs and money, 64% of the returned surveys opposed the casino.

Also, polls conducted by KPIX our local TV station that showed that 57% of the respondents oppose the casino.

In addition, the Contra Costa County Board of Supervisors has passed a bipartisan resolution against Casino San Pablo and opposing all urban gambling and

urban casinos. The Alameda County Board of Supervisors unanimously passed a

resolution against Koi Nation urban casino proposal.

Cities in the communities surrounding gambling casinos which will experience the

negative impacts of increased traffic, crime, blight and gambling addiction have

taken positions against proposed urban casinos. I have also received thousands of

57

letters, emails and surveys that say that Casino San Pablo is a bad economic development strategy for our community and for our State.

Recently the proponents of Casino San Pablo have said that they no longer intend

to build a ‘‘Las Vegas’’ style casino, and that the casino now will not feature slot

machines. The proponents have stated that they will operate only Class II gambling

with electronic bingo machines.

Electronic bingo machines are still slot machines. Push a button or pull the handle, watch the reels spin, and see what you won. There are flashing lights and

sounds to stimulate the senses. Each pull costs money. Each pull is a gamble. For

the player it is a slot machine experience with the same detrimental social and economic impacts as Class 3 slot machine gambling.

These negative and detrimental impacts will include the same increases in traffic,

crime, blight, unemployment, gambling addiction and adverse impacts on small

business.

The issue is not Class II gambling or Class III gambling, or electronic bingo machines or slot machines...the issue is location. The location of urban casinos has substantial negative impacts on the local economy.

Economics of urban gambling can be made clear with the distinction between

‘‘destination gambling’’ and ‘‘convenience gambling’’? If a casino is a singular and

major source of tourism and patrons travel to that casino to gamble and leave their

money behind, that is destination gambling. Las Vegas is good example. People

travel, stay, shop, go to entertainment venues at casinos in Las Vegas and go home,

leaving their money in Las Vegas.

Casino San Pablo is quite a different story. Casino San Pablo due to its location

in a already built out urban area will be an example of ‘‘convenience gambling’’ this

kind of casino will not bring in revenue from outside of the Bay Area. The money

spent at the casino will largely be from the people who live in work near the casino.

In fact a recent study conducted by William Thompson at the University of Las

Vegas Nevada concluded exactly that 85% of the money made by the Casino San

Pablo would be from people in the Bay Area.

If that is the case, the discretionary money that would have otherwise been spent

at local retail stores, local restaurants, small merchants and local businesses will

instead be spent at the casino. This gives the appearance of ‘‘economic development’’

but negatively impacts the local economy as experienced by local families and businesses. In fact the previously mentioned study shows that the direct economic losses

experienced by the Bay Area from a class 3 gambling casino in San Pablo will be

$138 million a year. Simply put Casino San Pablo and the other casinos proposed

in urban areas are a bad bet.

To conclude, California is experiencing a proliferation of proposals for Indian gambling casinos that have little to do with self sufficiency on tribal lands. These ‘‘off

reservation’’ casinos are, in reality, being aggressively supported and financed by

out-of state casino developers and their lobbyists who clearly hope to build casinos

in every urban area of the State. These Las Vegas style casinos were never intended

by the voters of the State of California. The entrance of tribal casinos on non-ancestral land in densely built urban areas, such as San Pablo, would set a precedent

for authorizing off reservation gambling casinos throughout California and every

state where tribal gambling is permitted.

Thank you again, Mr. Chairman, for holding this hearing. I look forward to seeing

legislation to prevent the entrance of gambling casinos into California’s urban areas.

The CHAIRMAN. To begin with, I will start with you,

Assemblywoman Hancock. In drafting this legislation and I know

you are familiar with what we go through to do this, but one of the

reasons why—and I understand what your concerns are with your

District and where you can’t really tell when you go from one city

to the next and impacts are felt all over.

One of the reasons why we limited it within the legislation to the

City jurisdiction is currently if the City of San Pablo were to approve a 5,000 unit apartment building, that unquestionably would

have impact on surrounding cities. Good, bad or indifferent, it

would have some kind of impact.

Yet under current law in California, we don’t require that city to

get approval of the surrounding cities in order to do it.

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I have concerns about the Federal Government becoming the

Federal land use where we determine what goes where. In situations like this, I would fault on the side of what local law is, what

the State law is, in allowing them the ability to do that.

In this particular situation, if they negotiated an agreement with

that particular city, they are responsible for that. As we had with

previous panels of Supervisors, there has to be a nexus between

what their impact is and what they actually have to pay for.

That’s kind of how I ended up with the draft that I did. I do understand what your concerns are in terms of the impact on the surrounding communities, but with tribes having their sovereignty,

they have a special situation that exists in government-togovernment negotiations.

I don’t want to do anything within this legislation that takes—

that backs away from that and makes them do even more than

what we would require somebody else with a similar development

on a private site.

Ms. HANCOCK. I think that the problem that you’re citing is actually one of the reasons there is now a big push for more regional

planning on land use. You’re exactly right about shared impact and

not shared responsibility.

Again, not to single out San Pablo, but San Pablo is a city of

about 30,000 people totally surrounded by the City of Richmond of

90,000 people, all of them low income, all of them in need. Contra

Costa County provides social services to many, many communities.

They would all be impacted by the need that would be created by

the casinos.

It probably goes back to go something I heard Representative

Costa talk about. We also need State policies to begin to look at

this.

The CHAIRMAN. I don’t think there is any question and Jim was

the first one that actually brought that up to me several months

ago. The more that we get into this, the more that I believe he is

right, that we do need to have some kind of Statewide policy that

at least makes clear what the policy is as the State puts it out

there so that everybody knows what it is. Right now we don’t have

it.

It’s not just California. I am not aware of any State that has a

clear policy. That is something we do have to deal with.

Chairwoman Mejia, I read through your testimony and over the

last several months I have had an opportunity to actually look at

your particular tribe’s situation and what has happened over the

last 50 plus years to you.

I do not support anything that takes away your sovereignty or

takes away your opportunities. What has happened to you, I think,

is a classic case of a number of California tribes. You have tried

to do something about it, you have tried to move forward with it.

I support your efforts for economic development. I believe that if

you had known twenty years ago where you would be today, different decisions would have been made and we would not have

been in the exact same situation that we’re in.

I think it’s an unfortunate situation, but like it or not, the challenges that you have gone through over the past couple of years

have highlighted this issue nationally and made it a bigger issue.

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When I had Members of Congress from Connecticut coming up to

me and citing what has happened with your tribe as one of the reasons why we need to stop Indian gaming, that is one of the situations that we need to deal with.

Can you describe or can you explain to the Committee why the

decision was made to go to San Pablo to begin with? Can you explain that? Historically from Alexander Valley, how did we end up

in San Pablo?

Ms. MEJIA. I met with the County Board of Supervisors in

Sonoma County. They made it very clear that they didn’t want us

there. I asked for suggestions.

They told us to look for maybe a newly formed city government

that could use some money, that they didn’t need any money because we offered to pay the mitigation issue. We offered to pay our

fair share and they said they didn’t need the money at the time.

I don’t know if they do now or not. I haven’t had further discussions with them on it. So we did what they suggested. Actually, we

just started going out because we didn’t want to leap-frog around.

We knew there was another tribe there. We found American

Canyon, which was a new city government between Napa and

Vallejo. We, in talking with the city staff people there, they led us

to believe that they were actually very encouraging, that they

would be open to this.

Unfortunately, they didn’t speak to their city representatives.

There was a public hearing held where I was literally chased to my

car at 9:30 at night by people. That made it very clear to me that

we weren’t going to be in American Canyon.

So, we were leaving and one of the people on our team happened

to drive by Golden Gate Field and thought, ‘‘Well, maybe we should

talk to them because the big issue was going in community that

wanted you.’’

We talked together with the people at Golden Gate Field and

they also owned Casino San Pablo. When we began discussions

with them, we started telling them what we had in mind. They

said, ‘‘Well, gee, we have this card club over here that isn’t doing

very well.’’

The City really counts on the revenue from it and it has declined

because of the Asian market financial impact. I’m as good at that

as I am in politics, being one step back there. But that was the reason and we began discussions with them to participate in the card

club because the voters in the community were open to gaming.

We began those discussions. We were—then the next step would

be to meet with the City of San Pablo. In talking with them, I am

very proud to say that they have been very strong allies since 1998

when we signed this agreement. That’s how we ended up in San

Pablo. They sent us.

The CHAIRMAN. Thank you.

Mr. Costa.

Mr. COSTA. Thank you, Mr. Chairman. My question is to Chairwoman Mejia. I want to commend you on the very concise history

that you indicated that your tribe has been through and as a result

of that history the promises that were obviously broken as it related to your ability to participate in what is legal in California,

which is Class III gaming.

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I was wondering, based upon your experience over the last 15,

20 years, do you believe that the State of California has a clear understanding or a concise policy as it relates toward Class III

gaming?

Ms. MEJIA. I was aware of no policy until the Governor’s proclamation. I did sit through negotiations with the Governor of the

State of California. It’s my understanding at that time that his approach, at least it was with my tribe, and I don’t want to speak

for the Governor, seemed to be that it was on a case-by-case basis

because each tribe is different. There are different circumstances.

There were people that talked about Congressman Miller’s legislation in the Indian Commons Act of 2000 authorizing this land to

be mandated to be land that is taken into trust.

There were comments that it was done by stealth legislation or

whatever, even though it was actually put into the bill in October

and passed in December. It was in there for anyone who had Internet access could have accessed that section.

Having said that, in July of 2001 Senator Reed attempts to repeal the language. The tribe prevailed and it is stated in the Congressional Record on the Floor that this was done because of the

unique circumstances of my tribe.

So then another attempt last Fall by Senator Feinstein. It’s like,

we have been before Congress not once but twice, two more times.

How many times do we go before Congress? When do my people get

to say, ‘‘We’re OK’’?

Mr. COSTA. I would submit to you that parts of that would be the

result of a lack of nationwide policies on Indian gaming.

Assembly Member Hancock, a variation on the question: Why do

you think, having spent 20 some years in the Legislature. I can

guess or I can surmise, not only this Governor but the previous

Governor as well, have not come together to—as we understand the

history over the last 15 years, as Class III Indian gaming has expanded, why there has not been an effort or an attempt to create

a Statewide policy of the rules which are clearly understood?

Ms. HANCOCK. I think that’s a very good question. In all honestly, probably some things that haven’t been tracked very closely

until maybe the last four or five years when the phenomenon of offreservation gambling has begun to be prevalent.

Many tribes did go ahead and use the process laid out by the

BIA and opened casinos on their traditional tribal lands.

The next wave seems to be getting the backing of investors. I

was very interested in Ms. Brown’s information about Arizona.

Mr. COSTA. And by CSAC’s testimony, there are 25 or less

pending—including when you do the math, the 64 who have compacts. I guess that’s a total of 43, notwithstanding the 25.

Ms. HANCOCK. Yes. So I think it has become more than more

clear that we may need Statewide policy. I know there is at least

one Constitutional Amendment that is before the body that would

have a five year moratorium while we assess the number of gambling casinos that we have now in California and what the future

may be and where they might go if there were any more at all.

I think frankly you have raised a very good point, that we need

to have a Statewide policy.

Mr. COSTA. Thank you.

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Mr. GOHMERT. As a follow-up on that, I’m wondering, if not only

should there be a Statewide policy but perhaps a county policy.

Contra Costa was giving me a little bit of background about your

sacrifices.

Jointly, I was reminded—I got to figuring out after 18 months of

a grueling campaign for Congress, probably the last person you

ought to trust with making decisions for the Nation is anybody who

is stupid enough to run for Congress.

Nonetheless, it’s an important issue. As I understand the legislation talks in terms of the local city or community where the lands

are located, but I’m wondering if there should also be each state

looking at this, not just a State policy, but should it empower the

counties to have oversight or something like this, should the legislation incorporate the counties into this as well?

Of course, you have the possibility of the county with the judgment of the local community for an overall county, but there are

a number of issues at work.

Do you have a feeling about that, whether it should be a county

or a local community? Obviously, you have participated in communities you wouldn’t necessarily want the counties participating.

What are your thoughts?

Ms. HANCOCK. In California, county government basically carries

forward law enforcement duties, also social services. So, any

increase in social services brought about by bankruptcies, suicide,

increased domestic violence or any of those things, increases in

crime, will be borne by the county, not necessarily by the city

because cities don’t traditionally do any social services at all.

For that reason, the county has a real stake. The county also

does roads and infrastructure. It seems to me they ought to be

involved.

Also, one of the reasons there was such strong opposition

throughout the Bay Area to Casino San Pablo was that the I-80

freeway is the lifeline, economic and social, for commuters to get

from work to home. The thought of increased congestion would—

the casino also directly—is now because it is still a card room right

now—it is directly adjacent to the only public emergency room

within 25 miles of the hospital.

Really, I will. I think this is the kind of thing we ought to look

at regionally because every city will feel the impact and we need

to look at these things together. Now again, we’re talking traditional tribal land, but when we’re talking about investors, often

out-of-state investors that seem to be predominantly located in Las

Vegas, Arizona and Florida, doing what they call ‘‘tribe shopping’’

in addition to them ‘‘reservation shopping.’’

It becomes a very frantic and sad set of choices for everybody, including people who have enormous respect for tribal integrity and

sovereignty. I think we do need a State policy and it does need to

involve everyone who is impacted.

We’re not talking about traditional tribal lands and I do have to

say that I have had many tribes come to me in great distress because they built a casino 75 miles off the main road of their traditional tribal land and they say if they thought they could get right

next to a freeway in the metropolitan area they might have tried

to do that.

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Mr. GOHMERT. Chairwoman Mejia, you obviously have an intense

sense of fairness and I admire that. With due regard to what has

happened in the past, in formulating a new Federal law, what’s

your feeling about requiring to negotiate with—outside the community with the counties.

Ms. MEJIA. Speaking for my tribe, I can tell you that when we

negotiated the compact with the government of California, we negotiated and we agreed to have before anything was built an agreement, a mitigation agreement with the County of Contra Costa.

Not just the County, not just the City, our municipal services

agreement has been in place since 1998.

We also agreed to mitigate with the County and CalTrans who

also stepped up to the plate with a $25 million offer to rebuild the

interchange at San Pablo Dam Road prior to getting it going and

underway even before the mitigation agreement with CalTrans was

in place because we understood the need for that.

I think that my tribe has, to the criticism of other tribes, stepped

up to the plate because we understood we were in an urban area

and that we needed to step up to the plate and address those

issues.

Mr. GOHMERT. I have just one question, referring to the San

Pablo Dam Road, is ‘‘dam’’ the way it’s used there, is that a noun

or an adjective?

Ms. HANCOCK. I do think that we need a little clarification there.

The first compact that was put forth by the Governor for 5,000 slot

machines did not involve the negotiations for mitigation.

It also had a clause that says that the State Director of Finance

could at their sole discretion obviate any or all of the local mitigation which at that time were only for local governments. The second compact that was proposed for the 2500 slot machines, which

was about the size of a casino on the Vegas strip, did involve the

county and was definitely a step forward and would be something

that any policy in the future ought to consider.

Mr. GOHMERT. Thank you.

The CHAIRMAN. I just want to ask one follow-up question of

Chairman Mejia. Knowing what you have been through over the

last several years, I don’t know how familiar you are with the draft

legislation but in there is the opportunity to do what we call ‘‘Economic Opportunity Zones.’’

I don’t know how familiar you are with those provisions in the

draft, but would that have been an attractive option to you knowing now with the hindsight of everything that has happened, would

that have been an option that your tribe would have pursued

rather than ultimately what you did go through?

Ms. MEJIA. I understand the concept in the proposed draft. I’m

not sure how it gets implemented, but I can tell you that being the

Tribal Chair for the last ten years, for 275 poor people, people living in very bad conditions, I would have looked at all options.

The CHAIRMAN. The way the draft is written, there would be two

different zones. One would be on land that is currently in trust and

that would be a negotiation between that particular tribe and others who would come into it. The other is the ability to go into land

that is currently not in trust, but having the opportunity to bring

that in trust for the tribes that would be located there.

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With a tribe such as yours that did not currently have land in

trust, that would give you an opportunity to go somewhere with it.

That was kind of the direction that we were trying to deal with in

that particular case.

That was not done with your situation particularly in mind. It

was actually a couple others that are out that made me start thinking about that. It seems that in listening to your testimony and the

more I learn about what you have gone through, that would have

been an option for you.

Did any of the Members have any other questions or comments

they want to make? Mr. Costa?

Mr. COSTA. Thank you very much, Mr. Chairman. On my own

time I would like to personally commend you for holding this hearing this afternoon on what I believe is an important piece of legislation, not only in California but throughout the country.

You are to be commended for your work; this is not easy work

and you will probably end up getting more grief than you will accolades. Having said that, for those of you as I look around the room

and many of whom I have met over the years, you’re probably, as

you listen to my questioning, trying to figure out, ‘‘Well, what’s

Costa really up to this time?’’

Let me tell you and I will try to be as clear as I can. For one,

I’m up to working with the Chairman of this Committee on what

I hope will be thoughtful, common sense legislation that I think is

necessary.

I commit to doing that as best I can. What I’m also up to is trying to deal with the issues that I think are important to the longterm impacts of Class III gaming in California.

Obviously, through my questioning I think all of you sense that

I have a sense of frustration on how this is happening on an ad

hoc basis, on a case-by-case basis where every deal has become

kind of a deal based upon the powers that be that were involved

rather than what the circumstances were with each Indian tribe.

I think we need to be fair in all of our application in the 107 sovereign nations in California that are recognized. I believe it is 107;

correct me if I’m wrong. I know there are others that are pending

that would like to be recognized. I think that’s a difference in that;

although, we probably should consider that in legislation, tribes

that have not been recognized by the BIA, the Bureau of Indian Affairs that are pending recognition.

In terms of my application of fairness, I would be interested in

all of your ideas, not just the 64 current sovereign nations that

have compacts, but also the 25 plus and the number on top of that,

that are seeking compacts. It would be my hope—I don’t know if

we’ll be successful, I know I’m kind of still in the learning process

in the Congress.

As we all know, legislation is not a precise scientific process. It’s

kind of an art form. In Sacramento and in Washington, D.C., as we

apply our art, I would be interested in listening to all of your comments and your ideas on how we can try to put forth what I hope

will be a fair and clear, logical process on those 43 tribes, I believe,

that currently do not have compacts that are seeking compacts.

Realizing that the 64 that currently have them today, I believe

under State and Federal statutes are modified compacts. I don’t beVerDate 11-MAY-2000 14:20 Oct 31, 2005 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6602 J:\DOCS\21759.TXT HRESOUR1 PsN: HRESOUR1
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lieve that there’s anything that we can deal with whether we like

the compacts or not. What we finally say is I do support Indian

gaming in California. I have consistently supported it.

As I told you, my mother would not have it any other way because she likes to go to a couple facilities nearby as she reaches

her 90th birthday this year. I do want to be fair and I think we

need to believe that, whether this process involves both local and

State government, it ought to basically require some guidelines to

determine what the State policies should be in California.

I think we all have ideas about how traditional tribes that have

the reservations and the landless tribes.

I think that needs to be hopefully addressed in the legislation.

That’s kind of what I’m up to in terms of trying to work as best

I can with the Chairman, with the Members of this Committee to

see if we can produce thoughtful, common sense legislation that

deals with status for California and hopefully better than we have

been able to do so far.

Let’s look at the long-term issues because I think that’s where

we’re going. There has been a tremendous lack of focus over the

last 15 years. Thank you very much.

Mr. GOHMERT. Just to say thank you and thank all of you. It’s

when people have been too apathetic that we have gotten our worst

laws so I appreciate your interest and your input.

The CHAIRMAN. I want to just, in closing, say that I appreciate

Mr. Costa making the effort to be here and participate in this hearing. Obviously, this is an issue that is not only important to his

District and California but to the entire country and I appreciate

the input that he has had as a Member of the Committee.

Mr. Gohmert made the effort to come out from Texas to be part

of this hearing. This is an issue that the Committee is dealing with

that may not be quite the issue in Texas as it is in some other

states and I appreciate him making the effort be here to educate

himself on what is a major issue.

The only comment I would say to Mr. Costa in terms of the recognition process, that is another bill that is just as controversial as

this one. My effort as Chairman was to take a number of these

issues that have been before Congress and try to settle them. None

of them are easy.

Whether we’re talking about the recognition process or offreservation gaming and the impact that has had, they are very

complicated issues that when you deal with every tribe from tribe

to tribe it’s a different issue, different circumstances.

Because of that, instead of introducing legislation, we introduced

a draft bill. We put everything that we could think of in that draft

bill and put it out there and many of the people in this room have

had comments on that draft legislation, good and bad about what

works, what doesn’t work, why it won’t work in your specific situation.

That was the process that I decided to through instead of just

telling you, ‘‘This is the way it’s going to be,’’ I put out a draft and

said, ‘‘OK, tell me what’s wrong with it or what’s right with it.’’

Over the last several months we have gotten a lot of comments on

it.

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When we ultimately get to the point of introducing legislation it

will look different than the draft because we have taken a lot of

comments that have come in and tried to respond to that and we

have tried to make it so that it’s something that when it hits in

the implementation stage it’s something that works. That’s what

we’re trying to do with that.

I appreciate the panels for their testimony, all of the witnesses

today for your testimony. It will make this better legislation by the

time we get to the point of introducing the bill. So, I thank you for

that.

For those of you who had wanted the opportunity to testify or

have your comments heard as part of this hearing, I will leave the

hearing record open. Anybody who has comments that they would

like to submit, submit them to the Resources Committee.

They will be included as part of the record and part of this deliberative process that we are going through to come up with legislation.

I want to thank all of you for being here. Actually, for a crowded

room and the number of emotions that are here, you did pretty

good. I appreciate that.

Mr. Costa.

Mr. COSTA. Mr. Chairman, as a former Judge, Mr. Gohmert, I

thought, would be interested in the history of this room. It was

originally constructed to seat the California Supreme Court. That’s

part of the reason it’s such a beautiful, historic room.

The Supreme Court had a lot of political leverage in the late

1880’s and ’90s. They thought the climate was not so much to their

liking in Sacramento; that it was far better in San Francisco.

This part of the State had a lot of periodic floods in those days

before the dams and reservoirs. Getting the legislation changed to

where they were assigned to the County and City of San Francisco,

they were required in part to convene once a year in Sacramento

to show the fact that they were a part of the State of California.

They have maintained that tradition for over 100 years. They

meet in this room one day a year to reaffirm that they do belong

to California. It’s a beautiful room to have a hearing.

The CHAIRMAN. In deference to my colleagues, I did not spend a

heck of a lot of time in the Capitol in Sacramento having never

served here and I stay out of courtrooms whenever possible. I appreciate it, everybody, if there is no further business before the

Committee, this hearing is adjourned.

[Whereupon, at 2:35 p.m., the Committee was adjourned.]

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