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84–595 PDF 2003

S. HRG. 107–925

BAY MILLS INDIAN COMMUNITY LAND CLAIMS

SETTLEMENT ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

S. 2986

TO PROVIDE FOR AND APPROVE THE SETTLEMENT OF CERTAIN LAND

CLAIMS OF THE BAY MILLS INDIAN COMMUNITY, MICHIGAN

OCTOBER 10, 2002

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

DANIEL K. INOUYE, Hawaii, Chairman

BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

PAUL WELLSTONE, Minnesota

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

FRANK MURKOWSKI, Alaska

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

PATRICIA M. ZELL, Majority Staff Director/Chief Counsel

PAUL MOOREHEAD, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 2986, text of ......................................................................................................... 2

Statements:

Bennett, George, tribal councilor and former chair, Grand Traverse Band

of Ottawa and Chippewa Indians ................................................................ 27

Boldrey, Lance, deputy legal counsel to Governor John Engler of Michigan .................................................................................................................. 19

Bonior, Hon. David E., U.S. Representative from Michigan ......................... 7

Bouschor, Bernard, chairman, Sault Ste. Marie Tribe of Chippewa Indians of Michigan ............................................................................................. 25

Fletcher, Matthew, esquire, Law School, University of Michigan ................ 27

Inouye, Hon. Daniel K., U.S. Senator form Hawaii, chairman, Committee

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

Lufkins, L. John, president, executive council, Bay Mills Indian Community of Michigan ............................................................................................ 16

Martin, Aurene, Deputy Assistant Secretary for Indian Affairs, BIA, Department of the Interior, Washington, DC ................................................. 12

Stabenow, Hon. Debbie, U.S. Senator from Michigan ................................... 8

Stupak, Hon. Bart, U.S. Representative from Michigan ............................... 10

APPENDIX

Prepared statements:

Bay Mills Indian Community .......................................................................... 37

Bennett, George ................................................................................................ 51

Boldrey, Lance .................................................................................................. 88

Bouschor, Bernard ............................................................................................ 98

Boylan, Virginia, counsel to the Bay Mills Indian Community (with attachment) ....................................................................................................... 112

Lufkins, L. John ............................................................................................... 33

Martin, Aurene (with responses to questions) ............................................... 120

Additional material submitted for the record:

Letters ............................................................................................................... 128

(1)

BAY MILLS INDIAN COMMUNITY LAND CLAIM

SETTLEMENT ACT

THURSDAY, OCTOBER 10, 2002

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Washington, DC.

The committee met, pursuant to notice, at 11:27 a.m. in room

485, Senate Russell Building, Hon. Daniel K. Inouye (chairman of

the committee) presiding.

Present: Senator Inouye.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. The Committee on Indian Affairs meets this

morning to receive testimony on S. 2986, a bill to provide for and

approve the settlement of certain claims to lands in the State of

Michigan of the Bay Mills Indian Community.

[Text of S. 2986 follows:]
2

1

II

107TH CONGRESS

2D SESSION S. 2986

To provide for and approve the settlement of certain land claims of the

Bay Mills Indian Community, Michigan.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 20, 2002

Ms. STABENOW introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

A BILL

To provide for and approve the settlement of certain land

claims of the Bay Mills Indian Community, Michigan.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Bay Mills Indian Com5 munity Land Claim Settlement Act’’.

6 SEC. 2. DEFINITIONS.

7 In this Act:

8 (1) ALTERNATIVE LAND.—The term ‘‘alter9 native land’’ means the land identified as alternative

10 land in the Settlement of Land Claim.
3

2

•S 2986 IS

1 (2) CHARLOTTE BEACH LAND.—The term

2 ‘‘Charlotte Beach land’’ means the land in the Char3 lotte Beach area of the State, more particularly de4 scribed as Government Lots 1, 2, 3 and 4 of Section

5 7, T. 45 N., R. 2 E., and Lot 1 of Section 18, T.

6 45. N, R. 2 E., Chippewa County, Michigan.

7 (3) COMMUNITY.—The term ‘‘Community’’

8 means the Bay Mills Indian Community of the

9 State, a federally-recognized Indian tribe.

10 (4) SECRETARY.—The term ‘‘Secretary’’ means

11 the Secretary of the Interior.

12 (5) SETTLEMENT OF LAND CLAIM.—The term

13 ‘‘Settlement of Land Claim’’ means the agreement

14 between the Community and the Governor of the

15 State executed on August 23, 2002, and filed with

16 the Office of the Secretary of State of the State.

17 (6) STATE.—The term ‘‘State’’ means the State

18 of Michigan.

19 SEC. 3. ACCEPTANCE OF ALTERNATIVE LAND AND EXTIN20 GUISHMENT OF CLAIMS.

21 (a) ALTERNATIVE LAND.—

22 (1) IN GENERAL.—As soon as practicable after

23 the date of enactment of this Act, and not later than

24 30 days after the date on which the Secretary re25 ceives a title insurance policy for the alternative land
4

3

•S 2986 IS

1 that indicates that the alternative land is not subject

2 to any mortgage, lien, deed of trust, option to pur3 chase, or other security interest, the Secretary shall

4 take the alternative land into trust for the benefit of

5 the Community.

6 (2) RESERVATION.—On attaining trust status

7 under paragraph (1), the alternative land shall be8 come part of the reservation of the Community.

9 (b) LAND CLAIM.—The alternative land—

10 (1) shall be taken into trust under subsection

11 (a) as part of the settlement and extinguishment of

12 the Charlotte Beach land claims of the Community;

13 and

14 (2) shall be deemed to be land obtained in set15 tlement of a land claim within the meaning of sec16 tion 20(b)(1)(B)(i) of the Indian Gaming Regulatory

17 Act (25 U.S.C. 2719(b)(1)(B)(i)).

18 (c) EXTINGUISHMENT OF CLAIMS.—

19 (1) IN GENERAL.—As of the date of enactment

20 of this Act, any and all claims by the Community to

21 Charlotte Beach land or against the United States,

22 the State (or any political subdivision of the State),

23 the Governor of the State, or any other person or

24 entity based on or relating to claims to the Charlotte

25 Beach land (including claims for trespass damages,
5

4

•S 2986 IS

1 use, or occupancy), whether based on aboriginal or

2 recognized title, are extinguished.

3 (2) CONSIDERATION.—The extinguishment of

4 claims under paragraph (1) shall be considered to be

5 in consideration for benefits provided the Commu6 nity under this Act.

7 SEC. 4. EFFECTUATION AND RATIFICATION OF AGREE8 MENT.

9 (a) IN GENERAL.—The United States approves the

10 Settlement of Land Claim.

11 (b) INCORPORATION OF TERMS.—The terms of the

12 Settlement of Land Claim—

13 (1) are incorporated into this Act; and

14 (2) shall be in full force and effect.

15 (c) ENFORCEMENT.—The Settlement of Land Claim

16 may be enforced by the Community or the Governor of

17 the State in accordance with the terms of the Settlement

18 of Land Claim.

19 (d) JURISDICTION.—The United States District

20 Court for the District of Michigan shall have exclusive ju21 risdiction over any action under subsection (c) to enforce

22 the Settlement of Land Claim.
6

5

•S 2986 IS

1 (e) PUBLICATION.—The Secretary shall publish the

2 text of the Settlement of Land Claim in the Federal Reg3 ister.

Æ
7

The CHAIRMAN. I would like to express my apologies for being

late, but as some of you are aware, we are deep in debate on Iraq

at this moment.

I am pleased to welcome as our first witness today a great leader

in the House, the Honorable Leader, Congressman Bonior.

STATEMENT OF HON. DAVID E. BONIOR, U.S.

REPRESENTATIVE FROM MICHIGAN

Mr. BONIOR. Good morning, Mr. Chairman, and thank you for

the opportunity to appear with you today. It is always good to see

you and be with the committee.

I am also delighted to appear this morning with Senator

Stabenow and Congressman Stupak in support of S. 2986. As always, it is wonderful to appear with constituents from my home

State, which I assume you will hear from shortly.

I am the sponsor of the companion bill in the House of Representatives, H.R. 5459, because I believe this is sound legislation

that provides final settlement to a land claim held by the Bay Mills

Indian Community. I am pleased that our House bill has bipartisan

support and the cosponsorship of Don Young. Our offices have been

working closely to move the legislation forward.

S. 2986 and our House companion provide for congressional approval of the agreement reached between the Bay Mills Indian

Community and the State of Michigan. In exchange for relinquishing a claim of land in Charlotte Beach, Michigan, the Bay Mills Indian Community receives land in Port Huron, Michigan which, Mr.

Chairman, is in my district. The Bay Mills Indian Community is

a federally recognized Indian tribe whose ancestors lived in semiautonomous bands of Chippewa on the shores of the Upper Great

Lakes in what is now the State of Michigan and the Province of

Ontario. The land-swap issue has focused on the planned gaming

facility that would be located in Port Huron. Mr. Chairman, the

most important thing I can offer you today in my support for this

legislation is that my own community of Port Huron held a referendum on this issue on June 26, 2001. The voters gave approval by

a 55- to 45-percent margin. I believe we ought to heed their reasons for supporting this settlement.

Casino gaming would benefit the Port Huron community and the

economy. Port Huron’s unemployment rates exceed the State and

National levels. I was told recently that it is up to 14 percent. The

casino will be an $80 million facility creating more than 3,000 jobs

in the community. It is expected to provide a $207 million boost to

the local economy.

Port Huron, I would note, is the only U.S–Canadian border crossing in Michigan without a casino to compete. Residents in Port

Huron have for years watched as residents of Michigan, approximately about 5,000 a day, simply cross the Blue Water Bridge with

their money to the gaming facility which is located right across the

bridge on the river. The planned casino in Port Huron will be a development close to the downtown area, will make efficient use of

existing attractions and infrastructure in the city, and the casino

will also generate more than $10 million per year in payments to

State and local governments in Michigan.
8

I also believe it is worth noting that the Bay Mills Indian Community will benefit from the gaming casino in a way that will improve the lives of the tribal members of the larger Native American

population in our State. Gaming funds are used for education. The

Bay Mills is the only tribe in Michigan, as far as I know, to provide

for a community college that serves the entire Indian population of

the State. For housing, casino revenue has helped the tribe to provide low- interest loans to its members and the bulk buying of

manufactured homes. For health care, the tribe operates a medical

clinic that serves the physical and mental health needs of tribal

members. For jobs and training, Bay Mills is one of the few tribes

in Michigan where a majority of the workers in their casino are

tribal members.

In addition to this support for community service programs,

there is an existing agreement between the Bay Mills Indian Community and Port Huron for a percentage of the revenue from gaming to be set aside for social service needs of the community. I have

heard from the local United Way in support of this legislation because they are pleased that there will be an increase in much needed social service programs for the residents of Port Huron because

of this agreement.

I thank you again for the opportunity to appear before you today.

Before I close, I want to simply acknowledge Port Huron City

Councilmember Cliff Schrader. Mr. Schrader has served on the city

council for eight years and has served as mayor pro tem. He has

been a Port Huron resident for 51 years. Prior to his service on the

city council, he served on the school board. Mr. Schrader gave me

this morning a box of over 1,200 preliminary job applications from

the citizens of Port Huron. In addition to the reasons cited in my

comments and those of my colleagues, I add these 1,200 reasons in

support of S. 2986.

I thank my chairman and colleague and friend for the opportunity to speak this morning.

The CHAIRMAN. Congressman, I just have one question, a clarification. Did you say that the United Way favors this?

Mr. BONIOR. That is correct. There is a very close relationship in

the City of Port Huron between the United Way—they are a very

vital part of the community, and there is going to be a set-aside

for them to deal with many of the social issues that a community

that has 14 percent unemployment is grappling with.

The CHAIRMAN. Thank you very much.

Now, it is my pleasure to call upon the junior Senator from the

State of Michigan, the Honorable Debbie Stabenow.

STATEMENT OF HON. DEBBIE STABENOW, U.S. SENATOR

FROM MICHIGAN

Senator STABENOW. Thank you, Mr. Chairman.

First, I want to thank you personally for your patience and your

willingness to take time for yourself and your committee at this

very difficult time, as we are debating very weighty matters in the

Senate. I appreciate your staff’s help and support in focusing on

this issue and allowing us this hearing today. So thank you very

much for your willingness to do that.
9

I appreciate the opportunity to appear before the committee to

discuss my bill, S. 2986, which as you know was introduced last

month. S. 2986, The Bay Mills Indian Community Land Claims

Settlement Act, would approve, ratify, and implement, upon approval of the Secretary of the Interior, the terms of a landmark

agreement between the Bay Mills Indian Community in Brimley,

Michigan and the State of Michigan. I welcome today’s hearing as

a forum to provide more information to the committee on the details of the land claims settlement and to hear the viewpoints from

my constituents.

Mr. Chairman, I want to welcome everyone to the committee

hearing today. I know there are those that are on both sides of this

issue, and they are sincere individuals and we appreciate their

coming and giving their input. I work closely with all the tribes in

Michigan on a wide variety of issues, and I look forward to reviewing their testimony on this legislation.

Mr. Chairman, the settlement referenced in S. 2986 was reached

this year after much discussion between the State of Michigan and

the Bay Mills Indian Community. The agreement settles the tribe’s

longstanding claim to over 110 acres of land that was once deeded

to the Governor of the State to hold in trust for the ancestral bands

of the Bay Mills Indian Community. This land, in what is now

called Charlotte Beach, Michigan was later sold for unpaid taxes

and without the knowledge of the bands or consent of the State.

On the judicial front, the Bay Mills Indian Community has been

unable to resolve the tribe’s land claim for the tribe and the current Charlotte Beach landowners. I am sure Bay Mills executive

council president, L. John Lufkins, will speak more thoroughly

today on the legal aspects and the history of the tribe’s efforts to

remedy this land claim in the court of law. The settlement agreement of S. 2986 would extinguish the Bay Mills Indian Tribe’s

claims to the Charlotte Beach lands, and in turn provide them with

alternative land located in Port Huron, MI.

As noted in the settlement agreement, both the Governor of

Michigan and the Bay Mills Indian Community believe that resolution of the tribe’s claim will lead to a clearing of the property title

for the current Charlotte Beach property owners. As it stands presently, local assessors have reduced the property values of the Charlotte Beach landowners by 90 percent and clouded their property

titles. The Governor of Michigan could not attend today’s hearing,

but I am quite confident that his representative, Lance Boldrey,

will effectively convey the State’s position on this bill, and its decision to settle the Bay Mills Indian Community’s land claim.

Testimony this morning may assert that the Community’s claim

to the land in Charlotte Beach is unfounded, since some legal avenues have been exhausted. In response to that contention, I do not

believe that the State of Michigan would enter into this settlement

agreement or potentially others like it if a tribe’s land claims were

false or historically inaccurate.

Mr. Chairman, S. 2986 would provide for congressional approval

of the land claim settlement between the State of Michigan and

Bay Mills. As outlined in the settlement, the alternative lands provided to the tribe for the relinquishment of their claim to land are
10

in Port Huron, Michigan. We are pleased to have leaders from Port

Huron with us today.

The voters in the city of Port Huron supported a ballot initiative

last year to allow gaming in their city. This settlement outlines the

mechanisms which the tribe would follow should off-reservation

gaming be conducted on this alternative land. I believe a community’s input is vital concerning gaming issues. My legislation deals

solely with the agreement reached between the Bay Mills Tribe and

the State of Michigan. I believe my Senate colleagues on the committee today should be concerned with the main issue of the land

claims settlement. It is a sound and valid agreement, and I would

urge that it be approved.

Thank you, Mr. Chairman, very much, and I want to thank my

colleagues also—Congressman Bonior, Congressman Bart Stupak—

for joining me today and for being involved in initiating this legislation in the House and sharing their testimony today.

Thank you.

The CHAIRMAN. I thank you very much, Senator.

I just have one question. What is the distance between the Bay

Mills Reservation and the alternative site?

Senator STABENOW. The exact distance, I am not sure I could tell

you. There is certainly some distance between Brimley and Port

Huron, 300 and some miles I am told.

The CHAIRMAN. I thank you very much.

Senator STABENOW. Thank you.

The CHAIRMAN. And now it is my pleasure to call upon the Honorable Bart Stupak, Member of the United States House of Representatives. Congressman.

STATEMENT OF HON. BART STUPAK, U.S. REPRESENTATIVE

FROM MICHIGAN

Mr. STUPAK. Thank you, Mr. Chairman, and thank you for the

courtesy of allowing me to testify here today.

I want to thank Senator Stabenow for bringing forth this legislation, and Mr. Bonior for being the sponsor in the House and the

work they have both done on this legislation. I hope that after this

hearing today, this legislation will be marked up and will move, as

I would like to see this legislation passed yet this year.

If I may, Mr. Chairman, I would submit my formal statement for

the record, and let me just try to summarize, if I may.

The CHAIRMAN. Without objection, so ordered.

Mr. STUPAK. Thank you.

If I seem anxious to move this legislation, I have been in the

House of Representatives now for 10 years, and I have been working on this problem since 1994. I was first contacted in 1994, not

by the Native American tribes, but by the landowners. The landowners in Charlotte Beach have, as Senator Stabenow testified, 90

percent devaluation of their property because of the cloud on their

title. They cannot get loans to make improvements. When they sell

their property, it has to be less than the fair market value. There

are many problems. Local assessors have reduced Charlotte Beach

property valuation, as I said, by 90 percent. So it was the landowners that contacted me.
11

In 1996, Bay Mills did file litigation on their land claims to try

to get back their land, or at least some equitable settlement. The

Sault Sainte Marie Tribe was also involved, however they did not

join in the lawsuit. A Federal judge then dismissed the lawsuit,

saying the Sault Tribe was an indispensable party, and therefore

the claim could not go forward. There have been other legal actions

that I will let other people testify to later today.

But I have been working with the tribes, both the Sault Tribe

and the Bay Mills Tribe to try to work out a solution. I introduced

legislation in 1999 in the 106th Congress. I have reintroduced legislation in the 107th Congress with different boundary lines on

where a possible land-swap could take place. To tell you the truth,

Senator, it has taken in most of the State of Michigan based upon

some treaties from 1856 I believe the year was, and a couple of

other treaties. So the distance between Bay Mills and Port Huron

was all part of the treaty lands that were ceded to the United

States, and at one time was the claimed property of some of the

tribes in Michigan. So the fact that it is some 300 miles away did

not make any difference then, and I hope it does not in deliberation

on this legislation.

This bill, as I said, my bill was introduced in the 107th Congress.

We have not had a hearing yet in the House Resources Committee,

but the new version, the one that is before us today, we are optimistic that it will move. With the sponsorship of Congressman

Dave Bonior and Congressman Don Young, I am confident if we

can move it through the Senate, we can get action on the House

side yet this year.

The thing is, it is time to bring this logjam to an end. For almost

10 years now, we have been dealing with this legislation. We have

tried different locations. We have tried different angles to please

everybody. I think it is just one of these situations where not everyone is going to be happy. But because not everyone will get on

board, we cannot prevent this legislation from moving forward. It

is time to end the logjam. It is time to move this legislation.

Some people will say this thing will not solve anything. I totally

disagree. If there is another tribe who would have the same claim

as Bay Mills, let’s say like the Sault Tribe, I am sure when this

legislation moves, they can go back to the Governor who negotiated

this and get the same kind of agreement and commitment from

that Governor, Governor Engler, to reach out and resolve these

land claims.

The settlement is very limited. It is a very specific solution for

a localized problem in my district. It was arrived at between negotiations between the Bay Mills Tribe and Governor Engler. I thank

Governor Engler for helping to resolve this problem.

I have more Native American tribes, seven of them, in my district than in the rest of the State. There are 12 recognized tribes

in Michigan; 7 are in my district. I have worked closely with all

of them since I came to Congress in 1993. The Keweenaw Bay Indian Community which is up in the Keweenaw Peninsula has offered a resolution of support of this bill. The Michigan Intertribal

Council, a consortium of all 12 recognized Michigan tribes, has

stated its support for the bill in writing. I would not support this

bill if I did not believe it solved a title problem in my district, and
12

I do not believe this bill in any way would damage other tribes and

my constituents in my district.

So Mr. Chairman, I thank you for bringing forth this hearing

during this busy week and once again I would urge you to have the

hearing, mark it up and move it. Again, after a decade, I think it

is time to move forward with this legislation.

Thank you very much, sir.

The CHAIRMAN. I thank you very much, Congressman.

What is the status of the House bill at this moment? Have you

had hearings on it?

Mr. STUPAK. We have not yet, sir.

The CHAIRMAN. Is there a possibility that the committee will consider the measure?

Mr. STUPAK. Mr. Bonior and Mr. Young have been moving it, and

I am quite confident that they will have a hearing and they would

move this legislation, hopefully in the same manner that this body

will today.

The CHAIRMAN. Congressman Bonior, do you have any schedule

that you can share with us?

Mr. BONIOR. Mr. Chairman, I do not, but Mr. Stupak is correct.

We are hopeful that we can bring something to the floor in short

order. A number of the leaders in the House on both sides of the

aisle have been supportive of doing this. We expect that it will get

done there, and we are hoping to march in lock-step with the Senate in doing it at the same time.

The CHAIRMAN. Well, I can assure you that this committee will

do what it can to do the right thing.

Mr. BONIOR. Thank you.

The CHAIRMAN. I thank the Senator and Congressmen. Thank

you very much.

Mr. BONIOR. We appreciate you for your time.

Mr. STUPAK. Thank you, Mr. Chairman.

The CHAIRMAN. And may I now call upon the deputy assistant

secretary for Indian Affairs of the Bureau of Indian Affairs, Aurene

Martin. Welcome to the committee.

STATEMENT OF AURENE MARTIN, DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, BUREAU OF INDIAN AFFAIRS,

DEPARTMENT OF THE INTERIOR

Ms. MARTIN. Thank you. Good morning, Mr. Chairman.

My name is Aurene Martin and I am the Deputy Assistant Secretary of Indian Affairs at the Department of the Interior. I would

like to thank you for the opportunity to testify today regarding the

Department’s views on S. 2986, which deals with the settlement of

land claims of the Bay Mills Indian Community.

S. 2986 would ratify an agreement between the State of Michigan and the Bay Mills Indian Community, settling the tribe’s claim

to land located in the Upper Peninsula of Michigan. While we are

encouraged by the efforts of the State and the tribe to reach agreement on this important issue, the Department cannot support S.

2986 at this time. Under the terms of S. 2986, the Bay Mills Indian

Community would extinguish their claim to land located in the

Charlotte Beach area of Chippewa County, Michigan. In exchange

for this action, the tribe would receive title to lands located in Port
13

Huron, MI, which is located over 250 miles from the tribe’s current

reservation. By the express terms of S. 2986, this land is deemed

reservation land of the Bay Mills Indian Community as lands received as part of a land claims settlement, as those are defined in

the Indian Gaming Regulatory Act.

S. 2986 also directs the Secretary to take those lands into trust

within 30 days of receipt of a title insurance policy which shows

the land is not subject to certain encumbrances.

Finally, S. 2986 incorporates the terms of the settlement agreement executed by the State of Michigan and the Bay Mills Indian

Community into the Act.

Although the Department is continuing to review this legislation,

we have three main concerns with the terms of S. 2986 and the incorporation of the underlying agreement. First, the Department is

concerned that as part of the settlement agreement, terms are included which govern the operation of class III gaming on Indian

lands. The Department, pursuant to the requirements of the Indian

Gaming Regulatory Act, is required to review and approve tribalState compacts before they become effective. Here, no such review

is required under the terms of the settlement agreement, even

though the operation of class III gaming is clearly contemplated

and several citations are made to the Indian Gaming Regulatory

Act in the body of the document. It is the Department’s position

that agreements regarding the operation of class III gaming on Indian lands must be included in an approved tribal-State compact,

which is reviewed and approved by the Secretary as required by

the Indian Gaming Regulatory Act.

Second, the Department is concerned about the precedent this

legislation may set regarding the circumvention of the Indian Gaming Regulatory Act [IGRA]. By authorizing this settlement, Congress could be setting a statutory standard for the payment of class

III gaming fees that a tribe may pay to the State and this could

also create a dangerous opening for other parties who may wish to

access Congress for legislative approval of gaming agreements in

the future.

By the terms of S. 2986, the settlement agreement executed by

the State of Michigan and the Bay Mills Indian Community are incorporated into the act. The provisions of this agreement include

the requirement that the community pay 8 percent of net win profits to an economic development corporation created by the State in

exchange for a limited geographic exclusivity. If enacted, S. 2986

would create a threshold payment that could become the minimum

for any tribe who enters into negotiations for the operation of class

III gaming in the State of Michigan, and could serve as the minimum amount any State would feel justified asking for in any compact negotiation.

Passage of this settlement agreement could also create an incentive for parties wishing to circumvent the Federal review process

to approach Congress for legislative approval of gaming agreements. That is, parties who feel their agreement may not find favor

or may not be approved by the Department would be more likely

to approach Congress for a legislative solution or ratification of

their agreement.
14

Finally, S. 2986 directs the Secretary of the Interior to place land

described in the legislation into trust within 30 days of receipt of

the title insurance. This would limit or entirely preclude the Department from making other reviews, including environmental reviews and consultation with State and local entities that are currently conducted pursuant to regulations governing the fee to trust

process.

In closing, I would like to commend the efforts of the parties here

to reach agreement on such serious and oftentimes contentious

issues. However, the Department is unable to support this legislation at this time.

Again, I would like to thank the committee for the opportunity

to testify and ask that my written statement be entered into the

record. I would be happy to answer any questions.

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

The CHAIRMAN. I thank you very much, Secretary.

You have indicated that the Department cannot support this

measure at this time. Does that mean that if certain amendments

are incorporated, such as requiring a compact between the government of the State and the government of the tribe, pursuant to the

Indian Gaming Regulatory Act [IGRA], and if the appropriate actions are taken to take lands in trust pursuant to the law—would

that satisfy the Department?

Ms. MARTIN. I believe that those would address the bulk of our

concerns, but we have not completed our review of the bill and the

underlying settlement agreement, so I cannot tell you for sure that

we would then change our position.

The CHAIRMAN. If the amendment addresses the Department’s

remaining concerns, would that suffice?

Ms. MARTIN. If the amendment would also address all other concerns we had?

The CHAIRMAN. In other words, would it be the policy of the U.S.

Government to try to help Native Americans in settling claims?

Ms. MARTIN. Yes; that is our policy.

The CHAIRMAN. And if such settlement can be achieved through

legislation, would you favor that?

Ms. MARTIN. Yes; we would.

The CHAIRMAN. And if this measure meets all of the statutory requirements that you have set forth, would that suffice?

Ms. MARTIN. I believe that it would, and we would be happy to

work with the parties to resolve those issues.

The CHAIRMAN. And therefore, in your view, with such amendments, this measure would not set any dangerous precedent?

Ms. MARTIN. I think that if our concerns regarding the Indian

Gaming Regulatory Act and the need for agreements which address

the conduct of class III operations were addressed, that that would

alleviate our concerns.

The CHAIRMAN. With those changes, should the Federal Government be a party to the settlement agreement?

Ms. MARTIN. Generally speaking, I believe that the Department

would prefer that tribes and States come to agreement on their

own. But in the case of land settlements, I think it is necessary for

the Federal Government to be involved, and also in the case of

agreements which govern the conduct of class III gaming.
15

The CHAIRMAN. Will this settlement agreement, as amended as

you have suggested, resolve all tribal claims to land in the Charlotte Beach area?

Ms. MARTIN. I do not believe so. My understanding is that the

Sault Ste. Marie Tribe also has a claim to those same lands and

this settlement agreement does not address those claims.

The CHAIRMAN. If the Sault Ste. Marie Tribe came forth and was

able to achieve the same type of agreement with the government

of Michigan, would you support it?

Ms. MARTIN. Well, we would be generally supportive. It is our

policy to try to assist tribes and States in coming to land settlements.

The CHAIRMAN. Do you happen to have suggested language for

amendments?

Ms. MARTIN. Unfortunately, I do not have suggested language for

amendments. We are in the preliminary stages of that review, but

we would be happy to work with the parties to create such language.

The CHAIRMAN. Some of the witnesses that will follow your presentation will raise concerns about the policy of an Indian Tribe conducting gaming on lands acquired in a land settlement, but located

over 250 miles away from the tribe’s traditional lands. Is there a

policy on such a matter?

Ms. MARTIN. The Administration does not have a specific policy

regarding the distance a gaming establishment may be located

from a reservation, although the Indian Gaming Regulatory Act

does allow for that under section 20. I think the most analogous

situation is in regard to the restoration of lands or to an initial reservation created for a newly acknowledged tribe or federally acknowledged tribe. I think that the furthest distance that we have

approved for gaming for restored or initial reservation has been

less than 25 miles from their aboriginal lands of the group that is

involved. As for a set policy or whether we have a specific distance

that we would say that is too far away from your aboriginal lands,

you cannot conduct gaming, we do not have a set policy on how we

would do that.

The CHAIRMAN. Assuming that this measure with the appropriate changes is adopted by the Congress and signed by the President, should amendments to this agreement be subject to approval

of the U.S. Government?

Ms. MARTIN. To the extent that they might affect the land settlement or the conduct of Class III gaming, yes I believe that they

should.

The CHAIRMAN. Well, I thank you very much, Madam Secretary.

I have one more question. Will the enactment of this bill compromise your legal position if the Sault Ste. Marie Tribe decides to

bring a claim in the Federal Court against the United States?

Ms. MARTIN. I cannot say for sure that it would. My understanding is that the United States has not certified the claim on behalf

of the Bay Mills Indian Community, nor has the Sault Ste. Marie

Tribe sought to pursue the land claim, so that has not been certified as well. But I think a congressional approval of this land

claim settlement would provide evidence that the claim is indeed

valid and could affect our legal position with regard to that claim.
16

The CHAIRMAN. Have there been other instances in which Indian

Tribes have been able to acquire land after October 17, 1988, and

use the land for gaming under the land settlement exception of the

IGRA?

Ms. MARTIN. I cannot say for sure, but I do believe that prior to

my tenure at the Department, the exception was used on one occasion in the late 1990’s. I think that may have occurred in the State

of Michigan as well.

The CHAIRMAN. So in your mind, this is a precedent.

Ms. MARTIN. There is one other time that that exception has

been used, yes.

The CHAIRMAN. Ms. Martin, I thank you very much.

Ms. MARTIN. Thank you.

The CHAIRMAN. And now may I call upon the president of the executive council of the Bay Mills Indian Community of Michigan, L.

John Lufkins, and the Deputy Legal Counsel to Governor John

Engler, Lance Boldrey.

STATEMENT OF L. JOHN LUFKINS, PRESIDENT, EXECUTIVE

COUNCIL, BAY MILLS INDIAN COMMUNITY OF MICHIGAN

Mr. LUFKINS. Good morning, Mr. Chairman.

The CHAIRMAN. Mr. President.

Mr. LUFKINS. My name is John Lufkins and I serve as the elected president of the executive council of the Bay Mills Indian Community.

I want to thank you, Mr. Chairman and members of the committee, for allowing me the opportunity to testify here today on S.

2986. I ask that you include my entire written statement in the

record, along with other materials that the tribe has prepared for

the committee.

The CHAIRMAN. Without objection, so ordered. We will make

them part of the record.

Mr. LUFKINS. Thank you, Mr. Chairman.

Our tribe is one of four original tribes in Michigan that has

maintained a government-to-government relationship with the

United States since treaty times. This legislation is the final step

in redressing a great wrong done to our ancestors over 100 years

ago. Our tribe is very grateful to Senator Stabenow and to Representatives David Bonior and Don Young for sponsoring bills to

settle the tribal land claims. We also want to thank our Congressman Bart Stupak for his unwavering support over the years to resolve this issue.

To give you some history, in 1855 a treaty with the United States

set aside lands for our Tribe in what was then known at the Hay

Lake Reserve. That area is now referred to as Charlotte Beach.

However, just before the land was to be set aside by the United

States, it was purchased by two non-Indians in violation of the

treaty. To recover the lands, the tribe’s annuities under the treaty

were used to repurchase the land. No longer trusting the United

States, the chiefs decided to convey the property to the State of

Michigan to hold in trust for the tribe. That decision was wrong because the property was sold 20 years later for unpaid taxes. There

was disbelief among our ancestors that the State of Michigan was
17

no more able to protect our lands from alienation than the United

States had been.

Repeated complaints made by our ancestors to the United States

Indian agents went unanswered. Over the next 90 years, my people

did not forget this wrong. Unfortunately, we had no idea how to

make it right. Our resources went to ensure our physical survival

and to protect the remaining lands that we had. Like many tribes

during the Claims Commission era, we focused on the accounting

claims and eventually received damages, but not until legislation

was enacted in 1997 to give a divisional split. I might add that Bay

Mills was the only tribe in Michigan under the Treaty of 1855, was

the only recognized tribe that had an ongoing government-to-government relationship. And so the claim was filed on behalf of Bay

Mills and the descendants of the treaty.

Our tribe has also engaged over the years in pursuing its treaty

fishing rights. The original case is now known as United States v.

Michigan. Again, Bay Mills was the leader in that fight to restore

our treaty rights.

Because of these battles, our tribe was unable to focus resources

on the return of the Charlotte Beach lands until recently. However,

our people have never forgotten the loss of these lands and we filed

a claim in 1980 under the section 2415 process at that time. The

United States declined to assist the tribe because when the land

was lost, the State held it in trust, not the United States. This, in

fact, is why we are here today. Our Federal case was dismissed in

2000. Again, we lost on technical grounds. We never had a chance

to argue the merits of our claim because the Sault Ste. Marie

Tribe, only recognized by the United States in 1975, never attempted to participate in the case. The tribe refused to waive sovereign immunity to be named as plaintiff. Instead, it assisted the

landowners in their fight to have the case dismissed for failure to

join as an indispensable party.

This effort was successful and the cloud remains on the landowners’ title. As I am sure you will agree, this is a frustrating history. With this in mind, I ask your support for S. 2986. This legislation ratifies the settlement that the Tribe has reached with the

State. It releases the recorded Bay Mills claim to the Charlotte

Beach property by having Congress extinguish the claim. By ratifying this settlement, it will provide the tribe with alternative property that will be a substitute for the former Hay Lake Reserve, now

known as Charlotte Beach.

The alternate land located in Port Huron, MI will be placed in

trust by the Secretary for the benefit of Bay Mills and will be treated as land which should have been in trust for the tribe all along.

The land will be used for gaming. The location of Port Huron was

agreed to by the people, the State and the people of the tribe, the

State and the people of Port Huron who voted, as Congressman

Bonior said, in a referendum. The tribe agrees in the settlement to

limit class III gaming to two facilities at its present reservation location and to one facility in the alternate land in Port Huron.

The economic benefits to the tribe and the local community will

be substantial and very important to our self-determination and

sovereignty goals. The settlement does not affect any other tribe.
18

While there may be some competitive issues, they are not new to

Michigan and not a violation of any law, Federal or State.

The settlement expressly incorporates the IGRA exemption that

lands taken into trust and settlement of the land claim are exempt

from the ban on gaming on lands acquired off-reservation after

1988.

Bay Mills is the first Indian tribe to secure settlement of its land

claim since the Act was adopted, and thus we are the first to fall

within the terms of the exception. The exception is there for a reason, and we are following the roadmap established by Congress.

We would also like to express our sincere thanks to the Governor

of Michigan, John Engler, for his help in achieving this creative

resolution to the longstanding land claims. Without his able-bodied

support, we would not have gotten as far as we have. The settlement reflects the mutual recognition of the importance of working

cooperatively to eliminate old grievances and to develop mutually

beneficial solutions. I am proud to have signed the settlement of

the land claim on behalf of the Bay Mills Indian Community. I am

not boasting when I say that this agreement should be applauded

by the Federal Government as an example of what can be achieved

when a State and an Indian tribe work together to devise resolutions to disputes that will benefit all citizens, both the State and

of the tribe. In fact, I sincerely hope that our settlement will be

used as a precedent, furthering tribes with legitimate land claims

to bring their issues to the table for resolution. We can achieve

more at the table than in all the courts of the land.

Again, I respectfully ask each member of the committee and of

the Senate to vote yes on S. 2986. This will end the controversy

that has brought pain to my people and uncertainty to the people

who live at Charlotte Beach. My people have waited patiently, but

with confidence that this wrong would be made right.

I thank you for allowing me to testify and I will be glad to answer any questions, or try to answer any questions you may have.

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

The CHAIRMAN. I thank you very much, Mr. President.

Has any Federal or State court ever ruled that your community

does not have a valid potential claim over the Charlotte Beach

area?

Mr. LUFKINS. There has been no court that has made any ruling

other than the claim is being dismissed on technical grounds.

The CHAIRMAN. So no court has ever ruled that you do not have

a claim?

Mr. LUFKINS. They have never ruled that we do not have a claim.

As a matter of fact, during the 2415 process, I was the administrative officer for the Bureau of Indian Affairs of the Michigan Agency

when Bay Mills brought this claim. When we took it to the solicitor, the solicitor reviewed it and of course they said the land was

in trust by the State; your argument is with the State; take it up

with the State. It took us a long time from that point to get to this

point, where we found a Governor who was willing to recognize the

claim and negotiate a settlement with us.

The CHAIRMAN. As other witnesses have testified, this alternative site is not within your traditional tribal area.
19

Mr. LUFKINS. That is true. It is outside our geographical boundaries.

The CHAIRMAN. Section 9 of the tribal-State gaming compact requires that gaming revenues from a casino facility on newly acquired land be shared amongst all of the Indian Tribes in Michigan. Would the settlement alter the terms of the tribal-State gaming compact and render this provision unenforceable?

Mr. LUFKINS. No, sir; I do not believe it would.

The CHAIRMAN. You were here when the deputy assistant secretary testified. I asked questions as to whether she would change

her position if certain amendments were made to the bill before us.

Do you have any thoughts on those amendments?

Mr. LUFKINS. I had listened to your questions to the deputy assistant secretary, and while I do not agree with all of her answers,

we are prepared to offer some amendments. As a matter of fact,

Mr. Boldrey, along with our legal staff, prepared some amendments

to be introduced in his testimony.

The CHAIRMAN. Because it was this committee, that drafted the

IGRA, we are bound to make certain that the provisions of that

statute are upheld.

May I now call upon Mr. Boldrey.

STATEMENT OF LANCE BOLDREY, DEPUTY LEGAL COUNSEL

TO GOVERNOR JOHN ENGLER OF MICHIGAN

Mr. BOLDREY. Thank you, Mr. Chairman, for inviting me to testify today.

My name is Lance Boldrey and I am here on behalf of Governor

John Engler, who sends his regards to this committee and his sincere thanks for moving forward with the hearing on this bill. Governor Engler also sends his thanks to Senator Stabenow and to

Congressmen Bonior and Stupak for their tireless efforts on this

matter.

We are here today to ask your approval of a settlement between

Michigan and the Bay Mills Indian Community of a longstanding

land claim. As you have already heard today, by passing S. 2986,

you will send a message that this committee and the Congress encourage cooperation between States and tribes. You will also be

providing clear title to innocent homeowners and economic opportunity to a depressed community.

The history that led to the Community’s claim to land in the

Charlotte Beach area has been thoroughly explained by President

Lufkins. Litigation of the claim began in 1996 when the Community filed suit in Federal and State court. The Community’s attempts at judicial resolution failed when the State suit was dismissed as untimely and the Federal suit was dismissed on the

grounds that the Sault Ste. Marie Tribe of Chippewa Indians was

a necessary party and the suit could not proceed in their absence.

In making that ruling, it is important to recognize that the district court did not declare the relative interests of the Sault Tribe

and the Bay Mills Indian Community, but found only that the

Sault Tribe had a claim that in the words of the court was, ‘‘not

patently frivolous.’’ The Sixth Circuit Court of Appeals subsequently affirmed this decision, finding that the Sault Tribe has a

potential claim.
20

At the end of the day, no court has ever addressed the full substance of the Community’s land claim. Today, the families who own

land in the area known as Charlotte Beach have a cloud on their

title and are unable to obtain title insurance or mortgages, leading

the local township to reduce property assessments by 90 percent.

Given sovereign immunity of the tribes, the landowners cannot sue

to clear title, leaving congressional action as the only means to resolve claims that are having a real impact on the lives of innocent

landowners.

For the past several years, the Community has worked with local

communities and the State in an attempt to settle its claims. Prior

efforts have failed because of impacts they would have had on other

tribes. Today, though, we ask you to ratify a settlement that resolves the land claim in exchange for alternative land in an area

that welcomes the Bay Mills Indian Community with open arms

and in a manner that has no impact on the interests of other

tribes.

The bill would extinguish the Community’s land claims, direct alternative land in Port Huron be taken in trust for the community,

and effectuate the settlement agreement between the Community

and the Governor.

Two aspects of the bill merit further discussion and have been

raised in questions this morning. First, its effects on the title of the

Charlotte Beach property owners, and second, the prospect of a casino in Port Huron. First, the bill would lift the cloud on the titles

of the Charlotte Beach homeowners. Some have claimed that this

cloud cannot truly be lifted absent a settlement involving the Sault

Tribe. However, while the Sault Tribe has asserted that it has a

potential claim to the Charlotte Beach property, the simple fact is

that no such claim has ever been brought. Only the Bay Mills Indian Community has a recorded challenge causing a cloud on title,

and the bill would lift that cloud.

Again, the Federal Courts have not decreed that the Sault Tribe

has a viable claim or adjudicated the relative interests of the Sault

Tribe and the Bay Mills Indian Community. Despite this, the State

is willing to enter into a settlement agreement with the Sault Tribe

if it now does assert a claim. State and tribal representatives have

been talking about the potential for settlement and I am optimistic

and hopeful that we will resolve our differences. Of course, the

State does believe that any settlement must fit the general parameters of the Community’s settlement, and any resulting gaming location must be in an area where it is welcomed by local residents

and where it does not have an impact on another tribe’s gaming

operations.

As the State continues to discuss settlement with the Sault

Tribe, however, this bill should not come to a halt. The Bay Mills

Indian Community has expended considerable effort and years of

effort in working with local officials to garner support for this settlement, and those efforts should not be jeopardized.

Second, in addition to clearing the property titles of the families

who call Charlotte Beach home, the bill will provide economic opportunity to a depressed community. Congressman Bonior’s testimony amply covered the benefits for the city of Port Huron, so I

would now like to turn my attention to briefly address criticism of
21

the bill which is based on one valid argument and several faulty

ones.

The valid complaint is that the settlement agreement by its

terms could be amended without the involvement of Congress. This

was a drafting oversight and we suggest that the bill be amended

to fix this by inserting language into the bill stating that the sentence in the settlement agreement allowing amendments without

the involvement of Congress or any other party be deleted in its

entirety.

I would now like to address some of the other arguments you

have heard this morning. The first is that the bill would set a

precedent for the use of the exception to IGRA’s general prohibition

on gaming on land acquired in trust after 1988, and that the land

claim exception is not available here. The IGRA exception we are

talking about states nothing more than that gaming can be conducted on lands acquired after 1988 if, ‘‘lands are taken into trust

as part of the settlement of a land claim.’’ That is the entirety of

the provision. While it is true that no tribe currently operates a

gaming facility on land taken in trust in settlement of a land claim,

the clear and unambiguous language of IGRA authorizes such an

operation. Nothing in IGRA suggests that the land claim exception

should be artificially limited, nor would this be in keeping with the

longstanding principle that statutes dealing with tribes be interpreted in their favor.

Furthermore, since 1988, there have in fact been five congressional acts directing that land be taken into trust for various tribes

to settle tribal land claims. While casino facilities may not be operating on those lands today, under the terms of IGRA those lands

are eligible for casinos. Also, it must be noted that the argument

that you will hear later today that the section 2719 exceptions and

the land claim exception should be construed narrowly was in fact

advanced by the State of Michigan in recent litigation in the case

of Grand Traverse Band of Ottawa and Chippewa Indians v.

United States Attorney in the State of Michigan. The argument for

a narrow interpretation of various exceptions was flatly rejected by

that court. That court also specifically addressed the land claim exception describing it as, ‘‘unequivocal and unrestricted.’’

Turning to the distance argument that has been made today,

there is no requirement that land be taken in trust in settlement

of a land claim only in the immediate vicinity of a tribe’s existing

reservation. Indeed, the exception is an exception to the general

rule that gaming be within or contiguous to 1988 reservation lands.

While opponents later today will cite a number of cases and statutes for their claim that a distance limitation should be engrafted

onto IGRA’s land claim exception, those cases and statutes are utterly irrelevant to the question at hand. Virtually all of them deal

with the restored lands exception, a different exception within

IGRA that by definition must encompass land previously held by

the tribe.

The simple fact is, there is not one single case or one word of text

in either IGRA or the Indian Reorganization Act that supports

finding some unexpressed geographic limitation in IGRA’s land

claim exception.
22

Finally, I would like to respond to the technical objections that

were leveled against the bill by the Department of the Interior and

that have also been voiced by some other opponents. It has been

claimed that the settlement agreement somehow circumvents the

Secretary’s or the State legislature’s role in approving compacts.

This is simply untrue. Nothing in the settlement agreement

amends the compact in any way. No provisions of the settlement

agreement regulate the community’s gaming activities. Sections in

the agreement providing for revenue payments in exchange for limited exclusivity in the tribe’s right to operate electronic gaming do

not alter the compact which does not itself even include any such

revenue provisions.

In the past, prior revenue sharing provisions between the State

of Michigan and the Bay Mills Indian Community, as well as the

State and six other tribes, were entered by a Federal court in a

consent decree without Interior’s involvement. That court found

those provisions agreeable. Our State Court of Appeals later held

that these provisions were a conditional gift, not required to be in

a compact and not required to involve in any way the State legislature. Most importantly, in 2001, just last year, the State of Michigan and the Keweenaw Bay Indian Community entered into a Federal consent decree involving a casino the State contended was operating illegally. That decree contained the exact same provisions

found in the agreement between the Bay Mills Indian Community

and the State of Michigan. When the Department of Interior argued to the Federal court that these were compact-like provisions

requiring the Secretary’s concurrence, the Federal court ruled that

those objections were without merit. Thus, this argument that Interior raises has been disposed of by the courts not once, not twice,

but three separate times.

Second, you raised a moment ago the issue that some opponents

have claimed that the settlement agreement nullifies the rights of

other tribes found in section nine of their compacts. Section nine

of Michigan State gaming compacts is an intertribal revenue sharing provision insisted upon by the State as a disincentive to applications to have the Secretary take off-reservation lands into trust

for gaming purposes. It is aimed squarely at a different exception

in Section 20 of IGRA than the exception permitting gaming on

land taken into trust in settlement of a land claim. The conclusion

that this section is inapplicable in this situation is bolstered by the

only legal analysis performed by a disinterested party, a 1995

memorandum of the Department of Interior concluding that this

compact section is triggered only when a tribe makes application

to the secretary to have land taken into trust pursuant to the best

interest determination exception.

Last, I would like to address the objection raised by the Department of the Interior with respect to the 30-day requirement for the

Department of the Interior to take land into trust. This is a mandatory acquisition that Congress would be directing, so it does not

follow the ordinary course of affairs as a discretionary acquisition

under the IRA. This in essence is no different than the acquisition

process currently followed and mandated by the Congress for acquisitions involving other tribes in Michigan, the Little Traverse Bay

Bands and the Little River Band.
23

In conclusion, I hope the committee will defer to the State’s negotiated choice of location for alternative lands and respect an agreement that was reached only after difficult and lengthy negotiations

between two sovereign governments. To those who criticize the bill

on the grounds that it creates a precedent for the use of IGRA’s

land claim exception, it should be said that any precedent here is

wholly positive. Congress would be approving a land claim that

was a settlement negotiated by a State and tribe, where the alternative lands are identified, where there is local support for gaming

in an existing market, where it is in the area of the State that

would have the least possible impact on other tribal gaming operations, and where the agreement requires congressional approval.

It is no wonder then that a majority of Michigan tribes either

support or are silent on this bill, and I urge you to support this bill,

too, sending a message to States and tribes to resolve their disputes through reasoned and principled negotiation, rather than

simply resorting to the courtroom.

Thank you again for the opportunity to testify, and I would ask

that my written testimony be entered into the record. I am happy

to respond to any questions you might have.

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

The CHAIRMAN. Your statement will be made part of the record.

This measure, simply put, would ask the Government of the

United States, Congress, and the President, to ratify an agreement

that was reached by the Governor and the Bay Mills Community.

Is that correct?

Mr. BOLDREY. That is correct.

The CHAIRMAN. And in that agreement, if this ratification is

forthcoming, would it mean that the community can begin operating a casino?

Mr. BOLDREY. As soon as the land is taken into trust under the

existing language of IGRA, that is correct.

The CHAIRMAN. Even without the usual processes requires by the

act?

Mr. BOLDREY. That investigatory process has already taken

place, by Interior and by the National Indian Gaming Commission.

The Tribe currently operates two gaming facilities in Michigan, has

already been authorized to operate those facilities and does so pursuant to an existing compact that is in the Federal Register.

The CHAIRMAN. Does the tribe operate a casino now?

Mr. LUFKINS. We operate two casinos, sir.

The CHAIRMAN. But not on the alternative land?

Mr. LUFKINS. Not on the alternative land, no sir.

The CHAIRMAN. So this is a separate casino?

Mr. LUFKINS. A separate casino.

The CHAIRMAN. And you do not think that this should be subject

to the laws of the United States?

Mr. BOLDREY. This is entirely subject to the laws of the United

States. It would operate under the existing compact.

The CHAIRMAN. Then if a provision is placed in this bill saying

that it will be subject to the laws, you will not object to that?

Mr. BOLDREY. Not at all.
24

The CHAIRMAN. Would you object to the Department and the

Congress having the right to approve any changes to the settlement agreement?

Mr. BOLDREY. Absolutely. That is precisely what we propose

amending the bill to do.

The CHAIRMAN. And would you concur with the responses made

by the deputy assistant secretary to other questions?

Mr. BOLDREY. I do have a difficulty with some of the other questions or responses she made. One concern is that inserting the Department of the Interior into essentially the settlement agreement

itself I think is inappropriate in this case because the Department

here has declined to prosecute this claim, despite repeated requests

by the Bay Mills Indian Community. I think the agreement should

stand as it has been negotiated between the two parties that have

signed it.

The CHAIRMAN. Just as a matter of curiosity, I believe I know the

answer, is it true that the State of Michigan has no liability for

this claim, but you have initiated the settlement. Why so?

Mr. BOLDREY. That is correct. At this point, the State has no liability because the tribe’s claims against the State were extinguished in State court because they were untimely filed. However,

the landowners and the citizens of the State still feel a very real

impact from this, and the State feels some peripheral impact from

this as well because the State also is a landowner in the Charlotte

Beach area so the State currently if we were to try to dispose of

those lands, I think we would probably have difficulty finding a

buyer.

The CHAIRMAN. As you may be aware, this committee completed

its business a few weeks ago, but in order to accommodate the request made by the Senate delegation from the State of Michigan,

we reopened our agenda to consider this measure. And as a result,

time is of the essence. The Senate may be ajourning 1 week from

today. The debate on Iraq is now going on. Would you be willing

to sit with the deputy assistant secretary and work out a few

amendments?

Mr. BOLDREY. Absolutely.

The CHAIRMAN. Because if the Department is opposed to it, we

have almost no choice here.

Mr. BOLDREY. We appreciate that and we are certainly willing to

work through this.

The CHAIRMAN. I would suggest that you have lunch with her

right away. [Laughter.]

Mr. BOLDREY. Thank you, Mr. Chairman.

The CHAIRMAN. You have a free lunch coming.

I have just one question, Mr. Boldrey. I forgot to ask this. This

is an agreement between the State of Michigan Michigan and the

tribe.

Mr. BOLDREY. Between the Governor and the tribe, correct.

The CHAIRMAN. Why did you not have the Federal Government

involved in it?

Mr. BOLDREY. Again, the Federal Government was asked numerous times to become involved in this and declined. They were asked

by the tribe beginning in 1980 to become involved and to prosecute

the claim. In the late 1980’s and early 1990’s, when this claim was
25

really beginning to become a current issue, it was raised to members of our congressional delegation at that time and the State attempted to get the Federal Government involved, and the Federal

Government declined.

Mr. LUFKINS. And also, sir, if I may add, title to any Indian

lands has to be cleared by Congress.

The CHAIRMAN. It appears from testimony that the Sault Ste.

Marie Tribe may very well have a valid claim to the Charlotte

Beach lands. Now, if that claim is asserted you have indicated that

the Governor of the State of Michigan would be very happy to once

again involve himself in bringing about a settlement. Having heard

the testimony and the questions asked, how do you think you

would bring about this agreement? In the same way, or with

changes?

Mr. BOLDREY. I think we would have to go back, frankly, and

take a look at the concerns we have heard raised today and make

sure that those are addressed. I think the format that we have followed with the Bay Mills Indian Community would be the same

format we would follow with the Sault Ste. Marie Tribe. That has

certainly been our contemplation.

The CHAIRMAN. And so I hope you two get together right away.

With that, I thank you very much.

Mr. LUFKINS. Thank you, Mr. Chairman.

Mr. BOLDREY. Thank you.

The CHAIRMAN. And now may I call upon the chairman of the

Sault Ste. Marie Tribe of Chippewa Indians of Michigan, Bernard

Bouschor, and the tribal councilor and former chair of the Grand

Traverse Band of Ottawa and Chippewa Indians, George Bennett.

Gentlemen, welcome.

Mr. Chairman.

STATEMENT OF BERNARD BOUSCHOR, CHAIRMAN, SAULT

STE. MARIE TRIBE OF CHIPPEWA INDIANS OF MICHIGAN

Mr. BOUSCHOR. It is a pleasure to see you once again, Senator.

When you mentioned the Indian Game Regulatory Act, prior to enactment we were quite actively involved with the development of

that particular act that Congress ultimately approved. And we do

appreciate your guiding hand in getting that process completed.

What we found over the time of the development of the act itself

and our own particular efforts in trying to get a casino in an area

such as Detroit, we were one of the few communities that were able

to achieve the process of getting it approved through the Indian

Gaming Regulatory Act process, with the Governor’s approval, almost to the point where the Governor would sign it, but he choose

not to at the very last. He set up a commercial gaming operation

within the State of Michigan, which I think at this point would

have been a more appropriate vehicle to attempt to acquire a casino in the Port Huron area.

Obviously, it is our belief that it does not comply with the Indian

Gaming Regulatory Act requirements. The Senate bill, we are opposed to it under the present format. We are opposed to the settlement agreement. This does not alleviate the issue of the Charlotte

Beach landowners. We have provided you written testimony from

ourselves. We have also provided some testimony from the Char-
26

lotte Beach attorney that would indicate that they, too, are opposed

to the bill itself because it does not clear up the title. It is an opportunity that I think Bay Mills was looking for an economic benefit, and thought that Port Huron would be a way to do that. We

can understand and respect each tribal group’s view and opinion.

We believe that Bay Mills has contrary—we are not attorneys, I

am not an attorney—I have been chairman now for close to 17

years, and have been involved with tribal government for most of

my adult life. As a result of that, I have seen many things that

have occurred within Indian Country. I do recognize the sovereignty of each of us to agree or disagree, either on Federal legislation or in some cases how tribes view what other tribes are doing.

The reference in saying that it does not have an impact on other

tribes we disagree with. We have developed a commercial casino

within the Detroit area, which is a large metropolitan area, and

that was built and open in November 2000. We are going through

a process of looking at building a permanent facility. Obviously,

with the development of other casinos in the area, it does put us

at a disadvantage. The commercial casino that we built within the

State of Michigan is heavily taxed, per the Michigan Gaming Regulatory Act, which we knew when we enter in it, that would be the

requirement. The issues related to the particular agreement and

settlement of land claims, and as a vehicle in trying to enter this

bill, I think tries to find the exception within the Indian Gaming

Regulatory Act, but yet there is no lawsuit that exists at this time

that would have the vehicle to support this.

So really what it is is a legislative act in Congress attempting

to afford the opportunity to the Bay Mills Indian Community to

open a casino in Port Huron under the Indian Gaming Regulatory

Act that should be more appropriately decided by the State of

Michigan legislative bodies to determine if they want to amend the

Michigan Gaming Regulatory Act would be more appropriate, in

my view.

Again, not an attorney. I have been involved for a number of

years with my distinguished gentleman to my left, George Bennett,

and former chairman of the Grand Traverse Band Community. We

feel that the effort to promote this in this fashion is not appropriate. We are objecting to it. We have provided you testimony. A

lot of statements were made here from the Senators which I respect—Senator Stabenow, the reference to the Governor. The Governor has been actually good for Michigan, good for the tribes in

developing gaming opportunities and we appreciate that; and good

for generally the State of Michigan at this point. But in this case,

we disagree with how this bill is being rushed through Congress.

We believe that it should be reviewed extensively, affording us the

opportunity to delve into a lot of the other testimony that has been

provided so we can add more information to provide to you, Senator, and the committee as to our view on this particular matter.

I might point out that Charlotte Beach, which is a community

next to Sault Ste. Marie, which is our home community, and Bay

Mills Indian Community have a join ancestry. The Charlotte Beach

and the landowners that reside in the area, many of which are our

own community members put us in a somewhat difficult situation

when the title issue kept cropping up, as to do we try to litigate
27

or fight the issue in relationship to Bay Mills’ efforts to look at reason to settle that particular claim. As Mr. Lufkins did indicate, we

waded in on the sign of the landowners in that particular case because we felt it was inappropriate for the community to go after

this particular site. We knew the claim for over 50 years. We chose

not to act upon it, because we knew the impact that it would have

on our existing community members who resided in the area.

It is unfortunate that it did have some impact as to the title insurance and value of the land, but we continue to support Charlotte Beach landowners. They continue to support and are opposed

to this bill as it is presented because it does not solve their problem. That is the opinion that we have. Obviously, if the State is

desirous to work with us, we will attempt to resolve that issue with

them.

Thank you.

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

The CHAIRMAN. I thank you very much. Before I ask any questions, may I recognize the former chair, George Bennett.

STATEMENT OF GEORGE BENNETT, TRIBAL COUNCILOR AND

FORMER CHAIR, GRAND TRAVERSE BAND OF OTTAWA AND

CHIPPEWA INDIANS, ACCOMPANIED BY MATTHEW FLETCHER, ESQUIRE, STAFF ATTORNEY, GRAN TRAVERSE BAND OF

OTTAWA AND CHIPPEWA INDIANS

Mr. BENNETT. Thank you, Mr. Chairman.

My name is George E. Bennett. I am a graduate of Antioch University with a major in public policy. In addition to that, I cochair

the International Advisory Council for Native Nations Institute at

the Udall Center for Public Policy at the University of Arizona at

Tucson, AZ.

My Indian name is Nii-gott Ma-Gezzi, which means ‘‘Leading

Eagle.’’ I am here as a tribal councilor and elected official of the

Grand Traverse Band of Ottawa-Chippewa Indians. From 1996 to

the year 2000, I honorably served as the tribal chairman of our

tribal council.

We have come at the request of our tribal council to testify before

the Senate Committee on Indian Affairs. Let me say, Mr. Chairman, megwetch, in our language, thank you for the honor of being

before your committee today. We are honored to be here.

With that, I would also like to introduce my friend and colleague,

Matthew Fletcher, who is attorney-at-law who graduated from the

University of Michigan law school. He does the drafting of our legislation and our testimony today, and I would like to give him that

recognition. He is also a tribal member. It is a pleasure to see you

again, my friend.

Mr. Chairman, members of the committee, we wish to submit our

written testimony for the record and in order to save time we

would like to summarize our comments before the committee.

The CHAIRMAN. Without objection, your full statement is made

part of the record.

Mr. BENNETT. Thank you, Mr. Chairman.

Mr. Chairman, it is somewhat with a heavy heart that we appear

before the Senate Committee on Indian Affairs to state that our

tribe opposes the enactment of S. 2986, titled the Bay Mills Indian
28

Community Land Claim Settlement Act, as well as H.R. 5459, its

companion bill in the House of Representatives.

Mr. Chairman, although the Bay Mills Community and the

Grand Traverse Band have worked together for years striving for

sound and reasonable Federal policy, we cannot stand with our

friends in this matter. S. 2986, if enacted, sets a dangerous and

unhealthy precedent for Federal-Indian fee-to-trust policy. It would

unnaturally expand exceptions to the general prohibition against

Indian gaming under the Indian Gaming Regulatory Act for acquired lands after October 17, 1988, under the same law; and simply, we feel it is bad congressional policy.

Mr. Chairman, we have not come to oppose our friends, rather,

to support what we feel is right. We are not here to oppose Bay

Mills’ attempt to establish a land claim to the Charlotte Beach

properties. We fully recognize that our friends have legitimate government concerns to meet the economic and social needs of its

members. Mr. Chairman, we are here to point out that we oppose

congressional legislation that coopts established and predictable

Federal Indian policy that otherwise prohibits an Indian tribe from

opening a gaming facility 257 miles from its home territory.

We oppose the use of the settlement of an Indian land claim exception to IGRA’s general prohibition against gaming on after-acquired lands where Federal liability was never established. We oppose the override of the geographic limits inherent in the Indian

Reorganization Act fee-to-trust transfer statutes. Finally, we oppose the override of the geographic limits expressed in the Federal

statutes creating the Bay Mills Indian Reservation.

Mr. Chairman, we have come here to make some recommendations. First, we support a study commission by your Senate committee to study and determine the Secretary of the Interior’s actual

past practice regarding geographic and policy limits on fee-to-trust

transfers. Secondly, we support a congressional waiver of sovereign

immunity regarding indispensable parties to litigate where the Bay

Mills Indian Community seeks to establish a valid land claim to

the Charlotte Beach properties. Third, we support a requirement

that Bay Mills request a formal opinion on these facts from the National Indian Gaming Commission on the application of the settlement of land claims exception to the general prohibition against

gaming on after-acquired lands.

With that, Mr. Chairman, I appreciate being here. It is good to

see you. We hope you have a happy journey to South Korea.

Thank you.

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

The CHAIRMAN. I thank you very much, sir.

If I may ask a question of the chairman of the Sault Ste. Marie

Tribe. If your tribe is unable to resolve its claims to the Charlotte

Beach lands, does the tribe intend to initiate a court action to resolve its claims?

Mr. BOUSCHOR. I would have to bring that back to the discussion

of our Tribal Council. It is an item is near to us. A lot of the Community members do reside in that particular area. We have sought

to protect the members in their ownership and their land values

over time. The discussions of late that have started with the Governor may achieve that, but at this point in time we have to con-
29

tinue to express our opposition to this bill, because it does not meet

the needs of the Charlotte Beach landowners.

The CHAIRMAN. If the measure before us is amended as suggested by Deputy Assistant Secretary Martin, what would your position be?

Mr. BOUSCHOR. I am not quite sure what all the amendments

meant, as you might be—you are the authority on the Indian Gaming Regulatory Act. The specifics that we are concerned about are

under the existing format, as I would understand a settlement of

a land claim, it has to resolve all of the land claims issues, not just

part of it. If they were all resolved, then that would settle that

issue at Charlotte Beach and also would settle our claim, which is

in part Bay Mills’ claims as well. So it has to be a joint solution

to resolve that issue. If the State is willing to do that, it is something that could be discussed.

The CHAIRMAN. So your claim must be part of this bill.

Mr. BOUSCHOR. I would think that would be a part of the possibility—no guarantees in that. I don’t know.

The CHAIRMAN. Mr. Bennett, you made a suggestion that the

Congress waive the sovereign immunity of any indispensable parties to litigation where the Bay Mills Community seeks to establish

a land claim. Are you suggesting that the Congress should waive

the sovereign immunity of tribal governments without their consent?

Mr. BENNETT. I would have to refer to our attorney on that issue.

Mr. FLETCHER. Mr. Chairman?

The CHAIRMAN. Please have a seat.

Mr. FLETCHER. Thank you.

The CHAIRMAN. Will you identify yourself, sir?

Mr. FLETCHER. Certainly. My name is Matthew Fletcher. I am

staff attorney with the Grand Traverse Band.

It is my understanding that Congress has waived sovereign immunity on two separate occasions involving Band disputes and also

their land-related disputes in situations like this, such as the Navajo-Hopi land dispute in the 1970’s and also in the aftermath of the

Arkansas Riverbed Supreme Court case.

The CHAIRMAN. Without their consent?

Mr. FLETCHER. I am not sure if it was without their consent, but

if the Sault Ste. Marie Tribe is willing to proceed with a land claim

or become involved in this bill, then the waiver of sovereign immunity certainly would not be necessary at that point.

The CHAIRMAN. Sovereignty is the most important aspect of the

existence of Indian Nations here, and you are willing to give that

up?

Mr. FLETCHER. No; absolutely not.

The CHAIRMAN. If the Congress was to waive an Indian tribe’s

sovereign immunity for a specific court action, do you believe that

we would be setting an unhealthy precedent for the instances when

someone seeks to sue an Indian tribe, without the tribe’s consent?

Mr. FLETCHER. I am sorry, Mr. Chairman. As we have noted before, Congress has waived sovereign immunity for Indian tribes in

two other land-related disputes. But Congress has always had the

plenary power to waive tribal sovereign immunity in many of the

various situations, and it has done so, and certainly against the
30

various tribes’ consent. I mean, Federal Indian policy is replete

with instances where the Federal Government waives a tribe’s sovereign immunity one way or the other.

The CHAIRMAN. Chairman Bouschor, since time is of the essence

as I indicated and the Senate is not going to be in session too much

longer, if anything is to occur on this measure, it will have to be

approved by all parties, because if the Department of the Interior

says no, I do not think this committee will be able to act. Would

you be willing to sit with the Bay Mills people, the Interior people,

and the both of you sit with that group to come forth with some

resolution?

Mr. BOUSCHOR. I would be willing to do that.

The CHAIRMAN. Because otherwise, we would be having nice discussions, and that is about it.

Mr. BOUSCHOR. That is correct.

The CHAIRMAN. So the lunch is getting bigger, Ms. Martin.

[Laughter.]

In the testimony that was presented here, you suggested that

Congress did not anticipate land approximately 250 miles from a

reservation area being acquired in a settlement for purposes of

gaming. Where do you find that intent, because I happen to have

been the author of the IGRA and I believe I participated in just

about every debate on this matter.

Mr. BOUSCHOR. Are you asking me?

The CHAIRMAN. Yes.

Mr. BOUSCHOR. The reference we were looking at, we were looking at the existing treaty land—treaties in which Bay Mills participated as well as Grand Traverse Band, at an area that was originally cut across the State of Michigan and did not include Port

Huron within the treaties that we signed with the U.S. Government. Although there is no specific reference to distance, it has

been kind of the guidance from those on the Hill that whatever

happens would have to stay within that existing treaty land. Obviously, there has been some variation from that as a result of this

bill presentation that did not occur when we were dealing with

Representative Stupak.

The CHAIRMAN. Maybe I have been operating under a misconception, but at one time all of the lands of the United States were

owned by Native Americans, approximately 550 million acres. And

by treaty, you ended up with 50 million acres of land. As a result,

you will find Cherokees who lived in the Carolinas having been

forced to move to Oklahoma—do they not have some claim in Carolina?

Mr. BOUSCHOR. My understanding of the treaties in the lands,

the answer is yes, they would have a claim to Carolina.

The CHAIRMAN. And so even if land is 1,000 miles away, if the

claim is valid, is not that claim valid?

Mr. BOUSCHOR. If you can get the necessary support in order to

develop some similar type of agreement with a governor, obviously

that would be something that, and obviously with the delegation

that is up here, they fashion some claim at settlement, that could

be possible.

The CHAIRMAN. Then you do not suggest that the bill is invalid

because of distance?
31

Mr. BOUSCHOR. I do not believe that in itself is a reason to discount the bill itself. The opposition is more than that. It is not just

distance. It is factor, and I believe that you have noticed in other

cases, even with the Interior, the reference to distance of taking

land in trust, declaring reservations, there has been more of an effort by the Interior to restrict a lot of our opportunities to acquire

land, the purpose for the land, the development of the land, and

the declaration of these kind of strange statuses that the Government has imposed on our communities throughout the United

States.

The CHAIRMAN. I have just been notified that we have another

vote. Before I adjourn the hearing, may I suggest that all parties

get together—I am saying this very seriously—to work out some

sort of agreement. If you do have an agreement, have it delivered

to Dr. Patricia Zell who is the chief counsel of the committee by

Tuesday, noon, next Tuesday, because I think we are going to go

out of session on Wednesday or Thursday. If we have an agreement

that all parties can sign onto, then I will expedite and send it out.

But if you cannot agree to that, I think we are spinning our wheels.

Is that acceptable?

Mr. BOUSCHOR. Thank you for the direction. We will work on

that.

Mr. BENNETT. Yes, Mr. Chairman.

The CHAIRMAN. And so time is of the essence. Have a good lunch.

The hearing is adjourned.

[Whereupon, at 12:53 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

(33)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF L. JOHN LUFKINS, PRESIDENT, EXECUTIVE COUNCIL, BAY

MILLS INDIAN COMMUNITY

Mr. Chairman, and members of the committee, I am pleased to be invited to

present testimony on behalf of the Bay Mills Indian Community on S. 2986. I speak

here today in my official capacity as president of the executive council, which is the

elected government of the tribe. The legislation before you is extremely important

to my people; its importance will be better understood by my description of the history of the tribe and the origin of this controversy.

The Bay Mills Indian Community is comprised of the bands of Sault Ste. Marie

area Chippewa who signed treaties with the United States beginning in 1795. Its

modern-day reservation is located at the juncture of the St. Mary’s River and Lake

Superior, in the Iroquois Point area of Michigan’s Upper Peninsula, and on Sugar

Island, which is just east of Sault Ste. Marie, Michigan, in the St. Mary’s River

Channel. The tribe is one of four in Michigan which has maintained government to

government relations with the United States since treaty times. It adopted a constitution in 1936 under the Indian Reorganization Act, and established as its form

of government the traditional Chippewa public forum, in which all adult members

comprise the general tribal council. When in session, the general tribal council

adopts the laws of the tribe. I represent a direct democracy, which votes every 2

years to select officers, known as the executive council. Total enrollment is approximately 1,500 members. It is on their behalf that I speak today.

I am also very proud to testify on this legislation, as it represents the final step

in obtaining redress of a great wrong done to ancestral bands of the Bay Mills Indian Community over 100 years ago. My tribe is deeply grateful to Senator

Stabenow for sponsoring the bill, and to Congressmen David Bonior and Don Young

for sponsoring the companion bill in the House. I also wish to acknowledge the assistance and support that our Congressman, Bart Stupak has given to the tribe in

its efforts to achieve redress.

As do many issues involving Indian tribes, this one was generated in a treaty

with the United States, signed in Detroit, MI, on July 31, 1855. Article 1 of that

treaty required the United States to withdraw from sale certain public lands for selection by the Indian band signatories. The first clause sets aside certain lands for

the ‘‘six [Chippewa] bands residing at or near Sault Ste. Marie’’; those bands are

our ancestors. Among the lands set aside was the property now known as Charlotte

Beach. At that time, it was called the Hay Lake Reserve.

One week before the land was withdrawn from public sale, the Charlotte Beach

property was purchased by two non-Indians, Boziel Paul and Joseph Kemp on August 1, 1855. Although complaints were made to the resident Indian agent, the sale

was not rescinded. In order to recover those lands, annuities received under the

1855 treaty were pooled and the Charlotte Beach lands were purchased from Boziel

Paul and his wife on October 12, 1857. This acreage was the only portion of the Hay

Lake Reserve that was not marshland; the remaining portion of the Reserve was

determined by the Michigan Agency Superintendent to be unfit for allotment.
34

No longer confidant that the United States would protect their land from loss, the

chiefs insisted that title to this property be conveyed to the Governor of the State

of Michigan, and his successors in office, in trust for the two bands of which Shawan

and Oshawa-no were chiefs. The deed was recorded in the Chippewa County, Michigan, Register of Deeds office on that same date. The property was placed on the tax

rolls in 1866, and was sold in the 1880’s for unpaid taxes. With the assistance of

the Michigan Agency of the Bureau of Indian Affairs and at the express invitation

of the three bands already there, band members relocated to the Iroquois Point reserve on Whitefish Bay of Lake Superior—which still comprises a portion of the Bay

Mills Indian Community Reservation. (Members of the sixth band primarily reside

on the Garden River Reserve in Ontario, Canada.)

Equally a part of my Community’s history is the other reason why the bands consolidated in the Iroquois Point reserve—the loss of the fishing encampment ground

at the St. Mary’s Rapids in Sault Ste. Marie in 1853. The reserve had been created

by an 1820 treaty, when lands were ceded to the United States to build Fort Brady.

The reserve stood in the way of progress, apparently, for the engineers hired to

build the first lock at the Soo determined it should go right through the reserve.

The people there were thrown out of their homes by the U.S. Army, and their homes

burned to the ground. Many fled to Iroquois Point. By the time the treaty giving

up the reserve was signed on August 1, 1855, the encampment ground reserve was

under water. The Iroquois Point Reserve received its first refugees before then.

You should be able to understand the disbelief of the Hay Lake Reserve refugees,

that the State was no more able to protect their land than had the United States.

Both of these stories are part of my Community’s history.

My ancestors may have had to swallow the loss of the encampment grounds by

signing a subsequent treaty with the United States. Twenty years later, they were

less willing to resign themselves to accepting loss of their lands.

Complaints were made to the United States, but no effort was made by Indian

agents to recover the land. Letters were sent to the Governor, but no response was

ever received. Over the next 90 years, my people did not forget this wrong, but had

no idea how to make it right. Whatever resources we had were used to ensure our

physical survival, and to protect what lands remained to us.

Our efforts focused on asserting outstanding claims against the United States, resulting in Indian Claims Commission money damages judgments in Dockets 18-E

and 58, and 18-R; legislation providing for distribution of those funds did not get

enacted until 1997 in Public Law 105–143—and then only after Bay Mills sued the

Secretary of the Interior in 1996 to compel the development of a distribution plan.

Our other main focus was to protect our rights to fish in the waters of the Great

Lakes ceded in our treaty with the United States on March 28, 1836. The United

States brought suit on our behalf in 1972 against the State of Michigan, and we

pursued our rights in the Michigan court system. Vindication came from the Michigan Supreme Court in 1976 in People v. LeBlanc. The Federal case is known as

United States v. Michigan, and following the 1979 decision upholding the rights, the

United States, the State and the plaintiff tribes successfully negotiated two (2) allocation agreements; the most recent agreement was reached in August 2000. Both

have received Federal funds through the appropriation process, and Congress has

also provided the financial support for the tribal management of the treaty fishery

since 1981.

Through these battles, the Hay Lake land claim was not forgotten by the people.

We thought we would finally obtain justice in 1980, when the claim was filed with

the Bureau of Indian Affairs under the so-called 2415 process. As you may remember, Congress sought to identify and correct infringements on Indian land which occurred prior to 1966, by directing the filing of trespass claims against third parties

under 28 U.S.C. sec. 2415. The claim was filed in the Federal Register in 1983, but

the United States ultimately declined to pursue the Charlotte Beach claim, on the

technical ground that the lost land was not in trust with the Federal Government,

but with the State. According to the Department of the Interior Field Solicitor, there

was no obligation for the United States to seek damages on behalf of the tribe when

it was not the trustee. Efforts to reverse this decision went nowhere.

As it was clear that the United States would, or could, do nothing, the task of

finding a solution remained the tribe’s to carry out. It became imperative to do so,

as title insurance companies began to identify the land claim as an exception to the

policies issued to property in Charlotte Beach. A lawsuit was finally filed against

approximately 140 landowners in the Federal court in 1996; simultaneously, a separate suit was filed in the State Court of Claims against the State of Michigan and

other State entities.

The Federal case was ultimately dismissed in 2000. Yet again, technical grounds

were the reason. Before that, terms for settlement were negotiated with attorneys
35

for the landowners, under which a fund was created from contributions from the settling defendants; the contribution amount was an agreed-upon portion of the value

of the property owned by each. This method of settlement was preferred by the

Tribe, as it had no desire to force people from their homes, and thereby subject innocents to the same type of wrong and hardship as my ancestors endured. Any chance

of carrying out the settlement ended with the litigation. To this day, the cloud remains on their title.

The basis for the dismissal of this case was not that the tribe had a baseless claim

against the Charlotte Beach land; we never were given the chance to present it. The

case was dismissed because the landowner defendants thought another Indian tribe

might have a claim to the land, as well. That tribe is the Sault Ste. Marie Tribe

of Chippewa Indians, which was recognized by the Department of the Interior in

1973. That tribe never tried to participate in the case, and its lawyer told the judge

at a hearing that the Sault Tribe would not waive its sovereign immunity to be

named as an additional plaintiff. Its participation in the case was limited to assisting lawyers for the landowners in their fight to have the case dismissed for failure

to join an indispensable party. They were successful, and as I have said before, the

cloud remains on the landowners’ title. To this day, the Sault Tribe has not asserted

any claim to the property in any court.

Technical grounds also defeated the Bay Mills case in State court. It was dismissed for failure to bring the case within the Michigan statute of limitations. The

Michigan Supreme Court and the United States Supreme Court refused to hear our

appeal earlier this year. However, the cloud still remains on title to the Charlotte

Beach land.

It is with this frustrating history in mind that I ask you to carefully consider S.

2986. The legislation approves, ratifies and implements the Land Settlement agreement between the Bay Mills Indian Community and the Governor of the State of

Michigan. The terms of the Settlement were negotiated earlier this year, and deserve my detailed discussion.

* The Settlement releases the claims of the Bay Mills Indian Community to the

Charlotte Beach property, subject to the approval of Congress to the extinguishment

of the claims.

The Settlement provides the tribe with alternate property, which substitutes for

the Hay Lake Reserve. That Reserve was promised to the tribe’s ancestors in solemn

treaty in 1855, and it is long past time that the promise is kept. I also like to think

that this alternate land finally implements the trust that my ancestors tried to confer on the Governor in 1857.

The alternate land is to be placed in trust with the Secretary of the Interior for

the benefit of the Bay Mills Indian Community, thereby acknowledging its substitution for lands which should have been in trust for the tribe all along.

The alternate land is in Port Huron, Michigan. This location was agreed upon by

the tribe and the Governor, because it provides significant economic advantages to

the area and to the tribe, and is supported by popular vote of the people of Port

Huron. This determination is entitled to deference by Federal policymakers.

The Settlement requires the tribe to limit its gaming facilities to two (2) in Chippewa County and the alternate land location. In the absence of the Settlement, the

tribe may operate as many class III gaining facilities as it chooses.

The Settlement requires the tribe to provide a proportion of its electronic gaming

revenue to the State. The tribe had agreed to do so under a Consent Decree entered

in Federal court in 1993, but that obligation ended under its own terms in 1997.

The Settlement thus reinstates the prior status quo.

The Settlement expressly upholds the terms of the tribal-State gaming compact

executed on August 20, 1993, and published as approved in the Federal Register on

November 30, 1993. The State agrees not to seek renegotiation of its terms until

2032. The parties thereby maintain stability in the conduct of gaming by the tribe

for a significant period of time—which is a major goal of both tribal and State governments.

The Settlement enables the tribe to establish long-term goals and objectives to

provide employment opportunities for its members, diversify its economic base, expand its governmental services in the areas of health, environmental stewardship,

adequate housing, and education. Without the Settlement, member reliance on the

treaty fishery for income will continue to require periodic, and contentious, allocation disputes with State-licensed fishers and the members of other treaty tribes.

The Settlement and S. 2986 do not affect the rights of any other tribe—in Michigan or elsewhere—whether to land, resources, or economic opportunities. If any

other land claim exists, the claimant tribe is free to pursue it. To any concern about

additional competition, I must point out that no Indian tribe has a right under Federal law or policy to be guaranteed a particular market share of available cus-
36

tomers. Under the free enterprise system, competition generates innovation and creation of a better product.

The Settlement and S. 2986 implement an express exemption to the prohibition

in the Indian Gaming Regulatory Act of gaming on lands acquired after October 17,

1988. That exemption is for lands obtained in settlement of a land claim. Nothing

in the legislative history of the Act, or its implementation by the Bureau of Indian

Affairs and/or the National Indian Gaining Commission, establish criteria which

this Settlement violates. Bay Mills is the first Indian tribe to secure a settlement

of its land claim since the act was adopted, and therefore the first to fall within

the exception’s terms.

Credit for this creative and advantageous resolution of the Bay Mills Land Claim

must go to Governor John Engler of Michigan. Although it was not easy, the Land

Claim Settlement was achieved through the mutual recognition of the importance

of working cooperatively and respectfully to eliminate old grievances and to develop

mutually beneficial solutions. As a further benefit, the State and tribe have created

a process by which other, and equally important and difficult, issues can be identified and addressed through negotiation.

I am very proud to say that I signed the Land Claim Settlement on behalf of the

Bay Mills Indian Community. I am not boasting when I say that this agreement

should be applauded by the Federal Government—in all three of its branches—as

exhibit No. 1 of what can be achieved when a State and Indian tribe decide to ‘‘bury

the hatchet’’ and devise outcomes to disputes which benefit the citizens of the State,

the members of the tribe, and their representative governments.

I hope that the Land Claim Settlement is precedent for other Indian tribes and

states to bring their disagreements to the table. I think that they will find that they

can achieve more in that manner than fighting in the courts or in the halls of Congress. But all the efforts of my tribe and the State negotiators will be for nothing

if Congress does not exercise its plenary power and approve the Settlement by enacting S. 2986. As the duly elected spokesman for my people, I ask each member

of the committee to vote favorably on this bill. I ask each member to end this controversy, which has brought pain to my people and uncertainty to the people who

have taken their place at Charlotte Beach. I ask each member to right a wrong that

was done before any of us were born, but still lives on today. My people have waited

patiently and with confidence that this wrong would be made right. Do not make

their wait in vain.
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Æ