[Senate Hearing 107-925]
[From the U.S. Government Publishing Office]
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
84-595 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
KENT CONRAD, North Dakota FRANK MURKOWSKI, Alaska
HARRY REID, Nevada JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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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
BAY MILLS INDIAN COMMUNITY LAND CLAIM SETTLEMENT ACT
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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:]
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 semi-autonomous 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.
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.
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 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.
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 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 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 tribal-State 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.
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.
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.
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 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. 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.
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.
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 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.
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.
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.
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 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 Charlotte 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 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 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 continue 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 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?
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.]
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A P P E N D I X
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Additional Material Submitted for the Record
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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.
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 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 customers. 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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