[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
SECOND DISCUSSION DRAFT OF LEGISLATION REGARDING OFF-RESERVATION
INDIAN GAMING
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Wednesday, November 9, 2005
__________
Serial No. 109-34
__________
Printed for the use of the Committee on Resources
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Henry Brown, Jr., South Carolina Mark Udall, Colorado
Thelma Drake, Virginia Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
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Page
Hearing held on Wednesday, November 9, 2005...................... 1
Statement of Members:
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 3
Udall. Hon. Tom, a Representative in Congress from the State
of New Mexico.............................................. 5
Statement of Witnesses:
Barnett, John R., Chairman, The Cowlitz Indian Tribe of
Washington................................................. 30
Prepared statement of.................................... 32
Jacob, Hon. Dianne, Supervisor, San Diego County Board of
Supervisors................................................ 69
Prepared statement of.................................... 72
Kennedy, Cheryle A., Tribal Council Chairwoman, Confederated
Tribes of the Grand Ronde Indian Community of Oregon....... 25
Prepared statement of.................................... 27
Kromm, Hon. Duane, Supervisor, Solano County Board of
Supervisors, and Member, California State Association of
Counties................................................... 57
Prepared statement of.................................... 59
Marquez, Deron, Chairman, San Manuel Band of Mission Indians,
California................................................. 22
Prepared statement of.................................... 24
Papen, Hon. Mary Kay, Senator, New Mexico State Senate....... 53
Prepared statement of.................................... 55
Rauschenberger, Hon. Steven J., Senator, Illinois State
Senate, National Conference of State Legislatures.......... 51
Prepared statement of.................................... 52
Stevens, Ernest L., Jr., Chairman, National Indian Gaming
Association................................................ 6
Prepared statement of.................................... 8
Suppah, Ron, Chairman, Confederated Tribes of the Warm
Springs Reservation of Oregon.............................. 15
Prepared statement of.................................... 17
OVERSIGHT HEARING ON ``THE SECOND DISCUSSION DRAFT OF LEGISLATION
REGARDING OFF-RESERVATION INDIAN GAMING.''
----------
Wednesday, November 9, 2005
U.S. House of Representatives
Committee on Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 10:09 a.m. in Room
1324, Longworth House Office Building. Hon. Richard W. Pombo
[Chairman of the Committee] presiding.
Present: Representatives Pombo, Hayworth, Walden, Gibbons,
Cubin, Gallegly, Tom Udall, DeFazio, Kind, Inslee, Napolitano,
Pearce, Costa, Herseth, and Cardoza.
STATEMENT OF THE HONORABLE RICHARD W. POMBO, A REPRESENTATIVE
FROM THE STATE OF CALIFORNIA
The Chairman. The Committee on Resources will come to
order. The Committee is meeting today to hear testimony on the
second version of a discussion draft bill regarding off-
reservation Indian gaming.
Under Rule 4[g] of the Committee Rules, any oral opening
statements at hearings are limited to the Chairman and Ranking
Minority Member. This will allow us to hear from our witnesses
sooner and help members keep to their schedules. Therefore, if
other members have statements, they can be included in the
hearing record under unanimous consent.
Today the Committee is seeking testimony regarding the
second draft of legislation that I authored to amend Section 20
of the Indian Gaming Regulatory Act regarding off-reservation
gaming. My intention in this public process is to ensure that
Indian gaming is conducted on Indian lands consistent with the
original intent of IGRA.
The vast majority of tribes that conduct Indian gaming do
so on Indian lands that are not involved in any off-reservation
gaming controversies whatsoever. However, IGRA makes several
exceptions for the possibility of off-reservation gaming.
While only a small handful of these have been approved
since 1988, the mere existence of these exceptions has proven
to be a great incentive for the proliferation of off-
reservation gaming proposals. Lured by the potential profits of
an off-reservation facility and the ambiguity about what may or
may not be allowed under Section 20 of IGRA, there has been an
ever-increasing ground swell of new proposals for off-
reservation gaming facilities.
This great increase in new proposals has led to new
problems for tribal gaming. Tribes seeking to go off
reservation, and their development backers, have been all too
willing to trade away sovereign tribal rights in exchange for
an off-reservation gaming location. It has increased conflict
between Indian tribes. It has led to the frustration in local
communities who feel powerless to affect whether or not a
casino is located in their community, and it has severely
damaged the public image of Indian gaming, causing the public
focus to shift away from the good things that gaming has done
for tribal self-governance and self-sufficiency, and instead
focus on the perceived negatives of tribal gaming.
These conflicts and controversies over off-reservation
gaming proposals are not a matter of perception. They are real
and have very real consequences.
Colleagues of mine who do not often have to deal with
tribal issues all of a sudden are exposed to them in a very
negative way when an Indian casino is proposed in their
district where a tribe does not reside. Off-reservation gaming
is not just bad publicity for the tribes, it is all too often
the only publicity they are getting, and this bad publicity
definitely affects how members look at all bills affecting
Indian tribes.
I distributed my initial discussion draft bill in March,
and since then the Committee has conducted several hearings,
held hundreds of meetings, and taken countless comments from
Indian tribes, state and local officials, and local citizens
groups on that draft.
After careful consideration of that input, I have revised
the draft legislation with a number of improvements to clarify
the law and empower local communities and tribes. This
discussion draft bill clarifies where Indian casinos can be
located while increasing the role and power of local community
state legislatures and nearby Indian tribes in the process of
considering an off-reservation gaming proposal.
The vast majority of tribes that conduct gaming have done
so on their own lands regardless of location rather than
seeking the most commercially lucrative off-reservation site.
This draft ensures that those tribes who have faithfully
adhered to the spirit and intent of IGRA will not be harmed by
off-reservation facilities.
I have also included language that will make it easier for
tribes to work together in cooperative gaming development
proposals on current reservation land. This gives tribes a new
economic development option without having to resort to
introducing gaming in areas where it is does not already exist.
Additionally, it will empower local communities to be a
part of the process in determining whether or not land is taken
into trust in their community for Indian gaming, giving them a
voice in the final determination.
I know that the inclusion of local communities in the
process has been cause of concern to the Indian country who
have pointed out repeatedly that it is against current
precedent and Federal Indian policy to allow local communities
any power over affairs on tribal lands.
While I hear and understand the concerns, I respectfully
submit to the tribes that this situation with off-reservation
gaming covered in my draft is different and deserves to be
handled differently. No one is suggesting that local
communities in Arizona should be able to tell the San Carlos
Apache how much timber they should harvest from their lands or
the communities in South Dakota should be able to dictate the
Cheyenne River Sioux how to run their tribal housing program.
What I am saying in this draft is that in the circumstances
of off-reservation gaming proposals, we are not talking about
existing reservation lands. Instead, we are talking about a
land within a community that a tribe wishes to purchase, and
then have the government designate that land as an Indian
reservation and eligible for Indian casino gaming.
This is an entirely different situation where the tribe is
asking to join and become part of a new community and it is
entirely proper for the community to have a say in that matter.
In any other situation where an entity wants to come into a
community and develop property, whether for a house, hospital,
factory, garbage dump, nuclear power plant or even a Federal
facility like a military base, the local community has the
ability to determine whether or not they want that type of
development in their midst. Even a homeowner wanting to put an
addition on their house or other improvements to their own
property has to get local approval through the zoning process.
Why should a proposal for an off-reservation Indian casino
be treated any different? Put another way, why should off-
reservation casinos be the only type of development in the
country where the local community has no say?
This is an important concept that I look forward to having
a very thorough dialogue on. In distributing the second draft
bill, I want to emphasize my continued commitment to
consultation with the tribes on this topic on a government-to-
government basis.
Once again, I emphasize that this is a work in progress. I
welcome the continued valuable input from tribes and other
interested parties, and will use this input constructively to
craft quality legislation that lays the off-reservation gaming
controversy to rest.
With that in mind, I want to hear from today's witnesses
about their experiences with off-reservation gaming and what
they think of the current discussion draft.
At this time I would like to recognize Mr. Udall.
[The prepared statement of Chairman Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
Today the Committee is seeking testimony regarding the second draft
of legislation I authored to amend Section 20 of the Indian Gaming
Regulatory Act regarding off-reservation gaming. My intention in this
public process is to ensure that Indian gaming is conducted on Indian
lands, consistent with the original intent of IGRA.
The vast majority of tribes that conduct Indian gaming do so on
Indian lands and are not involved in any off-reservation gaming
controversies whatsoever. However, IGRA makes several exceptions for
the possibility of off-reservation gaming. While only a small handful
of these have been approved since 1988, the mere existence of these
exceptions and has proven to be a great incentive for the proliferation
of off reservation gaming proposals. Lured by the potential profits of
an off-reservation facility, and the ambiguity about what may or may
not be allowed under Section 20 of IGRA, there has been an ever-
increasing groundswell of new proposals for off-reservation gaming
facilities.
This great increase in new proposals has led to new problems for
tribal gaming. Tribes seeking to go off reservation, and their
development backers, have been all too willing to trade away sovereign
tribal rights in exchange for an off reservation gaming location. It
has increased conflict between Indian tribes. It has led to frustration
in local communities who feel powerless to affect whether or not a
casino is located in their community. And it has severely damaged the
public image of Indian gaming, causing the public focus to shift away
from the good things gaming has done for tribal self-governance and
self-sufficiency, and instead focus on the perceived negatives of
tribal gaming.
These conflicts and controversies over off-reservation gaming
proposals are not a matter of perception; they are real, and have very
real consequences. Colleagues of mine who do not often have to deal
with tribal issues all of a sudden are exposed to them in a very
negative way when an Indian casino is proposed in their district where
a tribe does not reside. Off-reservation gaming is not just bad
publicity for tribes; it is all too often the only publicity they are
getting. And this bad publicity definitely affects how Members look at
all bills affecting Indian tribes.
I distributed my initial discussion draft bill in March and since
then the Committee has conducted several hearings, held hundreds of
meetings, and taken countless comments from Indian tribes, State and
local officials, and local citizens' groups on that draft. After
careful consideration of their input, I have revised this draft
legislation with a number of improvements that clarify the law and
empower local communities and Tribes.
This discussion draft bill clarifies where Indian casinos can be
located while increasing the role and power of local communities, state
legislatures, and nearby Indian tribes in the process of considering an
off-reservation gaming proposal.
The vast majority of tribes that conduct gaming have done so on
their own reservation lands, regardless of location, rather than
seeking the most commercially lucrative off-reservation site. This
draft ensures that these tribes, who have faithfully adhered to the
spirit and intent of IGRA, will not be harmed by off-reservation
facilities.
I have also included language that will make it easier for Indian
tribes to work together in cooperative gaming development proposals on
current reservation land. This give tribes a new economic development
option without having to resort to introducing gaming in areas where it
does not already exist.
Additionally, it will empower local communities to be a part of
process in determining whether or not land is taken into trust in their
community for Indian gaming, giving them a voice in the final
determination.
I know that the inclusion of local communities in the process has
been a cause of concern to Indian Country, who have pointed out
repeatedly that it is against current precedent in federal Indian
policy to allow local communities any power over affairs on tribal
lands. While I hear and understand these concerns, I respectfully
submit to the tribes that this situation with off reservation gaming
covered in my draft is different and deserves to be handled
differently.
No one is suggesting that local communities in Arizona should be
able to tell the San Carlos Apache how much timber they should harvest
from their lands, or that communities in South Dakota should be able to
dictate to the Cheyenne River Sioux how to run their tribal housing
program. What I am saying in this draft is in the circumstance of off
``reservation gaming proposals, we are not talking about existing
reservation lands. Instead, we are talking about land within a
community that a tribe wishes to purchase, and then have the government
designate that land as Indian reservation land and eligible for Indian
casino gaming. This is an entirely different situation--where the tribe
is asking to join and become part of the community, and it is entirely
proper for the community to have a say in the matter.
In any other situation where an entity wants to come into a
community and develop property, whether for a school, hospital,
factory, garbage dump, nuclear power plant, or even a federal facility
like a military base, the local community has the ability to determine
whether or not they want that type of development in their midst. Even
a homeowner wanting to put an addition on their house or other
improvements to their property, has to get local approval through the
zoning process. Why should a proposal for an off-reservation Indian
casino be treated any differently? Put another way, why should off-
reservation casinos be the ONLY type of development in the country
where the local community does not have the final say on whether or not
it happens? This is an important concept that I look forward to having
a very thorough dialogue on.
In distributing a second draft bill, I want to emphasize my
continued commitment to consultation with Indian tribes on this topic
on a government-to-government basis. Once again, I emphasize that it is
a work in progress. I welcome the continued valuable input from tribes
and other interested parties, and will use this input constructively to
craft quality legislation that lays the off-reservation gaming
controversy to rest.
With that in mind, I want to hear from today's witnesses about
their experiences with off-reservation gaming and what they think of
the discussion draft.
______
STATEMENT OF THE HONORABLE TOM UDALL, A REPRESENTATIVE FROM THE
STATE OF NEW MEXICO
Mr. Tom Udall. Thank you, Mr. Chairman, and we very much
appreciate all the witnesses that are here today, and Mr.
Chairman, we very much appreciate you having a number of
hearings and getting input from the public and all the
concerned parties. We appreciate that way of legislating, and
we hope that it will continue on this issue.
One of the panels today has a witness on it that will deal
with a gaming issue in New Mexico. My constituent involving
that issue is the Pueblo of Jemez, which is in the 3rd
congressional district in New Mexico. At this time the Pueblo
of Jemez is celebrating its religious feast day and was unable,
Mr. Chairman, to be here.
The Governor of the Pueblo has written Chairman Pombo a
letter regarding the Jemez application before the Department of
Interior. This is an application under Section 20. Included
with the letter is the Dona Ana County resolution supporting
the Pueblo's application before the Department of the Interior.
At this time, Mr. Chairman, I would like to make that
letter, the Governor's letter to you and the Dona Ana County
resolution an official part of the record.
The Chairman. Without objection.
[NOTE: The letter and resolution have been retained in the
Committee's official files.]
Mr. Tom Udall. Thank you, Mr. Chairman.
I also note that serving on one of these panels is one of
our very able senators from the State of New Mexico, Senator
Mary Kay Papen. She is a hard working and dedicated legislator,
and I am sure she is going to be giving very valuable testimony
today on this issue.
I hope that I will be able to be here for most of her
testimony, although commitments are going to have me going in
and out this morning.
So with that, Mr. Chairman, I would yield back, and
appreciate very much the panelists being here today to offer
their testimony on this piece of legislation.
The Chairman. Thank you. And as I said earlier, any other
opening statements will be included in the record. Our panels,
most of those on our panels have traveled great distances to be
here and to participate in this hearing, and I want to get to
their testimony, and having the opportunity to have a
discussion on the draft bill as quickly as we can.
I would like to call up our first panel of witnesses:
Chairman Ernest Stevens; Chairman Ron Suppah; Chairman Deron
Marquez, Chairperson Cheryle Kennedy; and Chairman John
Barnett. If you would join us at the witness stand, and just
remain standing.
As is the custom of the Committee, we swear in all of our
witnesses.
[Witnesses sworn.]
The Chairman. Let the record show they have all answered in
the affirmative.
Thank you very much for being here. I have had an
opportunity to discuss this with most of you individually in
the past, but I do look forward to having the opportunity to
have you testify at the hearing.
Chairman Stevens, we are going to begin with you. I will
tell you and all of our witnesses that your entire written
statements will be included in the record. If you could try to
summarize those statements and stay within the five minutes for
your oral testimony, it would help to get to the questions and
move on with the hearing.
So Chairman Stevens, we are going to begin with you.
STATEMENT OF CHAIRMAN ERNEST L. STEVENS, JR.,
NATIONAL INDIAN GAMING ASSOCIATION
Mr. Stevens. Thank you and good morning. It is a great
honor to be here before you, Chairman Pombo, and the rest of
the Committee members. I would like to also acknowledge the
fellow tribal leaders that are here present today.
As you know, my name is Ernie Stevens, Jr., and I have had
the great honor of serving as Chairman of the National Indian
Gaming Association for the past five years, and with me today
is NIGA's executive director, Mr. Mark Van Norman.
I want to thank you for inviting me to testify this morning
and for the serious process that you have given this very
important issue. We appreciate that you have issued the second
version of the bill in draft form so the tribal leaders have a
chance to comment on the legislation as the bill continues to
develop.
As you know, the issue of off-reservation gaming is a
difficult one for all of Indian country. As NIGA promised the
Committee last March, we convened a NIGA/NCAI tribal leaders
task force to form a national position on off-reservation
gaming.
Over a period of four months, we held four hearings, the
first in Washington, D.C., the second in San Diego, California,
the third in Minneapolis, Minnesota, and the final meeting in
Green Bay, Wisconsin, in conjunction with the National Congress
for American Indians mid-year meeting. Over 150 tribal leaders
and representatives attended each meeting.
Many tribal leaders stated that IGRA is working, citing the
fact that only four off-reservation gaming sites have been
approved in 17 years. Others have voiced concern that off-
reservation gaming may infringe on the aboriginal lands of
nearby tribes, and is generating controversy in the media.
While tribal leaders were not unanimous in their views, the
great majority of tribal leaders participating in the task
force agreed that opening IGRA was not a way to address the
issue. Instead, the leaders chose to support a regulatory
process to clarify off-reservation gaming. NIGA and NCAI
adopted a joint resolution to this effect. We have submitted
that to the Committee.
The Interior Department recently announced that it will
soon issue a discussion draft of regulations to implement
Section 20. We believe that this as rulemaking process will
shed much needed light on the extensive process already in
place for off-reservation gaming, and will bring clarity to the
issue that will ease the concerns of Congress and the public.
For the two-part process, Interior's rule will require:
One, tribal state and local community input; the
Secretary's approval for gaming benefits to the tribe and it is
not detrimental to nearby tribes and local community; and
third, the Governor's concurrence.
In addition, Interior uses a sliding scale under its 151
trust land regulations that gives more weight to the state and
local concerns if the off-reservation site is located far from
the tribe's current reservation.
As a result of this extensive process, only three tribes
used the two-part process in 17 years, and none have used it
for gaming on lands outside their current state.
Interior's rule will also include a significant hurdle in
place for the Section 20's land claim exception, which is that
Congress must pass legislation approving the land claim
settlement before a tribe could conduct gaming on the land.
This gives everyone that may have an interest in the process,
including tribal, state, and local governments, an opportunity
to voice their concerns. This exception has only been used once
in 17 years.
Interior's regulations will spell out all of these and
other requirements to off-reservation gaming, and the
establishment of initial reservations. In addition, these clear
rules will discourage unrealistic proposals.
NIGA supports the existing provisions in Section 20 that
provide nearby tribes, state, and local governments with input
on off-reservation process, and the general requirement that
tribes must have a historical connection to lands that they
seek for the purposes of gaming. These are important policy
statements that NIGA and NCAI included in our joint resolution,
and Interior has indicated that its proposal will include such
requirements.
We hope that the Resources Committee and the Senate
Committee on Indian Affairs will give Interior's regulatory
proposal an opportunity to move forward. NIGA appreciates the
opportunity to be a part of this legislative process, yet we
are concerned with several provisions in the second draft.
First, it would delete the two-part process and the land
claim exception. As I noted, in 17 years under IGRA only four
tribes have met the strict requirements necessary to meet these
exceptions.
In addition, we are concerned that adding requirements for
newly acknowledged, restored and landless tribes may infringe
on vested property rights. Initial reservations are not of-
reservation. The Section 20 exception for these tribes seek to
address the previous wrongs. Interior has indicated that its
proposal will require these tribes to show that they have
historic connection to these lands that they seek as their
initial reservation.
And finally, we are concerned that with the provisions that
will require local community input for the establishment of
initial reservations. Requiring local community approval for
the exercise of tribal rights on their own lands would set a
bad precedent for us. We believe that local governments are
subdivisions of the state, not separate sovereigns. State
governments have the power and authority to protect the
interests of local government.
NIGA will continue this dialogue, Mr. Chairman, with our
tribal leaders task for next week in Seminole, Florida at our
mid-year conference, and we will continue to discuss this
matter and do its best to provide valuable feedback as you move
through the process.
In conclusion, Mr. Chairman, and Members of the Committee,
I want to just assure that our concerns--we approach this, any
attempt to amend IGRA with great caution. Indian gaming has
provided our communities with a new hope because Indian gaming
continues to rebuild our communities, and that is why we speak
with great concern from our heart through this process.
Again, I emphasize, Mr. Chairman, that we will continue to
interact, and I have discussed this briefly with President Hall
who now has stepped down as President of NCAI, and he will hand
this process very firmly over to President, new President Joe
Garcia of the National Congress for American Indians, and we
will continue to be here to speak to any of the issues that you
might have.
So as the Committee moves forward in this process, we ask
that Congress work to protect the integrity of the Act, and
protect legislative process to prevent any unrelated
amendments. With due respect, we also ask that you give
Interior time to pursue its regulatory process.
Once again, sir, we thank you for the opportunity to
testify, and we are here to answer any questions. Thank you
very much to the Members of the Committee as well.
[The prepared statement of Mr. Stevens follows:]
Statement of Ernest L. Stevens, Jr., Chairman,
National Indian Gaming Association
Good morning. Chairman Pombo, Congressman Rahall and Members of the
House Resources Committee, thank you for the opportunity to testify on
the second discussion draft of legislation regarding off-reservation
Indian gaming.
My name is Ernest L. Stevens, Jr. and I am the Chairman of the
National Indian Gaming Association (``NIGA''). NIGA is an inter-tribal
association of 184 Indian tribes that use Indian gaming to generate
essential tribal government revenue.
Introduction
At the outset, I should note that 98 to 99% of Indian Gaming is
conducted ``on reservation.'' Indian tribes generally oppose amending
the Indian Gaming Regulatory Act (``IGRA'') because we are concerned
that amendments will diminish tribal rights and that once lost, we
would have great difficulty restoring our rights.
We ask the Committee to continue to consider any amendment to IGRA
only through regular order, and if any amendments are marked out of
Committee, we ask that they be considered under a closed rule. We also
respectfully request that the Committee reject extraneous amendments
that would undermine tribal rights to self-government. After all, for
Indian nations tribal self-government is our original democracy.
Finally, any amendment to IGRA should approve the Secretary's
procedures in lieu of compact to address the Supreme Court's Seminole
decision.
A. Indian Gaming: the Native American Success Story
Indian gaming is the Native American success story. Where there
were no jobs, now there are 553,000 jobs.
Where our people had only an eighth grade education on average,
tribal governments are building schools and funding college
scholarships.
Where the United States and boarding schools sought to suppress our
languages, tribal schools are now teaching their native language.
Where our people suffer epidemic diabetes, heart disease, and
premature death, our tribes are building hospitals, health clinics, and
wellness centers.
Historically, the United States signed treaties guaranteeing Indian
lands as permanent homes, and then a few years later, went to war to
take our lands. This left our people to live in poverty, often on
desolate lands, while others mine for gold or pumped oil from the lands
that were taken from us.
Throughout all of those long years, Indian tribes always fought to
maintain our inherent right to self-government and Indian gaming is an
exercise of that right.
Today, for over 60% of Indian tribes in the lower 48 states, Indian
gaming offers new hope and a chance for a better life for our children.
Two-thirds of American voters support Indian gaming, and when they
are informed that Indian gaming is rebuilding our communities, 74% of
American voters support Indian gaming.
B. Government-to-Government Consultation
The Commerce Clause of the Constitution recognizes Indian tribes as
pre-existing governments. The Constitution also acknowledges the status
of tribal governments as sovereigns and the sanctity of our treaties in
the Treaty Clause. As a result, the historical relations between the
United States and Indian nations are built on a foundation of
government-to-government relations.
Honoring the historical policy of government-to-government
relations between the United States and Indian tribes, on September 23,
2004, President Bush issued an Executive Memorandum to the Heads of
Executive Departments and Agencies explaining:
The United States has a unique legal and political relationship
with Indian tribes and a special relationship with American
Indian tribes and Alaska Native entities as provided in the
Constitution of the United States, treaties, and Federal
statutes. Presidents for decades have recognized this
relationship''. My Administration is committed to continuing to
work with federally recognized tribal governments on a
government-to-government basis and strongly supports and
respects tribal sovereignty and self-determination for tribal
governments in the United States.
The House Committee on Resources also has a strong tradition of respect
for tribal self-government and government-to-government consultation.
Chairman Pombo released the first discussion draft bill on off-
reservation gaming in March and since then the Committee has held four
hearings to give tribal governments, state officials and members of the
public an opportunity to present views. On October 31, Chairman Pombo
released a second draft bill.
We thank you, Chairman Pombo, Congressman Rahall, and the
Committee, for working with tribal governments in a manner that
respects the principle of government-to-government consultation.
NIGA/NCAI Tribal Leaders Task Force on Indian Gaming
The National Indian Gaming Association and our sister organization,
the National Congress of American Indians (``NCAI''), conducted several
meetings around the country with tribal leaders to review the
discussion draft: March 27 in Washington, D.C.; April 13 in San Diego,
California; May 25 in Minneapolis, Minnesota; June 16 in Green Bay,
Wisconsin; and October 30 in Tulsa, Oklahoma.
Our meetings included mostly tribal governments that use Indian
gaming on their reservation lands, tribal governments that have used
the Section 20 process to engage in gaming on after acquired lands, a
few tribal governments that now seek to use the Section 20 process, and
tribal governments opposing Section 20 applications by neighboring
tribes. While tribal governments were not unanimous in their views, 95%
or more of the tribal governments that participated in our meetings
opposed amendments to the Indian Gaming Regulatory Act concerning off-
reservation gaming.
Accordingly, NIGA and NCAI worked on a joint set of principles
regarding this issue. First, in regard to newly recognized or landless
tribes, there is no existing reservation, so reacquired lands are by
definition ``on reservation.''
Only 3 Indian tribes have used the Section 20 two part secretarial
consultation process for Indian gaming on lands acquired after 1988:
Forest County Potawatomi in Milwaukee, Wisconsin; Kalispel Tribe near
Spokane, Washington; and Keweenaw Bay Indian Community in Marquette,
Michigan. Only 3 Indian tribes in 17 years. All three had a
determination by the Secretary of the Interior that gaming was in the
best interest of the tribe and not detrimental to the surrounding
community and Governor's agreement. All three had local government
support, and the Department of Interior staff explained that without
local government support, an application under the two part process
would not be approved by the Secretary.
Only one Indian tribe in 17 years--the Seneca Nation of New York--
has been able to use land reacquired under a land claim settlement for
gaming pursuant to Section 20. That is, in part, because the Secretary
of the Interior requires that Congress approve any land claim
settlement before an Indian tribe may use settlement lands for Indian
gaming.
Tribal governments generally do not believe that the actual record
under Section 20 justifies amendments to the Indian Gaming Regulatory
Act. Thus, the NIGA/NCAI Tribal Leaders Task Force on Indian Gaming
opposed legislative amendments to Section 20.
Tribal governments generally agree that in any Section 20 two-part
process application for gaming on reacquired Indian lands:
A tribal government should thoroughly consult with state
and local officials;
A tribal government should thoroughly consult with nearby
Indian tribes; and
The existing Section 20 process and the Tribal-State
Compact process for Class III gaming provide important opportunities
for consultation between tribal governments, Federal, state and local
officials, and nearby Indian tribes about Indian Gaming.
The NIGA/NCAI Tribal Leaders Task force called upon the Secretary of
the Interior to issue a new regulation under Section 20 that would
clarify the existing process for reacquiring tribal lands for Indian
gaming through negotiated rulemaking.
IGRA Section 20 and Chairman Pombo's Second Discussion Draft
A. Section 20: Existing Law
Through Section 20, the Indian Gaming Regulatory Act establishes a
general policy that Indian tribes should conduct Indian gaming on lands
held on October 17, 1988. Congress provided several exceptions to this
general rule to take account of the historical mistreatment of Indian
tribes, including:
The fact that too many lands were taken from Indian
tribes, leaving some tribes landless or with no useful lands;
The fact that many Indian lands were unlawfully taken
from Indian tribes in violation of Federal law; and
The fact that after it was no longer militarily necessary
to treat with some Indian tribes, the United States neglected and
ignored those tribes.
Accordingly, Section 20 provides exceptions to the general rule for
several reasons, including:
Land Claim Settlement: Land is taken into trust as a
result of a land claim settlement;
Initial Reservation: Land is acquired in trust status as
the initial reservation of an Indian tribe acknowledged by the
Secretary of the Interior under the Federal Acknowledgment process; or
Restored Lands: Land is restored to an Indian tribe in
trust status when the Tribe is restored to Federal recognition;
Landless Tribes: Land is put into trust for federally
recognized tribes that did not have reservation land on the date IGRA
was enacted; or
Two-Part Secretarial Process: More generally, Section 20
provides for a two-part secretarial consultation process, whereby an
Indian tribe may generally apply to the Secretary of the Interior for
land to be taken into trust status for gaming purposes. Under the two-
part process, upon application by the Indian tribe the Secretary of the
Interior consults with state and local officials and nearby Indian
tribes to determine whether an acquisition of land in trust for gaming
would be in the tribe's ``best interest'' and ``not detrimental to the
surrounding community.''
25 U.S.C. sec. 2719(b)(1).
B. Pombo Second Discussion Draft
The Second Discussion Draft would amend Section 20(b)(1)
significantly. First, the second draft would strike the existing
Section 20 Two-Part Secretarial Consultation Process and nullify
pending applications under Section 20(b)(1)(A). Several tribes have
invested millions of dollars to perform environmental assessments to
apply to have land taken in trust under this provision. Some of them
have the support of both the Governor and the local government where
the land acquisition is proposed. Where the State, local governments,
and nearby Indian tribes support an application under the Section 20
Two-Part Secretarial Consultation Process, we do not believe that
Congress should prohibit the trust land reacquisition. In sum, we do
not believe that the actual record of Section 20's implementation
justifies eliminating the Two-Part Secretarial Consultation Process.
Second, the new discussion draft would eliminate the land claim
settlement provision. Only one Indian tribe has successfully utilized
this process to date, and the proposal to eliminate this provision is
tantamount to a 5th Amendment taking of vested property rights and the
frustration of justifiable expectations.
Third, the second draft would require ``newly recognized, restored,
or landless tribes'' to apply to have land taken in trust through a
Five-Part Secretarial Consultation Process:
Newly Recognized, Restored, and Landless Tribes would
apply to the Secretary of the Interior to have land taken in trust for
gaming;
Secretarial Determination: The Secretary would consult
with state, local officials, and nearby Indian tribes to determine that
the reacquisition of land was in the best interest of the applicant
tribe and not detrimental to the surrounding community;
Governor concurs in the Secretary's Determination;
State Legislature concurs;
Nearby Indian tribes concur; and
County Government concurs.
Subjecting ``newly recognized, restored, or landless tribes'' to this
new and cumbersome process discounts the fact that the United States
mistreated these tribes by ignoring and neglecting them, taking all of
their lands or allowing their lands to be stolen by others. These
Indian tribes had aboriginal and historical lands. We believe that
Congress should restore these tribes to a portion of their aboriginal
or historical lands and that these lands should be held on the same
basis as other Indian lands.
It is not necessary to add the State Legislature to Gubernatorial
concurrence authority. The question of state law authority and
decision-making is reserved to the States under the 10th Amendment. In
addition, subjecting Indian lands to a veto by local governments is a
bad precedent for Indian tribes. We believe that local governments are
subdivisions of the state--not separate sovereigns. State governments
have the power and authority to protect the interests of local
governments.
The second draft also provides for the cooperative use of existing
reservation lands, whereby an Indian tribe may invite another Indian
tribe to conduct gaming on its reservation lands. We support this
provision, yet we believe that this could be enacted on a more specific
basis without amending IGRA.
The new draft again would prohibit Indian tribes from crossing
state lines to engage in gaming. The reason why a few tribes are
seeking to cross state lines has to do with the 19th Century Removal
Policy, which was a historical wrong by the United States against
Americans Indians. When an Indian tribe seeks to return to aboriginal
lands, due consideration should be given to historical facts. Not all
states reject a return by Indian tribes to ancestral lands. There are
ways to promote respect for the interests of states and nearby tribes
other than a prohibition. Colorado Governor Bill Owens, for example,
told the Cheyenne-Arapaho Tribes that Colorado voters could approve
their return from Oklahoma to Colorado.
Alternative to Legislation: A New Regulation Under Section 20
Under Section 20 there are more proposals than actual gaming
facilities. Only 3 new gaming facilities have gone forward under the
Section 20 Two-Part Secretarial Consultation Process. Each facility had
the support of the local government. A new regulation under Section 20
could clarify the rights of states, local governments, and nearby
Indian tribes to consult with the Secretary before her decision on the
potential impacts of a new gaming facility in the surrounding
community. The Secretary now gives great weight to local government
comments thereby protecting local interests. The Secretary should give
the same weight to interests of nearby Indian tribes. Through the
Governor, states have a right to agree or disagree--which is sufficient
to protect state rights.
Concerning land claim settlement lands, a new regulation could
simply spell out the fact that congressional ratification of a land
claim settlement is necessary before such lands can be used for gaming.
State, local governments, nearby Indian tribes and the public have an
opportunity to fully participate in the legislative process for
ratification. That should protect everyone's interest in ensuring a
fair settlement process.
With regards to ``newly recognized, restored, and landless
tribes,'' we agree that these tribes should seek to reacquire lands in
their aboriginal or historic land areas to avoid any infringement on
the aboriginal land rights of nearby Indian tribes. The Secretary now
requires ``significant historical, cultural, and geographic ties'' to
the land sought for tribal reacquisition. We believe that the Secretary
of the Interior has authority to require an aboriginal or historical
connection to the lands and that issue should be dealt with in a new
regulation under Section 20.
We understand that the Department of the Interior is currently in
the process of developing a new regulation under Section 20 that will
clarify these issues.
Conclusion
Chairman Pombo, Congressman Rahall, and Members of the Committee,
we thank you for undertaking a process that is respectful of
government-to-government relations. The underlying principle of
government-to-government relations, similar to protection of states
rights under the 10th Amendment, is idea that the least intrusive means
to achieve a Federal goal is generally the best avenue to pursue. In
this case, the least intrusive means of protecting the rights of state,
local governments, and nearby Indian tribes is through a new regulation
under Section 20 that will clarify the right to consult with the
Secretary and the State's right to concur or not concur in the
Secretary's determination. Accordingly, we respectfully request that
the Committee give the Department of the Interior time to develop and
promulgate its new regulation before amending Section 20 of the Indian
Gaming Regulatory Act.
______
ATTACHMENTS
Chairman Pombo's Revised Proposed Amendments to 25 U.S.C. 2719 (Gaming
on Lands Acquired After October 17, 1988)
(a) Prohibition on lands acquired in trust by Secretary--Except as
provided in subsection (b) of this section, gaming regulated by this
chapter shall not be conducted on lands acquired by the Secretary in
trust for the benefit of an Indian tribe after October 17, 1988,
unless----
(1) such lands are located within or contiguous to the
boundaries of the reservation of the Indian tribe on October
17, 1988; or
(2) the Indian tribe has no reservation on October 17, 1988,
and----
(A) such lands are located in Oklahoma and----
(i) are within the boundaries of the Indian tribe's
former reservation, as defined by the Secretary, or
(ii) are contiguous to other land held in trust or
restricted status by the United States for the Indian tribe
in Oklahoma; or
(B) such lands are located in a State other than
Oklahoma and are within the Indian tribe's last recognized
reservation within the State or States within which such
Indian tribe is presently located.
(b) Exceptions----
(1) Subsection (a) of this section will not apply when to any
Indian tribe that is newly recognized, restored, or landless as
of the date of enactment of this [bill] including those newly
recognized under the Federal Acknowledgment Process at the
Bureau of Indian Affairs, if--
(A) the Secretary , after consultation with the Indian
tribe and appropriate State, and local officials, including
officials of other nearby Indian tribes, determines that a
gaming establishment on newly acquired lands would be in
the best interest of the Indian tribe and its members, and
would not be detrimental to the surrounding community, but
only if the Governor of the State in which the gaming
activity is to be conducted concurs in the Secretary's
determination; or determines that the lands, acquired in
trust for the benefit of the Indian tribe for the purposes
of gaming, are lands within the State of such tribe, and
are where the Indian tribe has its primary geographic,
social, and historical nexus to the land;
(B) lands are taken into trust as part of- The
Secretary determines that the proposed gaming activity is
in the best interest of the Indian tribe and its tribal
members, and would not be detrimental to the surrounding
community and nearby Indian tribes;
(i) a settlement of a land claim,
(ii) the initial reservation of an Indian tribe
acknowledged by the Secretary under the Federal
acknowledgment process, or
(iii) the restoration of lands for an Indian tribe
that is restored to Federal recognition.
(C) the Governor and the State legislature of the State
in which the gaming activities will be conducted concur;
(D) the nearby Indian tribes concur; and
(E) the county or parish with authority over land that
is contiguous to the lands acquired in trust for the
benefit of theIndian tribe for the purposes of gaming
approve by a majority vote in a county or parish
referendum.
(2) Subsection (a) of this section shall not apply to----
(A) any lands involved in the trust petition of the St.
Croix Chippewa Indians of Wisconsin that is the subject of
the action filed in the United States District Court for
the District of Columbia entitled St. Croix Chippewa
Indians of Wisconsin v. United States, Civ. No. 86-2278, or
(B) the interests of the Miccosukee Tribe of Indians of
Florida in approximately 25 contiguous acres of land, more
or less, in Dade County, Florida, located within one mile
of the intersection of State Road Numbered 27 (also known
as Krome Avenue) and the Tamiami Trail.
(3) Upon request of the governing body of the Miccosukee Tribe
of Indians of Florida, the Secretary shall, notwithstanding any
other provision of law, accept the transfer by such Tribe to
the Secretary of the interests of such Tribe in the lands
described in paragraph (2)(B) and the Secretary shall declare
that such interests are held in trust by the Secretary for the
benefit of such Tribe and that such interests are part of the
reservation of such Tribe under sections 465 and 467 of this
title, subject to any encumbrances and rights that are held at
the time of such transfer by any person or entity other than
such Tribe. The Secretary shall publish in the Federal Register
the legal description of any lands that are declared held in
trust by the Secretary under this paragraph.
(c) Authority of Secretary not affected--Nothing in this section
shall affect or diminish the authority and responsibility of the
Secretary to take land into trust.
(d) Application of Internal Revenue Code of 1986
(1) The provisions of the Internal Revenue Code of 1986
(including sections 1441, 3402(q), 6041, and 6050 I, and
chapter 35 of such Code) concerning the reporting and
withholding of taxes with respect to the winnings from gaming
or wagering operations shall apply to Indian gaming operations
conducted pursuant to this chapter, or under a Tribal-State
compact entered into under section 2710(d)(3) of this title
that is in effect, in the same manner as such provisions apply
to State gaming and wagering operations.
(2) The provisions of this subsection shall apply
notwithstanding any other provision of law enacted before, on,
or after October 17, 1988, unless such other provision of law
specifically cites this subsection.
(e) (1) In order to consolidate class II gaming and class III
gaming development, an Indian tribe may invite one or more other Indian
tribes to participate in or benefit from gaming conducted under this
Act upon any portion of Indian land that was, as of October 18, 1988,
located within the boundaries of the reservation of the inviting Indian
tribe, so long as each invited Indian tribe has no ownership interest
in any other gaming facility on any other Indian lands and has its
primary geographic, social, and historical nexus to land within the
State in which the Indian land of the inviting Indian tribe is located.
(2) Notwithstanding any other provision of law, an Indian
tribe invited to conduct class II gaming or class III gaming
under paragraph (1) may do so under authority of a lease with
the inviting Indian tribe, which lease shall be lawful without
the review or approval of the Secretary and which lease shall
be deemed by the Secretary to be sufficient evidence of the
existence of Indian land of the invited Indian tribe for the
purposes of secretarial approval of the Tribal-State compact
under this Act.
(3) Notwithstanding any other provision of law, the Indian
tribes identified in paragraph (1) may establish this terms and
conditions of their lease and other agreements between them in
their sole discretion, provided that in no case may the total
payments to the inviting Indian tribe under the lease and other
agreements exceed 40 percent of the net revenues (defined for
such purposes as the revenue available to the 2 Indian tribes
after deduction of costs of operating and financing the gaming
facility developed on the leased land and of fees due to be
paid under the Tribal-State compact) of the gaming activity
conducted by the invited Indian tribe.
(4) An invited Indian tribe under this subsection shall be
deemed by the Secretary and the Commission to have the sole
proprietary interest and responsibility for the conduct of any
gaming on lands leased from an inviting Indian tribe.
(5) Conduct of gaming by an invited Indian tribe on lands
leased from an inviting Indian tribe under this subsection
shall be deemed by the Secretary and the Commission to
conducted under the Act upon Indian lands--
(A) of the invited Indian tribe;
(B) within the jurisdiction of the invited Indian
tribe; and
(C) over which the invited Indian tribe has and
exercises governmental power.
(f) Notwithstanding any other provision of this Act, an Indian
tribe shall not conduct gaming regulated by this Act on Indian lands
outside of a State in which the Indian tribe has a reservation on the
date of the enactment of this subsection, unless such Indian lands are
contiguous to such a reservation of that Indian tribe in the State.
Sec. 2 Statutory Construction
The amendment made by paragraph (1) of section 1 shall be applied
prospectively. Compacts or other agreements that govern gaming
regulated by this Act on Indian lands that were in effect on the date
of the enactment of this Act shall not be affected by the amendments
made by paragraph (1) of section 1 of this Act.
______
NIGA/NCAI Tribal Leader
Task Force on Indian Gaming
RESOLUTION # GBW-005-009
by the national congress of american indians
concerning off-reservation gaming
WHEREAS, we, the members of the National Congress of American
Indians of the United States, invoking the divine blessing of the
Creator upon our efforts and purposes, in order to preserve for
ourselves and our descendants the inherent sovereign rights of our
Indian nations, rights secured under Indian treaties and agreements
with the United States, and all other rights and benefits to which we
are entitled under the laws and Constitution of the United States, to
enlighten the public toward a better understanding of the Indian
people, to preserve Indian cultural values, and otherwise promote the
health, safety and welfare of the Indian people, do hereby establish
and submit the following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was
established in 1944 and is the oldest and largest national organization
of American Indian and Alaska Native tribal governments; and
WHEREAS, the United States has a government-to-government
relationship with Indian Tribes which is carried out by the Department
of Interior pursuant to its policy of government-to-government
consultation on regulations and rules impacting Indian Tribes; and
WHEREAS, the Bureau of Indian Affairs (BIA) has established an
internal guideline titled ``Checklist For Gaming Acquisitions Gaming-
Related Acquisitions And IGRA Section 20 Determinations for
implementation of the Indian Gaming Regulatory Act (IGRA) Section 20'',
which was amended on March 7, 2005, without consulting Tribal
Governments in violation of the government-to-government policy of the
United States; and
WHEREAS, IGRA was enacted to promote tribal economic development,
self- sufficiency and strong tribal governments, and reflects a
delicate balance of Tribal, Federal, and State Sovereign interests; and
WHEREAS, Indian gaming is the Native American success story and
through Indian gaming, Indian tribes have created more than 550,000
jobs, fund essential government services including education, health
care, police and fire services, water, sewer, and sanitation services,
transportation, child care and elderly nutrition, and museums and
cultural centers; and
WHEREAS, Section 20 of the IGRA (25 U.S.C. Sec. 2719) establishes a
general rule that Indian gaming shall be conducted only on Indian lands
held prior to 1988, with exceptions for contiguous lands, landless
Indian tribes, newly recognized Indian tribes, restored tribes, land
claims settlements, and the Section 20 two-part determination for off-
reservation land; and
WHEREAS, under the Section 20 two-part determination, the Secretary
of the Interior must consult with state and local officials and nearby
Indian tribes to determine that any proposed off-reservation gaming is
in the best interests of the applicant tribe and not detrimental to the
surrounding community which includes nearby Indian Tribes; then the
Governor must concur in the Secretary's determination before the
applicant tribe may conduct gaming on the off-reservation land;
WHEREAS, through IGRA, Congress provided State and local
governments a voice in Indian gaming policy through the Section 20 two-
part determination process and through the Tribal-State Compact
process;
WHEREAS, the reality of off-reservation gaming is far different
than the media misrepresentations and in fact since the enactment of
IGRA in 1988 only three Indian Tribes have ever successfully navigated
the Section 20 two-part process: all three Tribes had the support of
the local government and the concurrence of the Governor; and
WHEREAS, Tribal Governments acknowledge the responsibility to speak
on their own behalf regarding gaming locations under the Section 20
two-part process, to promote positive media coverage and reduce public
misunderstanding of the land into trust process; and
WHEREAS, Tribal Governments have a long history of respect for and
consultation with neighboring Tribes and local governments, which is
reflected within the Section 20 two-part process; and
WHEREAS, there have been recent efforts to bypass the Section 20
two-part process through appropriation riders without the benefit of
hearings and tribal input.
NOW THEREFORE BE IT RESOLVED, the NCAI strongly opposes amending
the Indian Gaming Regulatory Act.
BE IT FURTHER RESOLVED, the NCAI opposes legislation that would
diminish the sovereign rights of Tribal Governments and opposes any
effort to subordinate Tribal Governments to local governments.
BE IT FURTHER RESOLVED, the NCAI does hereby call upon tribal
governments proposing off-reservation gaming locations to promote
positive relationships with State and local governments and minimize
impacts on the aboriginal rights of nearby Tribes; NCAI also supports
the development of a joint subcommittee of the NIGA/NCAI Task Force on
Gaming that will encourage cooperation and support for this policy
similar to the Tribal Supreme Court Project.
BE IT FURTHER RESOLVED, that the NCAI calls upon state and tribal
governments to work together to ensure that local government concerns
are addressed through the existing Tribal-State Compact process and the
Section 20 two-part determination process.
BE IT FURTHER RESOLVED, that the NCAI does hereby call upon
Congress to adhere to the significant process set forth in IGRA's
Section 20 and to refrain from appropriations riders that bypass
Section 20 or otherwise amend IGRA.
BE IT FURTHER RESOLVED, that the NCAI requests that the Department
of Interior engage in a negotiated rulemaking process with Tribal
Governments to adopt formal regulations governing the implementation of
the Section 20 two-part determination process that respects the
interests of tribal governments, including nearby Indian tribes, and
state and local governments.
BE IT FURTHER RESOLVED, that the NCAI supports the initial intent
of IGRA to support the development of tribal economies.
BE IT FINALLY RESOLVED, that the NCAI requests that Congress pass
legislation that will encourage other forms of economic development in
Indian country such as energy development incentives and equitable tax
exempt bond authority.
______
The Chairman. Thank you. At this time I am going to
recognize Mr. Walden to introduce our next witness.
Mr. Walden. Thank you very much, Mr. Chairman.
I am honored to introduce Mr. Ron Suppah from the
Confederated Tribes of the Warm Springs. He is a gentleman I
have worked with on numerous issues since coming to the
Congress, and I am delighted that he has made the trip here,
and I think you will find his testimony informative and
enlightening.
Ron, we want to welcome you, and your other tribal members
here today.
Thank you, Mr. Chairman.
STATEMENT OF CHAIRMAN RON SUPPAH,
CONFEDERATED TRIBES OF WARM SPRINGS, OREGON
Mr. Suppah. Good morning, Mr. Chairman, Members of the
Committee.
My name is Ron Suppah. I am Chairman of the Confederated
Tribes of Warm Springs Reservation of Oregon, and I want to
thank you for inviting me to testify today.
Mr. Chairman, Warm Springs has been diligently pursuing a
casino in our aboriginal and treaty reserved area near our
reservation for the past seven years. While we are nearing the
final stages of that long and difficult process, the second
discussion draft, if enacted, would almost certainly kill our
project.
Consequently, we ask that when off-reservation gaming
legislation is formally introduced it include a grandfather
clause that would allow Warm Springs and any other tribes in
similar circumstances to complete the process under the current
rules.
I would also like to submit for the record at this time the
testimony of Hood River County, Oregon, also supporting the
grandfather provisions.
Warm Springs Reservation is in rural and remote area of
north-central Oregon. Our tribal income which historically is
based on timber has been declining steadily. We have a small
casino, but its income is too modest to cover the growing gap
in our budget, and we are now drawing on our emergency
reserves. This is unsustainable, and to address this
increasingly difficult financial circumstance we have been
pursuing an off-reservation casino in the Columbia River Gorge
since the mid-1990s.
From time immemorial, Warm Springs people have lived and
fished along the Columbia River. While our 1955 treaty with the
U.S. located our reservation about 38 miles to the south, it
preserved our fishing rights on the Columbia, and we continue
to maintain very close ties to the river. In fact, we have
trust allotments along the Columbia, including a pre-1988
gaming eligible allotment just outside the City of Hood River,
Oregon.
We propose building a casino on that Hood River trust land,
but the City of Hood River objected. Then in 1998, the nearby
community of Cascade Locks 17 miles west asked if we would
consider siting our project on their under-utilized industrial
park. Although that land is not in trust, Cascade Locks offered
a positive solution for all parties, and we approached Oregon's
Governor.
The ensuing years-long discussions culminated last April 6,
2005, when Governor Kulongoski and I signed our compact, at the
same time we also signed a participating agreement with Cascade
Locks and Hood River County that addresses impacts on the local
community.
On April 8, 2005, we submitted our land-into-trust
application for the Cascade Locks industrial park site. Also,
on April 8, we submitted our compact to the Secretary of the
Interior for the 45-day review provided under IGRA.
Interior has previously approved several compacts before
the land was in trust, but four days before our 45-day review
ended Interior announced to us with no forewarning that they
were changing their policy and would require the Cascade Locks'
lands to be in trust before they would consider our compact.
This eleventh hour change was a disappointment to us, but
we are proceeding with our efforts to have the land taken into
trust. On June 15th of this year, the BIA initiated the IGRA
Section 20 secretarial two-part determination process.
Additionally, pursuant to our April 8th land-into-trust
application, the BIA has started a full NEPA environmental
impact statement for the Cascade Locks' and. The public scoping
period ended on October 15th, and the BIA and its contractor
for whom we are paying are now moving into the draft EIS stage.
So Mr. Chairman, you can see we are well along in the
established off-reservation gaming process. We have worked
diligently to make it a model process, and the Cascade Locks
project has been endorsed by 32 state and local elected
officials, including Representative Walden, who represents
Cascade Locks and Water Springs.
We have spent more than $10 million of our own funds. We
have no financial backers, and expect to spend another $10
million before construction.
Our project is in our state, and it is within our exclusive
aboriginal territory as recognized by the U.S. Indian Claims
Commission.
The government has signed our compact and Cascade Locks and
Hood River County have also fully endorsed the project, and it
is economically important to all of us. EIS has been started
and Interior has already changed the rules on us once.
Unfortunately, the second discussion draft would do that
again by ending as of the date of enactment all off-reservation
efforts by established tribes like Warm Springs who do not have
a compact in effect.
Given the long existing process, especially with NEPA, it
is unlikely we could get secretarial approval before the
legislation is enacted. It would pit us in a race against
random events.
Instead, we ask that when legislation is developed and
introduced, it will allow the Warm Springs Tribe to complete
the process under the existing rules. We believe that is the
fair and honorable thing to do.
Thank you.
[The prepared statement of Mr. Suppah follows:]
Statement of Ron Suppah, Chairman, Warm Springs Tribal Council,
Confederated Tribes of the Warm Springs Reservation of Oregon
Good morning, Chairman Pombo and members of the Committee. My name
is Ron Suppah and I am Chairman of the Tribal Council of the
Confederated Tribes of the Warm Springs Reservation of Oregon (``Warm
Springs'' or ``Warm Springs Tribe''). I am appearing today to express
our Tribe's very serious concerns with the second discussion draft of
legislation regarding off-reservation Indian gaming. As explained in
further detail in our testimony, Warm Springs believes that the second
discussion draft, if enacted into law, would unfairly terminate our
Tribe's very costly and years-long effort to pursue vitally necessary
financial self-sufficiency through a gaming facility on our aboriginal,
Treaty-reserved lands in a small, rural community that shares our hope
for future economic security.
INTRODUCTION
The Warm Springs Tribe is now engaged in the process of seeking
federal approval of a tribal gaming facility at a location within our
Treaty ceded lands 38 miles from our Reservation and 17 miles from a
parcel of Warm Springs trust land that is eligible for gaming. Our
actions are based on unique circumstances, and we are well along in the
process. In our efforts, all the parties have been diligent, open and
fair, and have scrupulously abided by all established laws and
guidelines. Although we do not know whether we will succeed in this
effort, we believe we have been following a model process for pursuing
gaming on after-acquired land and ask that, as the Resources Committee
considers the second discussion draft, you make appropriate changes to
the draft to allow us to complete the process as it is currently
written.
The process we are following is set out in Section 20(b)(1)(A) of
the Indian Gaming Regulatory Act (IGRA). It is a demanding process
successfully used only three times in the past 17 years. To establish
gaming facilities on lands taken into trust after IGRA's enactment,
Section 20(b)(1)(A) requires the state governor's concurrence in the
Secretary of Interior's ``two part determination'' that the proposed
tribal gaming operation would be in the best interest of the tribe and
its members and would not be detrimental to the surrounding community.
The second discussion draft would almost certainly deny our Tribe
the opportunity to establish a gaming facility on new trust lands
because it is very unlikely Warm Springs will be able to have our
Compact ``in effect'' by the draft's date of enactment, nor will our
Tribe, which has had a government-to-government relationship with the
United States since our Treaty of June 25, 1855, qualify within the
limited exception for ``newly recognized, restored, or landless''
tribes on that date.
Not only does the second discussion draft eliminate this Sec.
20(b)(1)(A) process, it makes no effort to allow a tribe like ours,
which has spent millions of dollars of the tribe's own money and spent
years diligently pursuing the Sec. 20(b)(1)(A) process, to complete the
process. Instead, as we near the end of the process and move close to
the Secretary's ``two-part determination'' and the Governor's
concurrence, the second discussion draft would change the rules at the
eleventh hour by almost certainly terminating our Tribe's efforts upon
the date of the draft's enactment.
Before examining the second discussion draft in more detail, I
would like to provide some background on the dire financial
circumstances that have led us to pursue this project, how we gained
the support of Oregon's Governor and the local community for the
project, and the costly and time-consuming efforts we have been making
to pursue the project to this late stage in the existing IGRA process.
DECLINING TRIBAL ECONOMY
Warm Springs Background
The Warm Springs Indian Reservation is a beautiful but remote
expanse of 650,000 acres in north Central Oregon. The Warm Springs
Reservation is almost entirely trust land and, as the only reservation
in Oregon excluded from Public Law 280, 67 Stat. 588 (1953), the Tribe
is the governmental entity primarily responsible for public safety and
other essential governmental services on the reservation. For many
years, the Warm Spring tribal government has relied on timber and
hydroelectric revenues to support governmental services to our more
than 4,400 enrolled members. But in recent years, these revenues have
declined and have been insufficient to meet our governmental needs.
Declining Tribal Revenues
The dramatic decline in our timber revenues illustrates the problem
we are facing. In 1994, timber revenues contributed $23.8 million
toward our total tribal revenues of $37.6 million. By 2002, timber
revenue had plummeted to just $5.7 million, bringing total tribal
revenues down to $25.3 million. Thus, over this recent eight-year
period a 74% drop in tribal timber revenue resulted in a 33% decline in
total tribal revenues.
The long-term outlook for timber income continues to be pessimistic
as our tribal forest resource adjusts to conservative sustained yield
forest management practices and the national and global wood products
markets continue to remain depressed. As a result, the decade-long
decline in the Tribe's revenue picture is projected to only worsen in
the years ahead. Tribal revenue projections show 2002 actual revenues
of $25,594,000 declining steadily to 2011 forecasted revenues of just
$19,404,000. The Tribe's cash flow forecasts show that, beginning next
year in 2006, operational expenditures are likely to exceed revenues.
This means the Tribe will be required to dip further into its Revenue
Reserve (``Rainy Day'') Fund, just to try to provide minimum
governmental services to the tribal members and reservation residents.
Eventually, if this situation is not changed by significant new
revenues, the reserve fund will be exhausted forcing the Tribe to make
truly draconian cuts in services and employment. Indeed, such cuts are
proposed for the 2006 tribal budget currently under review by the
Tribal Council.
Consequences
As tribal revenues decline over time, essential services and needs
go unmet and additional needs accrue. In addition, while essential
governmental needs go unmet, tribal enterprises are deprived of capital
to grow their enterprises and provide on-reservation job and training
opportunities. Because of the shrinking job base and high unemployment,
a sizable portion of the reservation population depends entirely on
federal and tribal social service programs, which have experienced
budget cuts in each of the last ten years.
As the Tribe's membership grows and its revenues decrease, needs
continue to go unmet and increase in number and magnitude. This is an
unsustainable cycle that the Tribe seeks to remedy with revenues from
the Cascade Locks gaming facility. Increased tribal income is needed to
provide services and infrastructure to help reverse this negative
trend, especially in the areas of education, health care and economic
opportunity programs.
CASCADE LOCKS GAMING PROJECT
Our Current Casino
In an effort to address this growing financial crisis, in 1995 the
Tribe opened a small Class III casino on the reservation as part of the
Tribe's existing Kah-Nee-Ta Resort. However, the Kah-Nee-Ta casino is
isolated from Oregon's major population centers, and its revenues have
done little to span the growing gap between our Tribe's income and our
governmental requirements. As a result, our tribal budgets have
continued to decline and we have been forced to cut services as well as
draw upon our limited emergency reserve funds.
Under the terms of our Compact with Oregon's Governor, we are
required to close the casino at Kah-Nee-Ta if we open a facility at
Cascade Locks.
The Columbia River
To address the Tribe's increasingly difficult financial
circumstances, in the late 1990s we conducted a survey of potential
alternative gaming sites, and in 1999 the tribal membership approved a
referendum by a wide margin directing the Tribal Council to pursue
development of a casino on our traditional lands along the Columbia
River. We initially focused on a 40 acre parcel of pre-IGRA tribal
trust land, which is eligible for gaming, on a wooded hillside
overlooking the Columbia River just outside the City of Hood River,
Oregon.
Since time immemorial, the Columbia River has been the home of our
people. Its salmon, eels and other foods have nourished untold
generations, and when we agreed in our 1855 Treaty to move from our
traditional homes along the Columbia River and its Oregon tributaries
to our current reservation south of the Columbia, our forefathers were
careful to reserve our rights to continue to fish on the river as well
as hunt, graze and gather traditional foods throughout our Treaty ceded
lands. Fishing on the Columbia River remains at the core of our
culture, and many of our people continue to fish today for ceremonial,
subsistence, and commercial purposes. Indeed, many of our tribal
members live year-round on the Columbia's banks, and thousands of acres
of individual Indian and tribal trust allotments are scattered along
the Columbia.
Hood River and Cascade Locks
As the Tribe moved forward with preparations to develop a casino on
the Hood River trust land, the City of Hood River and others in the
area expressed concerns about locating a casino there. At that time,
1998 and 1999, the struggling community of Cascade Locks, Oregon,
seventeen miles to the west, approached the Tribe about the possibility
of locating a facility in the mostly vacant Cascade Locks Industrial
Park, which was created in the 1970s along the banks of the Columbia
River out of fill material from construction at nearby Bonneville Dam.
The Cascade Locks site is within the Tribe's Treaty ceded lands along
the Columbia River in which Warm Springs holds federally protected off-
reservation treaty reserved fishing, hunting and gathering rights. The
Cascade Locks site is also within the area determined by the Indian
Claims Commission in Confederated Tribes of the Warm Springs
Reservation of Oregon v. United States (Docket No. 198) to be CTWS
aboriginal lands exclusive of the claims of any other tribe or tribes.
Shifting the Tribe's Columbia River casino development plans from
the gaming-eligible Hood River site to the Cascade Locks Industrial
Park site will be beneficial for both the Cascade Locks and Hood River
communities as well as the State of Oregon. Cascade Locks, like our
Tribe, desperately needs an economic boost. Developing a casino at the
Cascade Locks Industrial Park preserves the pristine and undeveloped
Hood River trust lands, thus alleviating Hood River's concerns about a
casino in their community. Forgoing development of the Hood River trust
lands also means the trust land's scenic values will be retained and
the land, otherwise exempt from State and federal Columbia River Gorge
National Scenic Area Act restrictions, will be managed consistent with
an adjacent Oregon State Park.
The Compact and Other Agreements
Informing the Oregon Governor's Office and the Department of the
Interior of the Tribe's intention to develop a casino at the Cascade
Locks site in lieu of the Hood River trust lands site, in 1999 the
Tribe initiated what became years-long discussions with Cascade Locks
and the State that resulted in a series of agreements signed earlier
this year between Cascade Locks, the Tribe and the State. These
agreements include a Class III gaming Compact with the State, a
separate agreement with the State regarding preservation of the Hood
River trust lands and a Memorandum of Agreement with the City of
Cascade Locks and Hood River County addressing impacts of the casino on
the local community. Our approach of entering into these agreements
before taking the land into trust for gaming was intended to address
any local concerns about developing a casino in the Cascade Locks
Industrial Park and to secure the Governor's commitment to concur in
the Secretary's two-part determination pursuant to Section 20(b)(1)(A)
based on the Tribe's obligations regarding environmental protection,
working conditions, the Community Benefit Fund and revenue sharing as
set out in the Compact. This approach has led to near unanimous
acceptance of the Cascade Locks site, as indicated by the thirty-two
federal, State and locally elected officials who have endorsed and
embraced the Cascade Locks site in an April 29, 2005 letter to Interior
Secretary Norton.
Regarding the Compact, in March of 2004, we entered into formal
negotiations with the State that concluded over a year later when the
Governor and the Tribe signed the Compact on April 6, 2005. The Compact
is unusually comprehensive and fair, and is supported by the local
counties, nearby cities and towns in Oregon and Washington, Congressman
Greg Walden who represents Cascade Locks and Hood River, and State
legislators from the area, in addition to the Governor, Cascade Locks,
and our Tribe. The Compact provides the public in Oregon and Washington
with an advanced notice of the environmental benefits to Cascade Locks
and nearby Columbia River Gorge communities should the contingency of
taking the Cascade Locks land into trust become a reality.
Specifically, approximately 40 acres of tribal trust lands near Hood
River would be perpetually protected against development; an additional
175 acres of adjacent scenic Columbia River Gorge lands currently owned
by our Tribe would be perpetually protected and conveyed to the Oregon
State Parks Division; environmental protection, energy efficiency and
sustainable building standards would define and control our casino/
resort development; and millions of dollars from a tribally established
Community Benefit Fund would be used to protect and enhance the
Columbia River Gorge National Scenic Area. The Compact also provides
very significant benefits to the State as a whole through revenue-
sharing payments of up to seventeen percent of the casino's annual
``net win'' to a Warm Springs Tribe/Oregon Benefit Fund to be used
primarily for college scholarships as well as for protection of the
Columbia River Gorge and for economic development projects throughout
Oregon.
Compact Disapproved by Interior Policy Change
On April 8, 2005, the Tribe and the Governor submitted the Compact
to the Secretary of the Interior for the 45-day review provided under
IGRA. As usual, the Secretary's review team asked for clarification
regarding several sections of the Compact. When the Governor and Warm
Springs submitted a response, we requested a meeting to go over the
questions and responses. On the afternoon of May 17, four days before
the end of the 45 day review period, we met with personnel from the
Office of Indian Gaming Management, the Secretary's Office and the
Solicitor's Office. In the meeting, we proceeded through our responses
to the Department's questions, and while not all issues were resolved,
there were no significant objections. Then, in the final ten minutes of
the meeting, the Director of the Office of Indian Gaming Management
informed us that the Secretary's Office had a fundamental concern about
approving the Compact before the land was taken into trust, and was
considering whether to disapprove the Compact on that basis.
The Tribe and the Governor's Office filed written responses within
two days noting that we had acted in good faith on Interior Department
representations that doing the Compact first was acceptable, that the
Compact specifies it becomes effective only when the subject land is
taken into trust for gaming, and that IGRA does not require that the
land be in trust at the time the Compact is approved. We also noted
that the Secretary has, in the past, approved a number of compacts
before the subject land has been taken into trust for gaming.
Unfortunately, two days later, the Department disapproved our Compact
due to the new procedural requirement, previously unknown and
unpublished and representing a reversal of previous practice,
interpreting IGRA Section 11(d)(8)(A) to require that land must be in
trust for gaming before the Secretary will consider the related
compact. The Secretary's letter noted it does not address any element
of the Compact other than that regarding procedural sequence.
Land into Trust Request
Coming at the 11th hour of our Compact's consideration, the
Secretary's surprise policy announcement of course disappointed us.
However, as a result of this decision, and as recommended in the
Secretary's disapproval letter, we are proceeding forward with our
application to take the land into trust under 25 C.F.R. Part 151 and
IGRA Section 20(b)(1)(A). On April 8, 2005 the Tribe formally submitted
Tribal Council Resolution No. 10,500 to the BIA's Northwest Regional
Office and to the BIA Office of Indian Gaming Management in Washington,
D.C. requesting the initiation of land-into-trust proceedings for the
Cascade Locks casino site. The request seeks 25 acres in the Cascade
Locks Industrial Park to be taken into trust for the proposed casino
and accompanying hotel. Once that process is completed, we will
resubmit the Compact for the Secretary's 45 day review.
IGRA Section 20 ``two-part determination''
On June 15, 2005, the BIA Northwest Regional Office initiated the
Secretarial ``two-part determination'' pursuant to IGRA Section
20(b)(1)(A) by sending our Tribe a consultation letter requesting
information and responses to thirteen specific questions. At the same
time, BIA Northwest Regional Office solicited information and responses
from appropriate State and local officials, nearby Indian tribes, and
surrounding communities regarding the Cascade Locks project. On August
15, 2005, as that comment period concluded, Warm Springs formally
submitted our 45-page response, with hundreds of pages of supporting
exhibits.
National Environmental Policy Act (NEPA)
Having completed the Compact agreement with Oregon's Governor and
having executed agreements with the local governments to accommodate
impacts, and pursuant to our April 8, 2005 land-into-trust application,
we have moved into the very costly NEPA environmental review process
required by the BIA's decision on our fee-to-trust application. The
process will generate a full environmental impact statement (EIS), and
not just an environmental assessment. From September 15, 2005 to
September 28, 2005, the BIA Northwest Regional Office hosted five
public scoping meetings on the EIS, with meetings in Hood River,
Cascade Locks, Portland, and Stevenson, Washington. The scoping comment
period concluded October 15, 2005. We anticipate a draft EIS late this
winter or spring, with a final EIS to follow. This process, which is
the last major step leading up to the Secretary's ``two-part
determination'' and the Governor's concurrence, requires the Tribe to
pay for the BIA's environmental contractor hired to prepare the EIS on
the project.
Funding
We wish to emphasize that Warm Springs is paying for these efforts
ourselves. Throughout the Tribe's nearly decade-long effort to address
its worsening financial crisis through development of a casino on the
Tribe's traditional lands along the Columbia River, the Tribe has
utilized its own funds and resources. No management company or outside
financial partner has been involved. To date, the Tribe has expended
approximately $10.7 million in tribal funds pursing this project. To
complete the fee-to-trust process, which would allow construction to
begin, we expect to spend an additional $10.3 million on the EIS and
other planning expenses.
SECOND DISCUSSION DRAFT
As described above, our Tribe, the Oregon Governor, Cascade Locks
and many surrounding communities and jurisdictions have invested great
amounts of time, energy and scarce resources in fully complying with
established processes thus far. Moreover, and perhaps unique among
tribes, Warm Springs has followed this costly and time-consuming
process relying solely on our own funds in an effort to produce a model
partnership between the Tribe, State and local communities. As Congress
this Session began to consider possible amendments to IGRA that might
alter the Section 20 process we have been following, we have hoped that
we would be permitted to see these processes through to the end, and
that Congress will not deliver us a last minute fatal blow. However,
the provisions of the second discussion draft virtually assure us
precisely the last minute fatal blow we have feared.
The second discussion draft completely terminates the Section
20(b)(1)(A) process we have been following and relying upon for years.
The statutory construction provisions in Section 2 of the draft appear
to permit the continuation after the date of enactment of only those
compacts that are ``in effect'' on that date. With no provision for
continuation of any Section 20(b)(1)(A) process after that date, the
draft places us in an impossible race to secure the Secretary's
approval of our Compact, placing it into effect, before the draft's
enactment. Interior has already changed the rules on us to preclude our
Compact's consideration until the subject land is in trust. Given the
potentially long time periods involving the EIS and completing the
land-into-trust process, that is a race we would almost certainly lose.
Such a change would be unfair and almost punitive. We ask that our
treatment at the hands of Congress not be so harsh, and that
legislation to revise Section 20 include a ``grandfather'' clause
allowing projects such as ours, which is in our state, in our
aboriginal and Treaty-reserved territory, and is based on a signed
Compact with Oregon's Governor, to finish the process it started
several years and many millions of dollars ago. If Congress is
determined to end the Section 20(b)(1)(A) process, even though only
three gaming operations have been authorized under this process is 17
years, it should in all fairness allow a project such as our to finish
the process under the existing rules.
CLOSING
Mr. Chairman, in closing, we would like to appeal to your
Committee's sense of history and fairness in dealing with Indian tribes
such as ours. This year we celebrate the 150th anniversary of the
Treaty that moved our ancestors from the land along the Columbia River
to our current Warm Springs Reservation. Although the history of
relationships between the United States government and Indian tribes
has not always been smooth, the people of the Warm Springs Reservation
have sought to work cooperatively with our Federal partners on the
basis of mutual trust. Together, over time, we have learned how to
solve our problems by establishing mutual agreements and playing by the
rules. Now this Committee's consideration of revisions to IGRA's
Section 20 provides a modern opportunity to reinforce those timeless
values of reliability and fairness.
Accordingly, we urge changes in the second discussion draft so that
any legislation addressing the off-reservation gaming process take good
faith efforts such as ours into account, and permit us to complete the
existing process. Our experience with our Cascade Locks site is proof
to us that parties working diligently together in good faith can
successfully resolve differences within the existing land-into-trust
framework.
Thank you.
______
The Chairman. Thank you. Chairman Marquez.
STATEMENT OF DERON MARQUEZ,
SAN MANUEL BAND OF MISSION INDIANS
Mr. Marquez. Chairman Pombo, Members of the Committee, I am
honored to be invited to testify before this committee on the
difficult issue of off-reservation land acquisition for gaming
purposes.
General Pombo, thank you for releasing the second
discussion draft for comment prior to issuing formal
legislation. I appreciate the respect you have shown the
tribes.
As I stated before this committee in July of 2004, certain
of these land acquisitions to build new casinos threaten the
long-term viability of tribal government gaming. The efforts of
unscrupulous developers to match economically depressed non-
Indian communities with willing tribes to acquire lands far
from willing tribes' existing lands--also called ``reservation
shopping''--has caused a backlash against tribes by the general
public.
Often the lands sought for acquisition are within the
ancestral homelands of other tribes, leading to enormous
tensions between tribes.
In California, there is a remarkable spin-off phenomenon to
reservation shopping. The Governor's office now picks the
developers and the tribes it wants to deal with and points them
to willing towns for gaming deals. In these instances,
reservation shopping has turned into ``tribal shopping''. This
is occurring on San Manuel's ancestral lands, where Big Lagoon
and Los Coyotes seek land in Barstow to establish a reservation
and build a casino. Another tribe with ancestral ties to
Barstow, the Chemehuevi, who San Manuel would not oppose, is
not part of the Governor's deal.
One difficult question is what Congress should do, if
anything to address this issue. Unfortunately, Indian country
is not of one mind. I, like other tribal leaders from across
the country, would greatly prefer to avoid the inherent risks
in the political process of amending the Indian Gaming
Regulatory Act.
It would be preferable to address this problem through
administrative processes or inter-tribal protocols. But the
Interior Department has interpreted IGRA's Section 20 two-part
determination to not allow the Secretary to consider ancestral
ties to land. Well-heeled developers persist in pouring
millions of dollars into seeing these projects through,
including the real and ongoing threat to San Manuel ancestral
lands. These alternatives no longer appear to be a viable
solution to a growing problem.
In searching for a solution, San Manuel has worked with
other tribes from across the country who share a common concern
with the practice of reservation shopping. We have listened to
the voices of other non-tribal entities who also are concerned
with this practice. With advice from other tribes, San Manuel
believes that the Federal legislation addressing reservation
shopping should do four things:
First, amend the two-part determination to require the
Secretary to make an affirmative finding that a proposed off-
reservation acquisition would not have a detrimental impact on
nearby tribes.
Under the current law, the Secretary is required to consult
with nearby tribes but not affirmatively determine that those
nearby tribes would not be harmed by the proposed acquisition.
Second, require that lands proposed for acquisition under
the two-part determination be within the petitioning tribe's
ancestral lands.
The second discussion draft requires a newly recognized,
restored, or landless tribe to have a ``primary geographic,
social, and historical nexus to the land'' when determining
gaming eligibility of those lands. San Manuel believes this is
an adequate definition for determining ancestral land ties.
Third, for gaming purposes, require state legislatures, not
Governors alone, to concur with acquisitions under the two-part
determination.
This would be accomplished by replacing the term
``Governor'' with the term ``state'' in the two-part
determination.
Finally, prohibit crossing state lines into areas where the
tribe has no existing lands.
Crossing state lines has been the source of much inter-
tribal tension and negative state government reaction and
interaction.
The second discussion draft reflects, in part, these
principles. I have three general concerns about this draft,
with recommendations for improving it before it is introduced
as a formal bill.
First, eliminating the two-part determination altogether
would deprive tribes seeking to acquire lands near their
existing reservations and within their ancestral territory the
opportunity to legitimately improve their situations. There are
instances in which tribes are seeking to accomplish this today.
In my view, this is not reservation shopping.
Therefore San Manuel recommends a ``mend it, don't end it''
approach to the two-part determination. Apply the new
requirements in the second discussion draft for newly
recognized, restored, and landless tribes to an amended two-
part determination.
Second, the requirement of a local referendum would be a
shift in Federal Indian law and policy, giving local
communities unprecedented intrusion into the trust relationship
between the United States and the tribes. We understand that
not all counties have a referendum process. As I mentioned
earlier, San Manuel supports state concurrence of a two-part
determination acquisition, not simply gubernatorial approval.
Third, the off-reservation economic development zone could
have unintended consequences on the delicate balance reached in
many trial-state gaming compacts. It may be that such a
provision should address the tribe-specific situation rather
than create a nationally applicable rule.
Thank you for this opportunity to testify. If you have any
questions, I will be pleased to answer them.
[The prepared statement of Mr. Marquez follows:]
Statement of Deron Marquez, Chairman,
San Manuel Band of Mission Indians
Chairman Pombo, Ranking Member Rahall, members of the House
Resources Committee, I am honored to be invited to testify before this
Committee on the difficult issue of off-reservation land acquisitions
for gaming purposes. Chairman Pombo, thank you for releasing this
second discussion draft for comment prior to introducing formal
legislation. I appreciate the respect you have shown the tribes.
As I stated before this Committee in July of 2004, certain of these
proposed land acquisitions to build new casinos threaten the long-term
viability of tribal government gaming. The efforts of unscrupulous
developers to match economically depressed non-Indian communities with
willing tribes to acquire lands far from the willing tribes' existing
lands--also called ``reservation shopping''--has caused a backlash
against tribes by the general public. Often the lands sought for
acquisition are within the ancestral homelands of other tribes, leading
to enormous tensions between tribes.
In California, there is a remarkable spin-off phenomenon to
reservation shopping. The Governor's office now picks the developers
and tribes it wants to deal with and points them to willing towns for
gaming deals. In these instances, reservation shopping has turned into
``tribe shopping.'' This is occurring on San Manuel's ancestral lands,
where Big Lagoon and Los Coyotes seek land in Barstow to establish a
reservation and build casinos. Another tribe with ancestral ties to
Barstow, the Chemehuevi, who San Manuel would not oppose, is not a part
of the Governor's deal.
One difficult question is what Congress should do, if anything, to
address this issue. Unfortunately, Indian country is not of one mind.
I, like other tribal leaders from across the country, would greatly
prefer to avoid the inherent risks in the political process of amending
the Indian Gaming Regulatory Act. It would be preferable to address
this problem through administrative processes or inter-tribal
protocols. But the Interior Department has interpreted IGRA's Section
20 two-part determination to not allow the Secretary to consider
ancestral ties to land. Well-heeled developers persist in pouring
millions of dollars into seeing these projects through, including the
real and ongoing threat to San Manuel ancestral lands. These
alternatives no longer appear to be viable solutions to a growing
problem.
In searching for solutions, San Manuel has worked with other tribes
from across the country who share a common concern with the practice of
reservation shopping. We have listened to the voices of other non-
tribal entities who also are concerned with this practice. With advice
from other tribes, San Manuel believes that federal legislation
addressing reservation shopping should do four things:
1. Amend the two-part determination to require the Secretary to make an
affirmative finding that a proposed off-reservation acquisition
would not have a detrimental impact on nearby tribes.
Under the current law, the Secretary is required to consult with
nearby tribes but not affirmatively determine that those nearby tribes
would not be harmed by the proposed acquisition.
2. Require that lands proposed for acquisition under the two-part
determination be within the petitioning tribe's ancestral
lands.
The second discussion draft requires a newly recognized, restored,
or landless tribe to have a ``primary geographic, social, and
historical nexus to the land'' when determining gaming eligibility of
those lands. San Manuel believes this is an adequate definition for
determining ancestral lands ties.
3. For gaming purposes, require state legislatures, not governors
alone, to concur with acquisitions under the two-part
determination.
This could be accomplished by replacing the term ``Governor'' with
``State'' in the two-part determination.
4. Finally, prohibit crossing state lines into areas where the tribe
has no existing lands.
Crossing state lines has been the source of much inter-tribal
tension and negative state government reaction and interaction.
The second discussion draft reflects, in part, these principles. I
have three general concerns about this draft, with recommendations for
improving it before it is introduced as a formal bill.
First, eliminating the two-part determination altogether would
deprive tribes seeking to acquire lands near their existing
reservations and within their ancestral territory the opportunity to
legitimately improve their situations. There are instances in which
tribes are seeking to accomplish this today. In my view, this is not
reservation shopping. Therefore, San Manuel recommends a ``mend it,
don't end it'' approach to the two-part determination. Apply the new
requirements in the second discussion draft for newly recognized,
restored, and landless tribes to an amended two-part determination.
Second, the requirement of a local referendum would be a shift in
federal Indian law and policy, giving local communities unprecedented
intrusion into the trust relationship between the United States and the
tribes. We understand that not all counties have referenda processes.
As I mentioned earlier, San Manuel supports State concurrence of a two-
part determination acquisition, not simply gubernatorial approval.
Third, the on-reservation economic development zone could have
unintended consequences on the delicate balance reached in many tribal-
state gaming compacts. It may be that such a provision should address
tribe-specific situations rather than create a nationally-applicable
rule.
Thank you for this opportunity. I would be pleased to answer any
questions you have.
______
The Chairman. Thank you. Chairperson Kennedy.
STATEMENT OF CHAIRPERSON CHERYLE A. KENNEDY,
GRAND RONDE INDIAN TRIBE, OREGON
Ms. Kennedy. Good morning, Distinguished Panel, Chairman
Pombo, and other tribal leaders who are here in the room.
My name is Cheryle Kennedy. I am the Chairwoman of the
Confederated Tribes of Grand Ronde Community of Oregon. I will
give a little background about our tribe.
Our tribe is composed of 22 bands of tribes that had five
treaties during the 1850 treaty area. Our land base, if I had a
map here I could show you, in regards to the treaties included
all of western Oregon. Through the various land deals that were
made, the Confederated Tribes of Grand Ronde ended up with
60,000 acres. We were a victim of the Termination Act in the
1950s, and the land that we had was all taken.
The Western Oregon Termination Act was signed in 1954. All
that we retained after termination was our cemetery. Through
the efforts of our cemetery and our continuing to meet and
continue to build our government and to maintain it, we sought
restoration.
Through a 15-year time span, restoration was sought, and
was finally acquired November 22, 1983. We began building our
government and our cemetery.
Now, our cultural belief is that you do not--you do not do
anything inappropriate in your sacred land area. That was the
only land that we had, and so we set up in our greenhouse
garage in the cemetery a tribal office. I was one of the first
employees who was hired at that time, and when I would look out
my window, I see the graves of my ancestors, my father, my
grandparents, and it was a very uncomfortable situation.
We then moved forward with the Reservation Land Bill that
was approved in 1988. So for the cessation of millions of acres
of land, we then were approved by Congress to have a 9,800 acre
reservation land base. That proved to be our timberland base.
So from 1983 to today, we have had to undertake building an
entire infrastructure, to provide services for our members.
Our tribe is composed of about 5,200 members, and during
the termination era, because there was no land, nowhere to
live, our members scattered, but most recently about 75 percent
of our members have returned to Oregon and the majority right
around the Grand Ronde area.
Our task was very difficult. We had no housing, no place
for our members to return. Our Reservation Land Bill said that
we wanted to establish a homeland for our people. We wanted to
have an economic process for us, and that we also wanted to
provide health and human services, education to our members.
So that is the background for our tribe. So when gaming
came into being, we certainly wanted to move forward and to
establish our own gaming. With the policies within the State of
Oregon, which was one tribe on reservation land for one casino,
we moved forward and invested and went out on a huge limb to
secure funds to start our gaming facility.
So what I want to do now is to comment on the second
discussion. We participated in several of the hearings that
have been held. Grand Ronde agrees with the draft bill
requirement that restored lands for gaming be lands where the
tribe has its primary geography, social, and historical nexus
to the land.
We also agree that concurrence of nearby Indian tribes
should be required before restored lands are acquired in trust
for gaming purposes.
The bill talks about consultation with state and local
governments. We believe that state and local governments should
be consulted on a government-to-government basis. On the issue
of state concurrence, it should be left to each tribe. Each
state to decide which elected body or bodies, if authorized, to
concur with the Secretary's decision.
Similarly, we do not think that there should be specific
requirements for a county to hold referendums. Those are
already a process in the BIA fee to trust process for
communities to provide comments.
Alternative legislation in many ways similar to the draft
legislation, Grand Ronde supports, number one, tribes should
not be crossing state lines; two, tribes should build casinos
within their historic and ancestral lands; and three, should
obtain the concurrence of other tribes that have historic and
ancestral ties to those lands.
I thank you for this opportunity to provide this testimony
for you today, and for your willingness to listen.
[The prepared statement of Ms. Kennedy follows:]
Statement of Cheryle A. Kennedy, Tribal Council Chairwoman,
Confederated Tribes of the Grand Ronde Community of Oregon
On behalf of the Confederated Tribes of the Grand Ronde Community
of Oregon (``Grand Ronde'' or ``Tribe''), I respectfully submit the
following comments on Chairman Richard Pombo's revised draft bill to
restrict off-reservation gaming (``revised draft bill''). I also thank
the distinguished members of the Committee on Resources for providing
us the opportunity to submit testimony as part of this hearing on
Chairman Pombo's proposed legislation. Please make these comments part
of the official hearing record.
Addressing off-reservation gaming is an extremely important issue
to the Confederated Tribes of Grand Ronde and, I believe, all the
people of the State of Oregon. In general, we have three main concerns:
(1) an explosion of off-reservation casinos undermines the policy
foundation of IGRA--self-sufficiency and economic opportunity--that has
done so much good for all of Indian country, (2) an explosion of off-
reservation casinos threatens continued public support for existing
Indian gaming in Oregon and across the nation, and (3) each approval of
another off-reservation casino sets a bad precedent that will forever
change the nature and character of both the Indian gaming industry and
the surrounding communities in which we live.
Mr. Chairman, these are not just my opinions or the opinions of
Grand Ronde. Numerous public opinion polls taken in Oregon over the
past year support my concerns about the impact of allowing more off-
reservation casinos.
Over the last year, Grand Ronde has been an active participant in
discussions on ways to deal with off-reservation gaming issues. Members
of Grand Ronde Tribal Council and staff attended the Oversight Field
Hearing on the original Discussion Draft regarding off-reservation
gaming in Sacramento, California on June 6, 2005. The Tribe also spoke
with Senator McCain during his visit to Oregon on October 24, 2005, and
we attended a Senate Indian Affairs Committee oversight hearing on
``Lands eligible for gaming pursuant to the Indian Gaming Regulatory
Act'' July 27, 2005. In addition, we have met with members of the
Oregon and Washington Congressional Delegations both in Oregon and in
Washington, D.C. to discuss our concerns. Tribal staff has met with and
discussed off-reservation gaming issues with staff of the Committee on
Resources and Senate Indian Affairs Committee.
Grand Ronde understands the concern over the growing number of
tribes seeking to have lands taken into trust for gaming far from
existing reservations, where they have no ancestral ties, or where
other tribes have strong ancestral ties. We also believe strongly in
the Indian Gaming Regulatory Act (IGRA) provisions which recognize the
special circumstances of restored tribes and provide that lands
restored to once terminated tribes should be available for gaming just
as reservation land of non-terminated tribes is available for gaming.
Therefore, Grand Ronde approaches cautiously the process of amending
IGRA and opposes any IGRA amendment that would limit the Tribe's
ability to obtain off-reservation restored or aboriginal lands for
gaming purposes.
Grand Ronde History
Grand Ronde is one of many tribes victimized by the federal
Termination policy of the 1950s. In 1954, the federal government
wrongly ended its recognition of the Tribe as a government destroying
our tribal economy and Indian land base. After much struggle and
sacrifice, the Tribe's federal recognition was restored on November 22,
1983, and a small fraction of our pre-termination reservation land base
(9,811 acres compared to our original reservation of over 60,000 acres)
was returned to the Tribe in 1988. In 1994, the Department of the
Interior approved a compact between the Tribe and the State of Oregon
for a gaming facility on approximately 5.5 acres of restored Tribal
land. This land is within the Tribe's original reservation boundary.
The Tribe, through Spirit Mountain Gaming, Inc., a tribally chartered
corporation wholly owned by the Tribe, operates Spirit Mountain Casino
on this restored land. The casino provides much needed revenue for
Tribal government programs and on-reservation employment opportunities
for our Tribal members. Spirit Mountain Casino is the primary revenue
source for Tribally funded government programs.
Historic Opposition to Off-Reservation Gaming
Grand Ronde has invested millions of dollars in Spirit Mountain
Casino and related facilities. We did so in reliance on the State of
Oregon's long-standing Indian gaming policy that limited each tribe to
one on-reservation casino. A policy that Grand Ronde has consistently
supported. In 1996, the Tribal Council unanimously adopted a Resolution
opposing ``the efforts of other tribes to have land taken into trust
for gaming outside of their original reservation boundaries or
nonadjacent to their current reservation.'' Unfortunately, Oregon's
Governor has implemented a change in Oregon's policy against off-
reservation gaming by approving a compact with the Warm Springs Tribe
for Oregon's first off-reservation casino on land that may be taken
into trust in the Columbia River Gorge far from the Warm Springs
approximately 640,000 acre reservation. The Cowlitz Tribe in
Washington, through a partnership with the Mohegan Tribe, is attempting
to develop a large casino on lands a little more than 15 miles north of
Portland, Oregon, on lands which is outside the Cowlitz Tribe's
historic lands. If either of these off-reservation casinos is built it
will have serious detrimental effects on Grand Ronde's on-reservation
casino with potentially devastating effects on our ability to provide
critical governmental services and employment opportunities for our
members.
Comments on Second Discussion Draft Legislation
Grand Ronde's history and experience as a restored tribe provides a
background against which it views IGRA and the revised draft bill.
Grand Ronde agrees with the revised draft bill's requirement that
restored lands for gaming be lands where the Indian tribe has its
primary geographic, social and historical nexus to the land. This is
consistent with the Tribe's historical opposition to off-reservation
gaming. We also agree that concurrence of nearby Indian tribes should
be required before restored lands are acquired in trust for gaming
purposes.
The revised draft bill, however, adds other requirements which are
detrimental to restored tribes. It fails to recognize the disadvantages
restored tribes have for gaming as such tribes are often restored with
little or no land base. In comparison, non-terminated tribes, such as
the Warm Springs Tribe, have an advantage because they generally have
large land base reservations on which to establish gaming operations.
Specifically, the revised draft bill requires (1) a Secretarial
determination that the proposed gaming activity would not be
detrimental to the surrounding community, (2) concurrence of both the
Governor and State legislature, and (3) approval by a majority vote in
a referendum by the county or parish with authority over the land that
is contiguous to the lands acquired in trust for the purpose of gaming.
Imposing these requirements on restored land within a restored tribe's
aboriginal lands places restored tribes at a disadvantage to non-
terminated tribes who do not have such onerous requirements.
Grand Ronde believes that state and local governments should be
consulted on a government-to-government basis, but state and local
governments should not have veto power over tribal development on
restored lands. In addition, requiring concurrence of both the Governor
and State legislature is inappropriate. On the issue of state
concurrence, it should be left to each state to decide what elected
body or bodies is authorized to concur with the Secretary's decision.
Adding a requirement of county or parish approval by referendum is
inappropriate. This requirement adds a significant burden to county
governments, many of which may not have a referendum process or the
resources to hold referendum elections. In many cases, multiple
referendums would be required because more than one county or parish is
contiguous to the tribe's land. The fact is that under current law and
practice, local governments can have significant input into the process
of taking lands into trust. In practically all cases where land is
taken into trust for gaming, the Bureau must prepare an environmental
impact statement which affords opportunities for input by local
governments. Tribes and local governments regularly enter into
intergovernmental agreements for the provision of basic services, such
as water, sewer, fire, and police. Grand Ronde has worked closely with
its local water association and sanitary district to improve these
critical systems not only to Tribal properties by to all members of the
local community. Local Grand Ronde community fire and police services
receive grant funding from revenues generated by Spirit Mountain
Casino.
The revised draft bill provides under Sec. 2 ``Statutory
Construction'' that the amendment is to apply prospectively and that
compacts and other agreements that govern gaming on Indian lands in
effect on the date of the enactment of the Act shall not be affected by
the amendments made to the Act. This language is ambiguous. The term
``other agreements'' is not defined and may be interpreted to encompass
a multitude of negotiated agreements. At a minimum this provision
should be clarified to provide that Indian lands must be held in trust
for the purpose of gaming at the time of the amendment.
Suggested Alternative Legislation
Grand Ronde appreciates the Committee's effort to address the
important issues surrounding off-reservation gaming. We look forward to
working with you and the other members of the Committee to address the
issue of off-reservation gaming in a manner that is sensitive to the
unique situation of restored tribes. Grand Ronde has provided the
Oregon Congressional delegation with proposed legislation to address
some of these same concerns. Our proposed legislation adds the
following new requirements for taking lands into trust under the two-
part determination, land settlement, initial reservation of newly
acknowledged tribe and restored lands exceptions:
(1) the Secretary determines that the lands are in the State where
the tribe resides or had its primary jurisdiction;
(2) the Secretary determines that the tribe as ancestral or
historic ties to the lands; and
(3) the Secretary consults with and obtains the concurrence of
other tribes that have an ancestral or historic tie to the lands.
A copy of this proposed legislation is attached to this written
testimony as Attachment A. We believe, Grand Ronde's proposed amendment
directly addresses the underlying issue of tribes seeking to acquire
land in trust for gaming that is far from their reservation, where they
have no ancestral or historic ties and where other tribes may have
ancestral or historic ties. These additional requirements will help
curb the growing trend or fear of ``reservation shopping''.
Conclusion
Gaming issues in Indian Country are important to sustaining the
economy and welfare of Grand Ronde, our Reservation and our members. We
appreciate the opportunity to provide you with our comments and
proposed amendments. Please do not hesitate to call me with any
questions at (503) 879-2353. Your staff should also feel free to call
our Tribal Attorney, Rob Greene, at (503) 879-2270 with any questions.
______
ATTACHMENT A:
CONFEDERATED TRIBES OF GRAND RONDE
PROPOSED AMENDMENT TO RESTRICT OFF-RESERVATION GAMING
25 U.S.C. Sec. 2719
Gaming on lands acquired after October 17, 1988
(a) Prohibition on lands acquired in trust by Secretary
Except as provided in subsection (b) of this section, gaming
regulated by this chapter shall not be conducted on lands acquired by
the Secretary in trust for the benefit of an Indian tribe after October
17, 1988, unless--
(1) such lands are located within or contiguous to the
boundaries of the reservation of the Indian tribe on October
17, 1988; or
(2) the Indian tribe has no reservation on October 17, 1988,
and--
(A) such lands are located in Oklahoma and--
(i) are within the boundaries of the Indian tribe's
former reservation, as defined by the Secretary, or
(ii) are contiguous to other land held in trust or
restricted status by the United States for the Indian tribe
in Oklahoma; or
(B) such lands are located in a State other than
Oklahoma and are within the Indian tribe's last recognized
reservation within the State or States within which such
Indian tribe is presently located.
(b) Exceptions
(1) Subsection (a) of this section will not apply when--
(A) lands are taken into trust
(i) following a determination by the Secretary,
after consultation with the Indian tribe and appropriate
State and local officials that a gaming establishment on
newly acquired lands would be in the best interest of the
Indian tribe and its members, and would not be detrimental
to the surrounding community, but only if the Governor of
the State in which the gaming activity is to be conducted
concurs in the Secretary's determination; or
(ii) as part of a settlement of a land claim; or
(iii) as part of the initial reservation of an
Indian tribe acknowledged by the Secretary under the
Federal acknowledgment process; or
(iv) the restoration of lands for an Indian tribe
that is restored to Federal recognition; and
(B) prior to taking lands into trust
(i) the Secretary determines that the lands are in
the State where the Indian tribe resides or has its primary
jurisdiction; and
(ii) the Secretary determines that the Indian tribe
has ancestral or historic ties to the lands; and
(iii) the Secretary consults with and obtains the
concurrence of other Indian tribes that have an ancestral
or historic tie to the lands.
(2) Subsection (a) of this section shall not apply to--
(A) any lands involved in the trust petition of the St.
Croix Chippewa Indians of Wisconsin that is the subject of
the action filed in the United States District Court for
the District of Columbia entitled St. Croix Chippewa
Indians of Wisconsin v. United States, Civ. No. 86-2278, or
(B) the interests of the Miccosukee Tribe of Indians of
Florida in approximately 25 contiguous acres of land, more
or less, in Dade County, Florida, located within one mile
of the intersection of State Road Numbered 27 (also known
as Krome Avenue) and the Tamiami Trail.
(3) Upon request of the governing body of the Miccosukee Tribe
of Indians of Florida, the Secretary shall, notwithstanding any
other provision of law, accept the transfer by such Tribe to
the Secretary of the interests of such Tribe in the lands
described in paragraph (2)(B) and the Secretary shall declare
that such interests are held in trust by the Secretary for the
benefit of such Tribe and that such interests are part of the
reservation of such Tribe under sections 465 and 467 of this
title, subject to any encumbrances and rights that are held at
the time of such transfer by any person or entity other than
such Tribe. The Secretary shall publish in the Federal Register
the legal description of any lands that are declared held in
trust by the Secretary under this paragraph.
(c) Authority of Secretary not affected
Nothing in this section shall affect or diminish the authority and
responsibility of the Secretary to take land into trust.
(d) Application of Title 26
(1) The provisions of Title 26 (including sections 1441,
3402(q), 6041, and 6050I, and chapter 35 of such title)
concerning the reporting and withholding of taxes with respect
to the winnings from gaming or wagering operations shall apply
to Indian gaming operations conducted pursuant to this chapter,
or under a Tribal-State compact entered into under section
2710(d)(3) of this title that is in effect, in the same manner
as such provisions apply to State gaming and wagering
operations.
(2) The provisions of this subsection shall apply
notwithstanding any other provision of law enacted before, on,
or after October 17, 1988, unless such other provision of law
specifically cites this subsection.
______
The Chairman. Thank you. Chairman Barnett.
STATEMENT OF CHAIRMAN JOHN BARNETT,
COWLITZ INDIAN TRIBE, WASHINGTON
Mr. Barnett. Chairman Pombo, Ranking Member Rahall, and
respected members of this committee, I thank you for the
opportunity to testify this morning.
For over 25 years I have been traveling to speak to
Congress on behalf of my tribe--more than 50 trips--always on
my own dime, and always focused on righting the historical
wrongs that have been committed against my people. My position
as an elected leader of my tribe came with a small salary, but
I have always felt that our scarce tribal funds should be used
to meet the desperate needs of my people, not the elected
leaders. Because of this, every time I receive a check I write
a check back to my tribe to return those funds.
Mr. Chairman, I want to begin this morning by thanking you
for the hearing. Your draft legislation and the hearing you
hold today provide a useful dialogue on reservation shopping,
and they serve to educate the public. I appreciate your
consultation of Indian tribes and others in this important
issue.
Mr. Chairman, let me tell you about the Cowlitz people. We
lost our status as a federally recognized tribe because we
refused to sign a treaty. We petitioned for recognition in 1975
before the Federal acknowledgment process was established in
the regulation.
It took us almost a third of my life for Interior to make a
decision and the tribe emerged penniless from that day
struggling through this process.
Since the administrative process has been in existence, the
Department has recognized only 15 tribes. To the best of our
knowledge, only six tribes that emerged from Interior's process
are landless today, including the Cowlitz and our good friends
of the Snoqualmie Tribe also of Washington State.
No challenge has been greater for us than the process of
acquiring land and establishing a reservation for my people.
For this reason, I very much appreciate having this opportunity
to tell you about our history and about the current obstacles
we face.
We currently find ourselves with no reservation. We are
shut out from the only form of economic development that has
been proven to be successful, Indian gaming. We face daunting
obstacles through self-governance and self-sufficiency
precisely because we are landless and poor. We now face the
difficult task of getting land into trust. The land-into-trust
process is expensive and lengthy.
For our proposed acquisition, preparation of our
environment review alone will cost more than a million dollars.
Studies like these squeeze limited resources from being used
for tribal health care, education, and other much needed
services.
The parcel we intend to use for gambling is located within
the service area established for us by the Indian Health
Service and by HUD. That parcel of land is also within an area
of the Cowlitz tribe historically used and occupied, and is
centrally located within an area where our current members work
and live.
It is a sad day when established gaming interests who make
millions every year use those profits to oppose legitimate
efforts like ours rather than using those funds as envisioned
by IGRA, to provide services and create new economic
opportunities for their communities.
A significant portion of tribal sovereignty was sacrificed
through the passage of IGRA, and I fear that sometimes now they
are trying to weaken or sovereignty even further by denying us
from exercising any rights under IGRA.
Mr. Chairman, I know that the Committee will act with due
care and deliberation before it decides whether to alter IGRA's
exceptions. Tribes like mine need your help the most. We are
simply trying to find a piece of land to call our own on which
we can rebuild our tribal government, promote or sovereignty
and self-determination, and create economic opportunities for
our people.
Mr. Chairman, I respectfully submit that any changes to
IGRA's exceptions for tribes like mine should take into account
our dire circumstances. We ask only for the same opportunities
of those tribes that were lucky enough to be federally
recognized and have a land base when IGRA was enacted.
In closing, I would like to recognize Mark Brown who is
with us today from the Mohegan Tribe. The Mohegan Tribe
completed Interior's recognition process 10 years before we
did, and today they are working with us to reinvest in Indian
country. We hope that our partnership will show that Indian
tribes can and will reach out to help each other. I hope that
the Mohegan's example will encourage other successful tribes to
help those who are less fortunate rather than focusing their
substantial resources on protecting their existing markets.
Mr. Chairman, I thank you again for the opportunity to
provide this testimony. We offer our continuing assistance to
the Committee as it considers how to address the issue of
reservation shopping. Thank you.
[The prepared statement of Mr. Barnett follows:]
Statement of The Honorable John R. Barnett, Chairman,
The Cowlitz Indian Tribe of Washington
Chairman Pombo, Ranking Member Rahall, and respected members of
this Committee, I thank you for the opportunity to testify this morning
on this most important matter.
For over 25 years I have been traveling to speak to Congress on
behalf of my Tribe--more than fifty trips--always on my own dime, and
always focused on righting the historical wrongs that have been
committed against my people. My position as an elected leader of my
Tribe came with a small salary, but I've always felt that our scarce
tribal funds should be used to meet the desperate needs of my people--
not its elected leaders. Because of this, every time I receive a check
I write a check back to my Tribe to return these tribal funds.
Mr. Chairman, I want to begin this morning by expressing my
personal gratitude to you for your leadership on this controversial
issue. The draft legislation that you have circulated and the hearing
you host today serve two fundamentally important purposes--facilitating
a much-needed dialogue on the issue of ``reservation shopping'' and
educating the public on this complex issue. I sincerely appreciate your
consultation with Indian tribes and others on this issue and your
efforts to craft meaningful legislation to address public policy
concerns inherent in the ``reservation shopping'' debate.
I have worked my whole life to restore the Federal recognition of
my Tribe. Our struggle for federal recognition was about righting a
historic wrong, it was about self-determination and respect, and it was
about ensuring that the coming generations of Cowlitz people have a
brighter future. Now I have one last goal, one last promise to my
people--to regain a homeland and ensure that the Cowlitz people have
the same rights and economic opportunities that other sovereign tribes
enjoy--maybe then they will let me retire.
These days, the media frenzy over ``reservation shopping'' has
escalated to a point where some are losing sight of the very real
benefits Indian communities receive from Indian gaming. We must
remember that revenues from Indian gaming make health care available to
a population that lags far behind the rest of America in every major
health category, that gaming revenues provide our future leaders with
educational opportunities that earlier generations could only dream of,
and that those revenues provide desperately needed housing and daily
care services for our elders who have sacrificed so much to ensure our
survival today. For the first time in American history, gaming revenues
are providing Indian country with a real opportunity to be self-
sufficient.
Earlier this year I testified before the Senate Committee on Indian
Affairs about the burdens imposed on us by the Department of the
Interior's Federal Acknowledgment Process (FAP). I know you understand
all too well the problems with the current recognition system. It took
us 25 years to go through that process--a quarter of a century of my
lifetime. I also testified about the challenges we face as a newly
recognized tribe. No challenge has been greater for us than the process
of acquiring land and establishing a reservation for our people. For
this reason, I very much appreciate having this opportunity to tell you
about our history and about the current obstacles we face.
As you know, newly recognized tribes like the Cowlitz emerge from
the Federal Acknowledgment Process without a federally protected land
base and without a reservation. We are poor and in desperate need of
the United States' active assistance. We face daunting obstacles to
self-governance and self-sufficiency precisely because we are landless
and poor. Without a land base, we are unable to provide housing to our
members, unable to build health clinics, unable to participate in
federal programs that are tied to being ``on or near a reservation,''
1 and, perhaps most importantly, unable to conduct the
economic development necessary to generate the revenue a tribe must
have to provide governmental, health and housing services to its
members.
---------------------------------------------------------------------------
\1\ Examples of federal programs that are tied to having a
reservation land base include the Indian Business Development Program,
25 U.S.C. Sec. Sec. 1521 et seq., 25 C.F.R. Part 286; the Employment
Assistance Program, 25 C.F.R. Part 26; and the Vocational Training
Program, 25 C.F.R. Part 27. Further, because Interior's fee-to-trust
regulations impose more burdensome requirements for ``off-reservation''
acquisitions, future acquisitions that are not contiguous to parcels
proclaimed as the Tribe's reservation will also be deemed to be ``off-
reservation.''
---------------------------------------------------------------------------
We urge you, Mr. Chairman, to ensure that there be a fair and
equitable mechanism to put newly recognized tribes on a level playing
field with tribes that were lucky enough to have had a reservation on
October 17, 1988.
The Initial Reservation and Restored Lands Exceptions
As you know, the Indian Gaming Regulatory Act prohibits the conduct
of Indian gaming on off-reservation lands acquired in trust after
October 17, 1988. Congress understood that in certain limited
circumstances it would be wholly inequitable to apply this prohibition
to tribes that were unrecognized and had no trust land in 1988. One
such circumstance is for a tribe recognized through the Department of
the Interior's Federal Acknowledgment Process to game on its ``initial
reservation.'' See 25 U.S.C. Sec. 2719(b)(1)(B)(ii).
I think it needs to be made clear that there are relatively few
restored and FAP-recognized tribes. The Department of the Interior
recently explained that since the enactment of IGRA seventeen years
ago, it has approved only twelve gaming acquisitions for restored
tribes, and in the almost 27 years that the administrative process has
been in existence, the Department has recognized only 15 tribes. To the
best of our knowledge, there are only six FAP-recognized tribes that
are landless today, including the Cowlitz and our good friends of the
Snoqualmie Tribe, also of Washington State. Emerging from that process
with federal recognition is not only rare, but it takes a better
portion of one's lifetime to receive a decision from Interior.
Even though there are so few landless restored and FAP-recognized
tribes, once recognized we face the almost insurmountable task of
getting land in trust. Our tribal right to property--a federally
protected land base that nearly every other federally-recognized tribe
enjoys--is particularly difficult to exercise where we want to use the
land for economic development involving gaming. Because we are a
recently recognized tribe without a reservation, by definition, any
land identified for trust acquisition is treated by Interior as an
``off-reservation'' acquisition. That means we have to comply with
Interior's more rigorous ``off-reservation'' fee-to-trust regulations.
As a result, landless newly recognized tribes must complete a wide
variety of expensive, time-consuming studies, data preparation, and
other work relating to the fee-to-trust process with no financial
assistance and very little technical assistance from the federal
government. Most notably, if we plan to use the land for gaming, NEPA
requires us to find the money to pay for an exhaustive environmental
review--in most cases, like ours, this means the preparation of an
Environmental Impact Statement (EIS). For the Cowlitz, preparation of
the EIS alone will cost much more than $1 million. It should come as no
surprise then that newly recognized tribes are hard pressed to generate
the funds needed to pay for these things and statutes like NEPA squeeze
what limited resources we have from being used for tribal health care,
education and other much needed services.
Of course, any land that a landless tribe acquires will, if taken
into trust by Interior, come off the local tax rolls and be withdrawn
from local jurisdiction. As you can imagine, this rarely makes the
newly recognized tribe popular with the local community. Further, if,
as in our case, the newly recognized tribe acquires land in a local
community that generally supports gaming, already there is likely
another tribal or non-Indian gaming establishment there that will fight
the newly recognized tribe to the death in order to protect its
profits. Conversely, if the newly recognized tribe identifies land
where there is no nearby existing gaming facility, it's probably
because the local community is disinterested in--or possibly even
hostile to--hosting a gaming facility. Again, this is not a way to gain
popularity in the tribe's local community. It is little wonder that
newly recognized FAP tribes find themselves in the middle of public
debates and controversies--controversies often fueled and well-funded
by other gaming interests trying to protect their own turf and profits.
We are concerned about imposing a requirement for affirmative
concurrence of local and tribal governments before land could be
acquired in trust for gaming for a newly recognized, landless FAP or
restored tribe. The financial, political and social costs of such
concurrences may be devastating to poor tribes. We submit that any new
legislation should protect our ability to acquire a reservation land
base through the existing statutory structure that tribes before us
have been allowed to utilize.
The Cowlitz Tribe's Efforts to Obtain Land
Let me tell you about the parcel we have acquired. Our parcel is
located squarely within the service area established for us by the
federal Indian Health Service and by HUD's Office of Public and Indian
Housing. That parcel of land is also squarely within an area to which
the Cowlitz Tribe has strong historical connections. The parcel is a
mere two miles from a tribal village occupied historically by the
Cowlitz people and only fourteen miles south of the boundary drawn by
the ICC that delineated the area used and occupied exclusively by the
Cowlitz. 2 It is one mile southeast of the Lewis River,
where the Cowlitz Tribe historically lived, hunted, gathered and
fished, and there are a multitude of other historical connections to
the surrounding area recognized by the ICC and the federal government
that are too numerous to mention here. These lands are some of the very
lands that we lost as a result of the federal government's wrongful
actions so many years ago. Given these circumstances, the Cowlitz's
efforts to re-acquire this land in trust can hardly be considered
``reservation shopping.''
---------------------------------------------------------------------------
\2\ The Cowlitz shared occupancy in the area in which the parcel is
located with a Chinookan group that unfortunately was entirely
destroyed by European disease and encroachment by non-Indian settlers.
See Simon Plamondon v. United States, 21 Ind. Cl. Comm. 143, 171
(I.C.C. 1969).
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It has been particularly painful for us to be the subject of a
misinformation campaign launched by non-Indian and Indian gaming
interests maligning our connections to this land simply to protect
their monopoly on gaming in southwestern Washington. Their
mischaracterization of our ties to this land is ironic given that we
became landless precisely because we refused to move from our
traditional lands to a reservation in another Tribe's territory when
Governor Isaac Stevens came to secure a land cession treaty from us in
1855. Despite the fact that we did not cede our lands and no
reservation was established for us, President Lincoln opened our lands
to white settlement by Executive Order in 1863. As non-Indians settled
our traditional lands, we became entirely landless and scattered
throughout southwest Washington. As a consequence of our landless
status, the Department of the Interior eventually came to view us as
unrecognized.
Even more ironic, we brought suit before the Indian Claims
Commission in 1946 to obtain compensation for our lost lands. The ICC
issued an order in 1969 finding that we had never been paid for the
lands taken from us and that we were entitled to compensation. The
Tribe insisted that any settlement legislation implementing the ICC
judgment must set aside some of the money for land acquisition, but for
over thirty years the Department of the Interior opposed the draft
settlement legislation on the grounds that unrecognized tribes could
not acquire tribal lands and that all the money had to be distributed
on a per capita basis. Because we refused to take payment for our lost
lands until some of that money was set aside for land acquisition, we
did not obtain legislation authorizing the payment of our ICC damages
award that included a provision setting aside settlement money for land
acquisition until just last year.
In short, the Cowlitz Tribe lost both its land base and its federal
recognition because it refused to move from its home territory, the
same territory in which we now seek to put land into trust. The irony
is that if we had agreed to a reservation outside our historical area,
we would not have suffered from a century-and-a-half of non-recognition
and landlessness. And we almost certainly would not be suffering now
from the disingenuous and inflammatory attacks of our opponents.
It is a sad day indeed when some established gaming tribes who make
millions every year are using those profits to oppose legitimate
efforts like ours rather than using those funds as envisioned by IGRA
to provide services and create new economic opportunities for their
communities. These tribes use their substantial resources to oppose a
tribe with nothing--all with the intent of depriving us of our
sovereign right to economic development under IGRA. Congress sacrificed
a significant portion of tribal sovereignty through the passage of IGRA
and some established gaming tribes now are trying to weaken our
sovereignty even further by denying us from exercising any rights under
IGRA.
We have heard much in the press about the issue of ``reservation
shopping'' as it relates to tribes in California. Quite frankly, we
don't know enough about what is going on in California to draw a
conclusion about whether tribes are ``reservation shopping'' or whether
this catch phrase is just being used by wealthy tribes seeking to block
any competition. We do believe, however, that FAP tribes should not be
sacrificed as part of this public policy debate.
Working With Indian Country
Many speculate that unscrupulous developers are driving
``reservation shopping.'' We have been very fortunate in that we have
found a partner in Indian country to help get us on our feet. While we
entertained offers from a number of top-tier development companies, we
are proud to be working with and learning from the Mohegan Tribe of
Connecticut. In 1994, the Mohegan Tribe also successfully emerged from
the Federal Acknowledgment Process as a newly recognized, landless
tribe. Today the Mohegan Tribe is reinvesting in Indian country,
helping their Cowlitz cousins from across the country. We are grateful
for the opportunity to work with the Mohegan Tribe, and we hope that
this partnership will demonstrate that tribes can use gaming
development to achieve good things for Indian people. The Mohegan Tribe
has shown that Indian tribes can and will reach out to help each other
and will succeed if given half a chance.
Improvements That Should be Made
We know that you share our view, Mr. Chairman, that the United
States has an affirmative and solemn obligation to our Indian Nations.
We respectfully offer a couple of suggestions that could be made to the
existing initial reservation exception and the draft legislation
circulated for comment.
First, the draft legislation could build upon the current exception
for FAP tribes by clarifying that the first parcel of land taken into
trust for a FAP tribe automatically becomes that Tribe's initial
reservation. We believe that this clarification reflects Congress'
intent in creating the exception in the first place, but Interior
appears to have concluded otherwise. Such a clarification would ensure
that FAP tribes are not subjected to yet another expensive, time-
consuming process.
Second, the draft legislation provides for nearby tribes to
exercise a veto over gaming facilities established by FAP tribes. We
believe that tribes with existing gaming facilities should not be able
to veto a gaming facility located within a restored or recently
recognized Tribe's area in which it has strong historical and modern
connections simply because the other tribe established a facility
first. Moreover, such a veto is unnecessary. The Department of the
Interior already considers the views of tribes within a 50-mile radius
of a proposed off-reservation trust land acquisition. Similarly, we are
concerned about an additional requirement of state legislative
concurrence in that it adds an additional hurdle for tribes already
struggling though the process.
Third, at a minimum the draft legislation should grandfather and
preserve the rights of tribes that have petitioned for or received
federal recognition. Tribes that have petitioned or emerged from the
process should be subject to the current process because, in cases like
ours, the petition was filed well before the modern advent of Indian
gaming and the passage of IGRA.
Finally, Section 2 of the draft legislation should be revised to
clarify that any federal decisions issued regarding the eligibility of
Indian lands for gaming remain in effect and that those lands shall not
be effected by the amendments made by this draft legislation. This
revision would serve to protect tribes that have invested significant
resources under the current process and have received the approval of
the federal government that such lands are eligible for gaming if they
are taken into trust.
Conclusion
We understand that there may have been abuses in the way fee-to-
trust applications and the Section 20 exceptions have been handled by a
few tribes, and certainly there are situations in which developers and
lobbyists have tried to manipulate the system in order to maximize
their business opportunities. That is not happening here. I know that
this honorable body will agree that the misdeeds of a few should not
become the basis for wholesale revisions to IGRA that fail to take into
account the unique histories and modern circumstances of individual
tribes.
I know Mr. Chairman that this Committee will act with due care and
deliberation before altering the balance of federal, state and tribal
interests created by the Section 20 exceptions. A rush to embrace any
one-size-fits-all solution that is meant to address the actions of a
very few tribes is likely to cause harm to the very tribes who most
need your help--tribes like mine that are simply trying to find a piece
of land to call our own, on which we can rebuild our tribal government,
promote our sovereignty and self-determination, and create economic
opportunities for our people.
The Cowlitz Tribe thanks you Mr. Chairman for your leadership on
this issue and for the opportunity to provide this testimony. We offer
our continuing assistance to the Committee as it considers how to
address the issue of ``reservation shopping.''
______
The Chairman. Thank you. I appreciate the testimony of all
the panel.
Chairman Stevens, in your testimony you talk about local
input into the decisionmaking process, and I would like to ask
you a couple of questions about that.
In the areas that we are talking about here, we are not
talking about a local community having veto authority or
regulatory authority over trust lands. We are talking about
land that is not currently in trust, and having the local
community have input into those lands.
That is very different than having the local community have
the ability to go in and tell an tribe what they can do on
their current trust lands, and do you not acknowledge the
difference between land that is not currently in trust and land
that is in trust, and the difference that exists under current
law in those situations?
Mr. Stevens. I do, sir, but I understood it to be that
there is potential that those local communities would have veto
in that process for those tribes to regain their status.
The Chairman. It is not about regaining their status. It is
about taking new lands into trust for the purposes of gaming
within an existing community, and those lands are not in trust
currently, and in the draft bill we are not giving a local
community the ability to tell the tribe what they can or cannot
do on trust lands. It is on land that is not currently in
trust.
Mr. Stevens. I stand corrected, Chairman Pombo. I think
that where I come from is where these tribes have, you know, in
the past been terminated, and lost their land. So I come from
more of a historical standpoint. I apologize for that if I
inferred otherwise.
I think that it is a clear record in Indian country that
our tribes, the gaming tribes have worked closely with
surrounding municipalities and we are very proud of that record
throughout this whole country. But I guess I misunderstood it
to be a veto on their part.
The Chairman. And just to make it perfectly clear, what you
just said in that what has historically happened is absolutely
true. For the most part tribes have had a very good working
relationship with the local communities and have actively
participated in the local communities. It has only been within
the last few years, and when we have had this--had a severe
increase in the number of off-reservation proposals that it has
become an issue. Prior to that it was very different than what
we are experiencing right now.
I also want to ask you about--throughout the country, in
Indian country, there are a number of reservations that have
in-holdings or non-tribal lands within their reservation. Do
you not believe that on those lands that the tribes ought to
have input into what happens on those lands?
Mr. Stevens. Can I yield to Mark. I am not sure if I
understand the question.
The Chairman. Yes. Just identify yourself for the record,
please.
Mr. Van Norman. Chairman Pombo, Mark Van Norman, Executive
Director of the National Indian Gaming Association.
We do believe that tribes ought to have sovereign authority
throughout their reservations. Those reservations were set
apart by treaty, statute, or executive order as a permanent
homeland for tribes. When the title to the land changes from
time to time, tribes ought to have further existing authority.
On the question of local government approval of tribal land
acquisitions, we feel that the state can adequately represent
the local governments because the state is the sovereign, and
the local governments subdivisions, and they can work within
the state.
We have our own tribal subdivisions, but our tribal
governments speak on behalf of all of our districts, and we
feel that to preserve government-to-government relations that
it is worthwhile to work at the Federal government level
primarily, but in this area there has been a precedent for
working with state governments.
The Chairman. I believe that because of the situation that
exists currently, and what we are trying to deal with you do
have to have some increased local government participation, and
I would not in this draft, nor would I as a general rule agree
that local governments should have veto authority over anything
that is on land that is in trust. I do believe that that would
be a bad precedent to set.
What I have proposed in this draft deals with land that is
not currently in trust, and is very different than what we
currently have.
My time has expired. I am going to recognize Mr. Udall.
Mr. Tom Udall. Thank you, Mr. Chairman.
Chairman Stevens, several tribes have stated that IGRA is
not broken, and seem to believe that a variety of procedural
safeguards exist to protect the interests of both tribes and
non-Indian communities.
In your opinion, are any updates needed to accommodate the
evolving role of Indian gaming, or do you feel that IGRA should
remain untouched?
Mr. Stevens. It is definitely the position of the National
Indian Gaming Association and our member tribes that it should
remain untouched. We do have, however, as I stated in my
testimony, Congressman, that we feel like the Interior's
regulation process will help clarify a lot of those concerns.
Mr. Tom Udall. Chairman Stevens, I think one of the
witnesses said this, and this may be in your testimony also
earlier with regard to IGRA itself infringing on Native
American sovereignty and the sovereignty of tribes.
Could you outline a little bit what the history has been
there?
Mr. Stevens. I am going to yield to Mark on that,
Congressman.
Mr. Tom Udall. Sure, that is fine. That is fine.
Mr. Van Norman. Thank you, Congressman Udall.
We feel that there is a Federal government-to-government
relationship. That is in the constitution. It is in treaties.
Normally tribal governments do not have to deal directly with
state governments under any Federal statute.
The Indian Gaming Regulatory Act was an exception to that,
and so to that extent, to the extent that we have to have a
compact with the states prior to engaging in Class 3 gaming,
that is a compromise on Indian sovereignty, and tribes have
worked very diligently to build good relations with states.
And I would just like to say in regard to local governments
that the Section 20 process, the two-part determination by the
Secretary has never moved forward without local government
support. So we feel that as a practical matter further local
government authority is not necessary.
Mr. Tom Udall. And is it not true that the history here
prior to IGRA in 1988, the Supreme Court ruled in Cabazon, did
it not, with regard to gaming?
Mr. Van Norman. Yes.
Mr. Tom Udall. And what did that case establish in terms of
sovereignty and what the tribes could do and could not do?
Mr. Van Norman. The Cabazon case established that Indian
tribes are governments. They retain their sovereign authority.
Part of the sovereign authority, part of the intention of the
reservation is that tribes will have a viable economy, and
tribes have authority to use Indian gaming as part of their
inherent sovereignty to promote economic development and to
generate funds to pay for a central government services, and
that is what the Supreme Court recognized.
Mr. Tom Udall. And then IGRA followed on that afterwards to
require that in order to engage in Class 2 and Class 3 you had
to have a compact between the state and the tribe; is that
correct?
Mr. Van Norman. In regard to Class 3 gaming, there has to
be a compact with the state, and in regard to Class 2, tribes
work directly with the National Indian Gaming Commission, but
that was a compromise on the Cabazon case, and it was an in-
road on Indian sovereignty, but tribes have worked very
diligently to develop good relationships with the states, and
we now have 26 states that have compacts with tribes.
Mr. Tom Udall. Chairman Stevens, considering that only
three tribes have successfully moved forward under the current
Section 20 procedure, perhaps we are trying to resolve a
problem that does not exist.
Do you believe that the reservation shopping crisis is a
misconception? And if so, what do you believe is the best route
for tribes to address the situation.
Mr. Stevens. No, Congressman, I believe that there is an
issue there, and that is why we stand before you today. I think
that the tribes have come together on four very well attended
meetings to deal with these kinds of issues. But we do believe
that they can be handled within the current process.
I think that, you know, Chairman Pombo makes a good point
regarding the concerns of local communities, and I think that
that--I want to acknowledge that that has been discussed in our
hearings. But at the same time I want to just make sure it is
very clear that on a very high percentage we continue to work
very positively with the communities around our gaming
communities throughout this country.
Mr. Tom Udall. Thank you very much, and I yield back.
The Chairman. Mr. Gibbons.
Mr. Gibbons. Thank you very much, Mr. Chairman, and to our
guests and panelists, welcome to the Committee. We are glad to
have you, and this is a very important issue for a lot of
people, not just the Indian tribes and of course throughout
America.
As we know under IGRA, IGRA prohibits or bars gaming on
newly acquired lands unless it is approved by the Secretary
and, of course, the Governor. But it also requires consultation
within the--with the Indian tribe and appropriate local
officials. BIA has applied a 10-mile radius to that area of
influence.
When you consider the impact of vehicle traffic, water
usage, police, fire, anything on that, do you believe that that
impact radius should be larger than 10 miles to look at the
influence or the impact of some of these large tribal casinos?
Any large business has a huge impact on communities. Do you
believe that that 10-mile radius is arbitrary in its dimension,
and would you support a larger sphere of influence in
consultation with local communities?
Mr. Stevens. I really do not--I have not really been able
to think that through other than to say that I believe that our
tribes have taken a much more bigger, a larger viewpoint when
it comes to analyzing those types of impacts, and I think that
they take it upon themselves to go far beyond those kinds of
impacts, beyond that 10-mile radius.
Mr. Gibbons. Well, then, let me ask this question because
we are always dealing with the concept of sovereign immunity
within the Indian tribes.
The Chairman asked a very poignant question about the
influence of any activity within the jurisdiction of say a
reservation, and in-holding by non-Indian ownership. You said
that you would have--agree that there should be consideration
given to the tribe for any activity on non-reservation land
that is in-holding on that tribal reservation.
Therefore, your sovereignty applies to whatever they want
to do on their lands. Should you not consider the sovereignty
of these local communities then within which this new land is
acquired?
Mr. Stevens. Congressman, I think I tried to answer that
question. Maybe if I could ask Mark to maybe be more specific
about that.
Mr. Van Norman. Well, Congressman, I think----
Mr. Gibbons. It is philosophical. It is not----
Mr. Van Norman. It is philosophical. I think that there is
a distinction with reservations, and with Federal reservations
when they are established they continue unless they are
disestablished, and so those boundaries of the reservation are
there. So even though there may be fee lands, they remain
within the reservations, and we believe that is important.
Mr. Gibbons. All right, now let me bring this back to that
very point. You are acquiring new land within a jurisdiction of
a non-Indian governmental area; for example, a city, a
community, a county that is not Indian. So you are in-holding
then within their area of influence.
Should not the same kind of consideration be given to their
sovereign rights as concerned about your sovereign rights when
there is an in-holding on the tribal reservation?
Mr. Van Norman. From our point of view, there is a lot of
consultation provided for already. The Secretary before making
a determination, a Federal determination, must consult with
state and local officials and nearby tribes. So there is a
consultation process for the Secretary to take those interests
into account.
As a practical matter, the Secretary has never moved
forward where there was not support of the local government. As
a legal matter, we believe that the other sovereign, that it is
appropriate for tribal governments to deal with is the state
sovereign, and that local governments are actually subdivisions
and subordinate to the state governments.
So already from our point of view the Indian Gaming
Regulatory Act takes this away from our direct Federal
government-to-government dealings, and we are concerned that a
local government requirement would take us a step down from the
state government.
Mr. Gibbons. Well, then, in your analysis one would include
the area of consideration to be the surrounding state rather
than the surrounding community. So perhaps we should expand the
area of influence to the boundaries of the state if we are
going to deal with state government under your analysis.
Mr. Van Norman. Well, the state officials are already dealt
with.
Mr. Gibbons. But I am talking about the area of influence,
detrimental influence which is required under IGRA.
Mr. Van Norman. Well, that does seem to be--you know, could
be hundreds of miles and it would seem as a practical matter to
be excessive.
Mr. Gibbons. Thank you, Mr. Chairman.
Mr. Van Norman. Thank you, sir.
The Chairman. Mr. Kind.
Mr. Kind. Thank you, Mr. Chairman. Mr. Chairman, I want to
thank you for holding yet another hearing on this draft
proposal, and naturally some of us are still coming up to speed
on it, but I think as we do move forward and I appreciate the
witnesses' testimony here today, and look forward to working
with you as we proceed; that we do try to keep foremost in mind
the historical constitutional rights that are embodied,
recognizing tribal sovereignty in this country, and where the
negotiations need to take place.
I think the second draft of the Chairman's mark here is a
bit of an erosion in regards to the approval process as tribes
move forward in acquiring new lands, and it is one of the
concerns I have, and I think we need to think through that more
on a philosophical basis, but recognizing that constitutional
right that grants tribal sovereignty.
But there are two other issues in particular. One is
reading the draft, it looks like it is going to make it
virtually impossible for any tribe to acquire new land for an
activity across state border. Is that how you read the second
draft of this, Mark?
If there is not a connection to the actual location within
the state, then is it going to make it very difficult for a
tribe to acquire land across states?
Mr. Van Norman. The way we read the draft the intention is
to stop tribes from crossing states, and we do express a
concern, that historical factors should be taken into account
because tribes were moved out of the aboriginal areas many
times. It was Federal territories at that time, but there have
been instances where the United States violated Federal law in
removing tribes.
Mr. Kind. Well, I guess that is a general question to the
panel is, are there legitimate geographic, social or historical
considerations why a tribe might want to acquire lands for
activities across state border? Chairman Stevens?
Mr. Stevens. Sorry. Could you repeat that question, please?
Mr. Kind. Would there be a situation where there is a
legitimate case that can be made based on geography or social
reasons or in an historical connection of why a tribe would
want to acquire lands in a different state?
Mr. Stevens. I apologize, Congressman. I want to ask Mr.
Van Norman to respond to that one.
Mr. Kind. Sure.
Mr. Van Norman. Well, Congressman, we feel clearly there
are these historical factors, and especially where the United
States has violated Federal law to remove the tribes from their
original homes, that naturally there is a desire for tribes to
reestablish some lands where they were located from time
immemorial, and we think that a prohibition does not address
these historical factors.
Mr. Kind. Such as in the Nineteenth Century removal policy.
Mr. Van Norman. Such as the Nineteenth Century removal
policy which, you know, if it were undertaken today I think
would be called ethnic cleansing.
Mr. Kind. Right. And I appreciate the Chairman's
distinction between not giving local government veto power over
land already in trust versus land not in trust yet, but
nevertheless this would establish veto power at multiple
levels. It is a five-step approval process moving beyond the
normal consultation that currently takes place under Section 20
by the Department of the Interior, the Secretary.
The way I read it is not only does this latest draft
require the Secretary's approval, it must get approval of the
government, state legislature, the local government and also
neighboring tribe, each one of which could exercise their veto
in order to stop any acquisition of land.
Is that a fair and accurate reading of the latest draft
that we have before us?
Mr. Stevens. Yes, sir.
Mr. Kind. Now, Chairman Stevens, I think others have made
reference to the fact that the Department of Interior is moving
forward on reforms for Section 20, and that process is taking
place.
Do you feel that the Department of Interior is heading in
the right direction in order to address many of the legitimate
concerns that I feel the Chairman and others have which is
giving rise to this legislation? Do you think the Department of
Interior is capable of handling those concerns?
Mr. Stevens. We feel that that is the case. We stated that
in our testimony, and we have asked this committee to give that
process a review as it moves forward.
Mr. Kind. All right. Well, again, I think there are some
very new and dramatic changes with the latest draft proposal
that we will have to try to work into further consultation, and
perhaps future hearings.
Mr. Chairman, just a quick question for you. Will we have
an opportunity to call some of the Department of Interior
officials before us in order to find out what work they have
doing in regards to Section 20 changes, and get a sense from
them what direction they are heading in?
The Chairman. I am sure before we move forward with the
final bill that we will have the opportunity to have the
Department come down and give us their opinion on the bill as
well as what they have been doing.
Mr. Kind. Right. Well, thank you again, Mr. Chairman, for
today's hearing. I want to thank the witnesses and look forward
to working with them.
The Chairman. Thank you. Mr. Walden.
Mr. Walden. Thank you very much, Mr. Chairman. I appreciate
the diligence with which you have brought this bill forward and
your willingness to work with various members and tribes to
figure out a good and balanced solution to the issues that are
out there.
Mr. Suppah, I would like to start with you if I might, and
I appreciate your testimony and our discussions on this issue.
What sort of criteria might you support in terms of
sideboards on this type of legislation?
Mr. Suppah. We would be in support of the existing
regulations as they stand today, and also if there was any
amendments of any kind, then we would be supportive of in-state
and aboriginal territories, and a side compact with the state.
Mr. Walden. Now I know that others have suggested
sideboards that would say, I believe it is ancestral and
historical boundaries as kind of where they could reach out to.
What effect would that have on your situation if that were the
case?
Mr. Suppah. Mr. Walden, for another tribe that has not
clearly established that aboriginal tie or aboriginal title, it
would jeopardize our situation to the point to where say like
the 1967 Indian Lands Claims Commission and their decision for
Warm Springs that clearly laid out where we were pre-treaty,
and today.
Mr. Walden. In the proposal you put forward is within the
boundaries of your ceded lands; is that correct?
Mr. Suppah. Yes, it is. It is clearly within the claims
commission area as defined in that decision.
Mr. Walden. And does anyone else--any other tribe have--
within that claims commission process, do they have ceded
status in that same area?
Mr. Suppah. That was not decided. No other tribe had
pursued an Indian land claims claim, and the area was--the
decision was that that was clearly in Warm Springs' area.
Mr. Walden. I see. Now, obviously, it is no secret, at
least three of you on the panel there is some level of conflict
among you regarding various proposals. I am curious, Chairman
Suppah, what has the Warm Springs' view been on other proposals
for off-reservation facilities or new gaming facilities being
established in the northwest? Have you opposed those?
Mr. Suppah. Representative Walden, Warms Springs' position
is a matter of record, that we choose to be neutral in other
tribes' endeavors for attainment and achievement of economic
diversity and success, and we see no need to divert or change
from that.
Mr. Walden. OK. Maybe the other two could respond to
northwest. Chairman Kennedy, what is your view on that concept
of self-determination by these other tribes on this issue?
Ms. Kennedy. We firmly support the sovereignty of other
tribes. They have a right to pursue securing resources for
their members. We believe that that is an inherent part of
sovereignty, and we do respect that.
Mr. Walden. But have you all not opposed what the Warm
Springs has proposed, and what is your view on the Cowlitz's
proposal as well?
Ms. Kennedy. We have opposed off-reservation gaming, and
that is part of our belief. I did want to make one other
comment about lands and ancestral ties.
We have gone on record saying we support in-state. We know
that and recognize that the reality is that it is a very large
hurdle to overcome, especially for us. Some of our treaties
were signed in Washington where our people were. But we
recognize that today things change and just as this proposed
draft revision is coming forward, that it is a great
possibility that the changes will occur and that amendments
will happen.
So as things change, of course, any leader, including
everyone in this room, has to stay with that thinking in mind.
Mr. Walden. All right. I know my time has expired.
Obviously as a footnote aside from this issue, looking at other
issues, it has always troubled me in government when somebody
has followed a process that has been there, and in place, and
spent a lot money to follow the rules and all, that it never
seems fair that somebody comes along and then changes the rules
in the middle of the midstream. And so it is just a concern I
would have in this, and I know we have talked in other issues
as well.
Thank you all. I appreciate your testimony.
The Chairman. Let me tell the gentleman I am aware of that
issue, and I am sympathetic to it. That has been an issue that
you have raised with me in the past as have a couple of other
members, and I am sympathetic to that. And I think as we move
forward with the draft bill, we may have an opportunity to
address that issue.
Ms. Herseth.
Ms. Herseth. I have no questions, Mr. Chairman. Thank you.
The Chairman. Mr. Costa.
Mr. Costa. Thank you very much, Mr. Chairman, for holding
this hearing. I want to thank the witnesses as well. I want to
direct my questions in kind of a different direction
notwithstanding the proposed legislation before us, and
listened to the comment of the gentleman from Oregon about
changing the rules in the middle of the process.
I do not subscribe to that either, but I would like to
direct my question to the Chairman from the San Manuel Band
from California, and from those other Indian tribes that are
involved in gaming facilities.
As was mentioned earlier, we have about 28 states that have
compacts of Class 2 and Class 3 gaming. In California, that
encompasses 108 sovereign recognized nations under the BIA, of
which there are 52 that have active gaming facilities. These
statistics are a little old, but they were done in 2003. At
that time we had 62 that had compacts.
My question to you is in describing California situation
over the last 15 years and having been a--before this job, I
had been a member of the state legislature, so I have been
involved and observed how gaming has transitioned itself in
California over the last 15 years. If I were to ask you what
the policy is in California, how would you describe it as it
relates to the 108 sovereign nations that are recognized, the
62 in 2003, I think it is 64 now, but have compacts? How would
you describe the policy in California?
Mr. Marquez. I think simply I could just state that policy
in California in the Governor's office is basically to raise
revenue for the State of California. That is----
Mr. Costa. I would submit to you that we have had different
policies. I mean, we had a policy under Governor Wilson, and
then we had a policy under Governor Davis, and now we have a
policy under Governor Schwarzenegger, and every policy I think
is best described with each Governor as ``Let us make deal
time.''
Mr. Marquez. True, and I was going to kind of roll it back
into the Governor Schwarzenegger days, and the Governor Davis
days, and obviously there were some days where there was no
discussion between the State of California or the Governor and
the tribes, which basically gave rise to what is being known as
the Prop. 5 days and the Prop 1A days.
So the policy in California at the beginning was very--as
we can bother to say--standoffish. The policy was not formed to
allow the games within--on the reservations, I should say, at
that time. But under Governor Davis that changed, and there was
a more open dialogue between the tribes and the Governor at
that time, and we believe those compacts really fit into the
mold of what IGRA was created for.
Then recently, as you just stated, the Governor's policy is
more or less about more local control, more unionization, more
capital for the State of California, heavier fees, and that has
become just simply through progression, and as we all know as
policy develops, the new norm in California.
Mr. Costa. It seems to me what is lacking in this
discussion as we look at the Chairman's bill, and that I would
like to see occur, and I concur with the earlier statement that
was made by the gaming representative, that the states are the
sovereign entity that I think the sovereign nations ought to be
negotiating with in terms of the contacts. It is logical. It
makes more sense as opposed to the local government.
But the fact is that I do not think we really have a policy
in California, nor can I determine that we really have a policy
in place among the 28 states that have Class 2 and Class 3
gaming, and it just seems to me that one of the things that we
ought to require is that every state, based upon their own
circumstances and individual needs, develop with the Governor
and its legislature what gaming policy should be in the future.
I mean, in California, we have approximately 46 sovereign
nations that have the ability to apply for proposed gaming. In
2003, we had a number of them that--23 that had proposals in
there, and some not even on their native lands. I mean, we will
get into the place down in California where we are having
franchise shopping, and how is that fair to the existing Indian
reservations that have in fact complied with the existing
framework and located their facilities on their native lands?
Mr. Marquez. Well, I think it is safe to say in California
in specific that the Proposition 1A that was passed, it was
very well stated during that campaign that such activity, off-
reservation activity would not transpire. And as you just
pointed out, here we are today dealing with that type of
phenomenon in California, especially in our situation where we
have a tribe from the Northern California/Oregon border seeking
a reservation on ancestral lands some 700 miles away. That in
my mind just reeks of some problems that we need to address,
not to mention the tribe from San Diego coming up about 150
miles away to basically create a reservation on our ancestral
lands. That is a huge issue and it is counter to the public
policy that was passed by a majority of the people in
California when Prop. 1A was passed.
Mr. Costa. Well, it just seems to me, and my time has
expired, Mr. Chairman, and I would like to have the balance for
the purpose of submitting further questions, but this is an
area that we need to have further discussion. What is lacking
in California, and I suspect in other states as well is the
requirement that the states really determine how they are going
to move forward with any new proposed gaming, and the
requirements under any newly proposed gaming facilities
certainly is different from what previous sovereign nations had
to comply with under previous Governors.
It just seems to me that we would be a lot better off if in
fact there was a clear understanding of how the states would
move forward and determine that policy with the Secretary of
Interior.
The Chairman. Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman. Thanks for holding
this hearing.
I just want to clarify and sort of explore a little bit the
point made by Representative Walden to Chairman Suppah. It is
my understanding on this most recent draft that your current
proposed application for Cascade Locks would not be eligible to
go forward? Is that your reading of this draft of the bill if I
understand it? Chairman, yes.
Mr. Suppah. Would you please repeat the question, Mr.
DeFazio?
Mr. DeFazio. Sure. You have, as have been mentioned, a
pending--your pending in the process with the Department of
Interior regarding the potential for taking lands into trust,
having a compact and putting a casino at the Cascade Locks
site.
The question is would this legislation, if adopted,
preclude the completion of that process in this form, if it was
adopted in this form?
Mr. Suppah. Yes, it would. Because as Representative Walden
had explained, it is kind of like changing the--moving the goal
post just about when you are there. We have worked through a
model process to get to where we are today. We have expended a
lot of money. With any kind of changes like this, maybe just to
take an example, Oregon has a law which authorizes the Governor
to sign compacts on behalf of the State of Oregon.
Now, if, for instance, they changed that and drafted
legislation that would give more veto authority to more
different places, then surely one of them is going to veto our
project. So we are definitely concerned about that.
Mr. DeFazio. And, in your reading of this new proposed
draft, would your other site where you have historic lands in
Hood River, would that be made ineligible or be subject to the
new process as well in the same way?
Mr. Suppah. In that case, that land is already in trust. It
is pre-1988. It is eligible for a casino, and if the
Confederated Tribes of Warm Springs chooses to pursue that,
then that would be one of our fallback alternatives.
Mr. DeFazio. OK.
Mr. Suppah. But I think that as we lay out in compact and
our participated agreements with say Cascade Locks and Hood
River, we choose to not only consult with these--within the
applicable law, and adhere to that, and respect the City of
Hood River's objection to that, so I mean that would--that is
not out of the scope of consideration for Warm Springs.
Mr. DeFazio. Do any of the other witnesses have comments on
how this draft would affect a pending application like this? I
assume there may be others across the country that I am not
aware of, and whether or not you believe that should be
accommodated or whether you think the draft is adequate in that
area. Any of the other witnesses want to get into that?
Ms. Kennedy. Well, my only comment about whether or not the
process would stop or hamper what is happening, I believe that
the area as defined is unclear, and does need to be fleshed out
more than it is right now. We are not real clear on what
implication it may or may not have.
Mr. DeFazio. OK. Anybody else?
OK. Well, thank you. Thank you, Mr. Chairman.
The Chairman. Thank you. Mr. Pearce.
Mr. Pearce. Thank you, Mr. Chairman.
Mr. Marquez, do you think that reservations should have the
right to tax the mineral deposits on their tribal lands?
Mr. Marquez. The taxation with mineral rights as the
government?
Mr. Pearce. Sure. Historical on the minerals that are
extracted from there?
Mr. Marquez. Yes, sir.
Mr. Pearce. And taxation on businesses----
Mr. Marquez. Yes, sir.
Mr. Pearce.--that operate on the reservation?
Mr. Stevens, what about there is a growing trend among some
states to use their resources and their location to go on to
business to compete with private businesses. For instance,
along interstates many times the land is an easement from the
state, and so states are now going into the truck stop
business, which is convenient. The competition has got to be
back away from the highway.
What would you feel like--what would be your opinion of
states were to operate and open up say along an interstate, a
Native American tribe with a fueling station, service station,
truck stop, what if the state came in on state land right next
to you and began to operate. Would you think you have a right
to say anything or bring up a point about that?
Mr. Stevens. I do not know if I understand the question. I
think that----
Mr. Pearce. Well, if someone is going to come in, for
instance, say Mescalero Tribe is in our district, and they have
a reservation that extends right up to the town of Ruidoso, and
they have a large truck stop.
What if we move them to an interstate highway, which they
are not, but if they were, and a state used its size and
largess to go in and create a competing fuel stop right next
door, would you want to have input into the decision for them
to locate right there and provide a completing place?
Mr. Stevens. You know, I think the likelihood of that is--
--
Mr. Pearce. No, I am just asking a hypothetical question
because all the questions we are asking today is about off-
reservation gambling are still hypothetical, so we have to talk
in hypotheticals.
Would you or would you not----
Mr. Stevens. I am going to ask Mr. Van Norman to respond to
that.
Mr. Van Norman. You know, I think very likely the tribes
would want to have some kind of----
Mr. Pearce. Sure, you would want to be consulted.
Mr. Van Norman.--input, but I also think that it is fairly
clear that we would not have many Federal law right to veto the
use of state land outside the reservation.
Mr. Pearce. But you would like to be consulted. So what
would that consultation--I mean, if they would just listen to
you and still went ahead with disregard for you, would that
have an effect? And I will not make you answer that because I
think it would have an effect.
Now, then, when I go to page 4 of your testimony, Mr.
Stevens, you say that--you are repeating the Section 20
process, ``The tribal government should thoroughly consult with
state and local officials.''
Now, the local officials, you have been willing to
acknowledge that state officials have some sovereignty but you
kind of push the local officials away from the process and say,
well, they should be subject to the state.
And what does this consultation in your mind mean? What if
you are going to move a casino into an off-reservation site,
and it is going to severely impact, it is going to have a large
impact, not severe, but a large impact on a local community, do
you not think that there should be something, some right to
consult and maybe even some right in the decisionmaking process
because that is what is at stake here?
Mr. Stevens. I think that there is and we have had
extensive dialogue in all of our relationships with those
local----
Mr. Pearce. Through dialogue. But what if the local
community says we do not want it, what happens? What happens if
the local community say we do not want it, and you all think
that you should have it?
Mr. Stevens. Well, I think that we would deal with that
through the state compacting process.
Mr. Pearce. When we are talking, Mr. Stevens, about off-
reservation gambling, if a site is set up that--again I will
look at my district. About 300 miles away from the tribe that
is making the request and the site is set up for a tribal
casino to operate, what would be the National Indian Gaming
Association's perception about opening that spot up to some
competing casinos? That is, if we are going to open it up, that
all tribes should have a right to come in and open a casino
there next to each other and compete. What would your opinion
of that be?
Mr. Stevens. In what location are you speaking to?
Mr. Pearce. In any location across the country, just any
location where we are going to acquire land off-reservation for
gaming, what is the association's position going to be if we
open that up to competing tribes to offer the best service
there in that one spot?
Mr. Stevens. I believe that is why we continue to advocate
for the regulation process through the Section 20 through the
Interior.
Mr. Pearce. I see.
Mr. Stevens. The Department develops those regulations, and
I think that it obviously has to have a historical element.
Mr. Pearce. OK. I just have one more question, Mr.
Chairman. I see my time is gone. But Section 7, when we are
talking about to--with regard to newly recognized, restored and
landless tribes, now you may have a different perception of
history than I have, but throughout all of history we have seen
groups of people going in and take land away, and move. And so
your statement says that those landless tribes should reacquire
lands in the aboriginal or historic land areas but avoid any
infringement on aboriginal land rights of nearby tribes.
What do we do when one tribe says, you know, you are on the
spot that we had, and you took it from us, what do we do in
those--because I think we will want to get into a lot of this
as we go into the landless tribe question and the acquiring of
public land, and it is going to get right down to the Indian
gaming because at some point there is going to be great
competition among those people without casinos to get into the
business of casinos because they are literally producing
billions of dollars of net cash-flow. So it is a question that
I know that we are going to see.
Do you have an opinion about when there is a dispute with
one landless tribe saying that tribe has got the land we used
to have?
Mr. Stevens. Again, I reiterate through that process, that
that will be handled through that process.
Mr. Pearce. Thank you, Mr. Chairman. Those are my
questions.
The Chairman. Mr. Inslee.
Mr. Inslee. Thank you. I am sorry I was not able to be here
at the beginning. Welcome, Chairman Barnett. We appreciate you
coming all the way out. Hope you enjoyed the airline food.
I just want to go across the panel if I can and just ask a
simple question, whether IGRA needs to be reopened in general.
You may have addressed this already, but I would just like to
know everyone's perspective on that.
Mr. Van Norman. Congressman, it is the position of the
National Indian Gaming Association and the National Congress of
American Indians by unanimous resolution that we are advocating
that the Act not be open; that the process be handled through
the current law.
Mr. Inslee. If we can go down the row if that is polite.
Mr. Suppah. Thank you. We are in concurrence with that
statement.
Mr. Marquez. I guess I will break the string here. I think,
as we said back in July of 2004, and again on the Senate side,
that the intents of the Indian Gaming Regulatory Act never
contemplated the activity that we are doing with our ancestral
lands in our back yards when you have tribes seeking to create
reservations from many miles away.
In my mind, we have yet to see activity that would help
address this issue, and we believe, and again we understand
fully that the mantra has always been do not open IGRA. But we
contend that IGRA did not contemplate this activity. The soul,
the spirit and the intent of IGRA did not contemplate this
activity, and I cannot say it over and over again, but I will.
And we cannot ask Congress to help us, and then turn around and
say, oh, by the way, do not undo IGRA.
Ms. Kennedy. We do support the opening IGRA. Initially we
said no, but based on all of the unfoldings that are happening
across Indian country, we do support it.
Mr. Barnett. As you recall, Mr. Chairman, I have to say,
you know, that we are in a probably unique situation of not
signing the treaty, and we are landless. The exemptions in IGRA
for restored lands and initial reservation are the only
opportunities we have to establish ourselves.
We certainly are recognized but have no land. And you know,
to me it is a matter of equality. I do not think the situation
is broken at all, but I think it needs maybe to be revised. I
think reservation shopping needs to be addressed a lot more
forcefully so that it does not, for instance, take in a tribe
that wants to jump--like the gentleman said here--300 miles
away and put in a casino. I mean, that is not the purpose of
IGRA, I do not think.
But the purpose should be to have equality for all tribes
involved here whether you signed a treaty or not, and you know,
we would ask this committee to think about that when you do
come up with some type of changes to streamline and modify the
process. Thank you.
Mr. Inslee. There is discussion in the draft about inter-
tribal agreements, and I just--this is an open question to
anyone who would like to respond. Do not tribes already have
the sovereign authority to enter into inter-tribal agreements?
And how would this be changed by this draft? If anyone wants to
tackle that.
Mr. Van Norman. Congressman, I would like to respond to
that. I think it raises a legal question. And the situation as
we believe that tribes do have the authority and a right to
cooperate. We do have a situation with a couple of our member
tribes where they are trying to cooperate, and they are running
into a bureaucratic hold up, and we think that, you know, the
National Indian Gaming Commission and the Department of
Interior should cooperate to resolve that issue because inter-
tribal cooperation is a very positive thing.
We also believe that there would be an opportunity, if they
cannot do that, to have a separate legislation to provide for
the inter-tribal cooperation.
Mr. Inslee. I have a general question about getting in the
market for gaming. There is probably no clear answer to this,
but could you give us the feeling about the market of gaming?
Is it saturated? Is it only half to what it will be in 10
years? Is there any sense that it is becoming saturated in some
places? Can you give us any assessment of that, to the best you
can? Anyone who has an answer, I am welcome to any insights.
Mr. Marquez. I think you are asking the $20 billion
question about saturation. I think, especially in California,
there is no way of telling what that saturation point is going
to be.
California is a little different because we are capped at a
certain number of machines, but the market will bear what the
market will bear, and to say it is going to saturate, we simply
do not know. We can turn to Las Vegas and look at the
operations in Las Vegas, and truly see that they have not yet
hit their saturation point.
I think gambling or gaming is a proliferation across this
country, and we will see more and more of it, especially with
New York and Pennsylvania coming online in their state gaming.
So I think, especially in California, we have a long way to go
before we start talking about saturation points.
Mr. Inslee. Any other thoughts?
Mr. Stevens. If I could, Congressman, I think that we
continue to grow responsibly, I think that sometimes they use
the term ``explosion'', and I do not think that is the case in
Indian country. I think that, you know, as long as, you know,
we look at the statistics and the American public supports our
industry, and I think it will grow progressively, but I do not
see a point for saturation in the near future, as long as we
are careful and do a good job, which the Indian country is very
committed to doing.
Mr. Inslee. Great. And thank you and thanks to the industry
for the Tulleeha Boys and Girls Club, one of the boys and girls
club on a reservation. Thank you.
The Chairman. I want to thank our panel of witnesses. I am
going to excuse you at this point. There may be further
questions that members of the Committee have, but they will be
submitted to you in writing. If you can answer those in writing
so that they can be included in the hearing record. Thank you
very much for your testimony and for answering the questions.
Mr. Van Norman. Thank you, Mr. Chairman.
The Chairman. To call up our second panel of witnesses,
Senator Steven Rauschenberger; Senator Mary Kay Papen;
Supervisor Duane Kromm; and Supervisor Dianne Jacob.
If I could have the second panel stand, and is customary on
the Committee, we swear in all of our witnesses at our hearing,
so if you would stand and raise your right hand.
[Witnesses sworn.]
The Chairman. Let the record show that they all indicated
in the affirmative.
Welcome to the Committee. As with the previous panel, your
entire written statements will be included in the record. I
would appreciate it if you would limit your oral testimony to
the five minutes. The lights in front of you will indicate when
your five minutes has expired.
Senator, is it Rauschenberger? OK. We will then begin with
you.
STATEMENT OF SENATOR STEVEN J. RAUSCHENBERGER, ILLINOIS STATE
SENATE, NATIONAL CONFERENCE OF STATE LEGISLATURES
Mr. Rauschenberger. Thank you. I will leave my written
testimony for you to kind of review. Let me just say a couple
of brief things and then be available for questions.
Number one, I would like to commend the Chairman and the
Committee. I think it is a very, very thoughtful effort to take
up the fundamental question of who represents a state. When we
are looking in particular at establishment of non-reservation
tribal gaming, the idea that a Governor who in many ways is a
temporal leader of the state would be the consulted person by
the Department of the Interior rather than the legislature,
which represents the people in general assembly in the states I
think an error in the original drafting of IGRA, as you guys
refer to it.
So the idea of expanding that and requiring that the
legislature be consulted, as we see Governors pass through
difficult economic cycles, and we have heard some discussion
about the questions in California. Governors, as I say, you
know, represent temporary heads of states, where legislatures
represent the people in Congress. So I think it is a very, very
thoughtful improvement in the act.
Recognizing that gaming is not only growing, it is growing
in controversy across the states. In many states like Illinois
also have state legalized licensed gaming, in those cases the
State of Illinois is free as a sovereign state to decide to
discontinue gaming in the future, expand gaming in the future,
do as it regulates.
In the case of non-reservation tribal gaming, if it were to
be introduced in Illinois without consultation of the general
assembly, that would be a perpetual right for that sovereign
tribe to continue gaming regardless of what state regulation
is.
So again, I just think it is very thoughtful to kind of
think through the relationships, that now that you have seen
some of the earlier facts of IGRA, now that you are seeing, I
think, some of the intents, influences of an industry that sees
a lot of potential in places and would kind of like to work
around the edges of sovereign general assemblies.
So I appreciate being here and the opportunity to tell you
I think in engaging and thinking about adding the general
assemblies, the legislatures of the 50 states to the process,
that is exceptionally good public policy, and thank you for
giving me the opportunity to speak.
[The prepared statement of Mr. Rauschenberger follows:]
Statement of The Honorable Steven J. Rauschenberger,
State Senator, State of Illinois
Good morning. I wish to thank Chairman Pombo and Ranking Member
Rahall for inviting me here today to testify on the proposed amendment
language to the Indian Gaming Regulatory Act, or IGRA. I am here in my
individual capacity as an Illinois Senator, and am not testifying in my
capacity as the President of the National Conference of State
Legislatures, which has not adopted a formal position on this matter.
Current law, IGRA section 2719 (b)(1), provides one of several
exceptions to the prohibition of Indian gaming on lands acquired in
trust by the Secretary of the Interior. The (b)(1) exception states
that Indian gaming can occur on land taken into trust where the
Secretary of the Interior, after consultation with appropriate state
and local officials, including officials of nearby Indian tribes
determines that gaming would be in the best interest of that tribe.
However, this determination must either follow a Governor's agreeing to
the gaming proposal, or the lands on which the casino is to be located
are taken into trust as part of a settlement of a land claim, are part
of the initial reservation of an Indian tribe acknowledged by the
Secretary under the federal acknowledgment process, or are the
restoration of lands for an Indian tribe that is restored to federal
recognition. Under the current process, the Secretary and the Governor
may jointly decide whether a casino is or is not appropriate despite
the opinions of state legislators who may not even be consulted. IGRA
requires the Secretary to consult with ``state officials'' which may
not be a state legislature. There is no mandatory requirement that the
views of state legislators have any weight whatsoever in this
determination. This current process is not an open and transparent one,
but rather one that occurs behind closed doors without the benefit of
public hearings and state legislative input.
By contrast, the proposal before you this morning seeks to open up
the process of Indian gaming approval by requiring not only the
Governor of state in which the casino will be located to give his or
her approval, but also requires the state legislature, counties and
neighboring tribes to concur with the Secretary's decision on the
appropriateness of the casino. I have no opinion on whether counties or
neighboring tribes should be involved in this process, that decision is
best left to county and tribal officials; however, I am very supportive
of the inclusion of the state legislature in the process of determining
whether a casino should be placed in my state, particularly in the
instance where a non-resident tribe seeks permission to open a casino.
In Illinois, four non-resident tribes have sought to do this in the
last ten years. No Governor of Illinois has ever agreed to this type of
proposal. However, there is an ever-present uncertainty with respect to
how a particular governor would entertain these proposals. I should
also note that state legislators are oftentimes much more accessible to
the tribes and the general public than are governors, so the
opportunity to have all concerns addressed with a proposed casino would
be greater through the state legislative process.
Including the state legislature in the decision as to whether or
not to permit Indian casinos is extremely important to me for several
reasons. First, our republican system of government, or representative
democracy, vests the authority and responsibility to create sound
public policy with the elected representative body, or state
legislature. The governor, as the executive branch of state government,
serves to implement the public policy decisions of the state
legislature. It is through the state legislative process that state
laws evolve and shape the overall direction a state takes on any given
issue.
Second, requiring the casino proposal to go through the state
legislature eliminates ``closed door'' negotiations regarding the
appropriateness of and the details concerning the placement and
operation of Indian casinos. Some of the issues surrounding Indian
gaming that have been negotiated out in the state/tribal compact
process between the Governor and the tribe, but are actually ripe for
legislative examination and consideration are revenue sharing, law
enforcement and fire protection costs.
Third, under the proposed bill, those tribes seeking to engage in
gaming will have to present their proposal to the legislature in a
public forum. The legislators will be able to explore and pose
questions about the details of the proposed casino through the
legislative hearing process. This last point in and of itself is very,
very important to me as a state legislator. If an Indian casino was
being considered in my state, I would want to explore the benefits and
detriments of the project with relevant experts before deciding whether
the project was right for Illinois. I would also want the general
public to have an opportunity to attend an open hearing so they too
would be aware of the proposal and its potential impact on local
communities and the state. The bottom line is that this process should
be an open and transparent one, and should include the opinions of
state elected officials who will be dealing with the economic and
social impacts of a casino. In addition, many states regulate gaming
either by way of their constitutions or by state statute. Permitting
state legislative input into this issue insures that state legislative
intent is respected and upheld. I thank you for your time this morning,
and I am happy to answer any questions you may have.
______
The Chairman. Thank you. Senator Papen.
STATEMENT OF SENATOR MARY KAY PAPEN,
NEW MEXICO STATE SENATE
Ms. Papen. Mr. Chairman, Members of the Committee, thank
you for inviting me to testify before you today on an important
issue of fairness and the rights of duly elected state
officials.
I am here to testify today in support of Chairman Pombo's
second discussion draft of legislation regarding off-
reservation Indian gaming, and his intent to increase state and
local input in the two-part determination process.
I am a Democrat State Senator from southern New Mexico, and
I have served in the state legislature for five years. Let me
say at the onset that I support Indian gaming. Indian gaming
generates tens of millions of dollars annually for the New
Mexico Treasury. It has created jobs in casinos both on the
reservation and off the reservation in supporting industries.
It generates revenue for Native American governments that has
been used to finance infrastructure and education, health care,
and public safety programs on Indian reservations in New
Mexico.
I also support non-Indian gaming in New Mexico. For the
purpose of my testimony today, I am not including machine
gaming at fraternal clubs when I refer to non-Indian gaming in
New Mexico.
The horse racing industry and gaming machines at the tracks
likewise generates tens of millions of dollars in revenue to
the state, and it too has created jobs both at the tracks and
in the supporting industries.
The businessmen and women who operate New Mexico's tracks
are good corporate citizens, donating generously of their time
and money to worthy community causes.
The Indian gaming and non-Indian gaming industries are good
industries in New Mexico, providing jobs, entertainment and
revenue to state and tribal governments and worthy causes. The
Indian and non-Indian gaming industries co-exist in New Mexico
in a delicate balance that includes and recognizes and respects
Native American sovereignty, fair competition among business,
and good business practices and regulation.
It is true there are many different, important differences
between Indian gaming and non-Indian gaming and the two are
treated differently. Indian casinos in New Mexico offer gaming
machines, table gaming, and can operate an unlimited number of
gaming machines and are self-regulated.
Racetracks are not allowed to offer table games, are
limited in the number of machines they can operate, are limited
in the times they can operate, and are connected to a central
monitoring system which is overseen by the New Mexico Gaming
Control Board.
Racetracks pay a gaming tax of 26 percent on the net win
from gaming machines, which is more than three times the
revenue-sharing rate that Indian casinos pay on the net win
from gaming machines. They additionally pay 20 percent of the
net win to the Horsemen's purse fund, and one-quarter of one
percent to gaming addiction funds.
Part of this delicate balance is the understanding that
Indian gaming will be conducted on Indian lands for the benefit
of Indian tribes, and non-Indian gaming will be conducted at
racetracks whose opening and sidings is regulated by the state.
The possibility of an Indian tribe or Pueblo opening a casino
off-reservation as if it were on the reservation threatens to
upset this delicate balance by undermining its foundation of
fairness. Simply put, it is unfair to allow an Indian tribe or
Pueblo to compete with another business by opening casino that
can offer more gaming machines, that can offer more table
games, and shares eight percent of its net win with the state
on its gaming machines only, they pay nothing on their table
games compared to the 26 percent the racetracks pay.
That is not fair and it is not good for the State of New
Mexico.
In the area of southern New Mexico that I represent, Jemez
Pueblo and their non-Native American casino developer are
proposing to construct a casino in the town of Anthony, which
borders Texas. The proposed casino would be within just a few
miles of an existing racetrack. Jemez Pueblo is located
northwest of Albuquerque, approximately 300 miles from the
proposed casino and their non-Native American developer partner
lives approximately 360 miles from the proposed casino.
The Pueblo and its non-Native American casino developer are
saying that it is not economically feasible to build a casino
on its reservation. They may or may not be right, but rest
assured that this Jemez Pueblo proposal is highly controversial
in my state. In fact, the largest Indian casino in New Mexico,
Sandia Pueblo, has recently come out publicly opposing the
Jemez Pueblo proposal and the president of the only Indian
casino in southern New Mexico, the Mescalero Apache Tribe,
voiced serious concerns and questions regarding the Jemez
proposal in the recent public meeting. Our attorney general
also opposes the Jemez proposal.
The more important issue is whether Congress intended, when
it enacted the Indian Gaming Regulatory Act, to allow Native
Americas in concert with non-Native Americans to compete with
existing gaming establishment, both Native American and non-
Native American, on more favorable terms and conditions.
I suggest that was not Congress's intent. I believe
Congress did not intend to allow non-Native Americans to open
and operate any casinos on private land simply by shopping
around for a tribe willing to co-venture. The situation I
describe with the Jemez Pueblo is one of the most blatant
examples of reservation shopping that exists today.
I believe Congress wisely enacted IGRA to provide the
tribes with the opportunity to raise revenue and to achieve
economic success.
It would be appropriate and fair and completely within
IGRA's intent to prohibit Indian tribes that have Indian land
from offering Indian gaming outside their reservations. At a
minimum, IGRA should be amended to require that the approval of
the state--not just the Governor--be required before an Indian
casino opens outside the tribe's reservation.
Additionally, requiring passage by county referendum allows
the citizens most impacted by off-reservation casinos to have a
voice. Just as IGRA allows each state to determine what
constitutes the state's approval of Indian gaming compacts, so
too should IGRA allow each state to determine the extent of
off-reservation Indian gaming it wishes to approve, and not
leave that decision solely to the Governor.
For these reasons, I support the Chairman's bill and
appreciate his efforts and the efforts of his colleagues to
bring some reasonableness to this situation. I do believe that
any changes to IGRA should include any application that is
currently pending before the Department of the Interior and has
not been acted upon by the Secretary of the Interior.
This is an important issue and one that can be resolved
fairly. Indian gaming and non-Indian gaming establishments
should be allowed to compete and co-exist, but they should be
allowed to do both fairly. Governors and legislatures should
decide the extent and nature of off-reservation gaming within
individual states--is my time up?
The Chairman. Yes.
Ms. Papen. Oh, I apologize.
The Chairman. I am not the one ringing the bell. We just
got called to vote. Your time has expired, but I did not push
the button.
Ms. Papen. Thank you, Mr. Chairman.
[The prepared statement of Ms. Papen follows:]
Statement of The Honorable Mary Kay Papen, Senator,
New Mexico State Senate, District 38
Mr. Chairman, members of the committee, thank you for inviting me
to testify before you today on an important issue of fairness and the
rights of duly elected state officials.
I am here to testify today in support of Chairman Pombo's Second
Discussion Draft of Legislation Regarding Off-Reservation Indian Gaming
and his intent to increase state and local input in the two-part
determination process. I am a Democrat State Senator from southern New
Mexico and have served in the state legislature for five years.
Let me say at the outset that I support Indian gaming. Indian
gaming generates tens of millions of dollars annually for the New
Mexico treasury. It has created jobs in casinos, both on the
reservation and off the reservation in supporting industries. It
generates revenue for Native American governments that has been used to
finance infrastructure and fund education, health care and public
safety programs on Indian reservations in New Mexico.
I also support non-Indian gaming in New Mexico. (For the purposes
of my testimony today, I am not including machine gaming at fraternal
clubs when I refer to non-Indian gaming in New Mexico.) The horse
racing industry and gaming machines at the tracks likewise generates
tens of millions of dollars in revenue for the state and it, too, has
created jobs both at the tracks and in the supporting industries. The
businessmen and women who operate New Mexico's tracks are good
corporate citizens, donating generously of their time and money to
worthy community causes.
The Indian gaming and non-Indian gaming industries are good
industries in New Mexico, providing jobs, entertainment and revenue to
state and tribal governments and worthy causes. The Indian and non-
Indian gaming industries coexist in New Mexico in a delicate balance
that includes, recognizes and respects Native American sovereignty,
fair competition among businesses, and good business practices and
regulation. It is true that there are important differences between
Indian gaming and non-Indian gaming and the two are treated
differently.
Indian casinos in New Mexico offer gaming machines, table gaming
and can operate an unlimited number of gaming machines and are self
regulated. Racetracks are not allowed to offer table games, are limited
in the number of machines they can operate, are limited in the times
they can operate and are connected to a central monitoring system which
is overseen by the New Mexico Gaming Control Board. Racetracks pay a
gaming tax of 26% on the net win from gaming machines which is more
than three times the revenue sharing rate that Indian casinos pay on
the net win from gaming machines. They additionally pay 20% of the net
win to the Horsemen's purse fund and one quarter of one percent to
gaming addiction funds.
Part of this delicate balance is the understanding that Indian
gaming will be conducted on Indian lands for the benefit Indian tribes,
and non-Indian gaming will be conducted at racetracks, whose opening
and siting is regulated by the state. The possibility of an Indian
tribe or Pueblo opening a casino off-reservation as if it were on the
reservation threatens to upset this delicate balance by undermining its
foundation of fairness. Simply put, it is unfair to allow an Indian
tribe or Pueblo to compete with another business by opening a casino
that can offer more gaming machines, that can offer table gaming and
shares 8 percent of its net win with the state on its gaming machines
only they pay nothing on their table games compared to the 26 percent
that the horse racetracks pays to the state.
That's just not fair and it is not good for the State of New
Mexico.
In the area of southern New Mexico that I represent, Jemez Pueblo
and their non-Native American casino developer are proposing to
construct a casino in the town of Anthony, which borders Texas. The
proposed casino would be within just a few miles of an existing
racetrack. Jemez Pueblo is located northwest of Albuquerque,
approximately 300 miles from its proposed casino and their non-Native
American developer partner lives approximately 360 miles from the
proposed casino. The Pueblo and its non-Native American casino
developer argue that it is not economically feasible to build a casino
on its reservation. They may or may not be right but rest assured that
this Jemez Pueblo proposal is highly controversial in my state. In
fact, the largest Indian casino in New Mexico, Sandia Pueblo, has
recently come out publicly opposing the Jemez Pueblo proposal and the
President of the only Indian casino in Southern New Mexico, the
Mescalero Apache Tribe, voiced ``serious concerns and questions''
regarding the Jemez proposal in a recent public meeting. Our Attorney
General also opposes the Jemez proposal.
The more important issue is whether Congress intended, when it
enacted the Indian Gaming Regulatory Act (IGRA), to allow Native
Americans in concert with non-Native Americans to compete with existing
gaming establishments, both Native American and non-Native American, on
more favorable terms and conditions. I'd suggest that was not Congress'
intent. Congress did not intend to allow non-Native Americans to open
and operate Indian casinos on private land simply by shopping around
for a tribe willing to co-venture. The situation I described with the
Jemez Pueblo is one of the most blatant examples of reservation
shopping that exists today.
I believe Congress wisely enacted IGRA to provide tribes with an
opportunity to raise revenue and achieve economic success.
It would be appropriate, fair and completely within IGRA's intent
to prohibit Indian tribes that have Indian land from offering Indian
gaming outside their reservations. At a minimum, IGRA should be amended
to require that the approval of the ``state''--not just of the
governor--be required before an Indian casino opens outside of the
tribe's reservation. Additionally, requiring passage by county
referendum allows the citizens most impacted by an off-reservation
casino to have a voice. Just as IGRA allows each state to determine
what constitutes state approval of Indian gaming compacts, so too
should IGRA allow each state to determine the extent of off-reservation
Indian gaming it wishes to approve, and not leave that decision solely
to the governor. For these reasons, I support the Chairman's bill and
appreciate his efforts and the efforts of his colleagues to bring some
reasonableness to this situation. I do believe that any changes to IGRA
should include any application that is currently pending before the
Department of Interior that has not been acted upon by the Secretary of
Interior.
This is an important issue and one that can be resolved fairly.
Indian gaming and non-Indian gaming establishments should be allowed to
compete and coexist, but they should be allowed to do both fairly.
Governors and legislatures should decide the extent and nature of off-
reservation gaming within individual states jointly as state laws
provide. A public policy decision of this magnitude should include all
its state elected officials with real input from the states' citizens.
Mr. Chairman, members of the committee, thank you for this
opportunity.
______
The Chairman. Well, thank you.
We have been called to a series of votes on the Floor.
There are three votes. It should take about half an hour. I am
going to temporarily recess the Committee and when we return we
will hear from our other two witnesses, and I apologize to you
for that, but I really do not have any control over that one,
but thank you.
[Recess.]
The Chairman. I call the hearing back to order. I apologize
to our witnesses for the delay. We were about to hear the
testimony of Supervisor Kromm.
Mr. Kromm. You are ready, I take it.
The Chairman. We are ready.
Mr. Kromm. I was joking. I feel like the field goal kicker
that was put on ice.
[Laughter.]
STATEMENT OF SUPERVISOR DUANE KROMM, SOLANO COUNTY BOARD OF
SUPERVISORS, CALIFORNIA STATE ASSOCIATION OF COUNTIES
Mr. Kromm. On behalf of the California State Association of
Counties, or CSAC, I would like to thank Chairman Pombo,
Ranking Member Rahall, and the other distinguished members of
the Committee on Resources for giving us this opportunity to
submit testimony regarding Chairman Pombo's revised draft
legislation to restrict off-reservation gaming.
I am Duane Kromm, District 3 Supervisor for Solano County,
and a member of both the CSAC Indian Gaming Working Group, and
the Northern California County's Tribal Matters Consortium. I
am in my second term of office, and I am here today
representing CSAC. But just as a brief aside, I have
complimented on a couple of your staff, Chairman.
We were here, our consortium was here back in March, and
met with your staff and really encouraged this committee to
take this show on the road. And when we were in Sacramento
earlier this year, we appreciated that. As you saw, it was just
a packed house. In Sacramento, you had multiple hearings on
this bill.
This is a process that I am not familiar with Federal
legislation, but it strikes me as an incredibly open and
engaging process, and we really appreciate that.
CSAC is a single unified voice speaking on behalf of all 58
California counties, and the issue raised in this hearing has a
direct and unique bearing on counties, in our view more so than
any other jurisdiction of local government.
Counties are the level of government that are responsible
for nearly 700 programs, and these include some of the
following: county sheriffs, public health, fire protection,
family support, alcohol and drug abuse rehabilitation, election
and voter services, roads and bridges, welfare, probation,
jails, flood control, indigent health, child and protective
services. And I think all of these can potentially be impacted
by Indian gaming.
Throughout the State of California and the Nation tribal
gaming has rapidly expanded, creating a myriad of economic,
social, environmental, health, safety, and other impacts. The
facts clearly show that the mitigation and cost of such impacts
increasingly fall upon county government.
Compounding this problem is the expansion of gaming that
has led some tribes and their business partners to engage in a
practice that is sometimes referred to as ``reservation
shopping''. This is an attempt to acquire land not historically
tied to these tribes but which has considerable economic
potential as a site for an Indian casino.
CSAC opposes reservation shopping. It is counter to the
purposes of IGRA. Reservation shopping is an affront to those
tribes who have worked responsibly with counties and other
local governments on a government-to-government basis in
compliance with the spirit and intent of IGRA as a means of
achieving economic self-reliance and preserving their tribal
heritage.
CSAC's approach to Indian gaming is to support cooperative
government-to-government relations with gaming tribes who
follow the provision of IGRA and to seek a mechanism that
allows local governments to work with tribes to mitigate any
off-reservation impacts from proposed casinos.
Examples of our approach are numerous in California where
comprehensive agreements between tribes and counties each
addressing the unique concerns of the tribe and county have
been negotiated in the past few years.
I want to quickly mention the model for negotiation between
local governments and tribes provided by the state tribal
compacts negotiated by the Schwarzenegger Administration.
The results of this model has been improved government-to-
government relationships, and the successful incorporation of
major gaming facilities in counties and communities.
Now some specific comments on the draft legislation.
First, the issue of majority vote in affected counties.
Chairman Pombo has wisely addressed the concept of local
control through the mechanism of a countywide majority vote.
This represents a significant step in the right direction.
However, it needs to be coupled with a mechanism to allow
county and affected city governments to address and mitigate
for the impact of casinos on affected communities, and engage
with tribes on these issues.
One possible solution is the California model of baseball
style arbitration. This could be used as one means to address
the local mitigation and tribal interest while still providing
for a local community vote.
Second, to the issue of consolidation of gaming among
tribes. In regards to consolidation of gaming among tribes,
CSAC is amenable to the concept. Because of our support for
subjecting any tribal casino proposal to the statutory lands-
into-trust process, and input from the affected community, we
would hope that your bill would continue to preclude the
congregation of casinos on land that was taken into trust in a
manner that does not meet this test.
Additionally, one plan has been properly taken into trust.
It is our opinion that the draft bill's countywide advisory
vote provision should be applied whenever an inviting tribe has
extended an offer to consolidate to another tribe or tribes.
Last, if the affected county's residents vote in the
affirmative, the invited tribe or tribes should also be subject
to a mechanism requiring the tribes and the affected local
governments to meet and confer to achieve a mutually acceptable
resolution for impact mitigation.
In conclusion, the Chairman's bill represents a significant
contribution to the resolution of some of the biggest issues
created by IGRA and its implementation, particularly off-
reservation casino proposals. CSAC believes that with necessary
and appropriate revisions, such as allowing counties a voice on
matters that impact the communities they serve, the Chairman's
draft legislation would further the original goals of IGRA, and
will also help to minimize abuses that have proven to be
detrimental to those tribes in full compliance with all
applicable Federal laws.
In our written testimony, we touch on issues such as
historical ties for taking lands into trust, and changes uses
for trust lands, and we would welcome further discussion on
these important issues as the draft legislation evolves.
Thank you very much for allowing CSAC to participate in
this important hearing.
[The prepared statement of Mr. Kromm follows:]
Statement of Duane Kromm, Supervisor, Solano County, and Member, Indian
Gaming Working Group, California State Association of Counties
On behalf of the California State Association of Counties (CSAC) I
would like to thank Chairman Pombo, Ranking Member Rahall, and the
other distinguished members of the Committee of Resources for giving us
this opportunity to submit testimony as part of the hearing to consider
Chairman Pombo's revised draft legislation to restrict off-Reservation
gaming. I am Duane Kromm, District Three Supervisor for Solano County
and a member of both the CSAC Indian Gaming Working Group and the
Northern California Counties Tribal Matters Consortium.
CSAC is the single, unified voice speaking on behalf of all 58
California counties. The issue raised in this hearing has direct and
unique bearing on counties, more so than any other jurisdiction of
local government.
There are two key reasons this issue is of heightened importance
for California counties. First, counties are legally responsible to
provide a broad scope of vital services for all members of their
communities. Second, throughout the State of California and the nation,
tribal gaming has rapidly expanded, creating a myriad of economic,
social, environmental, health, safety, and other impacts. The facts
clearly show that the mitigation and costs of such impacts increasingly
fall upon county government.
For the past three years, CSAC has devoted considerable staff time
and financial resources to the impacts on county services resulting
from Indian gaming. We believe that California counties and CSAC have
developed an expertise in this area that may be of benefit to this
Committee as it considers amendments to the Indian Gaming Regulatory
Act.
Introduction:
At the outset, the California State Association of Counties (CSAC)
reaffirms its absolute respect for the authority granted to federally
recognized tribes. CSAC also reaffirms its support for the right of
Indian tribes to self-governance and its recognition of the need for
tribes to preserve their tribal heritage and to pursue economic self-
reliance.
However, CSAC maintains that existing laws fail to address the off-
reservation impacts of tribal land development, particularly in those
instances when local land use and health and safety regulations are not
being fully observed by tribes in their commercial endeavors. As we all
know, these reservation commercial endeavors attract large volumes of
visitors.
Every Californian, including all tribal members, depend upon county
government for a broad range of critical services, from public safety
and transportation, to waste management and disaster relief.
California counties are responsible for nearly 700 programs,
including the following:
,-- ,
sheriff elections & voter services
jails public health
roads & bridges indigent health
flood control fire protection
welfare family support
probation child & adult protective services
alcohol & drug abuse
rehabilitation
Most of these services are provided to residents both outside and
inside city limits. Unlike the exercise of land use control, such
programs as public health, welfare, and jail services are provided (and
often mandated) regardless of whether a recipient resides within a city
or in the unincorporated area of the county. These vital public
services are delivered to California residents through their 58
counties. It is no exaggeration to say that county government is
essential to the quality of life for over 35 million Californians. No
other form of local government so directly impacts the daily lives of
all citizens. In addition, because county government has very little
authority to independently raise taxes and increase revenues, the
ability to adequately mitigate reservation commercial endeavors is
critical, or all county services can be put at risk.
CSAC fully recognizes the counties' legal responsibility to
properly provide for and protect the health, safety, and general
welfare of the members of their communities. California counties'
efforts in this regard have been significantly impacted by the
expansion of Indian gaming.
Certainly compounding this problem is the fact that the expansion
in gaming has led some tribes and their business partners to engage in
a practice that is sometimes referred to as ``reservation shopping'' in
an attempt to acquire land not historically tied to these tribes but
which has considerable economic potential as a site for an Indian
casino. CSAC opposes ``reservation shopping'' as counter to the
purposes of the Indian Gaming Regulatory Act (IGRA). ``Reservation
shopping'' is an affront to those tribes who have worked responsibly
with counties and local governments on a government-to-government basis
in compliance with the spirit and intent of the IGRA as a means of
achieving economic self-reliance and preserving their tribal heritage.
CSAC commends Chairman Pombo and the other Members of the House
Resources Committee for seeking to curb the increasing practice of
``reservation shopping.'' This written testimony is in support of your
efforts to craft amendments to the IGRA that preserve the original goal
of the IGRA while minimizing the impacts of ``reservation shopping'' on
local communities. CSAC offers its assistance to Chairman Pombo and the
House Resources Committee in any manner determined necessary by the
Chairman and the Committee in its ongoing consideration of amendments
to the IGRA that balance the interests of gaming tribes with local
communities and governments.
Background:
A. The Advent of Indian Gaming
Even before the enactment of the IGRA in 1988, California counties
were experiencing impacts in rural areas from Indian gaming
establishments. These early establishments were places where Indian
bingo was the primary commercial enterprise in support of tribal
economic self-reliance. The impacts on local communities were not
significant in large part because the facilities where Indian bingo was
played were modest in size and did not attract large numbers of
patrons. Following enactment of the IGRA, the impacts to counties from
Indian gaming establishments increased with the advent of larger gaming
facilities. Even so, the impacts to local communities from these larger
gaming facilities were generally manageable except in certain
instances.
Over the last five years, the rapid expansion of Indian gaming in
California has had profound impacts beyond the boundaries of tribal
lands. Since 1999 and the signing of Compacts with approximately 69
tribes and the passage of Propositions 5 and 1A (legalizing Indian
gaming in California), the vast majority of California's counties
either have a casino, a tribe petitioning for federal recognition, or
is the target or focus of a proposed casino plan. As the Committee is
aware, many pending casino proposals relate to projects on land far
from a tribe's ancestral territory.
A 2004 CSAC survey reveals that 53 active gaming operations exist
in 26 of California's 58 counties. Another 33 gaming operations are
being proposed. As a result, 35 counties out of 58 in California have
active or proposed gaming. Most important, of those 35 counties
impacted by Indian gaming, there are 82 tribes in those counties but
only 20 local agreements for mitigation of the off-reservation impacts
on services that counties are required to provide.
B. Development of CSAC 2003 Policy
In 1999, California Governor Gray Davis and approximately 65 tribes
entered into Tribal-State Compacts, which permitted each of these
tribes to engage in Class III gaming on their trust lands. The
economic, social, environmental, health, safety, traffic, criminal
justice, and other impacts from these casino-style gaming facilities on
local communities were significant, especially because these gaming
facilities were located in rural areas. The 1999 Compacts did not give
counties an effective role in mitigating off-reservation impacts
resulting from Indian casinos. Consequently, mitigation of these
impacts could not be achieved without the willingness of individual
tribes to work with the local governments on such mitigation. Some
tribes and counties were able to reach mutually beneficial agreements
that helped to mitigate these impacts. Many counties were less than
successful in obtaining the cooperation of tribes operating casino-
style gaming facilities in their unincorporated areas.
The off-reservation impacts of current and proposed facilities led
CSAC, for the first time, to adopt a policy on Indian gaming. In the
fall of 2002, at its annual meeting, CSAC held a workshop to explore
how to begin to address these significant impacts. As a result of this
workshop, CSAC established an Indian Gaming Working Group to gather
relevant information, be a resource to counties, and make policy
recommendations to the CSAC Board of Directors on Indian gaming issues.
CSAC's approach to addressing the off-reservation impacts of Indian
gaming is simple: to work on a government-to-government basis with
gaming tribes in a respectful, positive and constructive manner to
mitigate off-reservation impacts from casinos, while preserving tribal
governments' right to self-governance and to pursue economic self-
reliance.
With this approach as a guide, CSAC developed a policy comprised of
seven principles regarding State-Tribe Compact negotiations for Indian
gaming, which was adopted by the CSAC Board of Directors on February 6,
2003. The purpose of this Policy is to promote tribal self-reliance
while at the same time promoting fairness and equity, and protecting
the health, safety, environment, and general welfare of all residents
of the State of California and the United States. A copy of this Policy
is attached to this written testimony as Attachment A.
C. Implementation of CSAC's 2003 Policy
Following adoption by CSAC of its 2003 Policy, the Indian Gaming
Working Group members met on three occasions with a three-member team
appointed by Governor Davis to renegotiate existing Compacts and to
negotiate with tribes who were seeking a compact for the first time. As
a result of these meetings, three new State-Tribe Compacts were
approved for new gaming tribes. These new Compacts differed from the
1999 Compacts in that the 2003 Compacts gave a meaningful voice to the
affected counties and other local governments to assist them in seeking
tribal cooperation and commitment to addressing the off-reservation
environmental impacts of the Indian casinos that would be built
pursuant to those Compacts.
Illustrations of Successful County/Tribal Cooperation
There are many examples of California counties working
cooperatively with tribes on a government-to-government basis on all
issues of common concern to both governments, not just gaming-related
issues. Yolo County has a history of working with Rumsey Band of Wintun
Indians to ensure adequate services in the area where the casino is
operating. In addition, Yolo County has entered into agreements with
the tribe to address the impacts created by tribal projects in the
county.
In Southern California, San Diego County has a history of tribes
working with the San Diego County Sheriff to ensure adequate law
enforcement services in areas where casinos are operating. In addition,
San Diego County has entered into agreements with four tribes to
address the road impacts created by casino projects. Further, a
comprehensive agreement was reached with the Santa Ysabel Tribe
pursuant to the 2003 Compact with the State of California.
Humboldt, Placer, and Colusa Counties and tribal governments have
agreed similarly on law enforcement-related issues. Humboldt County
also has reached agreements with tribes on a court facility/sub
station, a library, road improvements, and on a cooperative approach to
seeking federal assistance to increase water levels in nearby rivers.
In central California, Madera and Placer Counties have reached more
comprehensive agreements with the tribes operating casinos in their
communities. These comprehensive agreements provide differing
approaches to the mitigation of off-reservation impacts of Indian
casinos, but each is effective in its own way to address the unique
concerns of each gaming facility and community.
After a tribe in Santa Barbara County completed a significant
expansion of its existing casino, it realized the need to address
ingress and egress, and flood control issues. Consequently, Santa
Barbara County and the tribe negotiated an enforceable agreement
addressing these limited issues in the context of a road widening and
maintenance agreement. Presently, there is no authority that requires
the County of Santa Barbara or its local tribe to reach agreements.
However, both continue to address the impacts caused by the tribe's
acquisition of trust land and development on a case-by-case basis,
reaching intergovernmental agreements where possible.
The agreements in each of the above counties were achieved only
through positive and constructive discussions between tribal and county
leaders. It was through these discussions that each government gained a
better appreciation of the needs and concerns of the other government.
Not only did these discussions result in enforceable agreements for
addressing specific impacts, but enhanced respect and a renewed
partnership also emerged, to the betterment of both governments, and
tribal and local community members.
Illustrations of Continued Problems Addressing Casino Impacts
On the other hand, there are examples of Indian casinos and
supporting facilities where a tribal government did not comply with the
requirements of the IGRA or the 1999 Compacts. In Mendocino County, a
tribe built and operated a Class III gaming casino for years without
the requisite compact between it and the California Governor. In Sonoma
County, a tribe decimated a beautiful hilltop to build and operate a
tent casino that the local Fire Marshal determined lacked the necessary
ingress and egress for fire safety.
In other California counties, tribes circumvented or ignored
requirements of the IGRA or the 1999 Compacts prior to construction of
buildings directly related to Indian gaming. In San Diego County there
have been impacts to neighboring water wells that appear to be directly
related to a tribe's construction and use of its water well to irrigate
a newly constructed golf course adjoining its casino, and several other
tribal casino projects have never provided mitigation for the
significant traffic impacts caused by those projects.
In 2004, the focus of CSAC on seeking mechanisms for working with
gaming tribes to address off-reservation impacts continued. Since that
time, Governor Schwarzenegger and several tribes negotiated amendments
to the 1999 Compacts, which lifted limits on the number of slot
machines, required tribes to make substantial payments to the State,
and incorporated most of the provisions of CSAC's 2003 Policy. Of
utmost importance to counties was the requirement in each of these
newly amended Compacts that each tribe be required to negotiate with
the appropriate county government to develop local agreements for the
mitigation of the impacts of casino projects, and that these agreements
are judicially enforceable. Where a tribe and county cannot reach a
mutually beneficial binding agreement, ``baseball style'' arbitration
will be employed to determine the most appropriate method for
mitigating the impacts.
D. The Advent of ``Reservation Shopping'' in California
The problems with the original 1999 Compacts remain largely
unresolved, as most existing Compacts were not renegotiated. These
Compacts allow tribes to develop two casinos and do not restrict casino
development to areas within a tribe's current trust land or historical
ancestral territory. For example, in the Fall of 2002 a Lake County
band of Indians was encouraged by East Coast developers to pursue
taking into a trust land in Yolo County for use as a site of an Indian
casino. The chosen site was across the Sacramento River from downtown
Sacramento and was conveniently located near a freeway exit. The actual
promoters of this effort were not Native Americans and had no intention
of involving tribal Band members in the operation and management of the
casino. In fact, one promoter purportedly bragged that no Indian would
ever be seen on the premises.
In rural Amador County, starting in 2002 and continuing to the
present, a tribe being urged on by another out-of-State promoter is
seeking to have land near the small town of Plymouth taken into trust
for a casino. The tribe has no historical ties to the Plymouth
community. The effort by this tribe and its non-Native American
promoter has created a divisive atmosphere in the local community. That
new casino is not the only one being proposed in the County; a second,
very controversial new casino is being promoted by a New York developer
for a three-member tribe in a farming and ranching valley not served
with any water or sewer services, and with access only by narrow County
roads. The development of these casinos would be an environmental and
financial disaster for their neighbors and the County, which already
has one major Indian casino.
In the past two years in Contra Costa County, there have been
varying efforts by three tribes to engage in Indian gaming in this
highly urbanized Bay Area county. The possibility of significant
economic rewards from operating urban casinos has eclipsed any
meaningful exploration of whether these tribes have any historical
connection to the area in which they seek to establish gaming
facilities.
In addition, in 2004, California counties faced a new issue
involving tribes as a result of non-gaming tribal development projects.
In some counties land developers were seeking partnerships with tribes
in order to avoid local land use controls and to build projects that
would not otherwise be allowed under local land use regulation. In
addition, some tribes were seeking to acquire land outside their
current trust land or their legally recognized aboriginal territory and
to have that land placed into federal trust, beyond the reach of a
county's land use jurisdiction.
CSAC's 2004 Policy Regarding Development of Tribal Lands
To address these issues, the CSAC Board of Directors adopted a
Revised Policy Regarding Development on Tribal Lands on November 18,
2004 (attached as Attachment B). The Revised Policy reaffirms that:
CSAC supports cooperative and respectful government-to-
government relations that recognize the interdependent role of tribes,
counties and other local governments to be responsive to the needs and
concerns of all members of their respective communities.
With respect to the issues specifically now before the Committee
the following new Revised Policies apply:
CSAC supports federal legislation to provide that lands
are not to be placed in trust and removed from the land use
jurisdiction of local governments without the consent of the State and
affected County.
CSAC opposes the practice commonly referred to as
``reservation shopping'' where a tribe seeks to place lands in trust
outside its proven aboriginal territory over the objection of the
affected County.
Importance of County Involvement in Developing Mitigation:
The history and examples provided above illustrate the need for
counties to be involved in developing appropriate off-reservation
mitigations related to Indian casino activities. There is not yet a
definitive study on the impacts of gaming on local communities.
However, in those counties that are faced with large gaming projects,
it is clear that the impacts on traffic, water/wastewater, the criminal
justice system and social services are significant. For non-Indian
casinos it is estimated that for every dollar a community collects from
gambling-related taxes, it must spend three dollars to cover new
expenses, including police, infrastructure, social welfare and
counseling services. 1 As local communities cannot tax
Indian operations, or the related hotel and other services that would
ordinarily be a source of local government income, the negative impact
of such facilities can even be greater. This is one reason that CSAC
sought amendments to California Tribal-State Compacts to ensure that
the off-reservation environmental and social impacts of gaming were
fully mitigated and that gaming tribes paid their fair share for county
services.
---------------------------------------------------------------------------
\1\ Cabazon, The Indian Gaming Regulatory Act, and the
Socioeconomic Consequences of American Indian Governmental Gaming--A
Ten Year Review by Jonathon Taylor and Joseph Kalt of the Harvard
Project on American Indian Economic Development (2005) at p. 9 (citing
Sen. Frank Padavan, Rolling the Dice: Why Casino Gambling is a Bad Bet
for New York State at ii (1994).
---------------------------------------------------------------------------
In 2003, CSAC took a ``snapshot'' of local impacts by examining
information provided by eight of the then twenty-six counties (the only
counties that had conducted an analysis of local government fiscal
impacts) where Indian gaming facilities operated. 2 The
total fiscal impact to those eight counties was approximately $200
million, including roughly $182 million in one-time costs and $17
million in annual costs. If these figures were extrapolated to the rest
of the state, the local government fiscal costs could well exceed $600
million in one-time and on-going costs for road improvements, health
services, law enforcement, emergency services, infrastructure
modifications, and social services.
---------------------------------------------------------------------------
\2\ CSAC Fact Sheet on Indian Gaming in California (11/5/03)
(attached as Attachment C.)
---------------------------------------------------------------------------
Even when a particular gaming facility is within a City's
jurisdictional limits, the impacts on County government and services
may be profound. Counties are the largest political subdivision of the
state having corporate authority and are vested by the Legislature with
the powers necessary to provide for the health and welfare of the
people within their borders. Counties are responsible for a countywide
justice system, social welfare, health and other services. The
California experience has also made clear that particularly large
casino facilities have impacts beyond the immediate jurisdiction in
which they operate. Attracting many thousands of car trips per day,
larger facilities cause traffic impacts throughout a local
transportation system. Similarly, traffic accidents, crime and other
problems sometimes associated with gaming are not isolated to a casino
site but may increase in surrounding communities.
As often the key political entity and service provider in the area,
with a larger geographic perspective and land use responsibility,
county involvement is critical to ensure that the needs of the
community are met and that any legitimate tribal gaming proposal is
ultimately successful and accepted. Local approval and mechanisms that
create opportunities for negotiation are necessary to help insure a
collaborative approach with tribes in gaming proposals and to support
the long-range success of the policies underlying the IGRA.
Comments on Draft Legislation:
CSAC fully understands that addressing the impacts pf Indian
casinos has been a contentious subject in some California communities.
In an attempt to minimize this contentiousness, CSAC has focused on
resolutions that show proper respect for all governments with roles in
Indian gaming. Ultimately, as described in previous pages, the two most
involved governments are tribal governments and county governments.
The overwhelming majority of Indian casinos are in rural areas.
Accordingly, county governments are those local governments in
California who find themselves most often in the position of needing to
address off-reservation impacts from Indian casinos. Current federal
law does not provide counties an effective role in working with tribes
to address off-reservation impacts from Indian gaming.
In California, through the most recent State-Tribal Compacts
negotiated by the Schwarzenegger Administration, counties and other
local governments have been provided an appropriate opportunity to work
with gaming tribes to address off-reservation impacts. The result has
been improved government-to-government relationships between tribes and
county governments and the smooth incorporation of major gaming
facilities into counties and communities.
Also in the vein of improved relationships, CSAC recently worked
with several tribes to stage a day-long forum on ``Government-to-
Government Relationships: A Forum on Indian Gaming,'' which was very
well attended and featured topics such as negotiating memorandums of
understanding, implementing public safety protocols, and additional
opportunities for tribes and local governments to work collaboratively.
This and other recent events demonstrate that, contrary to possible
fears of tribal leaders, local governments have not acted arbitrarily
or capriciously in their dealings with tribes. In fact, the improved
relationships are the result of each government gaining a better
understanding of the responsibilities and needs of the other.
Because we in California have several positive examples of counties
and tribes working together for the betterment of their respective
communities, CSAC supports Chairman Pombo's efforts to address the
practice of ``reservation shopping,'' but is concerned that the second
version of the draft legislation does not take into account the
jurisdiction, expertise, and interests of county governments in
situations where tribes choose to consolidate gaming operations.
Majority Vote in Affected Counties
While the gaming consolidation idea outlined in the second draft of
the legislation is amenable to county governments, the concept of ``a
majority vote in a county or parish referendum,'' while fulfilling the
letter of ``local control'' regarding proposed gaming facilities,
represents merely a positive or negative vote on the project while
providing no mechanism to address the impacts of such casinos. As
mentioned above, the recent Schwarzenegger Compacts in California
provide just such a mechanism by requiring tribes and counties to
negotiate and develop plans for reasonable mitigation of impacts from
gaming facilities. Further, the Schwarzenegger Compacts enforce
``baseball style'' arbitration in the event that counties and tribes
are unable to reach a compromise, which also encourages both parties to
work together.
While a countywide vote of the people is an important component in
the process of any proposed gaming facilities, CSAC is concerned that
it does not create a sufficient impetus to cause affected counties and
tribes to meet and confer to achieve a mutually acceptable resolution
for impact mitigation. Through analysis of these issues, CSAC has
learned that such an impetus only occurs when both a county and a tribe
have something to gain from such a resolution-driven process, and
something to lose if they do not participate in such a process, either
at all or in good faith.
We strongly urge Chairman Pombo to include a mechanism in the draft
legislation that requires local governments and all tribes, including
invited tribes, to negotiate mitigation agreements to ensure that the
interests of tribes, local governments, and affected communities are
adequately met.
Newly Recognized, Restored, and Landless Tribes
CSAC endorses Chairman Pombo's efforts to clarify how and where
newly recognized, restored, and landless tribes acquire lands in trust
for gaming purposes. The Chairman's effort to first ascertain a tribe's
geographic and historical ties to a particular area of the State makes
abundant sense. This approach recognizes that when a tribe has
geographic and historical ties to a community, a precedential effect to
those ties is warranted. Without those geographic and historical ties,
a tribe is no different than any other developer in seeking an economic
opportunity on lands that were not part of its heritage.
Consolidation of Gaming Among Tribes
CSAC does not oppose the concept of gaming consolidation among
tribes, and supports the language reaffirming the fact that all Indian
gaming operations must take place only on lands deemed suitable for
such operations in accordance with IGRA. However, based on its
experiences with Indian gaming issues, CSAC believes that more details
are needed. CSAC has several recommendations on how to clarify this
provision:
Consolidated gaming operations must be limited to a
tribe's trust lands, and tribes should not be permitted to merge their
separate trust lands.
In states where such agreements between tribes are
implemented, Indian gaming should not be permitted on land not already
held in trust by the federal government at the time this amendment is
adopted, unless the tribe and affected state and local jurisdictions
agree in writing that any unavoidable significant adverse impacts will
be fully mitigated by the tribe.
In application of Section (b)(1)(E), the countywide
advisory vote should be applied whenever an inviting tribe has extended
an offer to consolidate to another tribe or tribes.
If the affected county's residents vote in the
affirmative, the invited tribe(s) should also be subject to a mechanism
requiring the tribes and affected local governments to meet and confer
to achieve a mutually acceptable resolution for impact mitigation.
The location of such gaming facilities should take into
account the impact that the operations could have on existing
commercial endeavors.
Primary Geographic, Social and Historical Nexus
When the phrase ``primary geographic, social and historical nexus''
is used in this bill, CSAC recommends that it be based on objective
facts that are generally acceptable to practicing historians,
archeologists, and anthropologists. If there is a question by a tribal,
state or local government as to whether the nexus has been established,
the bill should provide for a judicial determination in either federal
or state court on the issue, where the tribe would have the burden of
showing the requisite nexus by a preponderance of evidence. This would
provide a credible mechanism for determining a tribe's primary
geographic, social and historical nexus and allow for judicial review
of the facts in cases of doubt.
Suggested Revisions and Clarifications
In previous testimony, CSAC has requested that language be added to
the draft language to give certainty to the date that the amendment
would become applicable so that, for example, federal agencies would
know whether a tribe's trust application filed before the effective
date of the amendment, but approved after the effective date, would be
subject to the amendment's requirements. The second revised version
does include such language, and we are grateful to the Chairman for
considering our concerns in this area.
Conclusion:
CSAC presents this written testimony to assist the Chairman and
Committee Members in their efforts to amend the IGRA and address the
increasing practice of ``reservation shopping.'' In California, the
Chairman's bill--with necessary and appropriate revisions--must allow
counties a voice in matters that create impacts that the County will
ultimately be called upon by its constituents to address. This voice is
critical if California counties are to protect the health and safety of
their citizens. Otherwise, counties find themselves in a position where
their ability to effectively address the off-reservation impacts from
Indian gaming is extremely limited and dependent on the willingness of
individual tribes to mitigate such impacts.
In those instances in California where tribal governments and
counties have met to work together to resolve issues of concern to each
government, responsible decisions have been made by both governments to
the benefit of both tribal members and local communities. Enactment of
this draft legislation should seek to create a mechanism and increased
opportunities for these governments to work together. Such a mechanism
would further the original goals of the IGRA while also helping to
minimize the abuses of the IGRA that have proven to be detrimental to
those tribes in full compliance with all applicable federal laws.
We wish to thank Chairman Pombo and members of the Committee for
their consideration and acknowledgment of the impact of this important
issue on the counties of California. We look forward to continue
working together to ensure the best possible outcome for all tribes,
local governments, and communities.
______
ATTACHMENT A:
CSAC POLICY DOCUMENT REGARDING COMPACT NEGOTIATIONS FOR INDIAN GAMING
Adopted by the CSAC Board of Directors
February 6, 2003
In the spirit of developing and continuing government-to-government
relationships between federal, tribal, state, and local governments,
CSAC specifically requests that the State request negotiations with
tribal governments pursuant to section 10.8.3, subsection (b) of the
Tribal-State Compact, and that it pursue all other available options
for improving existing and future Compact language.
CSAC recognizes that Indian Gaming in California is governed by a
unique structure that combines federal, state, and tribal law. While
the impacts of Indian gaming fall primarily on local communities and
governments, Indian policy is largely directed and controlled at the
federal level by Congress. The Indian Gaming Regulatory Act of 1988 is
the federal statute that governs Indian gaming. The Act requires
compacts between states and tribes to govern the conduct and scope of
casino-style gambling by tribes. Those compacts may allocate
jurisdiction between tribes and the state. The Governor of the State of
California entered into the first Compacts with California tribes
desiring or already conducting casino-style gambling in September 1999.
Since that time tribal gaming has rapidly expanded and created a myriad
of significant economic, social, environmental, health, safety, and
other impacts.
CSAC believes the current Compact fails to adequately address these
impacts and/or to provide meaningful and enforceable mechanisms to
prevent or mitigate impacts. The overriding purpose of the principles
presented below is to harmonize existing policies that promote tribal
self-reliance with policies that promote fairness and equity and that
protect the health, safety, environment, and general welfare of all
residents of the State of California and the United States. Towards
that end, CSAC urges the State to consider the following principles
when it renegotiates the Tribal-State Compact:
1. A Tribal Government constructing or expanding a casino or other
related businesses that impact off-reservation 3 land will
seek review and approval of the local jurisdiction to construct off-
reservation improvements consistent with state law and local ordinances
including the California Environmental Quality Act with the tribal
government acting as the lead agency and with judicial review in the
California courts.
---------------------------------------------------------------------------
\3\ As used here the term ``reservation'' means Indian Country
generally as defined under federal law, and includes all tribal land
held in trust by the federal government. 18 U.S.C. Sec. 1151.
---------------------------------------------------------------------------
2. A Tribal Government operating a casino or other related
businesses would mitigate all off-reservation impacts caused by that
business. In order to ensure consistent regulation, public
participation, and maximum environmental protection, Tribes will
promulgate and publish environmental protection laws that are at least
as stringent as those of the surrounding local community and comply
with the California Environmental Quality Act with the tribal
government acting as the lead agency and with judicial review in the
California courts.
3. A Tribal Government operating a casino or other related
businesses will be subject to the authority of a local jurisdiction
over health and safety issues including, but not limited to, water
service, sewer service, fire inspection and protection, rescue/
ambulance service, food inspection, and law enforcement, and reach
written agreement on such points.
4. A Tribal Government operating a casino or other related
businesses would pay to the local jurisdiction the Tribe's fair share
of appropriate costs for local government services. These services
include, but are not limited to, water, sewer, fire inspection and
protection, rescue/ambulance, food inspection, health and social
services, law enforcement, roads, transit, flood control, and other
public infrastructure. Means of reimbursement for these services
include, but are not limited to, payments equivalent to property tax,
sales tax, transient occupancy tax, benefit assessments, appropriate
fees for services, development fees, and other similar types of costs
typically paid by non-Indian businesses.
5. The Indian Gaming Special Distribution Fund, created by section
5 of the Tribal-State Compact will not be the exclusive source of
mitigation, but will ensure that counties are guaranteed funds to
mitigate off-reservation impacts caused by tribal gaming.
6. To fully implement the principles announced in this document
and other existing principles in the Tribal-State compact, Tribes would
meet and reach a judicially enforceable agreement with local
jurisdictions on these issues before a new compact or an extended
compact becomes effective.
7. The Governor should establish and follow appropriate criteria
to guide the discretion of the Governor and the Legislature when
considering whether to consent to tribal gaming on lands acquired in
trust after October 17, 1988 and governed by the Indian Gaming
Regulatory Act. 25 U.S.C. Sec. 2719. The Governor should also establish
and follow appropriate criteria/guidelines to guide his participation
in future compact negotiations.
______
ATTACHMENT B:
CSAC REVISED POLICY DOCUMENT REGARDING DEVELOPMENT ON TRIBAL LANDS
Adopted by CSAC Board of Directors
November 18, 2004
Background
On February 6, 2003, CSAC adopted a policy, which urged the State
of California to renegotiate the 1999 Tribal-State Compacts, which
govern casino-style gambling for approximately 65 tribes. CSAC
expressed concern that the rapid expansion of Indian gaming since 1999
created a number of impacts beyond the boundaries of tribal lands, and
that the 1999 compacts failed to adequately address these impacts. The
adopted CSAC policy specifically recommended that the compacts be
amended to require environmental review and mitigation of the impacts
of casino projects, clear guidelines for county jurisdiction over
health and safety issues, payment by tribes of their fair share of the
cost of local government services, and the reaching of enforceable
agreements between tribes and counties on these matters.
In late February, 2003, Governor Davis invoked the environmental
issues re-opener clause of the 1999 compacts and appointed a three
member team, led by former California Supreme Court Justice Cruz
Reynoso, to renegotiate existing compacts and to negotiate with tribes
who were seeking a compact for the first time. CSAC representatives had
several meetings with the Governor's negotiating team and were pleased
to support the ratification by the Legislature in 2003 of two new
compacts that contained most of the provisions recommended by CSAC.
During the last days of his administration, however, Governor Davis
terminated the renegotiation process for amendments to the 1999
compacts.
Soon after taking office, Governor Schwarzenegger appointed former
Court of Appeal Justice Daniel Kolkey to be his negotiator with tribes
and to seek amendments to the 1999 compacts that would address issues
of concern to the State, tribes, and local governments. Even though
tribes with existing compacts were under no obligation to renegotiate,
several tribes reached agreement with the Governor on amendments to the
1999 compacts. These agreements lift limits on the number of slot
machines, require tribes to make substantial payments to the State, and
incorporate most of the provisions sought by CSAC. Significantly, these
new compacts require each tribe to negotiate with the appropriate
county government on the impacts of casino projects, and impose binding
``baseball style'' arbitration on the tribe and county if they cannot
agree on the terms of a mutually beneficial binding agreement. Again,
CSAC was pleased to support ratification of these compacts by the
Legislature.
The problems with the 1999 compacts remain largely unresolved,
however, since most existing compacts have not been renegotiated. These
compacts allow tribes to develop two casinos, expand existing casinos
within certain limits, and do not restrict casino development to areas
within a tribe's current trust land or legally recognized aboriginal
territory. In addition, issues are beginning to emerge with non-gaming
tribal development projects. In some counties, land developers are
seeking partnerships with tribes in order to avoid local land use
controls and to build projects, which would not otherwise be allowed
under the local land use regulations. Some tribes are seeking to
acquire land outside their current trust land or their legally
recognized aboriginal territory and to have that land placed into
federal trust and beyond the reach of a county's land use jurisdiction.
CSAC believes that existing law fails to address the off-
reservation impacts of tribal land development, particularly in those
instances when local land use and health and safety regulations are not
being fully observed by tribes in their commercial endeavors. The
purpose of the following Policy provisions is to supplement CSAC's
February 2003 adopted policy through an emphasis for counties and
tribal governments to each carry out their governmental
responsibilities in a manner that respects the governmental
responsibilities of the other.
Policy
CSAC supports cooperative and respectful government-to-government
relations that recognize the interdependent role of tribes, counties
and other local governments to be responsive to the needs and concerns
of all members of their respective communities.
CSAC recognizes and respects the tribal right of self-governance to
provide for the welfare of its tribal members and to preserve
traditional tribal culture and heritage. In similar fashion, CSAC
recognizes and respects the counties' legal responsibility to provide
for the health, safety, environment, infrastructure, and general
welfare of all members of their communities.
CSAC also supports Governor Schwarzenegger's efforts to continue to
negotiate amendments to the 1999 Tribal-State Compacts to add
provisions that address issues of concern to the State, tribes, and
local governments. CSAC reaffirms its support for the local government
protections in those Compact amendments that have been agreed to by the
State and tribes in 2004.
CSAC reiterates its support of the need for enforceable agreements
between tribes and local governments concerning the mitigation of off-
reservation impacts of development on tribal land 4. CSAC
opposes any federal or state limitation on the ability of tribes,
counties and other local governments to reach mutually acceptable and
enforceable agreements.
---------------------------------------------------------------------------
\4\ As used here the term ``tribal land'' means trust land,
reservation land, Rancheria land, and Indian Country as defined under
federal law.
---------------------------------------------------------------------------
CSAC supports legislation and regulations that preserve--and not
impair--the abilities of counties to effectively meet their
governmental responsibilities, including the provision of public
safety, health, environmental, infrastructure, and general welfare
services throughout their communities.
CSAC supports federal legislation to provide that lands are not to
be placed into trust and removed from the land use jurisdiction of
local governments without the consent of the State and the affected
county.
CSAC opposes the practice commonly referred to as ``reservation
shopping'' where a tribe seeks to place land into trust outside its
aboriginal territory over the objection of the affected county.
CSAC does not oppose the use by a tribe of non-tribal land for
development provided the tribe fully complies with state and local
government laws and regulations applicable to all other development,
including full compliance with environmental laws, health and safety
laws, and mitigation of all impacts of that development on the affected
county.
[GRAPHIC] [TIFF OMITTED] T4545.001
______
The Chairman. Thank you. Supervisor Jacob.
STATEMENT OF SUPERVISOR DIANNE JACOB,
SAN DIEGO COUNTY BOARD OF SUPERVISORS
Ms. Jacob. Thank you, Mr. Chairman, and Member of the
Committee. I appreciate the opportunity to be here this
afternoon, and providing some testimony to you.
I am Dianne Jacob. I am a member of the San Diego County
Board of Supervisors, which is in California. I want to focus
my comments today specifically on those provisions of the draft
authorizing the consolidation of two or more tribes' gaming
activities within the existing boundaries of one of the tribe's
reservation. It is a concept that I wholeheartedly support.
San Diego County is home to more Indian reservations than
any county in the United States, at 18. Currently, nine tribes
in our county operate casinos. These casinos range from a small
30-slot arcade to large casino resorts, some with golf courses,
multi-story hotels, shopping centers, live theaters and fine
restaurants. The tribes gaming has become a powerful tool for
social change. It has helped tribal members break free from
decades of poverty and government neglect, and on some
reservations gaming has completely eliminated unemployment and
enabled tribal members to become self-sufficient.
For the community, it provides jobs, attracts tourists and
adds fuel to our local economy. Each year gaming tribes give
millions of dollars in charitable contributions to
organizations throughout the region. These benefits, however,
are not without a price.
The kind of development that accompanies Indian gaming has
profoundly affected people in nearby communities, and it has
had a substantial impact on county government, from increased
traffic to increased demands on law enforcement, to decreased
groundwater supplies, to changes in community character, the
unintended consequences of casino development are huge.
Like a majority of San Diegans, I support the right of
tribes to game, and while I believe that reservations are
sovereign nations, I know they are not islands. At the moment a
handful of new casino projects are in the works for San Diego
County. This is the story of two tribes and how the County of
San Diego, working in partnership with the Viejas Band of
Kumeyaay Indians, the Ewiiaapaayp Band of Kumeyaay Indians in
the State of California, all parties working together have
developed a powerful new tool to lessen the impact of one
future casino. That too is casino consolidation.
This is a new concept that respects gaming rights and tribe
sovereignty. I believe it also has the potential to protect
communities from the unbridled proliferation of Indian casinos.
Without exception, all of the Indian reservations in San Diego
County are located in rural, unincorporated communities, and
people who live in these areas are accustomed to a slower, more
peaceful, quiet way of life than in the urban areas. Residents
cherish their uninterrupted view of San Diego County's scenic
back country and they deeply value their open space.
Such is the case in Alpine, a community I am proud to
represent. Alpine is a small town of about 14,000 people,
located 30 miles east of downtown San Diego. The community's
business district is located just south of a major freeway,
Interstate 8.
Since 1991, the Viejas Band of Kumeyaay Indians has
operated a casino on the tribe's 1,600 acre reservation located
just north of Interstate 8 in Alpine. While most other
reservations in San Diego County are only accessible by remote
two-lane rural roads, the Viejas Reservation is accessible by
Interstate 8, and a very short stretch of a county-maintained
two-lane road.
The reservation has an existing waste water treatment
facility and water distribution and storage facilities. About
20 miles northeast of Alpine, far off Interstate 8, in the
remote Laguna Mountains lies the reservation of the Ewiiaapaayp
Band of Kumeyaay Indians.
The 4,100 acre reservation has no public utilities, no
telephone service, no radio service, limited electricity, no
treatment system for waste water or solid waste, and
groundwater is their only water source. More than 98 percent of
the Ewiiaapaayp Reservation is rocky ridges and steep
hillsides. Access to the reservation is via a 12-mile narrow,
winding, steeply graded, and poorly maintained dirt road.
That geography was bad news for the Ewiiaapaayp who in 1999
signed a gaming compact with the State of California, and
wanted to experience the same economic success that gaming was
bringing to Viejas and other tribes. But the Ewiiaapaayp
Reservation would not accommodate a large casino project.
So the Ewiiaapaayp tried another avenue. That avenue was a
10 acre parcel, a little more than one mile west of the Viejas
Casino. Twenty years ago those 10 acres were placed in Federal
trust in the Ewiiaapaayp name. The parcel was and still is the
home of the Southern Indian Health Clinic, a facility that
serves seven tribes, including Viejas.
The tribe viewed the health clinic land as its best hope
for the site of a future casino. For six years, the Ewiiaapaayp
tried and tried to get Federal approval to build a casino on
clinic land. At one point the tribe purchased land on the south
side of Interstate 8, hoping to relocate the clinic. At another
point the tribe hoped to move the clinic to the rear of the 10
acre parcel, and build the casino in the front.
For the Viejas and Ewiiaapaayp tribes, it was a bitter and
protracted legal battle that pitted tribe against tribe. Viejas
opposed the Ewiiaapaayp proposal at every turn, and so did I,
along with others.
For the community of Alpine and San Diego County
government, the uncertainty was unnerving. What might the
access road be like to a second large casino just one mile west
of Viejas? What about fire protection, emergency medical
services, and added crime? Would it be possible to adequately
mitigate all of the impacts, and who would pay?
These questions and others are the same questions San Diego
County grapples with time and time again when it comes to the
development of an Indian casino.
Current gaming compacts negotiated by California Governor
Arnold Schwarzenegger require enforceable agreements between
tribes wishing to build casinos and local government. These
agreements do provide for mitigation measures and county
government has a seat at the table.
Still the gaming compacts do not change the sheer number of
casinos that could be built in various rural communities. That
is why casino consolidation in the form of an unprecedented
prototype involving Viejas and Ewiiaapaayp is so important.
The two tribes, the Governor and the county have all found
a way to turn conflict into compromise by proposing to co-
locate a Ewiiaapaayp gaming facility on the Viejas Reservation.
Here is what happens if approved. The Ewiiaapaayp will gain
an economic opportunity the tribe otherwise might not have.
Viejas will receive a portion of the facility's revenue.
Litigation between the two tribes will at last be put to rest.
The proposal would require a new compact, and that compact
would give the county a seat at the table. County government
will have the opportunity to work with the tribes to identify
significant off-reservation impacts, and adequate mitigation
measures will be provided. That is good news for the people of
Alpine and beyond.
Best of all, the proposal is voluntary. None of the parties
are forced to act. What was an adversarial situation that
sparked fear and conflict becomes a project representing
communication, cooperation, and compromise.
Members of the Committee, by supporting this legislation
which would allow casino consolidation on the Viejas
Reservation, you allow us to solve our own problem with a
solution that we ourselves have developed locally.
I also believe it will send a message to tribes in San
Diego County and across the Nation that there is another
option. Casino consolidation can be viewed as a viable
alternative to the layers of conflict that frequently accompany
Indian casino proposals.
I urge your support for this portion of this draft
proposal, and I thank you again for the opportunity to speak.
[The prepared statement of Ms. Jacob follows:]
Statement of The Honorable Dianne Jacob, Member,
San Diego County Board of Supervisors
Mr. Chairman, Mr. Rahall, and members of the committee, I thank you
for this opportunity to comment on the Second Draft of Legislation
Regarding Off-Reservation Indian Gaming.
I am Dianne Jacob, a member of the San Diego County Board of
Supervisors.
I will focus my comments today specifically on those provisions of
the draft authorizing the consolidation of two or more tribes' gaming
activities within the existing boundaries of one of the tribes'
reservation. It is a concept I wholeheartedly support.
San Diego County is home to more Indian reservations than any
county in the United States at 18. We have been called the ``Indian
Gaming Capitol of the Nation.''
We have the greatest number of Indian tribes with gaming compacts
with the State of California at 14.
Currently, nine tribes in our County operate casinos.
These casinos range from a small 30-slot arcade to large casino
resorts, some with golf courses, multi-story hotels, shopping centers,
live theaters and fine restaurants.
Together, these nine gaming tribes employ about 13,000 workers and
have annual gross revenue estimated at $1.5 billion dollars.
For tribes, gaming has become a powerful tool for social change.
It's helped tribal members break free from decades of poverty and
government neglect. On some reservations, gaming has completely
eliminated unemployment and enabled tribal members to become self-
sufficient.
For the community, it provides jobs, attracts tourists and adds
fuel to our local economy. Each year, gaming tribes give millions of
dollars in charitable contributions to organizations throughout the
region.
These benefits, however, are not without a price.
The kind of development that accompanies Indian gaming has
profoundly affected people in nearby communities. And, it's had a
substantial impact on County government.
From increased traffic to increased demands on law enforcement, to
decreased groundwater supplies to changes in community character, the
unintended consequences of casino development are huge.
Like a majority of San Diegans I support the right of tribes to
game. And while I believe that reservations are sovereign nations, I
know they are not islands.
At the moment, a handful of new casino projects are in the works
for San Diego County.
This is the story of two tribes and how the County of San Diego
working in partnership with the Viejas Band of Kumeyaay Indians, the
Ewiiaapaayp Band of Kumeyaay Indians and the State of California--all
parties together--developed a powerful new tool to lessen the impact of
one future casino.
That tool--Casino Consolidation--is one I first discussed publicly
in my 2004 State of the County Address.
Casino Consolidation is a new concept that respects gaming rights
and tribal sovereignty.
I believe it also has the potential to protect communities from the
unbridled proliferation of Indian casinos.
Without exception, all of the Indian reservations in San Diego
County are located in rural, unincorporated communities. People who
live in these areas are accustomed to a slower, more peaceful, quieter
way of life than in urban areas. Residents cherish their uninterrupted
views of San Diego County's scenic Backcountry and they deeply value
their open space.
Such is the case in Alpine, a community I am proud to represent.
Alpine is small town of about 14,000 people located 30 miles east of
downtown San Diego. The community's business district is located just
south of a major freeway, Interstate 8.
Since 1991, the Viejas Band of Kumeyaay Indians has operated a
casino on the tribe's 1,600 acre reservation located just north of
Interstate 8 in Alpine.
While most other reservations in San Diego County are only
accessible by remote, two-lane rural roads, the Viejas reservation is
accessible by Interstate 8 and a very short stretch of a County-
maintained two-lane road. The reservation has an existing wastewater
treatment facility and water distribution and storage facilities.
Over the years, the tribe has fostered a good relationship with the
Alpine community and is a frequent sponsor and host of community
events. The tribe enjoys, what I would characterize as, an
``excellent'' working relationship with San Diego County government.
Both governments have partnered to bring needed firefighting resources
to the area, promote tourism in eastern San Diego County as well as
improve the access road to the casino.
About 20 miles northeast of Alpine, far off Interstate 8, in the
remote Laguna Mountains lies the reservation of the Ewiiaapaayp Band of
Kumeyaay Indians.
The 4,100 acre reservation has no public utilities, no telephone
service, no radio service, limited electricity, no treatment system for
wastewater or solid waste, and groundwater is the only water source.
More than 98 percent of the Ewiiaapaayp reservation is rocky ridges
and steep hillsides. Access to the reservation is via a 12-mile,
narrow, winding, steeply-graded and poorly-maintained dirt road.
That geography was bad news for the Ewiiaapaayp who, in 1999,
signed a gaming compact with the State of California and wanted to
experience the same economic success that gaming was bringing to Viejas
and other tribes.
But, the Ewiiaapaayp reservation would not accommodate a large
casino project.
So, the Ewiiaapaayp tried another avenue.
That avenue was a 10-acre parcel a little more than one mile west
of the Viejas casino. Twenty years ago, those 10-acres were placed in
federal trust in the Ewiiaapaayp name. The parcel was, and still is,
the home of the Southern Indian Health Clinic, a facility that serves
seven tribes, including Viejas.
The Tribe viewed the health clinic land as its best hope for the
site of a future casino.
For six years, the Ewiiaapaayp tried and tried to get federal
approval to build a casino on clinic land.
At one point, the tribe purchased land on the South side of the
Interstate 8, hoping to relocate the clinic. At another point, the
tribe hoped to move the clinic to the rear of the 10 acre parcel and
build the casino in the front.
For the Viejas and Ewiiaapaayp tribes, it was a bitter and
protracted legal battle that pitted tribe against tribe. Viejas opposed
the Ewiiaapaayp proposal at every turn. And so did I, along with
others.
For the community of Alpine and San Diego County government, the
uncertainly was unnerving. What might road access be like to a second
large casino just one mile west of Viejas? What about fire protection,
emergency medical services and added crime? Would it be possible to
adequately mitigate all of the impacts and who would pay?
These questions and others are the same questions San Diego County
grapples with time and time again when it comes to the development of
an Indian casino.
In the early '90s, Viejas and two other tribes built the very first
casinos in our County. This was long before the passage of Proposition
5 in 1998 which authorized the type of tribal gaming allowed on
reservations today.
Current gaming compacts negotiated by California Governor Arnold
Schwarzenegger require enforceable agreements between tribes wishing to
build casinos and local government. These agreements do provide for
mitigation measures and County government has a seat at the table.
Still, the gaming compacts don't change the sheer number of casinos
that could be built in various rural communities.
That's why Casino Consolidation--in the form of the unprecedented
prototype involving Viejas and Ewiiaapaayp--is so important.
The two tribes, the Governor and the County have all found a way to
turn conflict into compromise by proposing to co-locate a Ewiiaapaayp
gaming facility on the Viejas reservation.
Here is what happens if it is approved:
The Ewiiaapaayp will gain an economic opportunity the tribe
otherwise might not have.
Viejas will receive a portion of the facility's revenue.
Litigation between the two tribes will at last be put to rest.
The proposal would require a new compact and that compact would
give the County a seat at the table. County government will have the
opportunity to work with the tribes to identify significant off
reservation impacts and adequate mitigation measures would be provided.
That is good news for the people of Alpine and beyond.
Best of all, the proposal is voluntary. None of the parties are
forced to act.
What was an adversarial situation that sparked fear and conflict
becomes a project representing communication, cooperation and
compromise.
Members of the committee, by supporting this legislation which
would allow Casino Consolidation on the Viejas reservation, you allow
us to solve our own problem with a solution that we, ourselves, have
developed locally.
The joint venture between Viejas and Ewiiaapaayp is not the only
place in San Diego County, or throughout the nation, where Casino
Consolidation might be utilized.
As we speak, an Indian tribe is threatening to break ground on a
giant 30-story gaming tower on four acres of tribal land in a tiny,
rural community in eastern San Diego County.
The town's main arterial route is a small, dangerous country road.
The increased traffic, crime, fire protection and destruction of the
quiet rural way of life are all subjects of concern. The State says the
project threatens the vitality of a next-door ecological preserve which
is part of the National Wildlife Refuge in southeastern San Diego
County.
Ninety-seven percent of the community is opposed to this project
along with Governor Schwarzenegger and a host of federal, state and
local officials.
Why then are tribal members pursuing a 30-story tower instead of
investigating casino consolidation? This is the subject of much head-
scratching.
If this legislation moves forward, I believe, it will send a
message to tribes in San Diego County and across the nation that there
is another option.
Casino Consolidation can be viewed as a viable alternative to the
layers of conflict that frequently accompany Indian casino proposals.
It is my sincere belief that Casino Consolidation can stem the
scattering of large and mismatched intensive commercial developments
throughout San Diego County's rural, picturesque backcountry.
I urge your support.
Thank you for the opportunity to speak today.
______
The Chairman. Thank you. I thank all the panel for their
testimony. I understand that the Senator had to leave, had a
plane to catch, and I apologize about the delay.
Supervisor Jacob, I am very familiar with the issue with
the Viejas and the consolidation there, and believe that that
is one of the solutions.
Do you see that provision in the draft legislation being
able to be used more frequently in your area
Ms. Jacob. I do not know if the word is ``frequently''. I
know there are other opportunities where there has been large
opposition. One case in particular that I have indicated in my
written testimony that has the opposition of two Governors,
former and the current Governor, legislatures, local officials,
97 percent of the community do not want it. It is the four
acre, tiniest so-called reservation in the country. And this
would be an opportunity for a situation like that to take
advantage of the casino consolidation.
There may be others in the county that I am not aware of,
but I think once again, it is a good compromise and it could
establish a model, not just as our county, but for the nation.
The Chairman. I know throughout the State of California
there are a number of cases that are similar to what the Viejas
were going through, and one of the reasons why that provision
was left in the draft was I believe that working cooperatively
that it does solve a lot of those issues and a lot of those
problems that local communities have.
I do commend San Diego County for the work that they put
into reaching a compromise on that particular issue because it
was an issue that had been hanging out there for a number of
years, and had caused a number of bad blood and bad feelings
amongst the tribes themselves and others, and I know that you
guys were very active in that, and I congratulate you and
appreciate the work that you have put into that.
Unfortunately, without the underlying legislation going
through, I am not sure how long it is going to take to get to a
conclusion on that, but I believe that the underlying
legislation does get us there
Ms. Jacob. Thank you, Mr. Chairman, for your support, and
anything that can be done to expedite this portion would be
greatly appreciated by the two tribes and the state and the
county.
The Chairman. Supervisor Kromm, in your testimony you voice
concern over the majority vote that is called for in the county
or parish, and I would like to have you explain a little bit
more about why you have a concern about that provision.
Mr. Kromm. Well, we support the idea of the majority vote,
but what we are concerned about is it does not quite go far
enough. I think where there has been successful negotiations it
has been the government-to-government negotiations, and I guess
it depends on timing.
If an issue goes too early to the ballot, I think it could
be something like what we have seen in California with the
various statewide propositions under Indian gaming, all of
which have generated these massive amounts of campaign
spending, and the last one failed, the prior ones passed. And
if it is just based on the PR-type campaign, I think we could
easily miss the substantive discussion that has to happen at
the local level.
So whether the negotiations, the government-to-government
negotiations happen before a vote, and then that goes out to
the ballot, or after the vote, at some point though I think
there has to be--it has to be clear that the government-to-
government negotiations have to be done.
So it is not in opposition to the vote, it is an addition
to a vote of the people.
The Chairman. So what you are telling me is that you want
to make sure that any negotiated agreement between the county
or the city is completed before there is a vote on it?
Mr. Kromm. Probably. This one, I think, I think it will
probably take some heads thinking about it for awhile for what
is the best way to do the timing, but I think if there were a
early vote that would indicate popular support or popular
opposition, I mean, I guess that could say, well, do not bother
doing the negotiations if there is not support. If there is
overwhelming support, that might also push the negotiations to
a point where the tribe could say to the local governments,
well, there is overwhelming support. We do not need to
negotiate with you, or we only need to negotiate a little bit.
So at this point I kind of tend to think that the
negotiations need to commence before the voting commences.
The Chairman. Would it not also make sense that certain
restrictions be put on what can be negotiated?
Mr. Kromm. Sure.
The Chairman. I do not want a situation developing where a
local community or a county can extort more out of a tribe than
what they would if it was a private developer going in.
Mr. Kromm. Right. Yes, I mention in my testimony the
baseball style arbitration process, and one of the things that
occurred to me is that I guess it is potential that you get
into negotiations, you are far apart, and rather than have an
arbitrator decide perhaps that could even go to the ballot.
Here is what the local government is proposing, here is what
the Indian tribe is proposing, and that would probably presume
that one of the two wins.
The Chairman. In the current situation and the current law
allowing the Governor to negotiate the compact, I have noticed
in recent years that that empowers the Governor to the point
where they can extort what I believe is a high fee out of the
tribe, a tax out of the tribe that goes beyond what I believe
is reasonable in some cases, and also puts the tribe in a
position of negotiating its own sovereignty, and I think we
have to be careful about putting too much in terms of that veto
authority in the hands of local government. But I do think that
they have their issues that should be addressed.
Mr. Kromm. We agree. And I think what you are trying to do
is wrestle your way through that as you are going through the
process of these multiple drafts of the bill. Yes, we obviously
have folks back here in Washington that I am sure your staff
works with, and I think working through those details probably
takes--let us put three or four or five ideas on the table and
see where they go, and try to figure out how to get to the
right spot where both sides are comfortable.
The Chairman. Yes.
Mr. Kromm. But what I am hearing is that you have respect
for what our concerns are, but you do not want to overly
empower either side. That makes perfect sense.
The Chairman. It has to be a fair and honest negotiation.
Mr. Kromm. Sure.
The Chairman. And I do not want any changes in law to
empower anyone to the point where they have the ability to
dictate all the terms, and that is one thing we have to be
careful of as we move forward with this.
But I appreciate your testimony. I think that local
governments' input into this has been extremely helpful in us
moving forward.
Mr. Kromm. Thank you.
The Chairman. I recognize Mr. Udall.
Mr. Tom Udall. Thank you, Mr. Chairman. I appreciate the
testimony of the witnesses here.
Senator Papen, I was wondering if an idea has been explored
to resolve the issues that confront your community at the local
level, and I am one that believes in local solutions. As you
know, eight percent of the net win is shared from these gaming
tribes with the State of New Mexico, and I think that total--
you would be probably closer in terms of the actual number, but
24 million or something in that range of yearly revenue to the
State of New Mexico.
Several other states have shared revenue with non-gaming
tribes. I think Arizona is one that has done that. Has there
been any thought in New Mexico about sharing some of that
revenue with the non-gaming tribes to put a lid on the gaming?
Is that a serious proposal?
I know that it was discussed during the period where I was
state attorney general out there. I wonder what your thought is
on that.
Ms. Papen. Mr. Chairman, and Congressman Udall, I am not
aware of that being part of a solution to the problem at this
point in time. Certainly I think that if the Native Americans
want to do some of the sharing with tribes that do not have
gaming, I think that that is something for them to negotiate.
But also let me make it clear that the Native American
casinos only provide eight percent of the proceeds from the
machines. None of the proceeds from table games are included.
That all goes back to the tribes with no revenue sharing.
Mr. Tom Udall. Yes, and the sharing that I am talking
about, the State and the State Legislature and the Governor
would have to be involved with that because I am talking about
the money that is part of the eight percent, as you say, off
the machines that goes to the State of New Mexico, 24 million
or whatever it is. It is a significant sum.
The State would take the position that some of that revenue
should go to non-gaming tribes as has been done, I think, in
Arizona, and maybe other states. But you are not aware of that
idea being explored at all?
Ms. Papen. No, I am not aware of that, but I think it is
certainly a viable idea.
Mr. Tom Udall. Senator Papen, I know the community down
there is divided in terms of support and opposition for this
proposal that is circulating. I believe that--you heard me put
in earlier the resolution from the county commission. I believe
the vote was three to two; three in support and two in
opposition there.
Could you give us a view, a balanced view of the opposition
and support in your community for this proposal that is out
there?
Ms. Papen. Well, I will try, Mr. Chairman and Congressman.
I think that with a three/two vote, that is certainly not
strong opposition. I think you have a sort of balance that is
going on there.
Also, out of our 10 local Dona Ana County State
Representatives, six of us have written a letter to Secretary
Norton requesting her to not grant this. So you have the county
commission on the one side saying three to two, and then you go
on the other side and you have six to four that is happening.
So I think it is--I think you have some strong support from
the community of Anthony, which is about 7,000 people who live
there. I think they are looking for some more jobs and better
jobs. The group that wants to put this in has had some job
fairs down there which the Albuquerque Journal has called
politicking, and not really looking for people who want jobs
because it has not been even approved, and it would be several
years before it would probably be up and running, but sort of
getting a list of people who have come to the job fairs and
putting that down as support for the casino. I think it is
support for jobs, not a support for the casino.
And so I think the communities, I think a lot of the
religious communities are opposing this. Certainly a lot of the
people with the tracts, a lot of my farmers, I have a lot of
farmers in my district who raise alfalfa, and depend a
livelihood on this, as well as a lot of the horse farms have
come in, tremendous horse farms we have all over our valley,
and they have been there and have certainly a vested interest
in the property there and making their livelihood.
Also, $40 million worth of promises were done out of the
revenue sharing from this venture to give to the county before
they made this vote to support it. So if you have $40 million
sitting on the table as part of revenue sharing, I think that
you have to look at this maybe with a little bit different--
maybe a jaundiced eye.
And so I do support Anthony. I do support having jobs. I
think we need them. I think we need to look at it, but I think
when we have a tribe like the Perimongos from Tortugas, which
are not a federally recognized tribe, but do have ancestral
ties to this land, as well as our own Mescalero Apaches, who
have walked there, Geronimo, and all of the things there. They
have ancestral ties to this land. The Jemez have no ancestral
ties to this land.
And so I think that this is the wrong thing to do, and I
know people have--at least I know the groups say, well, I am
supporting this because my daughter has race horses. That is
strictly a hobby for them. They have a Toyota agency, they
support their own lives, they support their horses and they
very rarely win. So it is not about that. It is about what is
fair.
Mr. Tom Udall. Senator Papen, thank you very much for that
summary down there of what is going on.
I have had people tell me that there have been polls in
Anthony or the surrounding community on this. Have there been
any in terms of the support of the public? Have you seen any
public polls done by the papers or any of the research
institutes at the university or anything like that in terms of
supporting the proposal or opposition to the proposal?
Ms. Papen. Mr. Chairman, Congressman Udall, I believe they
have done some polls down in Anthony where they have done the
job fairs, and this sort of thing. They do have some support
for that. And I go down almost to Anthony--come around and
surround Anthony, so I have nine Colonas in my district, and
people who live in Colonas, of course, are looking for jobs. So
I think there have been some polls that show certainly support
for it.
I do not--to my knowledge, there has not been a countywide
poll that has been done that shows support for this endeavor. I
think it is more a localized support in the community of
Anthony where it will be, maybe Anthony Barino area where it
would be put, and it is right--you know, it is right on the
Texas line, so that whole issue of--I think some of the
Anthony--Anthony itself is divided in two communities. Half of
the community is in Texas and half of it is in New Mexico. So I
think the people who live in Anthony on Texas and New Mexico
side, there is opposition, and strong opposition in Anthony. I
think there is certainly some support for it happening in
Anthony.
Mr. Tom Udall. Thank you, Senator Papen. And Mr. Chairman,
I very much appreciate your letting me run over a little bit. I
also appreciate the testimony of the California supervisors,
and I do not have anything further.
The Chairman. I want to thank this panel for your testimony
and for your answers to the questions. There may be further
questions though that Committee members have, and those will be
submitted to you in writing. If you could answer those in
writing so that they could be included as part of the hearing
record, it would be appreciated.
I know that this is a tough issue to deal with, and it is
something that this committee has looked at over the past
several months, and we will continue to move forward.
I believe that having an open process where you try to
listen to everybody and try to include that in the legislation
is the right way for legislation to be drafted, and that is
what we are attempting to do with this legislation. So I
appreciate all of the witnesses that we had today, all of the
comments.
If there are further comments that people have that did not
have the ability to testify today, those can be submitted in
writing and they will be included as part of the hearing
record.
If there is no further business before the Committee, the
Committee stands adjourned.
[Whereupon, at 1:15 p.m., the Committee was adjourned.]