[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
DEPARTMENT OF INTERIOR'S RECENTLY RELEASED GUIDANCE ON TAKING LAND
INTO TRUST FOR INDIAN TRIBES AND ITS RAMIFICATIONS
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
Wednesday, February 27, 2008
__________
Serial No. 110-60
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
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 Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Louie Gohmert, Texas
Dan Boren, Oklahoma Tom Cole, Oklahoma
John P. Sarbanes, Maryland Rob Bishop, Utah
George Miller, California Bill Shuster, Pennsylvania
Edward J. Markey, Massachusetts Bill Sali, Idaho
Peter A. DeFazio, Oregon Doug Lamborn, Colorado
Maurice D. Hinchey, New York Mary Fallin, Oklahoma
Patrick J. Kennedy, Rhode Island Adrian Smith, Nebraska
Ron Kind, Wisconsin Robert J. Wittman, Virginia
Lois Capps, California
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Rick Healy, Chief Counsel
Christopher N. Fluhr, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
______
CONTENTS
__________
Page
Hearing held on Wednesday, February 27, 2008..................... 1
Statement of Members:
Kildee, Hon. Dale, a Representative in Congress from the
State of Michigan.......................................... 2
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia................................. 1
Prepared statement of.................................... 2
Statement of Witnesses:
Armenta, Hon. Vincent, Tribal Chairman, Santa Ynez Band of
Chumash Indians, Santa Ynez, California.................... 38
Prepared statement of.................................... 40
Artman, Hon. Carl J., Assistant Secretary--Indian Affairs,
U.S. Department of the Interior, Washington, D.C........... 3
Prepared statement of.................................... 4
Hindsley, Hon. Hazel, Chairwoman, St. Croix Chippewa Indians
of Wisconsin, Webster, Wisconsin........................... 43
Prepared statement of.................................... 46
Johnson, Jacqueline L., Executive Director, National Congress
of American Indians, Washington, D.C....................... 55
Prepared statement of.................................... 56
Skibine, Alex Tallchief, Professor of Law, S.J. Quinney
College of Law, University of Utah, Salt Lake City, Utah... 60
Prepared statement of.................................... 62
Warnke, Jeff, Director, Government and Public Relations,
Confederated Tribes of the Chehalis Reservation, Oakville,
Washington................................................. 49
Washburn, Kevin K., Visiting Oneida Nation Professor of Law,
Harvard Law School, Cambridge, Massachusetts............... 66
Prepared statement of.................................... 68
White, Hon. Lorraine M., Chief, St. Regis Mohawk Tribal
Council, Akwesasne, New York............................... 23
Prepared statement of.................................... 26
Additional materials supplied:
Arft, Larry N., City Manager, City of Beloit, Wisconsin,
Letter submitted for the record............................ 78
Burnett, Hon. David, Chairman, Confederated Tribes of the
Chehalis Reservation, Statement submitted for the record... 75
McGovern, Mike, Supervisor, Yolo County, California, and
Chair, CSAC Indian Gaming Working Group, California State
Association of Counties, Letter submitted for the record... 79
List of documents retained in the Committee's official files. 80
OVERSIGHT HEARING ON ``DEPARTMENT OF INTERIOR'S RECENTLY RELEASED
GUIDANCE ON TAKING LAND INTO TRUST FOR INDIAN TRIBES AND ITS
RAMIFICATIONS.''
----------
Wednesday, February 27, 2008
U.S. House of Representatives
Committee on Natural Resources
Washington, D.C.
----------
The Committee met, pursuant to call, at 11:10 a.m. in Room
1324, Longworth House Office Building, Hon. Nick J. Rahall
[Chairman] presiding.
Present: Representatives Rahall, Kildee, Christensen,
Napolitano, Sarbanes, Hinchey, Kind, Inslee, Baca, Herseth
Sandlin, and Fallin.
STATEMENT OF HON. NICK J. RAHALL, II, A U.S. REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WEST VIRGINIA
The Chairman. The Committee is meeting today for the
purpose of a hearing which will focus on a guidance memo issued
by the Department of the Interior in early January affecting
fee-to-trust applications. Under this guidance, the Department
now employs a never-before-used commutable distance test that
requires a series of questions being answered to determine
whether the anticipated benefits outweigh potential negative
consequences to the tribe.
Because of this new guidance, the Department denied fee-to-
trust applications for 11 tribes and returned fee-to-trust
applications for another 12 tribes. Action is expected on the
other pending applications.
The hearing today is not intended to examine the merits of
the applications that were denied or returned. Instead, today's
hearing will focus on how the new guidance was developed,
whether it was lawfully enacted, the ramifications of the new
requirements on all off-reservation fee-to-trust applications,
and whether this signifies an attempt by the administration to
change Federal policy toward Indian tribes.
The potential change to the Federal policy toward Indian
tribes is disturbing. In the area of healthcare, this
administration has taken a position that once an Indian leaves
a reservation, that person is no longer an Indian. To support
this strange concept, the President has zeroed out funding for
urban Indian healthcare.
Now we see this occurring at the Bureau of Indian Affairs,
and we have to question if this administration is advocating a
policy to keep Indians on the reservation.
Finally, I am particularly interested in the lack of
consultation on this matter between the Department and the
tribes. Unfortunately, the lack of consultation appears to be a
reoccurring trend with this administration. As a result, I
intend to introduce legislation that will mandate that the
administration adequately consults with the Indian tribes. I
hope my colleagues will join me in sponsoring that legislation
when it is introduced.
For today, however, we will focus on the new guidance, and
I want to thank all of the witnesses who have traveled to be
with us this morning and give other Members present a chance
for opening statements, if they so desire.
The gentleman from Michigan, Mr. Kildee, who is Co-Chair of
our Indian Caucus.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II,
Chairman, Committee on Natural Resources
The Committee will come to order. Today's hearing will focus on a
recent Guidance memo issued by the Department of the Interior in early
January affecting fee to trust applications.
Under this Guidance, the Department now employs a never before used
``commutable distance'' test that requires a series of questions be
answered to determine whether the anticipated benefits outweigh
potential negative consequences to the tribe.
Because of this new Guidance, the Department denied fee to trust
applications for 11 tribes and returned fee to trust applications for
another 12 tribes. Action is expected on other pending applications.
The hearing today is not intended to examine the merits of the
applications that were denied or returned. Instead, today's hearing
will focus on how the new Guidance was developed, whether it was
lawfully enacted, the ramifications of the new requirements on all off-
reservation fee to trust applications, and whether this signifies an
attempt by the Administration to change Federal policy towards Indian
tribes.
The potential change to the Federal policy towards Indian tribes is
disturbing. In the area of health care, this Administration has taken
the position that once an Indian leaves the reservation, that person is
no longer an Indian. To support this strange concept the President has
zeroed out funding for Urban Indian health care. Now, we see this
occurring at the Bureau of Indian Affairs and have to question if this
Administration is advocating a policy to keep Indians on the
reservation.
Finally, I am particularly interested in the lack of consultation
on this matter between the Department and the Tribes. Unfortunately,
the lack of consultation appears to be a reoccurring trend with this
Administration. As a result, I intend to introduce legislation that
will mandate that the Administration adequately consults with Indian
tribes. I hope my colleagues will join me in sponsoring that
legislation when it is introduced.
For today, however, we will focus on the new Guidance and I thank
all the witnesses who have traveled to be with us this morning.
______
STATEMENT OF HON. DALE E. KILDEE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Mr. Kildee. Thank you very much, Mr. Chairman. I appreciate
very much these hearings, and I think we have some major issues
to discuss, the whole idea of consultation.
I met with the under secretary yesterday, and it was a very
good meeting. I pointed out that this sovereign-to-sovereign
relationship that has trust responsibility is not a patronizing
one. It is one really where it is sovereign to sovereign. I
pointed out the three sovereignties you recognized in Article
1, Section 8, and I think if there is even any doubt, we should
assume that this is with consultation with the tribes and that
the Administrative Procedures Act be used in that. But I did
appreciate the fact that the under secretary did drop by my
office yesterday for a discussion on this.
The Chairman. I thank the gentleman. Do other Members wish
opening statements? If not, we will proceed with the agenda.
The first witness is The Honorable Carl Artman, assistant
secretary, Indian Affairs, United States Department of the
Interior.
Carl, we welcome you once again to our Committee. I
appreciate your consultation with us on this issue, and we do
have your prepared testimony and, as is the case with all
witnesses, the prepared testimony will be considered as read
and printed in the record, and you may proceed as you desire.
STATEMENT OF THE HON. CARL ARTMAN, ASSISTANT SECRETARY, INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.
Mr. Artman. Thank you, Mr. Chairman, Ranking Member Young,
and Committee Members. My name is Carl Artman. I am the
assistant secretary for Indian Affairs, and I would like to
spend a few minutes this morning discussing the January 3rd
memorandum regarding off-reservation, land-into-trust
applications as related to gaming.
The January 3rd memorandum dealt with tribal requests for
the Department to take off-reservation land into trust for
gaming. There were approximately 30 applications for land into
trust under the two-part determination exception to the Indian
Gaming Regulatory Act general prohibition against gaming on
land acquired after October 17, 1988.
In the 20 years since the Indian Gaming Regulatory Act was
passed, only four times has a Governor concurred in a positive,
two-part, secretarial determination pursuant to that exception.
In the last four years, the number of applications has more
than doubled, and the Bureau of Indian Affairs' regional
directors lacked clarification on how to make consistent
recommendations on the applications.
The Indian Gaming Regulatory Act authorizes tribes to
conduct gaming and does not contain any authority to take land
into trust. Additionally, Section 2719[c] of the Indian Gaming
Regulatory Act provides ``[n]othing in this section shall
affect or diminish the authority and responsibility of the
secretary to take land into trust.''
This guidance instructs the Bureau of Indian Affairs'
regional directors and Office of Indian Gaming to begin their
analysis of applications using the 151 factors: existence of
statutory authority and limitations; need; purpose; impact on
the state and its political subdivisions; Bureau of Indian
Affairs' responsibility to discharge additional
responsibilities; compliance with NEPA, et cetera.
For off-reservation applications, 151.11[b] directs the
secretary to give greater scrutiny to the tribe's justification
of anticipated benefits from the acquisition, the further the
acquisition is from the applicant's reservation, and greater
weight to concerns raised by state and local governments as to
impacts on jurisdiction, real property taxes, and special
assessments.
Of the 30 applications, some were two or 20 miles away.
Over half were over 100 miles away, while others were over
1,000 miles away.
The Indian Reorganization Act aims to counter the effects
of the allotment era by growing the tribal land base and
strengthening tribal governments to promote flourishing Indian
communities.
The BIA is used to dealing with requests for land off
reservation 20, 30, or 50 miles away from the tribe's
reservation. The BIA, however, is not accustomed to assessing
applications for land 100, 200, or 1,500 miles away from the
reservation.
Clarification of the analysis used under Section 151.11[b]
was needed because the 151 regulations do not elaborate on how
or why the Department is to give greater weight or greater
scrutiny as the distance from the reservation increases.
The January 3, 2008, guidance memo provided that
clarification, and it advises the BIA regional directors to
give a hard look at the 151.11[b] requirements and assess the
potential for negative consequences on reservation life before
making a recommendation. The Department has now issued several
letters consistent with this guidance memo.
In conclusion, the Department does favor tribal economic
development and has, and continues to, support off-reservation
enterprises. I look forward to answering any questions you may
have.
[The prepared statement of Mr. Artman follows:]
Statement of Carl J. Artman, Assistant Secretary--Indian Affairs,
U.S. Department of the Interior
Good morning, my name is Carl Artman, and I am the Assistant
Secretary--Indian Affairs at the Department of the Interior
(Department). I am here today to discuss guidance issued on January 3,
2008, to Bureau of Indian Affairs (BIA) Regional Directors and to the
Office of Indian Gaming (OIG). The January 3rd memorandum dealt with
tribal requests for the Department to take off-reservation land into
trust for gaming.
We had approximately 30 applications for land to be taken into
trust under the ``two-part determination'' exception to the Indian
Gaming Regulatory Act's (IGRA) general prohibition against gaming on
land acquired into trust after October 17, 1988. That exception, 25
U.S.C. Sec. 2719(b)(1)(A), allows gaming if ``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.''
In the 20 years since the passage of IGRA, only 4 times has a
governor concurred in a positive two-part Secretarial determination
made pursuant to section 20(b)(1)(A) of IGRA. The number of
applications for this exception has increased in recent years, and BIA
regional directors lacked clarification on how to make consistent
recommendations on the applications.
There has also been confusion about the interplay between IGRA and
the Indian Reorganization Act (IRA). The IGRA authorizes tribes to
conduct gaming and does not contain any authority to take land into
trust. Specifically, section 2719(c) of IGRA provides: ``[n]othing in
this section shall affect or diminish the authority and responsibility
of the Secretary to take land into trust.'' In contrast, the
Department's authority to take land into trust for Indians stems from
section 465 of IRA and its implementing regulations, 25 C.F.R. Part
151. It has been unclear whether the BIA should first decide whether a
trust acquisition would be in the best interest of an Indian tribe and
not detrimental to the surrounding community under section 2719 of IGRA
or whether the land should be acquired in trust under Part 151.
The guidance instructs the BIA Regional Directors to begin their
analysis of applications using the Part 151 factors. The factors
considered when analyzing a tribal application under these regulations
for land to be taken into trust include under 25 C.F.R. 151.10:
(a) The existence of statutory authority for the acquisition and
any limitations contained in such authority;
(b) The need of the individual Indian or the tribe for additional
land;
(c) The purposes for which the land will be used;
(e) If the land to be acquired is in unrestricted fee status, the
impact on the State and its political subdivisions resulting from the
removal of the land from the tax rolls;
(f) Jurisdictional problems and potential conflicts of land use
which may arise; and
(g) If the land to be acquired is in fee status, whether the
Bureau of Indian Affairs is equipped to discharge the additional
responsibilities resulting from the acquisition of the land in trust
status.
(h) The extent to which the applicant has provided information
that allows the Secretary to comply with 516 DM 6, Appendix 4, National
Environmental Policy Act Revised Implementing Procedures, and 602 DM 2,
Land Acquisitions: Hazardous Substances Determinations. (For copies,
write to the Department of the Interior, Bureau of Indian Affairs,
Branch of Environmental Services, 1849 C Street NW, Room 4525 MIB,
Washington, DC 20240.)
For off-reservation applications, as the distance between the
tribe's reservation and the land to be acquired increases, 25 C.F.R.
Part 151.11(b) directs the Secretary to give:
(1) greater scrutiny to the tribe's justification of anticipated
benefits from the acquisition; and
(2) greater weight to concerns raised by state and local
governments as to the acquisition's potential impacts on regulatory
jurisdiction, real property taxes and special assessments.
Some of the 30 applications under consideration were for distances
only 2 or 20 miles away from a tribe's reservation while others were
for land over 1000 miles away. Traditionally, the off-reservation
applications the Department has seen for non-gaming purposes have been
close to the reservation with the intention of serving reservation
residents. The BIA is used to dealing with requests for land 20, 30, or
50 miles away from a tribe's reservation. The BIA is not accustomed to
assessing applications for land 100, 200, or 1500 miles away from a
tribe's reservation. The Part 151 regulations do not elaborate on how
or why the Department is to give ``greater weight'' and ``greater
scrutiny'' as the distance from the reservation increases.
Clarification of the analysis used under section 151.11(b) was needed.
The Department's guidance memorandum of January 3, 2008, provided
that clarification. The Department looked to the purpose of the IRA and
the factors that influenced its enactment. The IRA was enacted in 1934
in the aftermath of the disastrous allotment era when millions of acres
of reservation land was broken up and tribal communities were
floundering. The IRA aims to counter the effects of the allotment era
by growing the tribal land base and strengthening tribal governments to
promote flourishing Indian communities.
One of the clarifications within the guidance relates to 151.11(b).
We are concerned that taking land into trust for economic development
far from the reservation may increase the potential for negative
consequences on reservation life. The typical tribal gaming facility
provides job training and employment for tribal members as well as a
revenue stream. We are concerned that an economic enterprise too far
away from the reservation to allow for reasonable commuting may end up
harming the tribe by encouraging tribal members to leave the
reservation for an extended period to take advantage of the job
opportunities. Another factor that we examine involves state and local
concerns, including jurisdictional problems. Thus, the guidance advises
the BIA Regional Directors to give a hard look at these concerns before
making a recommendation.
The Department has now issued several letters to tribes that are
consistent with the new guidance. These provide clarification to the
tribes and BIA Regional Directors on what must be submitted for an
application to be approved. Knowledge of the process and consistency in
review of the applications will promote speedier decision-making.
The Department favors tribal economic development and has many
initiatives to promote and support tribes as they address the high
unemployment and poverty rates found on many reservations. We have and
do support off-reservation enterprises. The farther from the
reservation the land acquisition is, the more difficult it will be for
the tribal government to efficiently and effectively project and
exercise its governmental and regulatory powers, especially if the
distance is in the hundreds of miles.
This concludes my testimony. I welcome any questions that the
Committee may have.
______
The Chairman. Thank you, Carl. I appreciate very much your
testimony.
Let me first recognize a new Republican Member of our
Committee that is with us today, the gentleman from Nebraska,
Mr. Adrian Smith. We welcome you. I am sure the Ranking Member,
should he happen to show up today, would be glad to welcome you
as well. And also a former colleague of ours on this side of
the aisle and a former Member, a valued Member, I might add--
let us not forget that--of our Committee on Natural Resources,
the gentleman from California, Mr. Rick Lehman. Rick, good to
see you again.
Carl, let me start by asking you about a draft in December
'05 that the Department issued of proposed Part 151 regulatory
changes. While these were never published in the Federal
Register, they do include a similar commutability test, and a
determination of whether there would be negative consequences
to reservation life.
Would you please explain why the Department changed course
and decided to issue these mandates and guidance as part of the
rulemaking process?
Mr. Artman. Thank you, Mr. Chairman. The 151 regulations
and any amendments subsequent to the original ones have had a
long and storied history throughout the last two
administrations. As you may remember, at the end of the Clinton
administration, some proposed regulations were put forward. In
2001, the current administration decided to hold off on issuing
and going forward with those regulations until it had a chance
to assess the impact that those might have. Since then,
subsequent drafts have been made and developed but never put
forward as proposed regulations.
To that end, we are, right now, working well within the
confines of the current regulations, probably maybe not as best
as we possibly could in a perfect world under perfect
regulations, but we also look at the backlogs, backlogs on
reservation, off reservation, nongaming and off-reservation
gaming. We have managed to deal with all of those issues.
With regard to on reservation, whereas six months ago we
did not know how many we had in our pipeline, we now know that
we have approximately 1,300 applications that we know of, but
only 215 of those were we actually able to move forward on, and
we know exactly where those are, and we are moving forward, and
we are dealing with those.
In terms of off-reservation, nongaming, for the past
decade, we have had a fluctuating backlog within the central
office on review of these, and when I first came on board, we
had a backlog of approximately 40 of those applications. As of
this week, the backlog on off-reservation nongaming will be
zero. We have moved some back to the regional directors, saying
that we have done our review and have no issues with it. Those
will likely be approved. We have asked for further information
on others, and we have recommended a negative finding on yet a
few others, but we are moving forward.
I will just segue on that. We are taking land into trust
that is off reservation, and most of those are 40 miles or
below in those particular situations.
So with that kind of progress made on the 151 process, and
taking land into trust and looking at what we had to deal with,
whether or not we needed to issue additional regulations or go
back and amend the regulations, we decided that we needed to
focus more on the management issues. This guidance memo on
151.11[b] and how it impacts both gaming, and will have a
residual impact on nongaming as well, addresses those
management concerns.
Therefore, we do not feel we need to look to new
regulations at this point, especially this late in the
administration.
The Chairman. Part of that same draft was an indication
that you would consult with the Indian tribes in January and
February of '06. Could you report to us the results of that
consultation process and the extent and what was put into the
process by the tribes?
Mr. Artman. Mr. Chairman, I am not sure. As I was not part
of that process, I am not sure what was put into the
development of that consultation process, but I would be happy
to put together an answer for you and submit that to the
Committee.
The Chairman. I would appreciate it. Before I ask my final
question, as part of that same question about consultation,
please explain why this guidance does not fall within the scope
of Executive Order 13175, which is entitled ``Consultation and
Coordination with Tribal Governments.''
Mr. Artman. The January 3, 2008, memo clarifies existing
regulations. We were not coming up with new policy. We were not
coming up with new regulations. It does not create anything
new. It simply clarifies for our regional directors, for our
Office of Indian Gaming, to whom the memo was addressed, how
they should be looking at these applications when they come in.
The applications of the tribes seeking off-reservation land
into trust for purposes of gaming had lingered for quite some
time, and there is an obvious lack of understanding perhaps of
how to interpret the 151 regulations, be it 151.10 and 151.11,
which are necessary for the off reservation.
When you looked at the applications, when you looked at
where the process may have gotten hung up, this seemed to be
one of the areas. Every tribe that submitted applications
understood that 151.11[b] had to be answered. Looking at the
applications, all of them attempted to answer that section.
Sometimes it was multiple pages, sometimes it was multiple
paragraphs, but the same issues that we raised in our
memorandum were oftentimes dealt with by the tribes.
This was not presenting anything new to Indian Country. It
was not a new policy, and as I said before, it certainly was
not a new regulation. But for our folks, our internal folks, to
whom this memo was addressed, that is where we were having the
problem. It was just the management of that process.
The Chairman. I will have another question on the next
round, but let me yield to my colleagues. Mr. Smith? Mr.
Kildee?
Mr. Kildee. Thank you, Mr. Chairman. Mr. Secretary, again,
I appreciate the meeting we had in my office yesterday.
If you had anticipated the reaction from the tribes and the
reaction from the Congress in this procedure, 151, would you
have done things differently?
Mr. Artman. That is an interesting hypothetical,
Congressman. We expected that this would be an area that would
receive a lot of attention. Indian gaming is an incredibly
important part of the country's economy, an incredibly
important part of many states' economies, and definitely a
critical part of Indian Country's economy overall. It is a $27
billion industry.
Many of the tribes that submitted applications understand
this very well, as they, themselves, already have Indian gaming
on their reservations.
So we were not naive to the fact that this would be of
great concern to many people: the tribes, the local neighbors
that may be impacted, other tribes that may be nearby, and
certainly to Congress. We expected that, and we looked at the
consultation question, we looked at the APA questions very
carefully and tried to make sure that what path we took was the
correct one.
Now, you can certainly say that we erred in favor of not
having consultation, and I think consultation and communication
are an incredibly important part of our office and certainly my
job.
Consultation, under both our own policy and under the
executive order, are reserved for a very special place. There
is a point in time when consultation has to be had, and
certainly the Department of the Interior lays out a minute
process to have that consultation, and it is usually reserved
for the new policies and the new regulations. There are times
when something may not rise to the level of consultation, but
certainly communication is important.
We spoke with a number of tribes and associations as we
were developing this. A number of the lawsuits that were out
before this was published anticipated the final end point, I
think, where we came. Again, the tribes, in their responses to
their applications, their--trust applications on 151.11[b],
also showed a good understanding of what that should be used
for.
So I think, if we had to do it over again, perhaps expanded
communications, but I want to be careful on the use of the word
``consultation'' and keep that reserved for the very special
instances but not diminish the fact that we need to have
dialogue and communication leading up to them.
Mr. Kildee. I think it is a question, not only of practice
or law, but of attitude, too. There is a fundamental to all of
this consultation and Administrative Procedures Act. The
underlying structure of that is really the idea of a sovereign-
to-sovereign relationship. When we deal with Indian tribes, we
are not dealing with the Knights of Columbus. I can say that
because I am a member of the Knights of Columbus. We are not
dealing with a social club.
We are dealing with a sovereign tribe, and I think,
whenever there is a sovereign-to-sovereign relationship, then
it is better to take the safer role, or, at least, there is the
process of appeal, because there is no real formal process of
appeal under the method which you use. Is that not correct?
Complaint but maybe not appeal.
Mr. Artman. There is certainly a process of appeal for the
final decision, for the final agency action, and through the
courts. In terms of the memorandum itself, I would say, no,
there is not, and, again, because we looked at that as a
management memorandum.
Mr. Kildee. I have been dealing with Indian matters for 32
years here in the Congress and 44 years of my elective life,
and a strong underpinning of protection for everybody is the
idea that sovereign-to-sovereign is a very, very important
concept. As I mentioned in my office yesterday, it is not a
patronizing type of sovereignty; it is a real sovereignty. And
I would hope that that attitude permeates your Department.
I hope that, in the future, one would look, because we are
having these hearings, which is taking time, and it is a value
to us, but, I think, had you used the other method, we would be
satisfied--more people, at least, the proper procedure that
would give them a chance, at least, to formally appeal would
have been in place. I yield back, Mr. Chairman.
Mr. Artman. Thank you, Congressman Kildee, and I agree 100
percent with what you said, even in this administration. This
administration is taking steps to make sure that all government
employees understand the importance of consultation and
communication with Indian tribes through the numerous training
programs it has, including one that was unveiled just about two
or three weeks ago. Thank you.
Mr. Kildee. Thank you very much, Mr. Assistant Secretary.
The Chairman. The gentlelady from the Virgin Islands, Dr.
Christensen.
Mrs. Christensen. Thank you, Mr. Chairman, and thank you
for holding this hearing that follows up on the one that we had
earlier.
I guess I would have two questions. The first one: Nothing
diminishes the secretary's authority to acquire land into
trust. What difference does it make how far away the land is,
because there are those other considerations, the impact on
other businesses, the four or five things that are listed that
are also considered? So why does distance have to be considered
if all of the other issues are responded to adequately?
Mr. Artman. I think you raise a very important distinction,
that distance from the reservation is just one of many factors
that are considered in this process.
The 151 regulations, 25 C.F.R. 151 come from 25 U.S.C. 465,
the Indian Reorganization Act. The purpose of the Indian
Reorganization Act was to bring back the reservation to a
status, perhaps if not at parity with where it was before the
allotment era, as close as we could possibly get in our attempt
to come back from the allotment era.
The Indian Reorganization Act, passed in 1934, allows
tribes and the United States government to bring together those
lands that they may have lost so that the tribes can bring back
the people and also exercise sovereignty and jurisdiction over
the reservations, and, hopefully, in the end, exercise self-
governance, self-determination, and have a community that
flourishes on that reservation within the sovereignty of the
tribe.
151.11, which specifically speaks to the off-reservation
portion of it, asks questions of how does that off-reservation
acquisition benefit that community that was essentially being
reestablished under the IRA? Specifically, 151.11[b] speaks to
the distance issue. 151.11[b], to paraphrase, says that greater
scrutiny shall be applied to applications, the greater the
distance the land is from the applicant's reservation.
So there is a sliding scale. The greater the distance, the
greater the scrutiny. You do not see the same kind of sliding
scale applied in the second part of that test, which is the
greater weight. That is just a general greater weight that has
to be applied.
So the drafters of 151, time tested as it is, time, and the
drafters concluded that when you are looking at off
reservation, distance does become an important factor.
As is mentioned in the statement, we have experience
dealing with two miles or five miles or 30 miles off
reservation, and it is easy to see how they reflect back how
that brings an individual back to the reservation or perhaps
allows for job training and future applications on the
reservation or around the reservation. You can see how that may
bring a family back.
When you start getting into longer distances, in the
hundreds or thousands, that question becomes more difficult to
answer and, hence, the clarification.
Mrs. Christensen. But if the tribe decides that it is
workable, I agree with my colleague on the sovereignty issues
there.
My second and last question is, am I correct that the
distance is not an absolute prohibition; it just says greater
weight, greater scrutiny?
Mr. Artman. That is correct.
Mrs. Christensen. So even given the greater weight and the
greater scrutiny, the secretary can still decide to take that
land into trust.
Mr. Artman. The secretary has the discretion to take the
land into trust or not take the land into trust.
Mrs. Christensen. It is just greater weight, greater
scrutiny, but no prohibition.
Mr. Artman. There is no prohibition.
Mrs. Christensen. Thank you, Mr. Chairman.
The Chairman. The gentlelady from California, Mrs.
Napolitano?
Mrs. Napolitano. Thank you, Mr. Chair. It is interesting
because I was intrigued by several other things that come to
mind because other Federal agencies, Mr. Artman, follow your
direction or your decision, your policy. Did the Department
conduct an analysis of the guidance to determine how it would
affect other Federal agencies, such as the SBA, that would deal
with off-reservation and tribal activities and the impact on
their future?
Mr. Artman. Congresswoman Napolitano, no, we did not look
at that, but to the degree that they follow what we do, in
terms of working with tribes and granting money, perhaps, or
status, in the case of the SBA, oftentimes they will look to
see what the status is of that land. Is it in trust, or is it
held in fee?
Mrs. Napolitano. But would it affect their decision
negatively, possibly, because of your direction and policy?
Mr. Artman. It is hard to come to that conclusion without
looking at the specific policy. If, for example, we are looking
at IHS, the Indian Health Service, they have a very independent
mind, and oftentimes our policies may be parallel, or they may
even be at cross-purposes or perpendicular purposes, but HUD,
IHS are great examples of agencies out there that have a very
independent mind in working with Indian tribes, and oftentimes
we have different policies altogether.
Mrs. Napolitano. But is it possible that someone may have a
negative effect on them?
Mr. Artman. I would suppose, in a hypothetical, yes, it is
possible.
Mrs. Napolitano. And as the result of guidance, the
Department denied fee-to-trust applications for 11 other
tribes, as was previously stated, and returned another 12.
Explain the due process procedures afforded to each tribe whose
application was denied.
Mr. Artman. Each tribe, prior to that, and oftentimes, I
think, up to a decade, had submitted applications complete with
answering the questions under the 151 test.
In terms of what happens after they are returned, a number
of things could happen.
One, our determination, since it is a final agency action,
can be challenged in Federal court, or, if the tribe wishes, it
could also resubmit an application. Nothing prohibits a tribe
from resubmitting the application even multiple times.
Mrs. Napolitano. But are you placing an undue hardship on
that tribe by denying that application without grandfathering
it?
Mr. Artman. Grandfathering it for what, Congresswoman?
Mrs. Napolitano. Why were these applications not
grandfathered? You know, many of these fee-to-trust
applications that were denied were pending for several years,
according to staff.
Mr. Artman. They were, and many of them were pending
because our regional directors in the Office of Indian Gaming
did not have an absolute answer or a consistent answer on how
to apply 151.11[b].
Mrs. Napolitano. Why were they not grandfathered under the
existing fee-to-trust regulations?
Mr. Artman. The regulations are the same regulations.
Nothing has changed.
Mrs. Napolitano. But you are saying they have to go to
court to be able to appeal.
Mr. Artman. Or they can resubmit the application, in
accordance with the 151.
Mrs. Napolitano. But you have already denied it once.
Mr. Artman. But they have the ability to resubmit it.
Mrs. Napolitano. Do they know that?
Mr. Artman. Yes, they do.
Mrs. Napolitano. Would that take an additional how many
other years?
Mr. Artman. Hopefully, with the changes that we are putting
in place, this process will be far more efficient, on average.
Mrs. Napolitano. When is this process being implemented?
Mr. Artman. Ongoing. As I mentioned before, we are dealing
with the off-reservation nongaming, we are creating a more
efficient process in the on-reservation application process
simply by understanding what we have in the pipeline, where it
is at, and what we have to do to review it, and also changing
the culture within the Department, that we have to move forward
with these, even if we are to be sued.
With these specifically, these 11, nothing prohibits them
from resubmitting the applications.
Mrs. Napolitano. But in being able to resubmit or in
resubmission, would that not put them at the back of the line
again and another long waiting period?
Mr. Artman. No, it would not. On January 4th, as you
mentioned before, 11 tribes received letters that denied their
application. I think it is another 11, actually, received
letters that stated that we did not have sufficient information
to review their application, and, largely, those came about in
the last two years in the 109th Congress, and they had lingered
with no additional information.
We also moved forward on, I believe, five applications,
moved forward to the next step. We approved their FONMSI, their
FONSI, their ROD, whatever needed to be done to move to the
next stage. Those were moved to the next level. So we cleared
out a lot of the clutter, if not all of the clutter.
Mrs. Napolitano. I know. I am referring to the ones you
denied. I know you say you have been moving some forward, but
the ones that were denied, that were told that their
application was not sufficient, or for whatever reason, whether
it was incomplete, they have the ability to come back and
refile. In being able to refile, what is going to be their
status on the line of being able to be reviewed if you have
backlog and insufficient personnel?
Mr. Artman. Well, we do not have a backlog. A couple of
things. First of all, we do not have a first-in/first-out
process for fee-to-trust applications. We look at them in terms
of completeness, and one of the biggest issues that we have is
that we receive a lot of incomplete applications, either on the
tribal side, or perhaps something we did that did not allow
that----
Mrs. Napolitano. I am sorry, Mr. Chairman, if I can pursue
this.
But do you, in your application process, identify
everything that has to be done? Some of my entities have filed
for grants to Federal agencies, and because they did not cross
a t or dot an i, they were rejected. Is it specific enough for
them to understand what they need to provide and the timeframe
they need to provide it in, whether it is the number of pages
by the end of the month? You understand.
Mr. Artman. Yes, ma'am. With our fee-to-trust handbook and
with our Indian gaming checklist, there is sufficient
information out there to submit a complete application, and
those are some of the changes that we are making, the fee-to-
trust handbook being one of them.
Mrs. Napolitano. You are not changing in midstream.
Mr. Artman. I am sorry? No, ma'am.
Mrs. Napolitano. You are not changing rules midstream.
Mr. Artman. Not at all. Not at all. Not at all.
Mrs. Napolitano. Thank you, Mr. Chair.
The Chairman. [Off mike.] The gentlelady from Oklahoma?
Ms. Fallin. Yes. Thank you, Mr. Chairman. I am sorry I
arrived late, so I did not get to hear some of the testimony.
In our State of Oklahoma, we have many Indian gaming
facilities. I think, the last time I counted, it was 97,
somewhere around 97, for a population of 3.5 million people, so
I was just curious, in reading some of the background about
when a tribe can take land into trust and when exemptions are
given for gaming, and looking at some of the information that I
had, it says that, in the last 20 years since the passage of
the IGRA, only four times has a Governor concurred for the
determination to be able to process those applications for
gaming, if I am reading this right.
So I guess my question is that, in looking at when you take
land into trust versus when you take land into gaming, and you
say that you look at what is in the best interest of the tribe,
what is in the best interest of the community--will it create
jobs, and will it create investment?--how is that determination
made, and I just do not know, when it comes to the gaming side
of it, that it is in the best interest of the tribe, when, like
in my state, we have around 95 different casinos and 3.5
million people? Mine is more informational because I just do
not know how it works.
Mr. Artman. Let me break that up into two different pieces:
the 151 process, the fee-to-trust process; and then the Indian
Gaming Regulatory Act process.
The 151 process; in order to game, you have to have land
into trust, land that is held in trust, and if it is after
October 17, 1998, you have to do some additional things. I will
not get too much into that, a little bit in the second part.
Now, if it is off reservation, as we are discussing here
today, there is a benefits test, if you will, on the 151, and
that is the greater scrutiny on the benefits to the tribe, the
further away the land is from the reservation. That, the IRA
test, in many respects, because we are going back to the 1934
act, is really a test on governance, jurisdiction, sovereignty,
bringing the land back, bringing the people back, and allowing
a community to flourish. How does that acquisition, off
reservation, benefit that community, which was the original
target community of the 1934 act?
Switching over to the Indian Gaming Regulatory Act, a
wholly separate act and one which does not inform the IRA
process or the fee-to-trust process, according to its own
words, under the two-part determination, if it is land acquired
after October 17, 1988, and it is off reservation, you go
through the two-part determination process, and part of that is
looking to the benefits afforded to the tribe from that off-
reservation gaming.
That is an economic test. Does the business plan read well?
Is the tribe going to make money? Any other information that
may fuel an economic test, and there is also a political test,
too, of how does this impact the surrounding communities?
Oftentimes, that is a very different answer than the greater-
weight test of the 151, which is given greater weight when it
is off reservation to the impact on the local and state
communities.
So each one has parallel tests, but they have different
weights, if you will, one being a governmental, jurisdictional
one, and the other one being an economic and political one.
Ms. Fallin. Thank you, Mr. Chairman. I am a new Member of
this Committee, so I am just trying to figure out how this
works. As I mentioned, the abundance of the casinos that we
have in Oklahoma, and they are not like the Las Vegas casinos
because we have a limited Class 3 and Class 2, but I wonder
what kind of tests we have for, like, my state, which is
relatively small, when it comes to the economics of having
numerous casinos that are located close to each other?
Maybe that is just between your agency and the tribes to
work out, but it seems like, at times, that it might become a
diluted market where tribes might not be able to be successful
with their gaming operations just because of the immense
competition between so many different operations.
Mr. Artman. That is certainly something that the tribes
consider, but that is really where the first consideration
begins. Indian gaming is an inherently sovereign act. It is an
act of the government, and the tribe controls that and has a
lot of input into it, and it has become a very important and
well-honed industry in and of itself, outside of just Indian
gaming. The amount of economic development that it has brought
to tribes and the excellent leadership that is exhibited by
tribes is certainly something to be lauded and is very
commendable.
Certainly, there are big markets out there. I have been to
Oklahoma a few times and know what the market is like down
there, and, in many respects, that is the first question that
the tribe asks itself and then engages in a conversation with
the state. For the most part, until the very end, if it is
Class 3, we stay out of it. Again, we certainly want to do our
best to promote tribal self-determination and self-governance.
Ms. Fallin. OK.
Mr. Artman. Thank you, ma'am.
Ms. Fallin. Thank you very much. Thank you, Mr. Chairman.
The Chairman. The gentleman from California, Mr. Baca.
Mr. Baca. Well, thank you very much, Mr. Chairman. Let me
ask this question. Why did the Department of the Interior issue
a guidance without any consultation or prior notice?
Mr. Artman. Thank you, Congressman Baca. We view this
guidance as a management tool, a clarification for internal
individuals, in this case, addressed to the Office of Indian
Gaming in Washington, D.C., and our regional directors in the
field that deal with this issue.
The regulations have not changed. The policy has not
changed. There has always been that greater-scrutiny test that
has been part of the regulations in 151.11[b]. How it was
applied, how it was interpreted seem to be a point of
confusion, and, if not, a point of stasis within the arteries
of Indian Affairs.
We wanted to be able to break that free to create
consistency in our policies, and, again, we viewed this as an
internal memorandum on management. This was not creating new
policy and was not creating new regulations, and, as I
mentioned before, this consultation is very important to us, as
well as communications. But I think that those are, in many
ways, two separate things, and I have heard consultations quite
a bit, not just here, but also as it relates to what we did on
January 3rd, and consultation, I think, should be reserved
precisely for what the executive order promoted: new policy,
new regulations.
We remain committed to that, but, again, nothing new came
out of this, and we feel, looking at the applications that the
tribes submitted, there was certainly an understanding, within
the application process, that this needs to be answered, and it
has been answered in various ways.
I think, if nothing else, the fact that this internal
management tool, which was made public when we released it,
will also help tribes in the future understand what needs to be
put into that particular section.
Mr. Baca. Thank you. I want to follow up on a question that
Mr. Kildee was asking, and that was on sovereignty. We are all
very much concerned with the protection of sovereignty. When
you look at off reservation, what protection, then, will the
tribes still have for sovereignty on off-reservation gaming if,
in fact, the trust land was granted to those particular tribes?
And then what tribes, then, would have the jurisdiction, also
as a follow-up? Because when you talk about distance, you know,
like, I know, in my particular area, we have some tribes that
want to have gaming in Linwood, California, but yet they are
not even from that area. One is from Arizona; one is from
another portion of the area but not the actual tribe in that
area.
Mr. Artman. Well, the tribe that seeks the application for
the land into trust is the tribe that will have jurisdiction
over that particular property, but these are some of the things
that we also look at in the application. We expect the tribe to
contribute, too, but also our own knowledge of the area
contributes to that determination.
What is the history and culture of that area? In the
upcoming Section 20 regulations, there is, for restored tribes,
initial reservations and even the two-part determination. You
will see phrases that look to historical connections and modern
connections.
This is one of the reasons why I think we need to go
through this exercise and give some clarifications for our
regional directors to have a better understanding of how
distance may impact that.
Now, you are looking at, especially when you go a great
distance, you are looking at transporting, essentially,
jurisdiction from somewhere on the reservation, and
jurisdiction is certainly exercised very well when it is on
reservation, over trust land, over land that is in trust
already. But when you take that same jurisdiction, and you move
it elsewhere, it is easily applicable, but you are creating, if
you will, an impact to the system.
Now, many of the tribes have negotiated agreements with the
city, so the wave may be mitigated, but it is still going to be
a wave, nonetheless, that is impacting the----
Mr. Baca. But there is no way that one tribe, like, for
example, from San Diego is going to Barstow, if that is the
definition that you have out here that is close within that
jurisdiction--that is a long ways--versus having tribes that
are even a lot closer.
Mr. Artman. That is true, and, in fact, I think three of
the tribes of the 11 were seeking to game in Barstow, and they
were 150, 550, varying distances away from that area.
Mr. Baca. They had a private jet to get back and forth in--
--
Mr. Artman. I am not sure.
Mr. Baca.--versus the other ones that are in there, based
on the definition. That is why, when we look at these
guidelines, we have to be very careful as we address these
issues as well, as you interpret them, and the impact it has. I
know that we can look from the economic area and the
development of the area, which may be good in one area, but, at
the same time, it is cherry picking and going over some of the
other tribes that may have better jurisdiction that are closer
than someone else.
Mr. Artman. There are a lot of factors that spill into this
decision. That is for sure.
Mr. Baca. OK. Thank you. I yield back the balance of my
time, Mr. Chair.
The Chairman. The gentlelady from South Dakota, Mrs.
Herseth Sandlin?
Mrs. Herseth Sandlin. Thank you, Mr. Chairman. I appreciate
the opportunity to pose a few questions about this guidance
memo, and I understand that the Chairman and Mr. Kildee and now
Mr. Baca posed questions related to the consultation process.
Can you tell me specifically? I heard your explanation, in
terms of consultation as it relates to new policy, new
regulations, versus communications, that you contend have been
going on as it relates to the need for clarification and
elaboration of how to interpret the two criteria in the
applications for taking land into trust. Can you tell us which
other officials within the Department participated in
formulating the clarifications?
Mr. Artman. Sure. There were officials from our Office of
Indian Gaming. The Office of the Solicitor participated in this
as well.
Mrs. Herseth Sandlin. Remind me again, how many pending
applications were there at the time that the guidance was
issued?
Mr. Artman. Thirty.
Mrs. Herseth Sandlin. And how many of those have been
denied since the guidance was issued?
Mr. Artman. Eleven tribes received negative determinations
on taking the land into trust, and without taking the land into
trust, the gaming portion will automatically fail as well.
Mrs. Herseth Sandlin. Were all of them gaming?
Mr. Artman. Yes, they were. These were all specifically
gaming. We had another 40 previous to that. We had the off-
reservation nongaming. We had approximately 40 applications for
off-reservation nongaming.
Mrs. Herseth Sandlin. So when you say that there were 30
pending applications, those were 30 that dealt with gaming.
Mr. Artman. Specifically, yes.
Mrs. Herseth Sandlin. And there were 40 additional ones.
Mr. Artman. That have dealt with nongaming.
Mrs. Herseth Sandlin. And the guidance was issued and made
public on January 3rd.
Mr. Artman. That is correct.
Mrs. Herseth Sandlin. And how many of the applications that
were pending were rejected within days after the guidance was
issued?
Mr. Artman. Eleven.
Mrs. Herseth Sandlin. All 11 were denied the day after?
Mr. Artman. Yes, ma'am. That is correct.
Mrs. Herseth Sandlin. So did it just take one day to do the
initial review?
Mr. Artman. No, ma'am. This was not developed in a vacuum.
Mrs. Herseth Sandlin. But you made it public on January
3rd.
Mr. Artman. You have a finite set of applications, and we
knew what issues we were dealing with in that. In fact, when we
looked at how do we create a better process, be it for on-
reservation or off-reservation nongaming or gaming, we looked
at the universe of applications that we had. If we were to make
this decision in a vacuum, I do not think that we would have
been able to make it as specific to finding the clot in the
arteries, if you will, of our system and dealing with that.
Mrs. Herseth Sandlin. Well, then how did the 19 other
applications differ, again, from the 11 that were denied the
day after the guidance was made public?
Mr. Artman. There were another 11 tribes that received
letters saying that we did not have sufficient information to
act on their application and that we would not be acting on it
because of that. Certainly, those tribes have every right, as
do the others, to submit further applications. Most of those
were only letters of intent, or perhaps a tribal resolution to
take land into trust.
Our fee-to-trust applications, especially when dealing with
off reservation, are usually quite thick. Those folders are
quite thick, and, again, those 11 tribes where we say we did
not have sufficient information usually only submitted one or
two pages under either a letter or a resolution.
Another five tribes--they were FONSIs, or they were RODs,
depending upon if it is an EA or an EIS or approved, the notice
of intent to publish draft decisions, draft RODs or draft
FONSIs, were published as well. So we moved forward on a number
of these as well.
Mrs. Herseth Sandlin. So it sounds like the 11 that were
denied were very far along in the process.
Mr. Artman. Some were further than others. Some were at the
beginning.
Mrs. Herseth Sandlin. Well, let me just state--I am going
to submit some other questions in writing for the record as it
relates to the application of this commutable-distance test,
but I do think that when you have the questions posed by
Members of the Committee that are concerned about the
consultation process and perhaps have a different view than you
as it relates to whether or not this is a new regulation
splitting that apart from need for further elaboration on how
the criteria would be applied, that when you have those
concerns and not just in this instance but in others with
regard to true respect for the consultation process, and then
you have, and I hear what you are saying about nothing is
decided in a vacuum, but the concerns that would be raised in
such a short period of time after the guidance was made public,
was published, that, all of a sudden, within a day, people are
receiving notification that applications that have been pending
for years were now denied and have to go through the process
again, that that raises some concerns.
I appreciate your responses to my questions but will look
forward to working with the Chairman and other Members of the
Committee as we explore this further. Thank you.
Mr. Artman. Thank you, Congresswoman.
The Chairman. The gentleman from Wisconsin, Mr. Kind?
Mr. Kind. Thank you, Mr. Chairman. I want to thank you for
holding this important hearing. Mr. Artman, thank you for your
testimony today. I apologize. I was a little late coming in, so
I did not hear your opening statement, but I appreciated the
chance to get together with you yesterday so we could discuss
this a little bit.
Now, in my review of both the 2004 document that has been
referenced here and then the recent guidance memo that came out
in January of 2008, just looking at the clear language of it,
there seems to be that major distinction with regard to the
distance between the two. The '04 memo said that distance
should not be a factor. It should not be a consideration, and
now the January 2008 guidance memo says that greater weight,
greater scrutiny should be given with commutable distances.
In speaking to some of the tribes that were affected, their
initial reaction is, what changed? Were there any studies? Was
there any analysis done that would lead to a different guidance
along the distance factor giving rise to the recent guidance of
January of this year?
Mr. Artman. Thank you, Congressman Kind. The 2004 memo, the
February 2004 memo, that was issued to the secretary, and it
was part of a recent lawsuit as an exhibit, in many respects,
ended up in the same place that we did. I would characterize
that as being two sides of the same coin.
What that stated was that neither the IRA, neither the
Indian Reorganization Act, or the Indian Gaming Regulatory Act,
referenced distance. Therefore, we cannot develop a distance at
which this is the line at which the diameter of the perimeter
from the center of a reservation that you can have Indian
gaming. I wholly agree with that.
But distance is referenced in the land-acquisition test, in
the trust test under 151 as part of the Indian Reorganization
Act, under Section 151.11[b], and the February 2004 memorandum
speaks to that as well.
This memorandum, the January 3, 2008, memorandum, for
clarification, offers guidelines, offers clarification, on how
that should be looked at, how that greater scrutiny, the
further you get away, the further the distance is between the
reservation and that----
Mr. Kind. Let me just stop you there. Was there a feeling,
then, in the office that the 2004 guidance memo was in error in
not addressing the distance issue, not offering further
guidance on the distance issue, and that is what you were
trying to clarify in the January memo?
Mr. Artman. I do not think it was an error, especially
since I still work with many of the people there. I would not
call it an error at all. I just do not think it answered the
question that we attempted to answer. It was not seeking to
answer that question.
Mr. Kind. And what was that based on, just the fact that it
was left out there unaddressed, or were there any studies done?
Were there any reports, any surveys, anything that could point
to some underlying justification of why this should be a
consideration?
Mr. Artman. Well, when looking at the applications, looking
at what our Office of Indian Gaming and regional directors were
looking at, what seemed to be the problem? Where was the hump
that they were having a difficult time getting over? It did
come back to how do you give that scrutiny?
The February 2004 memorandum even talked about that. I
believe it even referenced commutability, if I am not mistaken,
maybe on that. But I think it did reference commutability as an
issue in there, and it spoke to 151.11[b] as well, but it was
more of an informational: Here is what is out there. Here is
the universe.
We focused specifically on 151.11[b] because of the
obstacle in the process that it presented for our folks.
Mr. Kind. Right. You mentioned to Ms. Herseth some of those
who were involved in the recent guidance memo that came out.
Was Secretary Kempthorne himself personally involved in this
latest guidance memo or anyone on his staff?
Mr. Artman. Secretary Kempthorne was aware that we were
developing this, and certainly he knew what it said prior to
its being issued.
Mr. Kind. Was he providing any opinion or guidance?
Mr. Artman. No. This is something that we were presenting
to him along the way.
Mr. Kind. Right. Getting back to the distance issue,
because that really does seem to be the crux of why some of the
tribes feel that this is an unfair change in the guidance
procedures, if I am a rural tribe with some reservation off at
a great distance from any population center, if they are trying
to develop some type of economic enterprise that is dependent
on being where the people are, obviously, distance is going to
be an important consideration of where they want to get land in
trust and where they want to develop that enterprise.
So can it work both ways? Can distance be a factor that
would lead the Bureau to weigh more heavily the need to put
land in trust so that they can be closer to a population base
and develop a business enterprise that will thrive, or is it
always going to be used in the negative, that the longer the
distance, regardless of population base, it is going to be
harder for them to get land in trust?
Mr. Artman. No. This memorandum was not meant to get at
that. It was not meant to achieve that. It is, again, a factor
among many other factors that have to be looked at. Perhaps a
well-written application could actually use that to the
positive in its determination.
Mr. Kind. And you already testified that this is not a
determinative issue, that it is just one of many factors and
considerations in what you grant----
Mr. Artman. That is correct.
Mr. Kind.--although it is peculiar, as Ms. Herseth just
pointed out in her questioning, that so many of these
determinations came the day after the recent guidance memo, in
January. Was there any consideration given to those that are
already down the road with the application process, many basing
what they were doing in the application process on the 2004
guidance memo to grandfathering them, or any particular
consideration for those who were already in the process for
some time?
Mr. Artman. I am not sure how widely distributed the 2004
guidance memo was, so I am not sure how it applied to that.
Mr. Kind. OK.
Mr. Artman. In terms of grandfathering them in, there was
never a dispositive conclusion that there would be a positive
finding. Anything may have led to a negative finding, be it the
environmental impact statement conclusions on our ability to
oversee it or even discretion alone, could lead to a negative
finding. So I do not think there was any one factor that led to
a negative, nor do I think that a grandfather would have
benefited the tribes as well.
Mr. Kind. Thank you. Mr. Chairman, I see my time has
expired.
The Chairman. Are there any questions? Mr. Kildee?
Mr. Kildee. Eleven of the 30 were immediately informed that
their application had deficiencies. Did the Department provide
an opportunity for those 11 tribes to meet the deficiencies it
identified in those applications?
Mr. Artman. No, they were not, but we also made clear, in
the correspondence with the tribes, that they are welcome to
resubmit an application that would satisfy all of the mandates
of 151.10 and 151.11.
Mr. Kildee. To start all over again.
Mr. Artman. Yes.
Mr. Kildee. I do not mean to be cute, but were those 11
letters written before or after the new criteria were adopted?
In other words, were the letters ready to go immediately?
Mr. Artman. It is a centralized process. While many fee-to-
trust decisions are made at the regional level, the fee-to-
trust decisions with regard to off-reservation gaming are made
at the central office, at the Office of Indian Gaming, and
working in conjunction with the Office of Indian Gaming, as I
said before, we were looking at this clarification and why it
needed to address what was blocking those 30 applications and
others from getting through the process, from moving forward.
So, in many respects, we knew what the conclusion would be
for some of them. We knew that some would move forward. We knew
that there might be a negative determination for others. So,
yes, we knew where these would end up. As I said before, it was
not done in a vacuum. This is our universe, and this is what we
had to deal with. That was the backlog, and it was not
customized for any one conclusion for any one particular tribe,
but it was developed as a way to have a better-managed process
and then applied that to what we had.
Mr. Kildee. But you knew these 11 were dead.
Mr. Artman. I knew that there would be a negative finding
on those 11. I would not say that they were necessarily dead.
Again, in resubmission, there may be a different answer.
Mr. Kildee. Mr. Artman, I have not been unconcerned with
distance myself in the 32 years I have been here on the
Committee. I have not been unconcerned, but I hope always that
you will always, in perpetuity, take into consideration that
this is, if it is accepted as a criterion, only one criterion,
if it is included as a criterion.
I am kind of going into another area of our national life,
but I am sure--this is another area. Hawaii might have had a
hard time becoming a state--right?--because Hawaii is 3,600
miles from the continental United States? So distance itself,
if anything, should only be one factor in anything. Thank you,
Mr. Chairman.
Mr. Artman. Thank you, Congressman.
The Chairman. Any further questions? Yes. The gentlelady
from California.
Mrs. Napolitano. Just looking at and listening to the
questions and the answers, was this new guidance developed
lawfully? Was there a possible, I would say, an attempt to
bypass congressional authority to be able to do those changes?
Was it a change to Federal policy without coming to Congress?
Mr. Artman. No, ma'am. I do not believe there was.
Mrs. Napolitano. Then why the change?
Mr. Artman. You had Section 151.11[b] that discussed
greater scrutiny and greater weight. As I said before, we
certainly have an understanding of how to apply 1.11[b] when
you are talking about two miles, five miles, or 30 miles off
the reservation. There is an easy connection to see where that
governmental community benefit lay. However, when you start
getting into the hundreds of miles or thousands of miles, it
becomes a more difficult determination.
Mrs. Napolitano. Is it a new phenomenon?
Mr. Artman. Yes, it is. Since 1934, this is something that
has really only popped up in the last two decades.
Mrs. Napolitano. Two decades. That's almost 20 years. No
attempt has been made to ask Congress for direction?
Mr. Artman. Not to my knowledge, there has not been, but,
certainly, Congress has expressed its feelings through bills it
has introduced, and especially in the 109th Congress, through
legislation introduced on the Senate side and the House side
with regard to the concerns about distance. Now, that was not
driving this, but this is not an issue that is unknown to
either your body or to our Department.
Mrs. Napolitano. Thank you, Mr. Chair.
Mrs. Herseth Sandlin. Just one quick follow-up, Mr.
Chairman, based on the line of questioning that Mr. Kind was
pursuing.
Is it your intention that the commutable-distance test will
apply only to off-reservation gaming applications or to all
off-reservation applications, regardless of whether or not
gaming is involved?
Mr. Artman. I think that any time you have an off-
reservation application, 151.11[b] will be triggered, and
anything that we have done on that, in this case the January
3rd memorandum, would apply to that situation. But I think if
you look at the universe of applications that we have for off-
reservation nongaming, many times--for example, it may be for a
cultural or historical acquisition for preservation--the
concept of a commutable distance would not be applicable in
that case.
Also, there is a shorter distance--maybe it is five miles
away--for housing. Again, commutable distance may not be
applicable in that case. It may not be applicable in every
situation.
Mrs. Herseth Sandlin. I understand what you are saying. I
just think Mr. Kind was trying to get at the issue of more
geographically remote reservations, some of which I represent,
tribes that are located in more geographically remote areas,
and if there were ever an application for a nongaming business
enterprise for economic-development purposes, then it seems to
me that, since other offices are involved, to talk about the
centralized process in terms of the Indian Gaming Office.
I am uncomfortable with how this has been developed, in
part because I do not know that we have thought through how the
new factor that some people have identified, which seems to be
the biggest change from 2004, is going to apply differently
with different applications, and given that it was applied so
quickly with the gaming applications that had been pending for
several years, it seems to me that this is a factor that was
developed specifically to address gaming enterprises.
So I would hope that, as Mr. Kildee has encouraged you to
do and those in your office, that not only with consultation
but how these are applied and the fairness with how the new
criteria is applied, particularly in light of the concerns
raised today, is simply something that I, too, want to
encourage you to do because I think that, as we look at new
markets and new opportunities and economic-development
ventures, that I hope that we are not going in a direction here
that may have been devised to address some people's
philosophical concerns or differences with Indian gaming that
will ultimately not only hamper those enterprises that have
been very good for the economic well-being of many tribes
across the country but also hamper the development of other
business enterprises that will be developed in the future,
whether that is a wind energy project for land that may be
taken into trust that is off reservation or for some other
purpose in new markets that are emerging.
So, Mr. Chairman, thank you for giving me an opportunity to
follow up and express my concerns more broadly with how the new
criteria may be applied. Thank you.
Mr. Artman. Thank you.
The Chairman. Do any other Members have questions? The
gentleman from Washington, Mr. Inslee?
Mr. Artman, thank you.
Mr. Artman. Thank you, Chairman.
The Chairman. Thank you for your patience in answering the
questions this morning, and while you may be leaving the hot
seat from this Committee, I am sure you will continue to be in
the hot seat for some time to come.
Mr. Artman. I look forward to being back in it, sir. Thank
you.
The Chairman. Thank you, Carl.
[Discussion held off the record.]
The Chairman. OK. I am going to suggest that the Committee
take a recess until between quarter-to-one and one because we
do have a series of votes on the Floor at this time, and this
seems to be an appropriate place to take a break before calling
the rest of the panels. Is that OK with Members? The Committee
stands in recess.
[Whereupon, at 12:15 p.m., a recess was taken.]
The Chairman. The Committee will resume its sitting.
Our second panel is composed of The Honorable Lorraine
White, Chief, St. Regis Mohawk Tribal Council, Akwesasne, New
York; The Honorable Vincent Armenta, the Tribal Chairman, the
Santa Ynez Band of Chumash Indians, Santa Ynez, California; The
Honorable Hazel Hindsley, Chairwoman, St. Croix Chippewa
Indians of Wisconsin, Webster, Wisconsin; and Mr. Jeff Warnke,
the Director of Government and Public Relations, Confederated
Tribes of the Chehalis Reservation, Oakville, Washington.
We welcome all of you to the Committee, and, as previously
stated, we have your prepared testimonies. They will be made
part of the record as actually read, and you are encouraged to
summarize.
Chief White, do you want to proceed first?
STATEMENT OF HON. LORRAINE WHITE, CHIEF, ST. REGIS MOHAWK
TRIBAL COUNCIL, AKWESASNE, NEW YORK
Ms. White. Good afternoon, Chairman Rahall and Members of
the Committee. I do not actually believe that we have any other
Members of the Committee at present.
I am Lorraine White. I serve as one of the three elected
chiefs of the St. Regis Mohawk Tribe. Thank you for the
invitation to be here today to present our views on the
Department's new guidance and how it was wrongly, unfairly, and
illegally used to deny our tribe's long-pending, fee-to-trust
application. Additionally, we have prepared an extended written
statement for the record.
The tribe's efforts to develop a casino project in the
Catskills region has a long, complex history spanning nearly 12
years. In particular, the tribe has worked closely with state,
Federal, and local officials to evaluate and document the
project's significant social and financial benefits and to
fully mitigate any environmental impacts on the affected local
community.
Based on this documentation and analysis, on April 6, 2000,
then Assistant Secretary for Indian Affairs Kevin Gover issued
an affirmative IGRA, Section 20, determination that the tribe's
application would be in the best interest of the tribe and
tribal members, and would not be detrimental to the surrounding
community. This decision included 16 pages of detailed findings
of fact supporting the two-part determination.
On February 18, 2007, New York Governor Eliot Spitzer wrote
to Secretary Kempthorne concurring with the April 2000
secretarial two-part determination, which fully and
affirmatively concluded the IGRA, Section 20, process. This
historic event was only the fourth time such a concurrence was
issued in the 19-year history of IGRA.
Interior explained, in the determination, that once the
Governor concurred, the Department would, in fact, take the
land into trust, pursuant to the IRA. Indeed, our application
has been the subject of three departmental EAs and FONSIs, the
most recent issued by Secretary Kempthorne on December 21,
2006.
These studies specifically evaluated and affirmatively
demonstrated that our application fully satisfied all existing
requirements.
In summary, it is hard to find any project that has been
the subject of more extensive state, local, and Federal
reviews, and, more importantly, approvals.
Given these circumstances, it was a complete miscarriage of
justice for the Department to have created a brand-new rule one
day and apply it the next as the sole basis to deny our
application, even though, by the Department's own evaluation,
their conclusions and their approvals, we had satisfied every
single requirement and fully complied with every Federal
process.
Instead, the guidance establishes a new ``commutable
distance rule.'' Without any analysis or factual support, the
Department announced a blanket statement that if a gaming
facility is not within a commutable distance of the
reservation, tribal members who reside on the reservation
either will not be able to take advantage of job opportunities
at the facility or else will be forced to move away from the
reservation to do so.
If tribal members do leave the reservation, the Department
concluded that the gaming facility would not ``directly
improve'' the employment rate on the reservation, but if
leaving the reservation, the Department also concluded that the
departure of a significant number of reservation residents and
their families could be detrimental to the remaining tribal
community.
Clearly, the guidance is inconsistent with and contrary to
the Department's own policies and legal interpretation of
limitations on the secretary's discretion to establish a
distance requirement.
The Department's 2004 Indian Gaming Paper thoroughly
analyzed this issue. Its conclusions are strikingly at odds
with the secretary's purported rationale for the guidance.
For instance, the guidance concludes that IGRA was not
intended to encourage the establishment of Indian gaming
facilities far from existing reservations, yet the Indian
Gaming Paper itself explains that if Congress had intended to
limit the Indian gaming on lands within established reservation
boundaries, or even within a specific distance from a
reservation, it would have done so, expressly within IGRA. It
clearly did not; nor has Congress amended IGRA to add a
distance limitation or any other geographic limitation since
its passage in 1988.
Similarly, the Indian Gaming Paper notes that a distance
requirement is simply not necessary and should not be applied.
Specifically, it states that ``[w]hile some now argue that, in
1988, Congress may not have envisioned that states and tribes
would enter into compacts that would locate gaming sites on
lands located far from the reservation, there is no evidence
that Congress intended a limitation on that activity within the
law. Moreover, the suggestion that reservation shopping has run
amok is without a basis. To the contrary, states have exercised
their statutory prerogative to deny tribes access to lands for
gaming under the two-part determination in all but three
instances, providing that the framework of IGRA has been
working.''
By stark contrast, the guidance is being used to deny all
applications that are not a commutable distance from a tribe's
reservation based upon the unsupported premise that the
negative impacts on reservation life could be considerable.
However, the Indian Gaming Paper documents the potentially
significant benefits of such facilities. The Indian Gaming
Paper also concludes that Congress made a deliberate and
intentional choice not to impose obvious distance or other
restrictions on off-reservation gaming projects.
The Indian Gaming Paper also notes that IGRA imposed checks
and balances by requiring approval by the secretary, as well as
the high hurdle of a Governor's approval, and that IGRA
purposely left the tribes with the opportunity to pursue gaming
markets that were otherwise denied to them because 19th Century
policies favored locating Indian reservations in remote areas.
In IGRA's 20-year history, Congress has not seen fit to
incorporate any distance limitations to gaming-related trust
applications. Similarly, the IRA is over 70 years old and has
not been amended to place a geographic limit on a secretary's
authority to take land into trust.
The guidance was created with unmistakable disregard for
procedural requirements. Even assuming the new commutable-
distance rule had been authorized by the IRA and that it had
been duly promulgated under the formal APA procedures, our
application would have met and exceeded the new rules, and,
therefore, it should have been approved.
After the December 2006 FONSI, only two conditions needed
to occur.
First, the secretary needed to finalize the determination
to take the land into trust by formally issuing a record of
decision.
Second, New York Governor Eliot Spitzer needed to issue his
concurrence to the secretarial determination. As noted above,
the Governor did so, over a year ago, in February of 2007.
Given the obvious injustice this case demonstrates, the
rules of the House of Representatives authorize, empower, and
obligate this Committee to investigate, review, and study, on a
continuing basis, laws, programs, and government activities
relating to Native Americans.
Accordingly, this Committee should exercise its
jurisdiction to investigate the following issues.
No. 1: Why did the secretary postpone a decision on our
application for nearly one year?
Item No. 2: Were any Interior Department officials or
employees directed or encouraged to either postpone a final
decision on the tribe's application or to concoct a basis for
denying the tribe's application? If so, who provided such
directives?
Item No. 3: Did Assistant Secretary Carl Artman participate
in the review of the tribe's application, notwithstanding his
putative recusal from all New York-related gaming land issues?
In light of his recusal, did he unduly interfere with the
tribe's application? Did he participate in any discussions
about whether the new rule could or should be retroactively
applied to the tribe's application?
Item No. 4: Did any third party encourage the Department to
delay a decision or deny the tribe's application? Who were
these third parties, and who, if anyone, did they contact at
the Department? Did they contact anyone in the White House? In
denying the tribe's application, the secretary has arrogated to
himself the legislative authority of Congress and this
Committee. He has also violated a commitment he made to
Congress during his confirmation hearing that he would abide by
the law, including Section 20, notwithstanding any personal
views he may harbor about gaming or Indian gaming.
Allowing the secretary to evade responsibility for his
actions will only serve to encourage a culture of disregard for
established law and this Committee's jurisdiction. Thank you,
and I would be pleased to answer any questions.
[The prepared statement of Ms. White follows:]
Statement of The Honorable Lorraine M. White,
Chief, St. Regis Mohawk Tribe
I. INTRODUCTION
The Saint Regis Mohawk Tribe (``Tribe'') is pleased to provide
testimony for the House Committee on Natural Resources (``Committee'')
hearing regarding the Department of Interior's (``Department'') January
3, 2008 Guidance on off-reservation land into trust for gaming purposes
(``Guidance''), issued through an internal memorandum signed by
Assistant Secretary for Indian Affairs Carl Artman. As the Committee is
aware, the Department prepared and issued the Guidance as the basis to
deny a number of fee-to-trust applications, including our long-standing
application for the development of a major casino project in the
Catskills region, approximately 90 miles from New York City.
Specifically, the Department illegally created a new binding and
enforceable ``commutability'' rule in the Guidance. In basing its
denial of our application on this new rule, the Department violated
existing law and ignored more than twelve years of work costing more
than $25 million, unprecedented local and state support, numerous
environmental review and studies, and numerous favorable determinations
and conclusions issued by the Department itself.
II. SUMMARY
This statement addresses general concerns about the Guidance, how
it violates federal law, and how it was promulgated in clear violation
of the Administrative Procedures Act, in blatant disregard of its own
policy pronouncements on this matter, and in contravention to Executive
Order 13175 on Consultation and Coordination With Indian Tribal
Governments.
This statement also specifically addresses the Department's
unfounded and unsupported denial of our fee-to-trust application. Not
only did the Department fail to rely on or point to any factual basis
to support its denial of our application, the Department also failed to
provide our Tribe with an opportunity to address the new ``commutable
distance'' rule created in the Guidance. As discussed below,
generations of our professional Mohawk ironworkers have a long and
distinguished history of commuting farther distances to build the
skyline across major cities along the northeastern seaboard and in
Canada. Clearly, their dedicated service and generations of employment
have greatly contributed to America's development while enriching our
tribal community.
Moreover, the Department unreasonably delayed action on our
application for nearly a year, which set the stage for the immediate
development of a competitive project several miles from the Tribe's
proposed project site.
III. THE TRIBE'S FEE-TO-TRUST APPLICATION FULLY AND AFFIRMATIVELY
SATISFIED ALL APPLICABLE FEDERAL STATUTORY AND REGULATORY
REQUIREMENTS FOR APPROVAL.
Before addressing the Department's illegitimate Guidance and its
unlawful application to the Tribe's fee-to-trust application, this
section summarizes the background of our application, including the
statutory, regulatory and policy requirements that were completed and
fully satisfied under existing law, all of which demonstrate that our
application was wrongly denied.
A. Statutory Authority
The Tribe's fee-to-trust application was prepared and submitted for
federal approval to build a casino on the Monticello Raceway site
pursuant to and in accordance with:
Section 20 of the Indian Gaming Regulatory Act (``IGRA'')
(hereinafter ``Section 20''), which authorizes Indian gaming on lands
that are acquired into federal trust status for an Indian tribe after
October 17, 1988, the date of IGRA's enactment (such lands are referred
to as ``newly acquired,'' ``after acquired,'' or ``off reservation''
lands). The Section 20 process is commonly referred to as a ``two part
determination'' by the Secretary of the Interior (``Secretary'') and
the governor of the State where the land is located; and
The Indian Reorganization Act of 1934 (hereinafter
``IRA'') and its implementing regulations codified at 25 CFR Part 151
(hereinafter ``Part 151 Regulations'') which delegates authority to the
Secretary of the Interior to acquire land and hold title in federal
trust status on behalf of an Indian tribe, including land that is not
within the boundaries of an Indian reservation.
New York State Law--In 2001 the New York legislature
adopted legislation specifically authorizing the Governor to enter into
compacts authorizing up to three Indian casinos in Sullivan and Ulster
counties. 1
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\1\ N.Y. Exec. L. Sec. 12 (McKinney 2001).
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B. Factual Background Regarding Compliance With Applicable Regulatory
Requirements
The Tribe's efforts to develop a casino project in the Catskills
region has a long, complex history spanning nearly twelve years. The
extensive record of the Tribe's application demonstrates the years of
effort and analysis by the Tribe, Federal officials, New York State and
local officials and elected representatives evaluating, among others,
the benefits the project would provide to the Tribe, and all relevant
social, financial, and environmental impacts to the affected local
community, as required by Section 20 of the IGRA and the Part 151
regulations of the IRA. The following is a listing of major actions
taken on the application:
On August 1, 1996, the Tribe submitted the fee-to-trust
application for the Monticello site to the BIA Eastern Region for
processing under BIA regulations and policies.
From August 1996 to April 2000, the Tribe's fee-to-trust
application and its proposed Monticello project was the subject of two
Environmental Assessments under the National Environmental Protection
Act (``NEPA'') which resulted in two Findings of No Significant Impact
(``FONSI'') for the proposed federal action: to approve the Tribe's
fee-to-trust application for the Monticello casino project. The project
was also fully studied and evaluated under the more rigorous and
demanding New York State Environmental Quality Review Act (``SEQRA'')
process. These independent and extensive evaluations concluded there
would be no adverse environmental impacts from the Tribe's project.
On April 6, 2000, then-Assistant Secretary for Indian
Affairs (``ASIA'') Kevin Gover issued an affirmative Section 20
determination that the Tribe's application would be in the best
interest of the Tribe and its members, and would not be detrimental to
the surrounding community. ASIA Gover wrote to then-New York Governor
George Pataki requesting his concurrence in this determination, and
asserted that the Department would acquire the land into trust upon the
Governor's concurrence.
For several reasons, the Tribe switched gaming
development partners, and from May 2000 through July 2005, explored the
viability of pursuing an alternative Section 20 project at a nearby
location (``Kutcher's site''). During part of this timeframe, the
Cayuga Indian Nation filed its own an application for the Monticello
Raceway site and spent considerable time updating and revising the
environmental reviews.
In July 2005, the Cayugas dropped their application and
the St. Regis Mohawk Tribe reactivated its own fee-to-trust application
for the 29.31 acre site at the Monticello Raceway site. The Tribe took
immediate steps to confirm the validity of the April 2000 Section 20
secretarial determination and then proceeded with updating the
environmental work.
In September 2005, George T. Skibine, Acting Deputy
Assistant Secretary for Policy and Economic Development/Director of
Indian Gaming Management Staff confirmed that the April 6, 2000 two
part determination issued by then ASIA Gover was still valid, and upon
the Governor's concurrence the Department would resume consideration of
the St. Regis Mohawk Tribe's application to take land into trust at
Monticello Raceway. Skibine also informed the Tribes that environmental
work would likely need to be ``refreshed'' and revised.
A year later, on September 8, 2006, after extensive
consultations and tedious revisions to the EA and discussions between
the Tribe and Departmental officials, the BIA Eastern Region issued a
Notice of Availability (``NOA'') commencing a 30 day comment period on
the draft EA, and on September 12, 2006, published the NOA inviting
public comments on the most recent draft EA.
On October 31, 2006, the BIA Eastern Region submitted the
FONSI and final EA to the BIA Central Office with the recommendation to
take the land into trust and issue the FONSI.
On December 21, 2006, Associate Deputy Secretary Cason
signed the FONSI and sent transmittal letters to the Tribe and to
Governor Pataki requesting his concurrence with the Department's
Section 20 secretarial determination. The December 2006 FONSI was the
third one issued by the Department for the construction of the Tribe's
casino project at the Monticello Raceway site.
On February 18, 2007, Governor Spitzer signed a letter
concurring with the Department's affirmative Section 20 secretarial
determination to take the land into trust, and, on behalf of New York
State, entered into a gaming compact with the Tribe. Gov. Spitzer
requested Secretary Kempthorne to ``expeditiously take the land into
trust and approve the gaming compact...so that the Tribe can begin
construction of the proposed casino.''
On February 27, 2007, the St. Regis Mohawk Tribal Council
sent a letter to Secretary Kempthorne formally requesting that he
approve the Tribe's fee-to-trust application and acquire the land into
trust for its intended purpose.
From February 2007 through November 2007, the St. Regis
Mohawk Tribal Council submitted numerous and repeated requests to meet
with Secretary Kempthorne to discuss the Secretary's inextricable delay
in rendering a final decision on the Tribe's application. Secretary
Kempthorne did not respond to any of the Tribe's requests. Other
Departmental officials could not provide any specific answers or
reasons for the delay, though some of the same senior officials
remarked both publicly and privately that the real source of delay was
directed by Secretary Kempthorne for what many attributed to be his
personal views and objections to ``off reservation'' gaming. During
this timeframe and leading up to the January 4, 2008 denial, neither
Secretary Kempthorne nor any official within the Department indicated
to the Tribe that the application was deficient or that it lacked any
key information.
Faced with an intractable impasse, the Tribe filed a
complaint against the Department and Secretary Kempthorne in the U.S.
District Court for the District of Columbia for judicial review of the
continued failure to act on the Tribe's application, and to compel a
decision on the application. The government sought and received an
extension to answer the Tribe's complaint--the response was due on
January 4, 2008.
On January 4, 2008, the Department issued a denial letter
to the Tribe based solely on the failure of the Tribe's application to
meet a new ``commutability'' standard, which was simultaneously issued
through an internal memorandum dated January 3, 2008 from Assistant
Secretary Carl Artman to the BIA Regional Directors.
C. IGRA--Section 20 Procedure & Requirements
As noted above, the Indian Gaming Regulatory Act's (``IGRA''), 25
U.S.C. Sec. Sec. 2701 et seq, Section 20 two-part determination process
authorizes Indian gaming to be conducted on newly acquired lands such
as the 29.31 acres of the Monticello Raceway. Under this authority, the
Secretary is required to undertake the following:
Consult with the applicant Indian tribe and appropriate
State, and local officials, including officials of other nearby Indian
tribes, and
Issue an affirmative or negative decision under the two-
part determination process on whether the gaming establishment on newly
acquired lands (1) will be in the best interest of the Indian tribe and
its members, and, (2) will not be detrimental to the surrounding
community, and
If an affirmative secretarial two-part determination was
issued, obtain the concurrence of the Governor of the State in which
the gaming activity is to be conducted in such determination.
The Department's analysis and evaluation of the Tribe's application
under Section 20 was undertaken in accordance with the Department's
``Checklist for Gaming Acquisitions, Gaming-Related Acquisitions, and
IGRA Section 20 Determinations.'' All of these requirements and
processes under the Department's checklist were satisfied for the
Tribe's Monticello project.
By letter dated April 6, 2000, then-ASIA Kevin Gover issued an
affirmative Section 20 determination that the Tribe's application would
be in the best interest of the Tribe and its members, and would not be
detrimental to the surrounding community. ASIA Gover's determination
included 16 pages of detailed Findings of Fact supporting the two-part
determination, which included the following key findings:
The Tribe's casino project was projected to generate
approximately $583 million net revenues to the Tribe over its initial
seven years of operation.
Approximately 260 tribal members were projected to be
employed directly by the casino, earning an estimated total of $6.6
million annually, and approximately $23 million in contracts would be
awarded to tribally-owned construction enterprises engaged in the
construction of the casino.
The Tribe had some 8,630 enrolled members, with 4,193
living on or near the reservation; approximately 600 members were
unemployed and seeking work; no estimate had been made of the number of
reservation residents who would relocate to the casino, but tribal
members leaving for jobs at the casino ``could reduce reservation
unemployment by a substantial percentage.''
Significant training opportunities would be provided to
tribal members as a result of the casino.
Revenues from the casino would enable the Tribe to expand
its reservation senior citizen center, to construct a day care facility
and ambulatory/nursing home, to expand the sewage system, extend a
water line to serve the entire reservation, and connect a natural gas
pipeline to the reservation, as well as provide funds for scholarships
and post-secondary education tuition assistance.
There would be ``no foreseeable adverse impacts on the
Tribe associated with the acquisition of the Monticello property in
trust for a gaming and entertainment center.''
State and local officials had been consulted, that the
Town of Thompson supported the application, and that a Cooperation
Agreement met the concerns of the Village of Monticello and of Sullivan
County and addressed various project impacts.
The casino would boost the economy of the region,
generate employment and income for local residents, and generate
revenues from hotel taxes to local governments.
An assurance that ``If the Governor of the State of New
York concurs with this two-part Secretarial determination, the
Monticello Property will be taken into trust pursuant to the
requirements of 25 CFR Part 151.''
By letter dated February 18, 2007, New York Governor Eliot Spitzer
wrote to Secretary Kempthorne concurring with the April 2000
secretarial two-part determination that acquiring the Monticello site
in trust status is in the Tribe's best interest and would not be
detrimental to the surrounding community. Governor Spitzer's action in
concurring with the April 2000 secretarial determination fully and
affirmatively concluded the IGRA Section 20 process.
D. IRA--25 CFR Part 151 Procedure & Requirements
Section 5 of the Indian Reorganization Act (``IRA''), 25 U.S.C.
Sec. 465, enacted in 1934, authorizes the Secretary of the Interior to
acquire lands for Indian tribes in the name of the United States to
hold in trust for the Indian tribe, and to take action on a tribe's
request to acquire such lands. The federal regulations implementing the
Secretary's authority under Section 5 of the IRA are codified at 25
C.F.R. Part 151. With respect to land that is not located on or
contiguous to an existing Indian reservation, the Part 151 Regulations
require the Secretary to make the following determinations:
The acquisition is authorized by an act of Congress; and
The acquisition ``is necessary to facilitate tribal self-
determination, economic development, or Indian housing.''
The satisfaction of these requirements is evidenced by the
Department's consistent findings and conclusions in issuing three
FONSIs, the most recent on December 21, 2006, for the Tribe's
Monticello Raceway fee-to-trust application. All of the federally
approved EAs and FONSIs for the Tribe's project specifically evaluated
the Tribe's fee-to-trust application, and their conclusions address and
demonstrate the Tribe's application's compliance with and satisfaction
of all existing Part 151 considerations and requirements. Specifically,
the below findings and favorable conclusions substantiate full
compliance and satisfaction of the applicable provisions in the 151
Regulations:
Section 151.10(a): Statutory authority for the
acquisition and any limitation contained in such authority--The IRA
constitutes an affirmative policy of advancing tribal economic
interests. Congress conferred the authority to the Secretary to acquire
new trust lands as the primary means to fulfill the government's trust
obligation to ``rehabilitate the Indian's economic life[.]''
2 The authority extends to acquiring trust lands ``within or
without existing reservations'' Section 151.10(b): The need of the
Tribe for additional land--The EAs and FONSIs issued by the Department
specifically found and concluded that ``The Tribe needs a stable
economic base to address problems stemming from high unemployment,
insufficient housing and inadequate health care.'' In evaluating the
Tribe's fee-to-trust application for the Monticello casino project, the
Department concluded that ``this project clearly presented the best
opportunity for a financially successful venture. The best long term
employment opportunities [are from] the development of this proposed
casino complex[.]''
---------------------------------------------------------------------------
\2\ Id. at 1016, quoting Mescalero Apache Tribe v. Jones, 411 U.S.
145, 152 (1973).
---------------------------------------------------------------------------
Section 151.10(c): The purpose for which the land will be
used--The December 2006 FONSI concluded that the purpose for acquiring
the land into trust is to operate a Class III Native American Gaming
facility and associated restaurants, and retail facilities'' in order
to improve the Tribe's ``long term economic condition through the
development of the stable, sustainable source of revenue and employment
through Indian gaming.''
Section 151.10(e): The impact on the State and its
political subdivisions resulting from the removal of the land from the
tax rolls--This factor was addressed in detail throughout the EA and
NEPA review process. The FONSI details all mitigation, including local
agreements wherein the Tribe agreed to pay annually $5 million to the
Village of Monticello, and $15 million to Sullivan County, to offset an
increase in government services and loss of tax revenue for the 29 acre
site.
Section 151.10(f): Jurisdictional problems and potential
conflicts of land use which may arise--The Tribe's application was
fully supported by both the Village of Monticello and Sullivan County
in which the project was to be located. The EAs and FONSIs fully
addressed how medical, fire services, public safety, zoning and land
use would be handled between the Tribe and local entities, and
concluded there would be no jurisdictional problems and there were
adequate measures in place to address any potential conflicts of land
use.
Section 151.10(g): Whether the BIA will be equipped to
discharge the additional responsibilities resulting from the
acquisition of the land in trust status--Approval of the Tribe's fee-
to-trust application would not have created any adverse impacts or
resulted in any additional responsibilities for the BIA. The Tribe
agreed to maintain all responsibilities relating to the development and
maintenance of the trust parcel, including exercising jurisdiction and
control of the property. In addition, the Tribe had entered into
agreements to contract with local governmental entities for all
additional services.
Section 151.10(h): The extent to which the applicant has
provided information that allows the Secretary to comply with 516 DM 6,
appendix 4, NEPA Revised Implementing Procedures, and 602 DM 2, Land
Acquisitions: Hazardous Substances Determinations--On May 24, 2006, the
BIA conducted a contaminant Level I survey and site assessment of the
proposed parcel. No hazardous materials were detected. A May, 2006,
Phase I Environmental Site Assessment Report also concluded that there
were no hazardous substances or contaminants within the project site.
See EA, page 5-4.
Section 151.11(b): The location of the land relative to
state boundaries, and its distance from the boundaries of the tribe's
reservation--the greater the distance from the tribe's reservation,
this factor instructs that the ``Secretary give greater scrutiny to the
tribe's justification of anticipated benefits from the acquisition,''
and provides that the ``Secretary shall give greater weight to the
concerns raised'' by state and local governments. Akwesasne is
approximately 6 hours from the Monticello site, in a remote northern
corner of the State. With respect to an analysis of anticipated
benefits, the EAs and FONSIs discussed the Tribe's past failed attempts
at developing a stable, sustainable, revenue source through development
of projects on the reservation, and further considered and rejected the
``No Action'' alternative to the proposed federal action in approving
the Tribe's application. The Department concluded that the proposed
project ``clearly presented the best opportunity for a financially
successful venture. The best long term employment opportunities [are
from] the development of this proposed casino complex[.]'' With respect
to giving greater weight to concerns raised by the state and local
governments, the Tribe application clearly documents the full support
of the state and the affected local governments. Moreover, the 2001 New
York state law authorizing the Governor to enter into compacts
authorizing up to three Indian casinos in Sullivan and Ulster counties
3 demonstrates broad state policy supporting the
application. Section 151.11(c): The Tribe shall provide a plan which
specifies the anticipated economic benefits associated with the
proposed use--The Tribe fully complied with this requirement by
providing the Department with extensive documentation on how this land
would be used and how the Tribe would benefit from the planned use and
development of this parcel.
---------------------------------------------------------------------------
\3\ N.Y. Exec. L. Sec. 12 (McKinney 2001).
---------------------------------------------------------------------------
Section 151.11(d): Sets forth procedures for notifying
affected local governments and soliciting comments on the impacts of
the project--As demonstrated by the administrative record, the BIA
employed in depth notification and consultation procedures with the
state, and local communities, which were engaged and fully participated
in these agency's consultation on the proposed project.
In applying the IRA and its existing implementing regulations to
the Tribe's Monticello Raceway parcel fee-to-trust application, Tribe's
application fully satisfied and fulfilled all of the Part 151
requirements. Moreover the Department had previously notified the Tribe
and the State that it would take the land into trust status following
the Governor's concurrence, which demonstrated the agency's
acknowledgement that these requirements were fully satisfied. It was a
complete miscarriage of justice for the Department to have created a
brand new rule one day and apply it the next as the sole basis to deny
our application after we satisfied every single requirement and fully
complied with every federal process.
In summary, it is hard to find a project that has been the subject
of more extensive state, local, and Federal reviews and approvals.
All of these reviews and approvals culminated on December 21, 2006,
when the Department issued a ``Finding of No Significant Impact''
(``FONSI'') indicating the Tribe satisfied all of the federal
regulations for environmental review necessary to have the land taken
into trust status.
IV. JANUARY 3, 2008 ``GUIDANCE'' CONSTITUTES A BINDING LEGISLATIVE
RULE AND ITS ISSUANCE WITHOUT FORMAL NOTICE AND COMMENT
VIOLATES FORMAL FEDERAL RULEMAKING REQUIREMENTS
This section summarizes the provisions of the Guidance and
demonstrates that the Guidance constitutes an unlawful rule issued in
violation of the advance notice-and-comment requirements of the
Administrative Procedure Act, 5 U.S.C. Sec. 553.
A. Scope of the Guidance
As noted above, 25 CFR Sec. 151.11 sets forth the factors the
Department is to consider in deciding tribal fee-to-trust applications,
when the land is located outside of and noncontiguous to a tribe's
reservation. It provides, in part, that, as the distance between the
tribe's reservation and the land to be acquired increases, the
Secretary shall give:
1) greater scrutiny to the tribe's justification of anticipated
benefits from the acquisition; and
2) greater weight to concerns raised by state and local
governments as to the acquisition's potential impacts on regulatory
jurisdiction, real property taxes, and special assessments.
25 CFR Sec. 151.11(b). The Guidance purports to ``clarify'' how the
requirements for ``greater scrutiny'' and ``greater weight'' are to be
interpreted and applied, particularly when considering the taking of
off-reservation land into trust status for gaming purposes. The
Guidance noted that there were 30 pending applications from Indian
tribes to take off-reservation land into trust for gaming purposes, and
the memo instructed the BIA Regional Directors to review all pending
and future applications in accordance with the Guideline and its
requirements. Thus, on its face, the Guidance was drafted to apply to
the 30 pending (and future) fee-to-trust applications for Class III
gaming on lands acquired after the enactment of IGRA and located
outside or noncontiguous to a tribe's reservation.
B. Key Provisions--including the ``commutable distance'' rule
The Guidance articulates a new standard for assessing off-
reservation land applications--``commutable distance''--which it
defines as ``the distance a reservation resident could reasonably
commute on a regular basis to work at a tribal gaming facility located
off-reservation.'' The Guidance states that it applies to all
applications that involve requests to take land into trust that is off-
reservation, but also asserts that it ``only provides guidance for
those applications that exceed a daily commutable distance from the
reservation.''
Without any analysis or factual support, the Guidance asserts as a
``general principle'' that the farther a gaming facility is from the
reservation, the greater the potential for significant negative
consequences on reservation life. The Guidance announces a blanket
statement that if a gaming facility is not within a commutable distance
of the reservation, tribal members who reside on the reservation either
will not be able to take advantage of job opportunities at the facility
or else will be forced to move away from the reservation to do so. In
the former event, the gaming facility would not ``directly improve''
the employment rate on the reservation. In the latter event, the
departure of a significant number of reservation residents and their
families could be detrimental to the remaining tribal community.
4
---------------------------------------------------------------------------
\4\ Ironically, the Guidance notes that ``tribes are free to pursue
a wide variety of off-reservation business enterprises and initiatives
without the approval or supervision of the Department'' although such
enterprises and initiatives might raise the very same issues as off-
reservation gaming insofar as the on-reservation employment rate and
luring tribal members away from the reservation are concerned.
---------------------------------------------------------------------------
Insofar as the potential concerns of state and local governments
are concerned, the Guidance provides that the application should
include copies of any intergovernmental agreements negotiated between
the tribe and the state and local governments, or an explanation as to
why no such agreements exist. The Guidance directs that ``[f]ailure to
achieve such agreements should weigh heavily against the approval of
the application.''
The Guidance instructs that the application should include a
comprehensive analysis as to whether the proposed gaming facility is
compatible with the current zoning and land use requirements of the
state and local government, and with the uses being made of adjacent or
contiguous land, and whether such uses would be negatively impacted by
the traffic, noise, and development associated with or generated by the
proposed gaming facility. If the application does not contain such an
analysis, the Guidance directs that it is to be denied.
If an application fails to address, or does not adequately address,
the other issues identified in the Guidance, the Guidance directs that
the application should be denied.
C. Guidance is an illegally promulgated rule
The Administrative Procedure Act (``APA'') requires that when
federal agencies promulgate ``legislative rules'' that have the force
of law, they must do so by providing advance notice of the proposed
rules and giving the public an opportunity to comment on them before
they become effective. 5 U.S.C. Sec. 553. These requirements improve
the quality of agency rulemaking. See Sprint Corp. v. F.C.C., 315 F.3d
369, 373 (D.C. Cir. 2003). Failure to comply with these requirements
can result in judicial invalidation of the agency's rule. Id. at 376-
77.
A ``legislative rule'' is an agency pronouncement that establishes
a ``binding norm.'' See American Bus Ass'n v. United States, 627 F.2d
525, 529 (D.C. Cir. 1980). Likewise, agency pronouncements that make
``substantive changes'' or ``major substantive legal additions'' to
prior regulations are ``legislative rules.'' U.S. Telecom Ass'n v.
F.C.C., 400 F.3d 29, 34-35 (D.C. Cir. 2005). The Code of Federal
Regulations, including 25 CFR Part 151, consists of legislative rules
which were duly promulgated pursuant to the notice-and-comment
procedures of the APA.
The APA notice-and-comment requirements do not apply to general
statements of policy or to ``interpretative rules'' issued by an
agency. An interpretative rule merely supplies crisper and more
detailed lines than the authority being interpreted, or simply provides
a clarification of an existing rule. U.S. Telecom Ass'n v. F.C.C., 400
F.3d at 38. An ``agency's characterization of its own action is not
controlling if it self-servingly disclaims any intention to create a
rule with the 'force of law,' but the record indicates otherwise.''
Croplife America v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003). Congress
was concerned that the few specified exceptions to the notice-and-
comment requirements should not be broadly defined and indiscriminately
used. See American Bus Ass'n v. United States, 627 F.2d at 528.
Thus, the issue here is whether the Guidance constitutes a
``legislative rule.'' Plainly, the Guidance establishes a presently
binding norm and is not a mere policy statement. For example, the
Guidance directs all BIA Regional Directors, without exception, (1) to
apply it to all pending and future applications to take off-reservation
land into trust status, and (2) if an application fails to address, or
does not adequately address, the issues identified in the Guidance, the
application should be denied. See Community Nutrition Institute v.
Young, 818 F.2d 943, 946-47 (D.C. Cir. 1987) (agency's use of
mandatory, definitive language indicates binding norm is being
established, as does agency's treatment of that norm as binding absent
some exception).
Nor can the Guidance be deemed an ``interpretative rule'' that
simply provides a clarification of the existing regulation at 25 CFR
Sec. 151.11. Instead, the Guidance makes a series of substantive
changes and additions to 25 CFR Sec. 151.11. To start with, it
introduces the novel concept of ``commutable distance'' in terms of
assessing a tribal request to take land into trust. A commutable
distance factor is not part of the statutory requirements under Section
5 of the IRA nor can it be found in or fairly be interpreted to derive
from Part 151 regulations. Instead, based on this new rule, created
from whole cloth, the Guidance imposes the following new requirements:
(1) a specific assessment of the impact of the proposed gaming
facility on the unemployment rate on the reservation;
(2) an assessment of how many tribal members (and dependents) are
likely to leave the reservation to seek employment at the gaming
facility;
(3) an assessment of how will their departure affect the quality
of reservation life;
(4) an assessment of how their relocation will affect their long-
term tribal identification and the eligibility of their children and
descendants for tribal membership;
(5) inclusion of copies of any intergovernmental agreements
negotiated between the tribe and the state and local governments and a
presumption that failure to achieve such agreements will weigh heavily
against the approval of the application; and
(6) a comprehensive analysis as to whether the proposed gaming
facility is compatible with the current zoning and land use
requirements of the state and local government, and with the uses being
made of adjacent or contiguous land, and whether such uses would be
negatively impacted by the traffic, noise, and development associated
with or generated by the proposed gaming facility.
An agency pronouncement that substantively changes a preexisting
legislative rule is itself a legislative rule and can be valid only if
it satisfies the notice-and-comment requirements of the APA. U.S.
Telecom Ass'n v. F.C.C., 400 F.3d at 38. For instance, in Pickus v.
U.S. Board of Parole, 507 F.2d 1107 (D.C. Cir. 1974), the Parole Board
had issued, without advance notice and comment, guidelines specifying
many of the factors it would use in deciding whether to parole
prisoners. The court concluded that the guidelines were an invalid
legislative rule finding that:
[The guidelines] were of a kind calculated to have a
substantial effect on ultimate parole decisions.--Although they
provide no formula for parole determination, they cannot help
but focus the decisionmaker's attention on the Board-approved
criteria. They thus narrow his field of vision, minimizing the
influence of other factors and encouraging decisive reliance
upon factors whose significant might have been differently
articulated had [the notice-and-comment requirement] been
followed.
Id. at 1112-13.
This analysis is equally applicable to the Guidance. The Guidance
clearly supplants the open-ended provisions of 25 CFR 151.11--which
speak generally about the weighing of the ``anticipated benefits'' of
an acquisition against the ``concerns raised by state and local
governments as to the acquisition's potential impacts on regulatory
jurisdiction, real property taxes, and special assessments''--with a
set of detailed new requirements that ``narrow the field'' of decision-
making and instructions for decisive reliance on the factors in the
Guidance.
Therefore, because it effects substantive changes in the regulatory
requirements for taking land into trust, the Guidance is an invalid
legislative rule that was issued in defiance of the notice-and-comment
requirements of the APA.
D. Process for developing the Guidance violates Executive Order
In addition to violating the APA, the Secretary failed to abide by
longstanding guidance on directing federal agencies to consult with
tribal governments on a government-to-government basis. In particular,
Executive Order 13175 directs agencies to establish meaningful policies
to obtain input from Indian tribes before new policies are announced or
applied.
Each agency shall have an accountable process to ensure
meaningful and timely input by tribal officials in the
development of regulatory policies that have tribal
implications.
Executive Order 13175, Sec. 5.
The Guidance unquestionably constitutes a regulatory policy that
has ``tribal implication,'' not to mention devastating implications
with respect to the Tribe. It is our understanding that legislation may
soon be introduced to ensconce this policy as a requirement of federal
law. This case also proves that such legislation is necessary and
should be enacted immediately.
V. THE GUIDANCE IS INCONSISTENT WITH AND CONTRARY TO THE DEPARTMENT'S
POLICIES AND LEGAL INTERPRETATION OF LIMITATIONS ON THE
SECRETARY'S DISCRETION TO ESTABLISH A ``DISTANCE'' REQUIREMENT
The principal legal and policy advisors to then-Secretary of the
Interior Gail Norton produced, a document entitled ``Indian Gaming
Paper'' dated February 20, 2004. This ``white paper'' provided an in-
depth legal analysis of Secretarial discretion to approve off-
reservation fee-to-trust applications for gaming-related development.
The document evidently was the outcome of a two-day work session that
included participation by the Secretary's Counselor, the Principal
Deputy Assistant Secretary, the Associate Solicitor for Indian Affairs,
and the Deputy Associate Solicitor for Indian Affairs. The Chairman of
the National Indian Gaming Commission also participated in the Indian
Gaming Paper's development and concurred in the document's content.
The Indian Gaming Paper comprehensively explores the legislative
history and structure of IGRA, and employs this background to produce a
cogent deliberative analysis of the framework for the Secretary's
authority under IGRA and the IRA. The Paper's conclusions are
strikingly at odds with the Secretary's purported rationale for the
Guidance. For instance, the Guidance concludes that IGRA ``was not
intended to encourage the establishment of Indian gaming facilities far
from existing reservations.'' Yet, the Indian Gaming Paper explains:
In any event, it is certain that if Congress had intended to
limit Indian gaming on lands within established reservation
boundaries or even within a specific distance from a
reservation, it would have done so expressly within IGRA. It
clearly did not. Nor has Congress amended IGRA to add a
distance limitation or any other geographic limitation since
its passage in 1988. 5
---------------------------------------------------------------------------
\5\ Indian Gaming Paper page 13.
---------------------------------------------------------------------------
Similarly, in light of the remarkably small number of Secretarial
two-part determinations and even smaller number of gubernatorial
concurrences, the Indian Gaming Paper notes:
While some now argue that, in 1988 Congress may not have
envisioned that states and tribes would enter into compacts
that would locate gaming sites on lands located far from the
reservation, there is no evidence that Congress intended a
limitation on that activity within the law. Moreover, the
suggestion that ``reservation shopping'' has run amok is
without a basis. To the contrary, states have exercised their
statutory prerogative to deny tribes access to lands for gaming
under the two-part determination in all but three instances,
proving that the framework of IGRA has been working.
6
---------------------------------------------------------------------------
\6\ Id. page 12-13.
---------------------------------------------------------------------------
By stark contrast, the Guidance denigrates all off-reservation
gaming acquisitions that are not a ``commutable distance'' from a
Tribe's reservation by stating that ``the negative impacts on
reservation life could be considerable.'' Yet, the Indian Gaming Paper
explains the potentially significant benefits of such facilities:
Another factor considered in the best interest determination is
the impact on tribal employment, job training and career
development, including impact to the tribe if members leave the
reservation for employment at the gaming facility. For a
facility that is located a distance from the reservation, the
Department may review whether housing is provided for members
working at a proposed facility. However, if the tribe is using
gaming proceeds at a distant facility to create job
opportunities on-reservation, then while tribal members may
have to travel a distance to casino employment, overall tribal
employment may be boosted by the economic gains of the distant
facility. In addition, even without substantial job creation, a
tribe may demonstrate best interest by projecting the benefits
to tribe and tribal members from increased tribal income alone.
Increased tribal services, improved education and health care
are also benefits from increased tribal income that the
Department may consider. 7
---------------------------------------------------------------------------
\7\ Id. page 11.
---------------------------------------------------------------------------
The Indian Gaming Paper also explains that Congress made a
deliberate choice not to impose obvious distance or other restrictions
on off-reservation gaming projects. (Concomitantly, Section 20(c) of
IGRA expressly re-affirms the Secretary's ``authority and
responsibility'' to acquire trust land.) The Indian Gaming Paper also
notes that IGRA imposed ``checks and balance'' by requiring approval by
the Secretary as well as the ``high hurdle'' of a governor's approval.
Nevertheless, IGRA otherwise left tribes with the opportunity to pursue
gaming markets that were otherwise denied to them because 19th Century
policies favored located Indian reservations in remote areas.
Further, a plain reading of IGRA and its very purpose supports
the conclusion that off-reservation gaming is clearly
contemplated by the law. Otherwise the balance of State,
Federal, and Tribal power of the two-part determination would
be unnecessary. This conclusion also acknowledges (at least
implicitly) the history of locating reservations in remote
areas so as not to conflict with non-Indian settlers. IGRA
marks a departure from this history of blanket isolation of
tribes where prosperous non-agrarian economic development is
unlikely, in part by employing a structure that envisions state
and local participation in a decision to allow off-reservation
gaming. IGRA implicitly recognizes the limitations of economic
opportunities on the reservation by specifically providing for
a mechanism to allow off-reservation gaming and permits a tribe
to exercise jurisdiction on new Indian lands for that purpose.
8
---------------------------------------------------------------------------
\8\ Id. page 13.
---------------------------------------------------------------------------
As noted above, in IGRA's twenty-year history, Congress has not
seen fit to incorporate any distance limitations to gaming related
trust applications. Similarly, the IRA is over seventy years old and it
has not been amended to place a geographic limit on the Secretary's
authority to take land into trust. The Guidance was created with
unmistakable disregard for procedural requirements. Furthermore, it
purposefully disregards the obvious conclusions reached in the Indian
Gaming Paper concerning IGRA's purpose, structure, and legislative
history. Unlike the Guidance, the Indian Gaming Paper is entirely
consistent with the Department's previous interpretations of Section
20, including testimony from previous administrations.
VI. THE TRIBE'S APPLICATION MEETS AND EXCEEDS THE NEW COMMUTABILITY
STANDARD IN THE GUIDANCE
Even assuming the new commutable distance rule had been authorized
by the IRA and that it had been duly promulgated under the formal APA
procedures, the Tribe's application meets and exceeds the new rules and
therefore, it should have been approved. Specifically, the Guidance
dictates that ``no application to take land into trust beyond a
commutable distance from the reservation should be granted unless it
carefully and comprehensively analyzes the potential negative impacts
on reservation life and clearly demonstrates why these are outweighed
by the financial benefits of tribal ownership in a distant gaming
facility.'' In fact, the Tribe's application fully addresses the issues
listed in the Guidance that the BIA Regional Directors are now required
to address:
What is the unemployment rate on the reservation?
According to the Department's own findings, the unemployment rate on
the reservation is estimated to be between 35 and 40%. Two-Part at 2.
(Ironically, the unemployment rate although already unconscionable,
would be even higher except for the willingness of Tribal Members to
commute substantial distances for employment.)
How will it be affected by the operation of the gaming
facility? According to the Department's studies and conclusions, the
proposed Monticello project is the only alternative evaluated that
addresses the Tribe's demonstrable need for ``a stable economic base to
address problems stemming from high unemployment, insufficient housing,
and inadequate health care.'' FONSI page 2.
How many tribal members (with their dependents) are
likely to leave the reservation to seek employment at the gaming
facility? According to the EA and FONSI, approximately 260 tribal
members would be projected to be employed in the facility. (Because the
employees have not been identified, there was no empirical way to
calculate the number of dependents affected. Moreover, there was no
``guidance'' in place to flag this issue and make it a part of the
analysis at the time the Eastern Regional Director processed the
application.) In any case, the Guidelines intentionally seek to create
a Catch-22; if too many tribal members seek employment the detrimental
impacts are too great and the application must be denied; if too few,
the benefits on tribal member employment are inadequate and the
Secretary may not approve the application. ``Head's'' the Secretary
must deny, ``tails'' he may not approve. Either way the Secretary may
not approve a ``non-commutable'' application.
How will their departure affect the quality of
reservation life? The EA calculated projected earnings of the employees
and concluded that the employment and associated training would greatly
benefit the tribal members. With a population exceeding 12,000 people,
the employment of 260 people off the reservation would not be a
detriment to the quality of ``reservation life'' at Akwesasne. On the
contrary, the employment earnings would enhance the quality of
reservation life because tribal members would continue to maintain
close ties to the reservation community and would be able to
financially assist other family members on the reservation. The Two-
Part determination reports that the estimated annual payroll to tribal
members is $6.6 million and approximately $23 million will be realized
by tribally-owned construction contractors. Two-Part page 6.
How will the relocation of reservation residents affect
their long-term identification with the tribe and the eligibility of
their children and descendants for tribal membership? Based on the
Mohawks long history of commuting far distances from the reservation
for employment, there is a strong factual basis to support the
conclusion that tribal members commuting to the project site for
employment would not adversely affect their long-term identification
with the Tribe nor would it affect the eligibility of their children in
the Tribe. As far as their descendants, there is no guarantee or way to
require them to marry and/or have children in the Tribe. Frankly, such
a factor goes far beyond the legitimate scope of fee-to-trust
transactions and involves nothing more than conjecture and speculation.
Indeed, as noted above, the Guidelines recognize that ``tribes are free
to pursue a wide variety of off-reservation business enterprises and
initiatives without the approval or supervision of the Department'' and
such enterprises and initiatives could result in comparable off-
reservation employment opportunities that lure tribal members away from
the reservations. Nevertheless, the Two-Part Determination explains
that ``[c]asino, business, and general skills training will improve
tribal members' job skills for increased opportunities on and off-
reservation.'' Two-Part Determination page 7.
What are the specifically identified on-reservation
benefits from the proposed gaming facility? Will any of the revenue be
used to create on-reservation job opportunities? These questions were
conclusively and thoroughly considered by the EAs and FONSIs. ``The
Tribe is considered an environmental justice community for this
proposed action that would receive a significant benefit as a result of
project approval.'' FONSI page 5 (emphasis supplied). There is no
question that $23 million in construction contracts will primarily
benefit tribal members, who will either commute to Monticello for the
duration of these construction projects or, potentially, commute
further, perhaps even to Canada, for comparable construction projects.
VII. THE DEPARTMENT WRONGLY CONFLATED THE IGRA SECTION 20 PROCESS WITH
THE IRA PART 151 PROCESS
There is substantial overlap with the factors, processes and
considerations the Department considers and evaluates under the IGRA
Section 20 two-part determination process and the IRA Part 151 process.
For example, under the Section 20 process, the Tribe's application has
undergone numerous and comprehensive environmental reviews under both
SEQRA and NEPA; the application has successfully secured the issuances
of several extensive and comprehensive Environmental Assessments
(issued in April 1998, revised in February 1999 and again in February
2004, and updated in September 2006) and several FONSIs (issued in
September 1998, revised in October 1999 and signed in April 2000, and
revised and reissued in December 2006). These processes and related
determinations are directly relevant to the Part 151 Regulations the
Secretary is required to consider in exercising his discretion to
acquire land into trust pursuant to his authority under the IRA.
Although the Section 20 and Part 151 requirements and factors
overlap, technically, the Section 20 two-part determination process
under IGRA is separate from the Part 151 process under the IRA.
Furthermore, the law does not allow the Department to deny the
application solely on the basis that the land to be taken into trust
will be used for gaming purposes. Specifically, 20(c) provides that
``nothing in Section 20 shall affect or diminish the authority and
responsibility of the Secretary to take land into trust.'' Denying this
application because the land will be used for gaming purposes would
impermissibly allow the Section 20 two-part determination to overtake
and thereby diminish the Assistant Secretary's authority to take land
into trust. In other words, pursuant to Section 20(c) and the FONSI,
the Assistant Secretary (or the Associate Deputy Secretary overseeing
the Tribe's Application here) should approve the Tribe's application
because the land will be available for gaming purposes. However, he may
not deny the trust application because the land is subject to a
complete two part determination and can be used for gaming purposes.
VIII. THE TRIBE HAS VALID LEGAL EXPECTATION THAT ITS APPLICATION WOULD
BE APPROVED
After the FONSI, only two conditions needed to be satisfied before
the project site met all of the requirements necessary for gaming to
occur. First, the Secretary of Interior needed to finalize the
determination to take the land into trust by formally issuing a Record
of Decision. Second, New York Governor Eliot Spitzer needed to issue a
``concurrence'' to the April 2000 favorable Section 20 Secretarial
determination, thereby closing the Section 20 process. Governor Spitzer
satisfied this condition on February 18, 2007.
Of course the Tribe was elated once it received the Governor's
concurrence; and for good reason. In the nearly twenty year history of
the Indian Gaming Regulatory Act, the St. Regis application is only the
sixth positive Secretarial two-part determination. Two of these
previous applications were rejected when the respective Governor
refused to grant a concurrence. In the other three cases, after the
governor's concurrence, the trust status for the land was,
understandably, a non-issue. In two cases the land was already in
trust. 9 In the third instance, the land was taken into
trust as a matter of course about two weeks after the Secretary's two-
part determination. 10
---------------------------------------------------------------------------
\9\ Source: Office of Inspector General, Evaluation Report, Process
Used to Assess Applications To Take Land Into Trust For Gaming
Purposes, September 2005 (Report Number: E-EV-BIA-0063-2003), Appendix
6 (Existing trust lands of Kalispel Tribe and Keweenaw Bay Indian
Community converted to gaming uses followed by two-part determination).
\10\ Forest County Potawatomi Community v. Doyle, 1993 WL 765438
(W.D.Wis.).
---------------------------------------------------------------------------
The prior history of land-to-trust applications involving
two-part determinations, the Department's uniformly positive assessment
of the project and its impact on the Tribe, its members, and
After the Governor's concurrence, the Tribe had every
reason to be confident of a positive outcome. A number of factors
bolstered our expectations including:
the unprecedented State and local support for the
Project,
Nevertheless, with the stakes so high for the Tribe and in light of
the Tribe's good faith commitment to its development partner, Empire
Resorts, the Tribe left nothing to chance. Even before the Governor's
concurrence the Tribe began contacting the relevant officials in the
Secretary's office and the Office of Indian Gaming. One or more of the
Three Chiefs met personally or spoke with either Associate Deputy
Secretary James Cason or George Skibine on a regular basis throughout
2007. Sometimes the Chiefs spoke with both Messrs. Cason and Skibine
several times in the same week. On each and every one of these
conversations, the Chiefs sought or demanded information on the status
of the Tribe's application and whether there was anything more the
Tribe could submit that might conceivably assist the Department in
finalizing the process. Neither the Chiefs nor any other Tribal
Official was ever advised that the Tribe's application was deficient in
any way. The Tribe was repeatedly assured that its application would be
evaluated on an objective and transparent basis. These representations
belie the Department's undisclosed contemporaneous effort to develop
new standards in order to provide a basis for denying the Tribe's
application.
IX. SECRETARY KEMPTHORNE'S UNWARRANTED AND UNPRECEDENTED DELAY
The Rules of the House of Representatives authorize, empower, and
obligate this Committee to investigate ``review and study on a
continuing basis laws, programs, and Government activities relating to
Native Americans.'' House Rules 2(h). This case cries out for this
Committee to exercise its jurisdiction to investigate the following:
Why did the Secretary postpone a decision on our
application for nearly one year?
Were any Interior Department officials or employees
directed or encouraged to either postpone a final decision on the
Tribe's application or to concoct a basis for denying the Tribe's
application? If so, who provided such directives?
Did Assistant Secretary Carl Artman participate in the
review of the Tribe's application notwithstanding his putative recusal
from all New York-related gaming land issues? In light of his recusal,
did he unduly interfere with the Tribe's application? Did he
participate in any discussions about whether the new rule could or
should be retroactively applied to the Tribe's application?
Did any third-party encourage the Department to delay a
decision or deny the Tribe's application? Who were these third-parties
and who, if anyone, did they contact at the Department. Did they
contact anyone in the White House?
X. CONCLUSION
The Secretary's sole basis for denying the Tribe's application is
the following statement:
``[T]he Tribe's application fails to carefully address and
comprehensively analyze the potential negative impacts on
reservation life[.]''
In contrast to this single unsubstantiated assertion, the Tribe has
amassed an unassailable and exhaustive assemblage of favorable
determinations and approvals, including the following:
Local Approvals--
Sullivan County--May 23, 1996
Town of Thompson--September 6, 1996
Village of Monticello--September 20, 1996
Final Environmental Impact Statement (FEIS) Completed &
Accepted ``February 18, 1998
NY State Environmental Quality Review Act (SEQRA)
Approval--March 10, 1998
1st--Federal Finding of No Significant Impact on
Environmental Assessment (FONSI)--April 22, 1998
2nd--Federal FONSI--April 4, 2000
Secretarial Two-Part Determination--April 6, 2000--
``Establishment of [the gaming project] in Monticello, New
York would be in the best interest of the Tribe and its members.''
``There are no foreseeable adverse impacts on the Tribe
associated with the acquisition of the Monticello property [.]''
NY SEQRA Updated & Confirmed--July 22, 2005
3rd--Federal FONSI--December 21, 2006--
``The Tribe needs a stable economic base to address
problems stemming from high unemployment, insufficient housing and
inadequate health care.''
``[T]his project clearly presented the best opportunity
for a financially successful venture. The best long term employment
opportunities [are from] the development of this proposed casino
complex[.]''
``[T]proposed project will improve the socioeconomic
conditions for both the Tribe and Sullivan County.''
Governor's Concurrence with Secretarial Two-Part
Determination--February 19, 2007
In denying the Tribe's application the Secretary has arrogated to
himself the legislative authority of Congress and this Committee. He
has also violated a commitment he made to Congress during his
confirmation hearing that he would abide by law, including Section 20,
notwithstanding any personal views he may harbor about gaming or Indian
gaming. 11 Allowing the Secretary to evade responsibility
for his actions will only serve to encourage a culture of disregard for
established law.
---------------------------------------------------------------------------
\11\ Kempthorne Nomination, S. Hrng. 109-507 (May 4, 2006) page 60-
61.
---------------------------------------------------------------------------
The record reflects that the Tribe's application was denied based
on a rule that was illegally fabricated behind closed doors solely to
justify the Secretary's decision. The Secretary (or his minions) also
contrived to make it procedurally impracticable for the Tribe to
challenge this action. Apparently the Secretary imposed these
additional procedural obstacles out of recognition that the Tribe could
have easily satisfied even this fabricated and contrived
``commutability'' standard if the Tribe had been given an opportunity.
______
The Chairman. Thank you. Mr. Armenta?
STATEMENT OF HON. VINCENT ARMENTA, TRIBAL CHAIRMAN, THE SANTA
YNEZ BAND OF CHUMASH INDIANS, SANTA YNEZ, CALIFORNIA
Mr. Armenta. Thank you. First of all, I would like to thank
you, Chairman Rahall, and the Committee Members here for
holding this important meeting and allowing us the opportunity
to submit testimony, both written and orally.
My name is Vincent Armenta, and I am the Tribal Chairman of
the Santa Ynez Band of Chumash Indians, and I am here to
testify against the so-called ``commutable distance rule''
established by Secretary Kempthorne by his guidance memorandum,
dated January 3, 2008.
What exactly is the reservation life that Secretary
Kempthorne is trying to protect? Is he trying to protect that
part of reservation life that is always striving to restore the
lost aboriginal homelands and territory of the tribe? Is he
trying to protect those areas of land, both on and off the
current tribe's reservation, over which a tribe exercises
governmental control, or is the secretary of the interior
taking the most restrictive possible definition of reservation
life and limiting it solely to the extremely diminished
boundaries of an existing reservation?
Under the guise of supposedly trying to protect reservation
life, the secretary has established a new rule, without any
tribal input or consultation, that is designed to keep Indians
on their existing reservations.
When the Spanish explorer, de Portela, arrived in what has
become the State of California, there was a thriving community
of coastal Native American Indians. This group surrounded Santa
Barbara and called themselves the Chumash, and was considered
by the Spanish to be one of the most advanced California Indian
tribes, as they lived in interconnected villages stretching
from Malibu in the south to Paso Robles in the north, and
encompassing almost 7,000 square miles.
The Spanish, at that time, had built a series of Catholic
missions in such Chumash areas, and, within just 74 years, the
population of the Chumash Indians decreased from 25,000 to
merely 1,200. By the time California was made a state in 1848,
the Chumash had been reduced to living in a riverbed of the
Zanja de Cota, which is just east of the Santa Ynez Mission.
That is what we refer to today as the Santa Ynez Indian
Reservation, home of the Santa Ynez Band of Chumash Indians.
Since the Zanja de Cota riverbed was limited in size and
opportunity, I, myself, soon began to travel off the
reservation for work. To the north, I could pick grapes as a
farmer. I could visit, to the west, Vandenberg Air Force Base;
to the northeast, the Kyama Valley where they grow alfalfa; or
to the west, in Ventura, two other military bases: Point
Hueneme and Point Mugu.
So within a 70-mile radius of our reservation, I could
either become a farm laborer or join the military. Ultimately,
I took a construction-management job in Los Angeles, almost 200
miles away from our reservation. I commuted there because there
were no jobs on the reservation.
Regrettably, Secretary Kempthorne would not support my
choice to travel from the Zanja de Cota riverbed to the big
city, Los Angeles, because it is beyond a reasonable commute of
70 miles. Ironically, Secretary Kempthorne, himself, continues
to commute from Idaho to Washington, D.C., for his job, but
apparently that is not an unreasonable commute for him.
The historical lands of the Chumash extended to the south
and eastward, almost to the eastern suburbs of Los Angeles and
Malibu. The so-called ``prehistory'' of this area is covered
with Chumash artifacts and burials. The Chumash people still
consider this aboriginal territory to be their home, even
though they have been forced to relocate in the Zanja de Cota
riverbed.
Perhaps Secretary Kempthorne should recast his 70-mile
reasonable commute in relationship to the aboriginal
territories of each tribe. Historically, tribes in their
aboriginal territory state have crossed back and forth
throughout the aboriginal territories in search of food and
resources. Modern-day tribal members and descendants still
travel great distances for gainful employment.
Today, in my position as Tribal Chairman, I have commuted
to Washington, D.C., just like Secretary Kempthorne.
Limiting fee-to-trust acquisitions to only 70 miles from
each current reservation perpetuates a cycle of poverty and
despair on each reservation. Today's reservations are a mere
shadow of their historic aboriginal territories.
The Indian Reorganization Act was enacted to prevent the
destruction of current reservations and to permit the secretary
to assist tribes in restoring as much of such lost aboriginal
territories.
While we appreciate Secretary Kempthorne's concern with the
negative effects of off-reservation fee-to-trust, gaming
acquisitions on existing reservation life, we invite him to see
what the Chumash have done with our riverbed. We had hoped that
the secretary would work with us to reestablish our former
aboriginal territories of our tribe, but, instead, the
secretary is more concerned about how far our members can drive
to work.
We asked the House Resources Committee to work with the
tribes and at least permit us to go through the indignity of
having to buy back our own aboriginal territories. Instead, we
are being labeled as desiring to reservation shop. The Chumash
desire to regain the lands of their ancestors, one piece at a
time. This aboriginal territory analysis is completely absent
from the so-called ``commutable distance test,'' which is a
mere pretext to keep the tribes on their existing reservations.
Thank you very much.
[The prepared statement of Mr. Armenta follows:]
Statement of The Honorable Vincent Armenta, Tribal Chairman,
Santa Ynez Band of Chumash Indians
Is Section 5 of the Indian Reorganization Act a catalyst for self
determination or a ball and chain keeping ``those Indians'' on the
Reservation?:
Opposition to that new Guidance by Secretary Kempthorne dated Jan.
3, 2008, Regarding off-reservation fee-to-trust acquisitions for gaming
purposes, and Interior's new ``Commutable Distance Rule.''
Good afternoon, my name is Vincent Armenta and I am the Tribal
Chairman of the Santa Ynez Band of Chumash Indians. I am here to
testify against the so-called ``Commutable Distance Rule'' established
by Secretary Kempthorne by his Guidance memo dated January 3, 2008.
At the outset, I would like to thank Chairman Rahall, Ranking
Committee member Young and the entire Committee for holding this
important hearing and providing us with the opportunity to submit
testimony and a written response to a directive memorandum that was
received by our Tribe without any prior notice or government-to-
government consultation prior to our reading about the new rule in the
media on January 4th of this year.
Under the guise of supposedly trying to protect ``reservation
life'' the Secretary has established a new rule without any tribal
input or consultation that is designed to keep ``the Indians'' on their
existing reservations.
What exactly is the ``reservation life'' that Secretary Kempthorne
is trying to protect? Is the Secretary trying to protect that part of
Reservation Life that is always striving to restore the lost aboriginal
homelands and territory of the Tribe? Is the Secretary trying to
protect those areas of land both on and off the Tribe's current
reservation over which the Tribe exercises governmental control as
provided in the IGRA? Or is the Secretary of the Interior taking the
most restrictive possible definition of Reservation Life and limiting
it solely to the extremely diminished boundaries of existing
reservations? 1
---------------------------------------------------------------------------
\1\ ``California tribes that were parties to the 18 treaties
negotiated in 1851-52 would have retained 8.5 million acres of their
aboriginal homelands had the treaties been honored by the Senate. Then
the Senate refused to ratify the treaties and Congress extinguished the
California tribes' land claims in the California Land Claims Act of
August 3, 1851, the tribes lost claims to their entire aboriginal
homeland totaling more than 70,000,000 acres. Today the tribal land
base in California is just over 400,000 acres (about 0.6% of the
aboriginal land base), with an additional 63 acres of land held in
individual land allotments.'' Final Report, Advisory Council on
California Indian Policy, Pursuant to P.L. 102-416, Executive Summary,
p. 25 (September 1977).
---------------------------------------------------------------------------
Aboriginal Chumash Bands
I would first like to provide a brief historical overview of the
Santa Ynez Band of Chumash Indians here in the State of California.
The Chumash historically occupied an area from Morro Bay to the
north, Malibu to the south, Tejon Pass to the east (what is now called
the ``Grapevine'') and the four Northern Channel Islands. In
prehistoric times the Chumash territory encompassed some 7000 square
miles. Today, this same region in Southern Central California takes in
five counties including Santa Barbara, Ventura, San Luis Obispo, Los
Angeles, and Kern. An elaborate Chumash trail network linked several
hundred early Chumash villages and towns, seasonal encampments, rock
art sites, shrines, gathering places and water sources. These trails
were vital to sustaining cultural longevity for over 8,000 years in
this region as they formed the foundation for economic and social
exchange among the Chumash.
The Chumash numbered over 25, 000 people on the eve of the first
Spanish land expedition in 1769. This scouting trip by Portola led to
the founding of five Catholic missions in the Chumash territory
beginning in 1772; with Mission Santa Ines the last to be built in
1804. 2
---------------------------------------------------------------------------
\2\ John R. Johnson, Chumash Social Organization: An Ethnohistoric
Perspective. Ph.D. dissertation, University of California, Santa
Barbara (1988); John R. Johnson, The Chumash after Secularization
(1995), California Mission Studies Association, no pagination; John R.
Johnson, personal communication with Kathleen Conti (Feb. 8, 2008).
---------------------------------------------------------------------------
In a period of seven decades, the once thriving population of
25,000 Chumash drastically declined to 1,200 people. After
secularization of the missions in 1833, the Chumash population in the
Santa Ynez River area alone, including today's Lake Cachuma, Mission
Santa Ines, Mission La Purisima Concepcion and the Lompoc Coast,
severely declined to only 455 Indians. A map of Chumash Towns at the
Time of European Settlement is attached. 3
---------------------------------------------------------------------------
\3\ Reproduced with permission from Professor John R. Johnson,
personal communication, http://www.sbnature.org/research/anthro/
chumash/local.htm. Map prepared by John R. Johnson in collaboration
with Chester King, Kathryn Klar, Sally McLendon and Kenneth Whistler.
From Sally McLendon and John R. Johnson (editors), Cultural Affiliation
and Lineal Descent of Chumash Peoples. Report submitted to the
Archaeology and Ethnography Program, National Park Service, Washington,
D.C., 1999.
---------------------------------------------------------------------------
The Treaty of Guadalupe Hidalgo
In the aftermath of the Mexican-American War in 1848, the United
States acquired the California territory as part of the Treaty of
Guadalupe Hidalgo. An interesting aspect of the Treaty was that the
United States agreed to respect the land claims and rights of the
Native Americans already living in California on the land they
physically occupied.
The 18 Unratified California Treaties
Indian Commissioners were sent to California to remove the
California Native Americans from the lands they ``physically occupied''
and create the first reservations. In reliance on the Treaties, the
California Indians abandoned much of their aboriginal lands and began
withdrawing to their new treaty lands. However, unbeknownst to the
California Tribes, the California delegation in Congress was busy
lobbying against ratifying the Treaties.
Instead of just not ratifying the Treaties, Congress went one step
further. By secret joint resolution, Congress agreed not to ratify the
California Treaties and to formally ``hide'' them for 50 years. The net
effect of this deception was to open up California for settlement, as
the Native Americans were no longer physically occupying the land and
yet give the Tribes no reciprocal rights to any reservations
whatsoever.
Between April 29, 1851 and August 22, 1852, a series of eighteen
treaties ``of friendship and peace'' were negotiated with a large
number of what were said to be ``tribes'' of California Indians by
three treaty Commissioners (George W. Barbour, Redick McKee and O. M.
Wozencraft) whose appointments by President Millard Fillmore were
authorized by the U.S. Senate on July 8, 1850. Eighteen treaties were
made but the Senate on July 8, 1852 refused to ratify them in executive
session and ordered them filed under an injunction of secrecy. The
texts of these 18 unratified treaties were made public on January 19,
1905 at the order of the U.S. Senate which met in executive session on
that day in the Thirty-second Congress, First Session. 4
---------------------------------------------------------------------------
\4\ Robert F. Heizer, THE EIGHTEEN UNRATIFIED TREATIES OF 1851-1852
BETWEEN THE CALIFORNIA INDIANS AND THE UNITED STATES GOVERNMENT (1972),
reprinted at http://www.maidu.com/maidu/maiduculture/bibliography/
historyofthe18.html.
---------------------------------------------------------------------------
The Santa Ynez Indian Reservation
Chumash Reservation life began with the Spanish Missions who
claimed to be ``teaching'' tribal members religion while allowing
tribal members to perform manual labor to build their character. So
much character was built that a once vibrant population of Chumash in
the Santa Ynez River area was reduced from 3,000 to a few hundred in a
space of 74 years.
With the secularization of the Missions and California Statehood,
even these few Chumash found they had lost their homelands and were
living in the shadows of the former glory of the Missions. The Chumash
of the Village of Kalawashaq, from where I descend, found refuge in the
Zanja de Cota riverbed near the town of Santa Ynez--mostly because no
one else wanted to live in that flood plain.
From the beginnings of California Statehood, the Catholic Church
had maintained that many Church lands were jointly owned by the Church
and its neophytes, which is how the Church referred to its Chumash
workers in residence. In a quiet title action beginning in 1897, the
Catholic Bishop of Monterey began the process to eliminate any neophyte
claims to about 11,500 acres of the Canada de los Pinos or College
Rancho owned by the Church and to transfer title to the Zanja de Cota
Riverbed to the Indian Agent of the Mission Tule (Consolidated) Agency
in California. In a settlement of such quiet title action, and by the
implementation of the Mission Indian Act of 1891 and an Executive Order
from President Benjamin Harrison, the Zanja de Cota riverbed was turned
into the Santa Ynez Indian Reservation of the Santa Ynez Band of
Chumash Indians. A sketch of Legal Description of two parcels in Notice
of Pendency of Action, The Roman Catholic Bishop of Monterey,
Plaintiff, against Salomon Cota, et al., filed 2/23/1897; Superior
Court of the County of Santa Barbara, CA is attached.
Such Santa Ynez Reservation consisted of about 99 acres--a far cry
from the 7,000 square miles of aboriginal Chumash lands prior to the
Missions or even the 11,500 acres of Church lands over which the
Chumash shared with the Catholic Church by land claim.
The Commutable Distance Rule and Lost Tribal Lands
The Indian Reorganization Act of 1934, the so-called Wheeler-Howard
act, was designed with two objectives. The first was to reverse the
effects of the Dawes Act of 1887 and end the era of allotment and
forced assimilation by creating strong tribal governments on
established federal reservations.
The second objective was to reverse the loss of tribal lands and,
if possible, re-establish the aboriginal territories of many tribes.
We appreciate Secretary Kempthorne's concern with the negative
effects of off Reservation fee to trust gaming acquisitions on existing
reservation life and we invite him to see what the Chumash have done
with our riverbed. We would hope that the Secretary would work with us
to re-establish the former aboriginal territories of our tribe. Instead
the Secretary is more concerned with how far our tribal members can
drive to work.
We ask the House Resources Committee to work with Tribes and at
least permit us to go through the indignity of having to buy back our
aboriginal territories. Instead we are being labeled as desiring to
Reservation Shop. The Chumash desire to regain the lands of their
ancestors even if it means buying them a piece at a time. This
aboriginal territory analysis is completely absent from the so-called
commutable distance test--which is mere pretext to keep tribes on their
existing diminished reservations.
[GRAPHIC] [TIFF OMITTED] T0943.001
.eps[GRAPHIC] [TIFF OMITTED] T0943.002
.eps__
The Chairman. Thank you. Ms. Hindsley?
STATEMENT OF HON. HAZEL HINDSLEY, CHAIRWOMAN, ST. CROIX
CHIPPEWA INDIANS OF WISCONSIN, WEBSTER, WISCONSIN
Ms. Hindsley. Thank you. Good afternoon, Chairman Rahall,
Ranking Member Young, and Members of the Committee. My name is
Hazel Hindsley, and I am currently the Chairwoman of the San
Croix Chippewa Indians of Wisconsin, and I have been a member
of the Tribal Council for eight years.
I would like to introduce St. Croix Tribal Council Member
Elmer J. Emory, Bad River Tribal Council Member Edith Leoso,
Beloit City Council President Terry Monahan, and Beloit City
Manager Larry Arft.
The City of Beloit invited the Bad River Band of Lake
Superior Chippewa Indians and the St. Croix Tribe to pursue the
development of a casino resort project. We submitted our fee-
to-trust application in 2001. There was a favorable
recommendation by the regional office in January 2007. It is
currently under review at the central office here in
Washington, D.C.
During the summer of 2007, in an effort to find a way to
deny off-reservation casino projects like ours, the Interior
Department reversed its longstanding procedures by making the
Part 151 fee-to-trust decision before the two-part IGRA
decision. This was compounded by the January 3rd guidance memo,
which contained fabricated assumptions that a casino beyond a
commutable distance would negatively impact reservation life.
The St. Croix Tribe filed a lawsuit in the U.S. District
Court here in Washington, D.C., that challenges the legality of
the guidance memo, as well as a decision to make the Part 151
decision first. Our lawsuit is still pending before the Court.
We have filed, in our lawsuit, a copy of the Interior
Department's own analysis of the issues presented by the
guidance memorandum. It is called ``The Indian Gaming Paper,''
and it is dated February 20, 2004. It presents an extensive and
detailed analysis prepared by senior officials of the Interior
Department, together with its lawyers.
It concludes that Congress, in enacting the Indian
Reorganization Act in 1934 and IGRA in 1988, was very aware
that Indian tribes, due to their remote locations, would need
to establish economic enterprises, including casinos, at great
distances from their locations in order to promote their self-
government and economic development.
The guidance memorandum totally ignores the Interior
Department's own conclusions set out in detail in the 2004
Indian Gaming Paper.
The memorandum talks about commutability as a new standard.
In my tribe's history, it has always been common for our
ancestors to travel, for subsistence purposes, whether that was
our maple sugar camps or our wild rice camps. It was also
common for our ancestors to travel great distances to trade and
barter with other tribal groups and various Europeans who came
to the Great Lakes region.
This is still true today. My people have traveled to
various urban areas for employment, yet still maintain strong
ties to the tribe's reservation and community. My own daughter
is one of them.
The St. Croix people survived the Federal relocation era,
where our families were sent anywhere from California to
Indiana. Most of them returned home as soon as they saved
enough money. So commutability is one of the ways that we have
survived in the past.
There are some tribal members living currently in the
Beloit area who may look for jobs there, and a few tribal
members who may move from our reservation. In either case, this
will not negatively impact my tribe's reservation life. The
whole concept behind this project was to find a way to provide
better services and employment for our tribal membership on the
reservation through the revenue generated by the casino
project.
The Tribal Council at St. Croix has studied this issue. We
regularly deal with the issues of jobs, education, healthcare,
housing, elder care, infrastructure, and land. We have stayed
the course on the Beloit application because it is so vital to
our future. This is our responsibility, and it was our decision
to pursue this opportunity.
Since 1934 and the passage of the IRA, the policy of the
United States has been that of encouraging Indian self-
determination and economic development. The Interior
Department's guidance memo has changed this policy. The
Interior Department is essentially telling my tribe that we do
not know what is best for us, our children, our elders, and our
generations to come. This is paternalistic and oppressive. It
is an economical effort to imprison my people to my
reservation.
The guidance memo is directly contrary to the purpose of
the Indian Reorganization Act. The Supreme Court has stated
that the purpose of that statute is, and I quote: ``To
rehabilitate the Indian's economic life and to give him a
chance to develop the initiative destroyed by a century of
oppression and paternalism.''
The Supreme Court has also stated that ``the Indian
Reorganization Act was to establish the machinery whereby
Indian tribes would be able to assume a greater degree of self-
government, both politically and economically.''
As the Chairperson of my tribe, I was elected to make
decisions that take into consideration the best interests of my
people. I cannot allow that right to be taken away.
There are many reasons that I feel the guidance memorandum
is inappropriate. I believe that the new guideline is an
improper shift in BIA policy, and it was made without
consulting tribal leaders. It is exactly the opposite of what
is stated in the Indian Gaming Paper. I feel that it is not
only inappropriate; it is unfair.
I believe that the Interior Department has constructed an
elaborate framework whose sole purpose was to deny pending off-
reservation casino applications. The agency understood that our
application and a number of others would succeed under the two-
part IGRA determination process. This led the Interior
Department to change the rules so that it could deny the
applications by using Part 151 of the regulations, rather than
IGRA. In doing so, it avoided the will of Congress. How else
can you explain 22 denial letters within one day?
There is an argument from pages 3 and 4 of the guidance
memorandum that states, I quote: ``The operation of the gaming
facility would not directly improve the employment rate of
tribal members on the reservation.''
The question that I have is, how could the revenue stream
from the gaming facility not improve our employment rate at
home?
I believe that the guidance memorandum makes substantive
changes to Federal law and that the Interior Department has
violated its trust responsibilities. There was no consultation
with the tribes. It creates new standards that are designed to
limit a tribe's opportunities, and it ignores the decisions
that are made by the tribal governments. I believe that the
guidance memorandum should be withdrawn and that before any
changes are made to these important laws, the proper
consultations with the tribes should occur. Thank you.
[The prepared statement of Ms. Hindsley follows:]
Statement of The Honorable Hazel Hindsley,
Chairwoman, St. Croix Chippewa Indians of Wisconsin
Chairman Rahall, Ranking Member Young, and other Members of the
House Resources Committee. I am the elected Chairwoman of the St. Croix
Chippewa Indians of Wisconsin. I have been an elected member of the
Tribal Council for eight years. The St. Croix Tribe is located in a
remote area of northwestern Wisconsin. Our reservation lands are spread
in three separate counties. We hold very little land in trust. Only a
small portion of our land is suitable for farming or commercial use.
Other than work for the tribal government itself, business and
employment opportunities are very limited for tribal members. There are
currently 1,089 enrolled members of the St. Croix Tribe. The
unemployment rate is 19.4%. Twenty percent of those employed earn wages
below the poverty level.
The tribal government has substantial unmet needs in a number of
areas, including reservation housing, healthcare and education. Funding
by the federal and state governments continues to decline while the
Tribe's population has substantially increased and continues to grow.
The Tribe has a casino in Turtle Lake, a rural area of Wisconsin, and
two other small casinos. Even with those revenues, the Tribe's
financial resources have simply proven to be inadequate and are
incapable of providing adequate services and keeping pace with the
needs of its growing population.
The St. Croix Tribe, together with the Bad River Band of Lake
Superior Chippewa Indians, have been partners in an effort to gain
approval for a casino resort project in Beloit, Wisconsin. Beloit is
about 330 miles from our two reservations. This project was originally
the idea of the City of Beloit. The area had experienced numerous
factory closings and the permanent loss of thousands of jobs. The city
conceived of a destination resort casino, with a large hotel,
restaurants and a convention center, as a principle mechanism to
restore its economy not only by the revenues involved in the
construction of the project (which would be the largest in the area's
history) but by some 3,000 fulltime jobs which the casino project would
create. Some 61% of Beloit residents voted favorably for the project in
a referendum held several years ago. For many years, the project has
enjoyed the unanimous support of the Beloit City Council. It has
received the continuing support of an overwhelming majority of the
elected members of the Rock County government (where Beloit is located)
and nearby municipalities. Each of our two tribes has historical and
aboriginal ties to the Beloit area.
The St. Croix Tribe and Bad River Band filed their application to
take the land into trust for a Beloit casino in July of 2001. Since
that time, the Tribes have taken every effort to comply with all of the
requirements in order to gain approval by the Interior Department.
Studies and more studies have been prepared. An environmental impact
statement has been prepared. Consultations with untold numbers of
local, state and federal officials have taken place as well as
consultations with other Indian tribes. Tribal leaders and local
elected officials have met with BIA officials time and time again to
present the project and answer any of their questions. Unlike many such
projects, there is no outside developer. All of the costs have been
borne by the two Tribes and the Tribes will receive all of the profits.
The two Tribes have undertaken these expenses because they have come to
learn that viable economic development on or nearby their reservations
is simply not realistic. It has proven to be very difficult for the St.
Croix tribe to diversify its economy despite significant efforts to do
so. The Bad River Band's wild rice crop, a major revenue source for the
tribe, totally failed this past fall due to the low water levels in
Lake Superior.
In January of 2007, the BIA's regional office forwarded the casino
application with a favorable recommendation to the Central office of
the BIA here in Washington, D.C. Several months later, tribal leaders
were informed that approval by the Interior Department was in real
doubt due to Secretary Kempthorne's strong negative attitude towards
off-reservation casinos. At that time, we naively thought that the
application would still be approvable because it met the ``best
interest'' test under the two-part determination and there was no
detriment to the surrounding community. Assuming approval by Governor
Doyle, we thought that the remaining issues posed by Part 151 of the
regulations were easily satisfied because we had previously negotiated
a comprehensive inter-governmental agreement with the City of Beloit.
We sadly underestimated the ingenuity of the Secretary's office in
finding a way to turn these applications down. As I am sure you know,
historically the two-part determination under IGRA has been made first.
However, during the summer of 2007, we began to hear that the Interior
Department had decided to make the Part 151 determination prior to the
two-part IGRA determination because it viewed the broader language in
Part 151 would provide more discretion to deny these applications.
(This was confirmed in a letter received by our counsel.) This decision
was made without consultations or any type of public notice or
explanation as to the reasons for this change.
Over time, it has become evident that the Interior Department has
decided to use the Part 151 so that it can deny meritorious off-
reservation casino applications. In so doing, the Interior Department
has bypassed IGRA which Congress clearly envisioned was to provide the
appropriate standards. From public statements made by Assistant
Secretary Artman, we were aware that internal fee-to-trust guidelines
were being drafted and would shortly be issued. Our lawyers, in their
meeting with Mr. Artman on November 29, 2007, asked for a copy of those
guidelines prior to the time that any decision was made on our
application. He declined. After being told by Assistant Secretary
Artman at the November meeting that decision letters would be issued
within several weeks, my tribe filed suit in the District of Columbia.
We asked the court to declare the practice unlawful of making the Part
151 decision first.
On January 3 of this year, those guidelines were issued by
Assistant Secretary Artman in the form of a Guidance memorandum. It was
required to be followed by regional offices as well as the office of
Indian Gaming in the BIA's central office directed by George Skibine.
Its assumptions were false and ill informed. As an overall matter, the
Guidance memorandum flies in the face of Tribes' right of self-
determination. I, and other Tribal leaders, have the right to determine
what is in the best interest of our people. The Interior Department's
Guidance memorandum attempts to take this decision making power away
from the Tribes. For some reason, the Interior Department believes that
it, and not Tribal leaders, knows how best to preserve and improve the
quality of life on our reservations. In this way, it is patently
paternalistic. There is no doubt in my mind that the Guidance
memorandum was issued just to provide a colorable basis to achieve
Secretary Kempthorne's directive to deny off-reservation casino
applications, regardless of their merits, where there was a distance of
over a ``commutable distance'' from the proposed casino to the
established reservation.
The guidelines proclaimed a totally new policy--which essentially
said that ``reservation life'' should be protected by denying
applications because significant numbers of tribal members might leave
the reservations to work in the distant casinos. This new policy was
adopted without any consultations with either Indian Tribe. It has no
factual basis. It is evident that the Interior Department did not
conduct any type of analysis or studies before adopting it. The St.
Croix tribe has amended its lawsuit and asserted a legal challenge to
the Guidance memorandum.
The Guidance memorandum theorizes that there will be a mass exodus
from existing reservations to a new casino. That will not happen in my
tribe. There will predictably only be a very small number of tribal
members who will leave the reservation and move to Beloit. Most tribal
members will not leave due to their strong ties to reservation life,
tribal culture and their families. The St. Croix Tribe already has a
number of members who live far away from the reservation who might well
relocate to Beloit. There are several hundred Bad River Band members
who live nearby Beloit who might also seek jobs at the casino. At. St.
Croix, to the extent a few tribal members do leave the reservation for
Beloit, their jobs will be filled by other tribal members anxiously
seeking employment. Their departure will not harm reservation life. Any
negative impact caused by departures will be more than offset by
increased revenues flowing to the reservation which will fund
additional tribal services, provide for more jobs, and allow the tribe
to purchase more land and construct badly needed housing so that more
Tribal members can move back to the reservation. Currently, there is a
waiting list of 132 tribal members seeking housing.
The Guidance memorandum claims that the policy of the Indian
Reorganization Act (IRA) was to provide for taking lands into trust
within or in close proximity to existing reservations so that they
could ``flourish.'' Similarly, the memorandum asserts that IGRA was not
intended to encourage the establishment of Indian gaming facilities
``far from existing reservations.'' Notably, there are no citations to
legislative history or to case law to support these assertions. In
fact, the legislative history and the case law reach conclusions
totally at odds with the Guidance memorandum.
The Guidance memorandum advised BIA offices that applications for
off-reservation casinos beyond a ``commutable distance'' should be
denied. And on the very next day, January 4, the Interior Department
issued eleven denial letters. (My tribe did not receive one because of
the pending litigation.) Inexplicably, the eleven tribes who did were
never provided an opportunity to make a submission which responded to
the issues raised in the Guidance memorandum. I am aware that at least
two of these tribes, the Jemez Tribe in New Mexico and the Lac du
Flambeau Tribe in Wisconsin, were still developing their administrative
records at the Regional Offices. They could have presumably made
submissions which were responsive to the issues raised. While these
denial letters can be challenged in Court, lawsuits impose a real
additional cost on these tribes who, for the most part, cannot afford
litigation expenses. The denial letters, by themselves, can also have
devastating effects on a tribe's efforts to develop a casino. For
example, after the St. Regis Mohawk Tribe received a denial letter, the
developer withdrew from the project. The entire project has fallen
apart.
Soon after our litigation started, our attorney received (from a
confidential source) an internal analysis prepared by the Interior
Department dealing with the position raised by the Guidance memorandum
that distance is a determining factor in approving or denying an
application. It had never before been made public. It was prepared by
numerous senior officials of the Interior Department together with the
Solicitor's Office. The Chairman of the National Indian Gaming
Commission agreed with its conclusions. Its introduction stated that it
was prepared in response to Secretary's Norton's query as to ``what
discretion, if any, the law provides her in regard to the approval of
off-reservation Indian gaming acquisitions that are great distances
from an established Indian reservation, so-called ``far-flung lands.''
This document, the ``Indian Gaming Paper,'' is dated February 20, 2004.
With minor redactions agreed to by the Government, it has now been
filed in the public record in our lawsuit. A copy is appended.
This Paper is obviously the product of an extensive and in-depth
analysis. It contains numerous references to the legislative history of
the IRA and IGRA. It placed substantial reliance on a number of Supreme
Court decisions interpreting the IRA. It concluded, contrary to the
Guidance memorandum's edicts, that the legislative history nowhere
suggests that the purpose of either statute was only to encourage
economic enterprises on or nearby reservations. Instead, starting with
the IRA, the Paper stated (page 8) that it had a much broader purpose--
to rehabilitate the Indian's economic life by establishing ``the
machinery whereby Indian tribes would be able to assume a greater
degree of self-government, both politically and economically.'' Morton
v. Mancari, 417 U.S. 535, 542 (1973). Given this background, the
Interior Department's own conclusion was that (page 8): ``Nowhere in
the IRA or its legislative history was there ever a discussion of
mileage limits to lands that the tribes could acquire to engage in
economic enterprises.''
Its analysis of the Congressional intent behind IGRA was similar--
Congress did not intend for the distance of a proposed casino from an
established reservation to be a limiting factor. The Interior
Department stated in its Paper (page 6): ``...it is certain that if
Congress had intended to limit Indian gaming on lands within
established reservation boundaries or even within a specific distance
from a reservation, it would have done so expressly within IGRA. It
clearly did not.'' The Paper further stated (pages 12-13): ``While some
now argue that, in 1988 Congress may not have envisioned that states
and tribes would enter into compacts that would locate gaming sites on
lands located far from the reservation, there is no evidence that
Congress intended to include a limitation on that activity within the
law. Moreover, the suggestion that `reservation shopping' has run amok
is without a basis.''
The Indian Gaming Paper reveals that the Guidance memorandum's
``commutable distance'' and the asserted negative impact on reservation
life are pure inventions--created to provide a cover for denying off-
reservation casino applications. The Guidance memorandum was written as
if the Indian Gaming Paper did not exist--or there was a mistaken
assumption that it would never fall into hands of tribes. Now that it
has, the ``commutable distance'' and the perceived harm to reservation
life concepts should not be allowed to stand. The Interior Department,
like any Federal agency, cannot publish a Guidance memorandum which is
at odds with Congressional intent. And it has. I urge this Committee to
make a searching inquiry as to how the Interior Department can attempt
to justify the Guidance memorandum when its own analysis appearing in
the Indian Gaming Paper stated (page 13): ``If IGRA was intended to
bring substantial economic development opportunities to Indian tribes
where none could be achieved solely because of the remoteness of
reservation lands, Congress provided tribes the potential to prosper on
Indian lands a distance from remote reservations. Conversely, if IGRA
was intended to spur on-reservation economic development only--or lands
that are so close that for all intents and purposes they are on-
reservation--the purpose of the law would fail because existing
isolated reservation lands would not provide the potential of the law.
Accepting the inherent market limitations within some rural states,
distance limitations should not be grafted onto IGRA. To do so could
deny the very opportunity for prosperity from Indian gaming that
Congress intended IGRA to foster.''
Even if the Guidance memorandum was fully consistent with
Congressional intent, it is still legally flawed. In 2001, the Interior
Department withdrew final Part 151 regulations. When it did, the
published notice in the Federal Register stated that revised standards
for taking land into trust would be promulgated by rule making and
there would be prior consultations with Indian tribes. There were no
prior consultations. 66 Fed. Reg. 56608-10 (November 9, 2001).
Moreover, the new requirements in the Guidance memorandum should
have gone through the ``Notice and Comment'' rule making process under
the Administrative Procedure Act. The memorandum set out requirements
which were to be followed in making decisions on off-reservation casino
applications. They were not just a set of parameters which the BIA
decision maker could, as a matter of discretion, follow or not follow.
Given this, as numerous Courts have held, the rule making process
should have been followed. And indeed, Assistant Secretary Artman once
told our attorneys that rule making under Part 151 was being
considered--and at a later meeting told them that there was not enough
time remaining during the current Administration to go through rule
making. The Interior Department was undeterred and proceeded anyway by
issuing the Guidance memorandum.
The new policy outlined in the Guidance memorandum goes much
further than gaming issues. For in it, the Interior Department has
announced a new policy discouraging Indians moving from their
reservations--even if Tribal members, faced with impoverished
conditions on their reservations, decide to move several hundred miles
away to a new job. The Interior Department's stated goal is that by
discouraging departures from the reservations, Indian reservations will
``flourish.'' Where are the consultations that led to this sweeping
policy change? Where are the studies or analyses which show that by
denying off-reservation casino applications, life on the reservations
will ``flourish''? Where is the analysis which demonstrates that the
Indian Gaming Paper was wrong when it stated (page 11): ``...if the
tribe is using gaming proceeds at a distant facility to create job
opportunities on-reservation, then while tribal members may have to
travel a distance to casino employment, overall tribal employment may
be boosted by the economic gains of the distant facility.''
And, how can this be anything but pure hypocrisy when the Interior
Department is fully aware that economic opportunities on most
reservations are very scarce--and when the Administration--as recently
as several weeks ago--has proposed a new budget which substantially
reduces funding for Indian tribes?
In conclusion, Mr. Chairman, we believe that in its zeal to carry
out Secretary Kempthorne's directive to deny off-reservation casino
applications, the Interior Department has not only ignored the will of
Congress but has fundamentally violated its trust responsibilities owed
to Indians and Indian tribes by adopting a new policy which it knew had
no legal authority.
[NOTE: The ``Indian Gaming Paper,'' dated February 20, 2004, has
been retained in the Committee's official files.]
______
The Chairman. Thank you. Mr. Warnke?
STATEMENT OF JEFF WARNKE, DIRECTOR OF GOVERNMENT AND PUBLIC
RELATIONS, CONFEDERATED TRIBES OF THE CHEHALIS RESERVATION,
OAKVILLE, WASHINGTON
Mr. Warnke. Good afternoon, Chairman Rahall and Ranking
Member Young and Members of the Committee. My name is Jeff
Warnke, and I am the director of government and public
relations for the Chehalis Indian Tribe in southwest
Washington.
You have some written testimony that was submitted by
Chairman Burnett earlier in the week, and I will do my best to
summarize it. He certainly wanted to make it out to D.C. to
give this testimony himself, but he fell ill, and we cannot be
entirely sure if it was the influenza virus or whether the
proposed regulations are what made him sick. Sorry. I could not
help it.
At any rate, the Chehalis Indian Tribe, just to give you a
little geographic background, is located in southwest
Washington. You may be familiar with southwest Washington. It
was recently in the news late last year due to flooding in the
area. I think we probably hold the record for the most water
over I-5 at one time. I-5 was 10 feet under water, and it
caught a little national attention. We are about 20 miles
southwest of Olympia, the state capital, and it is a beautiful
reservation. Much of it is in the flood plain, and it floods
almost every year.
With that kind of a reservation topography, there was also
a 60-percent unemployment rate on the reservation among tribal
members before the casino was built. The casino has been very
successful, even though it is a small casino in a rural
community, and it has brought a great number of jobs and
opportunities for tribal members of the Chehalis Indian Tribe.
Our testimony today is not specifically about a gaming fee-
to-trust application. We were, by all accounts, one of the last
reservations to receive a fee-to-trust application that was
approved for general economic-development purposes, and we feel
that the guidelines that have been distributed in January
equally affect the nongaming applications, as well as the
gaming applications, and even though the memo is titled to
specifically address gaming applications, it is obvious,
throughout the memo, that it actually affects all fee-to-trust
applications.
Just to go back a little bit to the application that we
successfully maneuvered through the Bureau of Indian Affairs, I
would like to give you a little history on that.
In 1999, Thurston County, which is the county government
that is located adjacent to the Chehalis Tribe, approached the
tribe and asked them to move their casino closer to Interstate
5 because they had begun to build up an infrastructure for
local development, and that local development was not
happening. Their operating costs for that infrastructure were
driving their budget into the red annually. They were looking
for the tribe to be an anchor tenant for many of their services
to fill their budget gap.
The tribe was happy to do this because they thought a more
advantageous location for their facility would attract more
gaming customers. However, as we went through the process, it
became evident that the off-reservation gaming application was
not going to be well received by the Bureau of Indian Affairs,
and we changed the application to a general economic-
development application.
This also was met with resistance due to the fact that the
actual application did not have a specific business plan
attached to it. The tribe was lucky enough to partner with a
publicly traded, very reputable company, which many of you are
familiar with, the Great Wolf Lodge Corporation. The Great Wolf
Lodge Corporation provided both the Bureau of Indian Affairs a
specific business plan that they needed to approve our
application, as well as a business opportunity that was viable
for the Chehalis Indian Tribe. I think we were lucky in that.
I think the speed of business moves a lot faster than the
Bureau of Indian Affairs, and most Indian tribes who are
attempting to diversify from gaming need to move faster than
the Bureau of Indian Affairs, or those business partners who
are publicly traded companies and reputable companies in
America will back out of deals when things get hung up in
Washington, D.C.
So what are our recommendations to this panel on the
guidelines that have been set forth in January? Well, we have
got a few that would have helped us. First of all,
commutability seems to be a nonissue. We have heard a lot,
earlier this morning, in testimony about how the projects are a
thousand or 1,500 miles away from the reservation. Our project
was seven miles away from the reservation, and yet we
constantly heard about how far away from the reservation it
was, not specifically to commutability but, in geography, it
seemed far away to the Bureau.
We also were at a loss as to where our application ever was
at any one time in the process. We feel that if you want to
improve the process for tribes, make sure that there is a
process with guidelines that can be followed and understood in
terms of a timeline with milestones in it so that a tribe can
track where their application is in the process and when they
can reasonably communicate with business partners as to what
the can expect for a conclusion of the process.
There should also be an assumption that the land, if all
things are created equal, shall be taken into trust unless
there is a specific reason why it should not be, and it seems
that, right now, the assumption is that it will not be taken
into trust unless the tribe proves that it should be, and we
think that that is backwards.
That concludes my testimony, and I would be more than happy
to answer any questions.
[NOTE: Chairman Burnett's statement can be found on page
75.]
The Chairman. Thank you all for your testimony. Let me ask
Chief White my first question in regard to the proposed
regulations and the commutable distance.
You heard me ask Mr. Artman this question this morning, I
believe. Was your tribe sent a copy of the draft proposed
regulations, and did you have comments at that time?
Ms. White. Not at any point in time.
The Chairman. So you were not consulted or given an
opportunity to comment in any way.
Ms. White. We were never consulted, not at all. In fact,
the first time that we were made aware that there was even a
discussion regarding a new policy, an internal policy in
particular, was at a gaming conference where Assistant
Secretary Artman was sitting on a panel, and when he was
questioned about the policy, he declared that it was an
internal policy but that it would not be available for public
review.
So, at that point in time, we had several of our supporters
and representatives reach out to the assistant secretary to
inquire as to what exactly this policy was going to represent
and look like, and whether or not it was going to apply to us.
The Chairman. What about after your application was denied?
Were you given any chance to comment?
Ms. White. Not at all. None whatsoever. In fact, Assistant
Secretary Artman was also in attendance at a recent NIGA
conference here in Washington, D.C., and when we pressed him,
with respect to the new guidance policy and its application to
us, the response was that the Department welcomes judicial
review.
So, in fact, we have been instructed that there is no
appeal process for the St. Regis Mohawk Tribe as it relates to
the specific denial, and, in fact, our only recourse, at this
point in time, would be to file a lawsuit, once again incurring
additional expense and costing us considerable resources and
time and energy and resources.
The Chairman. The guidance appears to be based on the
assumption that tribal employment opportunities from off-
reservation fee-to-trust acquisitions outweighs the revenue
stream that might stem from the economic-development
opportunity.
To your knowledge, did the tribe consider both potential
employment opportunities and increased revenue stream when
making the decision to go forward with the proposed off-
reservation, economic-development opportunity?
Ms. White. Absolutely and completely. Furthermore, we
actually had the support of the Department, in that respect, in
the form of conclusions that were included in the FONSI that
was most recently issued by Secretary Kempthorne.
The Chairman. One final question. The guidance requires an
agreement with state and local governments to address their
concerns before the fee-to-trust application will be
considered. Did the state and local governments support your
proposed acquisition, and, if so, was the Department aware of
this support?
Ms. White. Absolutely. We had unprecedented local and state
and Federal support for this particular project, and, in fact,
there are hundreds of letters of support that the Department
has received over the years and in that respect.
The Chairman. OK. Thank you, Chief White.
Ms. White. Thank you.
The Chairman. Let me ask Chairman Armenta, to your
knowledge, do tribes use revenue from economic activities,
whether on or off the reservation, to further the purposes of
the Indian Reorganization Act, such as acquiring land and
ensuring a flourishing reservation community?
Mr. Armenta. Yes, we do.
The Chairman. And does the tribe have the ability to make
decisions that are in the best interests of your members?
Mr. Armenta. Yes, we do.
The Chairman. OK. For Chairwoman Hindsley, let me ask you,
were you consulted in the development of the guidance in any
way?
Ms. Hindsley. No, we were not.
The Chairman. No input whatsoever?
Ms. Hindsley. None.
The Chairman. The Department examines off-reservation
gaming in terms of whether increased on-reservation employment
will occur and whether tribal members will be forced to move
away from the reservation. Does your tribe view off-reservation
economic development solely as an employment opportunity, or
does it consider the increased revenue stream as a means to
provide the governmental services?
Ms. Hindsley. I think, for the Beloit casino project, we
knew that some of our tribal members would probably move to the
area and want to move down there, but a lot of it was when we
were looking for that revenue stream to come home so that we
could develop our programs and our projects at home and provide
jobs there also.
The Chairman. Do you think that more job opportunities will
occur on reservation as a result of increased revenues being
used for healthcare, law enforcement, and the provision of
other governmental services?
Ms. Hindsley. Yes, I believe so.
The Chairman. The guidance memo requires an agreement
between the tribes and state and local governments or an
explanation as to why one does not exist. To the best of your
knowledge, did the state and local governments support your
proposed fee-to-trust off-reservation acquisition?
Ms. Hindsley. Yes. We have the local governments in
agreement with us. We have agreements with the local
government.
The Chairman. OK. Mr. Warnke, in December 2005, the
proposed draft that we have been talking about, again, as you
heard me ask the secretary and ask Chief White, there was a
copy of the proposed draft that provided for comments. Were
you, in any way, consulted, or did you have any input?
Mr. Warnke. Not to my knowledge. I do not believe we had
any input on that. I do not have any knowledge of whether we
were notified or not.
The Chairman. So, to your knowledge, you did not have any
input, but you may have been notified and not know about it.
Mr. Warnke. Correct. I do not have any knowledge of whether
we were notified, and I am sure we had no input. I am sure that
would have been in our brief.
The Chairman. In your testimony, you indicated that it
became clear in 2003 that an off-reservation gaming facility
associated with a fee-to-trust application would not be
approved by the Department, even if the state and local
governments supported the project. What information led you to
believe that no fee-to-trust applications associated with off-
reservation gaming would be approved by the Department?
Mr. Warnke. Well, our application was, in fact, supported
by state and local governments. We had letters of support and
agreements in place to make sure that that support was taken
care of. I believe it was feedback from the Portland area
office that recommended to us that that was not going to be an
application that would be met favorably in Washington, D.C.
The Chairman. OK. Thank you. I am sorry. I did not see the
gentleman from New York, Mr. Hinchey. Do you wish to be
recognized for any questions or comments?
Mr. Hinchey. Well, thank you very much, Mr. Chairman. I say
thank you particularly for holding this hearing because I think
it is a very important subject, and now the opportunity to have
this testimony and the responses to the questions that have
been asked by the Chairman on the record in an official way is
very significant. So this hearing, I think, is very important.
I wanted very much to get here in time to hear the
testimony of Chief Lorraine White of the Mohawk Tribe because
the Mohawk Tribe is in the state that I represent, not the
district that I represent, but the State of New York, and,
prior to my coming here to the Congress some years ago, I was
involved in the state government and had a very close
affiliation with the Mohawk Tribe in Akwesasne.
So I very much appreciate the circumstances that you have
talked about today and the way in which the Federal government
continues to deal with the circumstances involving Native
American tribes here, and the way in which it is done sort of
out of consultation, without interaction, not enabling the
tribes to make comments about potential conclusions that may be
reached so that those conclusion could be reached in the
context of more complete information than they have been
reached. So I appreciate your response to the question, which
made that very, very clear.
What Tribal Chairwoman Hindsley said about the economic
imprisonment, isolation, imprisonment, of the Native American
tribes, I think, is also very significant, and I think it rings
a very accurate bell.
Our representative from the tribe in Washington made the
opinion that the situation really needs to be addressed in a
different way and dealt with more generally, more comfortably,
more entirely, as did others in the course of their testimony,
and I think that all of that is very important.
So I am glad to have been here. I was not able to get here
earlier because I had hearings at the Appropriations Committee,
and I broke away from them as soon as I could, and I am sorry
that I missed your testimony. But you and I know each other
very well, and I feel very confident that I had a fairly good
idea of what you were saying in the context of your testimony.
So I just want to thank you very much, and I, again, want
to express my appreciation to the Chairman of this Committee
for giving an opportunity to put this information on the record
and to have the question raised as to whether actions ought to
be taken by the Congress to enable the correction of actions
that have been taken by the administration in the context of
the Department of the Interior. This is something that we have
to look at very closely.
One of the things that was said was that the proposal that
had been made had been approved by the state and local
government, but, nevertheless, in spite of that, it was not
approved.
The same thing was true of the situation with regard to the
Mohawk Tribe in the County of Sullivan, which is, in fact, the
county that I represent as part of a congressional district
that I currently represent, where the proposal put forth by the
Mohawk Tribe was approved by the town, the county, and the
state. Nevertheless, all of that was not given adequate
consideration and, therefore, was not instrumental in, or even
a part of, the decisions that were made.
So I thank you very much for being here, and I realize that
this is all the result of the sense of responsibility that our
Chairman from West Virginia has and the good work that he does
chairing this very important committee.
The Chairman. Thank you. That is all of the questions that
I have for this panel. Other Members may have questions they
may wish to submit at a later time in writing. We hope you
would be responsive to those questions, should they occur.
Thank you again, all of you, for being with us today.
Our next panel is composed of Ms. Jacqueline L. Johnson,
executive director, National Congress of the American Indians,
Washington, D.C.; Mr. Alex Tallchief Skibine, professor,
University of Utah, S.J. Quinney College of Law, Salt Lake
City, Utah; and, I might note, former counsel of the Office of
Indian Affairs on this Committee under our late Chairman Mo
Udall, so I want to welcome Alex back to the Committee. It has
certainly been a long time--and Mr. Kevin K. Washburn, the
visiting Oneida Nation Professor of Law from Harvard Law
School, Cambridge, Massachusetts.
We welcome you all to the Committee. We do have your
prepared testimony, and you are encouraged to summarize. Ms.
Johnson, I guess we will go with you first.
STATEMENT OF JACQUELINE L. JOHNSON, EXECUTIVE DIRECTOR,
NATIONAL CONGRESS OF AMERICAN INDIANS, WASHINGTON, D.C.
Ms. Johnson. Thank you very much, Mr. Chairman. I am really
pleased to be able to be here today and, of course, speak to
you about an issue that NCAI is more concerned about, but I
really wanted to thank you again for your long-term commitment
to treaty rights and the Federal trust responsibility, and the
ability of tribal governments to meet the urgent needs of their
people.
As you know, NCAI is an organization that represents over
250 tribes, and I want to make it really clear up front: We do
not have a position for or against any tribe's land-into-trust
application for gaming purposes. But we do think it is very
important that tribes have a fair consideration of their
applications, based upon the merits of the laws that have been
passed by Congress, and we are troubled about the process the
Department used to establish this new guidance on commutable
distance.
But, mostly, we are very concerned about the nongaming
implications that we do not believe were considered when they
put forward this guidance, and for those nongaming acquisitions
of land-into-trust that are allowed under Section 5 of the
Indian Reorganization Act. In my testimony, I go into greater
detail about the Indian Reorganization Act and Section 5.
Clearly, you know the history of this country, as far as
tribes being placed on land that was not necessarily
economically producible for them, as well as the challenges
that they have, and the reason why the Indian Reorganization
Act tried to address those issues of putting land into trust
for economic natural resources protection and for cultural and
religious purposes.
Sometimes it is not uncommon that these lands are greater
than what we would call ``commutable distance,'' particularly
as we are dealing with issues around sacred sites and for
transitional use issues or for natural resources, giving
fishing and hunting rights in various parts of the country.
You heard earlier today the assistant secretary speak to
the fact that the 151--he felt that that was the appropriate
place rather than Section 20. You know, NCAI does have a
resolution that I have attached to my testimony. I am speaking
to the fact that the tribes have asked for regulations around
Section 20.
As you know, it has been a couple of years since they have
actually done a consultation on those, and yet we still have
not seen regulations, and our concern is, by attaching this
particular provision to 151, even though it is an
administrative directive internally, that it will have
implications broader than land into trust for gaming.
We also are concerned that many times there are these
internal memos that become longer-term policy, and we have seen
programs created, actual programs created, from an internal
memo, such as the Indian Housing Program, which was actually
created by an internal memo, and, of course, that is a program
we wish to continue to have.
But internal memos become set policy, and although
Assistant Secretary Carl Artman said this morning in his
testimony that he did not see that there would be issues around
for determinations around cultural sites, that we are not sure
what the implication would be of the next administration or
subsequent administrations trying to look at that same internal
memo and that internal guidance.
We also want to register our concern, as far as the
consultation efforts, the process itself. NCAI, as well as
other organizations, traveled many distances, many tribes, as
we had consultation on the Section 20 regs or proposed regs for
a couple of years, but we never had any consultation on this
provision regarding attached to 151.
So we are very concerned about that, and we believe, in our
recommendations to you, our testimony is that we would support
the legislation that you are discussing, the concept of the
legislation you are discussing, around mandating consultation
with tribes with issues that affect them, as well as we
believe, in this particular instance, asking this
administration to go back and to do consultation and to start
over would not necessarily get us to the same result, given
that they have already made a determination, and we would know
where their mind-set is in developing that, and we would look
to the next administration, 11 months from now, to address this
issue.
Once again, I want to reiterate, we have no positions on
any tribe's land-into-trust application for nongaming. We are
clearly concerned about the impact that has not been fully
discussed or researched to any provisions that could happen
with other traditional uses of land-into-trust applications for
other purposes than gaming. Thank you.
[The prepared statement of Ms. Johnson follows:]
Statement of Jacqueline Johnson, Executive Director,
National Congress of American Indians
On behalf of the National Congress of American Indians, I would
like to thank Chairman Rahall, Representative Young, and the members of
the Committee on Resources for the invitation to testify today, and for
their continued commitment to support treaty rights, the federal trust
responsibility, and the ability of Indian tribal governments to raise
governmental revenue and meet the urgent needs of their people through
gaming enterprises under the Indian Gaming Regulatory Act of 1988
(IGRA).
This hearing is on an important topic. The NCAI is an organization
made up of over 250 tribal governments, and we do not have a position
for or against any tribe's application for land into trust for gaming
purposes. However, as a matter of federal policy it is extremely
important that each tribe has an opportunity for fair consideration of
their application on its own merits based on the laws passed by
Congress. We are gravely troubled by the process that the Secretary of
Interior used to establish new guidance that land into trust for gaming
will be rejected if it is not within ``commutable distance'' from the
tribe's reservation, and the manner in which the Secretary used this
new policy to summarily reject so many pending applications. In
addition, this new policy was created with little thought and no
discussion about its implications for non-gaming acquisitions of land
under Section 5 of the Indian Reorganization Act (IRA).
As a quick summary of the issue before the Committee, Section 20 of
the IGRA is a general prohibition on gaming on off-reservation land
acquired after 1988, but with several exceptions. The most relevant
exception is often called a ``two-part determination'' where land may
be taken into trust for gaming if the Secretary of Interior determines
that the acquisition would be in the best interest of the Indian tribe,
and would not be detrimental to the surrounding community, and the
Governor of the state approves. There is no limitation on distance from
the reservation in the statute. In early 2006, the Department of
Interior began consulting with tribes on draft regulations regarding
Section 20. The proposed regulations, like the statute, did not include
a limitation on the distance from the reservation. Comments were
submitted, the comment period closed, and the Section 20 regulation has
been pending since February of 2007. On January 4 of this year, the
Department issued a document entitled ``Guidance on taking off-
reservation land into trust for gaming purposes,'' establishing a new
rule that land acquisition for gaming is not in the best interest of
the tribe if the land in question is greater than a ``commutable
distance'' from the reservation. The document justifies this decision
by reference to the Secretary's discretionary authority to take land
into trust under Section 5 of the IRA. On the same day, the Department
used this new rule to deny eleven pending applications.
The Secretary's Authority and Responsibility to Acquire Land in Trust
for Indian Tribes
NCAI is very concerned that the Department of Interior is
attempting to set a new policy related to the land into trust
acquisition under the IRA with no consultation with tribes and no
consideration of the implications outside of the limited area of
gaming. Indian tribes regularly seek to place off-reservation land into
trust for purposes of economic development, natural resources
protection, and cultural and religious use. Because of the history of
removal and tribal land loss, it is not uncommon that these lands are
greater than a ``commutable distance'' from existing reservations.
The principal goal of the Indian Reorganization Act was to halt and
reverse the abrupt decline in the economic, cultural, governmental and
social well-being of Indian tribes caused by the disastrous federal
policy of ``allotment'' and sale of reservation lands. Between the
years of 1887 and 1934, the U.S. Government took more than 90 million
acres from the tribes without compensation, nearly 2/3 of all
reservation lands, and sold it to settlers. The IRA is comprehensive
legislation for the benefit of tribes that stops the allotment of
tribal lands, continues the federal trust ownership of tribal lands in
perpetuity, encourages economic development, and provides a framework
for the reestablishment of tribal government institutions on their own
lands.
Section 5 of the IRA, 25 U.S.C. Sec. 465, provides for the recovery
of the tribal land base and is integral to the IRA's overall goals of
recovering from the loss of land and reestablishing tribal economic,
governmental and cultural life:
The Secretary of the Interior is hereby authorized, in his
discretion, to acquire, through purchase, relinquishment, gift,
exchange, or assignment, any interest in lands, water rights,
or surface rights to lands, within or without existing
reservations, including trust or otherwise restricted
allotments, whether the allottee be living or deceased, for the
purpose of providing land for Indians.
Section 5 is broad legislation designed to implement the
fundamental principle that all tribes in all circumstances need a
tribal homeland that is adequate to support economic activity and self-
determination. As noted by one of the IRA's principal authors,
Congressman Howard of Nebraska, ``the land was theirs under titles
guaranteed by treaties and law; and when the government of the United
States set up a land policy which, in effect, became a forum of
legalized misappropriation of the Indian estate, the government became
morally responsible for the damage that has resulted to the Indians
from its faithless guardianship,'' and said the purpose of the IRA was
``to build up Indian land holdings until there is sufficient land for
all Indians who will beneficially use it.'' (78 Cong. Rec. 11727-11728,
1934.)
As Congressman Howard described these land reform measures:
This Congress, by adopting this bill, can make a partial
restitution to the Indians for a whole century of wrongs and of
broken faith, and even more important--for this bill looks not
to the past but to the future--can release the creative
energies of the Indians in order that they may learn to take a
normal and natural place in the American community. 78 Cong.
Rec. 11731 (1934).
Of the 90 million acres of tribal land lost through the allotment
process, only about 8 percent has been reacquired in trust status since
the IRA was passed seventy-four years ago. Still today, many tribes
have no land base and many tribes have insufficient lands to support
housing and self-government. In addition the legacy of the allotment
policy, which has deeply fractionated heirship of trust lands, means
that for most tribes, far more Indian land passes out of trust than
into trust each year. Section 5 clearly imposes a continuing active
duty on the Secretary of Interior, as the trustee for Indian tribes, to
take land into trust for the benefit of tribes until their needs for
self-support and self-determination are met.
Congress recognized that the impact of allotment meant that, as a
practical matter, the restoration of a viable tribal land base and the
effective rehabilitation of the tribes would often require land
acquisitions off-reservation. This is clear on the face of Section 5
itself, which provides the Secretary with broad authority to take land
into trust ``within or without existing reservations.'' This language
underscores that Congress intended lands to be taken into trust to
advance the broad policies of promoting tribal self-determination and
self-sufficiency, and that to accomplish those goals Section 5
established a policy favoring taking land into trust, both on and off
reservation. The legislative history also shows that the acquisition of
land outside reservation boundaries was deemed necessary to meet the
goals of providing adequate land for tribes:
Furthermore, that part of the allotted lands which has been
lost is the most valuable part. Of the residual lands, taking
all Indian-owned lands into account, nearly one half, or nearly
20,000,000 acres, are desert or semidesert lands.... Through
the allotment system, more than 80 percent of the land value
belonging to all of the Indians in 1887 has been taken away
from them; more than 85 percent of the land value of all the
allotted Indians has been taken away. Readjustment of Indian
Affairs, Hearings before the House Committee on Indian Affairs
on H.R. 7902, 73rd Cong. 2nd. Session. at 17, 1934.
Most tribal lands will not readily support economic development.
Many reservations are located far away from the tribe's historical,
cultural and sacred areas, and from traditional hunting, fishing and
gathering areas. Recognizing that much of the land remaining to tribes
within reservation boundaries was economically useless, the history and
circumstances of land loss, and the economic, social and cultural
consequences of that land loss, Congress explicitly intended to promote
land acquisition off-reservation to meet the economic development goals
of the legislation. There is no statutory basis for an arbitrary
limitation on a ``commutable distance.'' The guidance document's
intention to create new barriers to off-reservation land acquisitions
is directly contrary to the IRA's purpose.
The Department's regulations on land to trust acquisitions include
language indicating that the greater the distance from the reservation,
the greater the scrutiny the Department would afford to the benefits
articulated by the tribe, and the greater weight that the Department
would give to concerns of state and local governments. We agree that
the location of land is an important factor to consider in any proposal
for trust land acquisition. However, it is not an overriding
consideration that cancels out all of the other purposes of the IRA.
These purposes--the need to restore tribal lands, to build economic
development and promote tribal government and culture--are the
paramount considerations identified by Congress and must be balanced
with other interests. The National Congress of American Indians
strongly urges both Congress and the Department to reject any
implication that the new guidance limits the ability of the Secretary
to acquire land into trust under Section 5 of the IRA.
Concerns Regarding the Process for Developing the Guidance
The Indian Gaming Regulatory Act (IGRA) was enacted in 1988 in
response to the Supreme Court's 1987 decision in California v. Cabazon
Band of Mission Indians. Section 20 of the IGRA was a central part of
the legislative compromise over Indian gaming, as Congress found it
necessary to address concerns that the Secretary could take land into
trust and tribes would build gaming facilities far away from existing
reservations. Section 20 is a general prohibition on gaming on off-
reservation land acquired after 1988, but with several exceptions. In
general, Congress created exceptions for when land is returned or
restored to a tribe, and a general exception often called the ``two-
part determination'' where land may be taken into trust for gaming if
the Secretary of Interior determines that gaming on the 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, and
the Governor of the State concurs in the Secretary's determination.
Since 1988 only three tribes have successfully petitioned the
Secretary for a two-part determination. However, there has sometimes
been controversy and confusion over how the Secretary will make the
determinations, and media reports tend to hype every new proposal with
little recognition of how rigorous and difficult the process is. As a
result, in 2005 the National Congress of American Indians passed a
resolution urging the Department of Interior to develop regulations
governing the implementation of the Section 20 two-part determination
process. See attached NCAI Resolution GBW-05-009.
As mentioned above, the Department of Interior embarked on a
process to develop a regulation on Section 20. A draft rule was first
circulated and consultation meetings were held with tribal leaders.
Later, the proposed rule was published in the Federal Register on
October 5, 2006, more meetings were held, and comments were submitted
and the comment period closed on February 1, 2007. Since that time we
have been waiting for the Section 20 regulations. The proposed rule
never contemplated any sort of new limitation on distance from the
reservation, much less a ``commutable distance'' test.
The ``guidance'' document and the new rule on commutable distance
issued on January 4th were completely unexpected by NCAI or by tribal
leaders. There was no consultation with tribes and no notice and
comment period under the Administrative Procedures Act. Instead, the
process lured tribes into commenting on one set of rules, while the
Department was developing another rule behind closed doors. On the same
day the Department denied eleven pending applications, all that the
Department considered ripe for decision, while sending back eleven
others for more information. Each letter of denial is virtually a
carbon copy of the others and all eleven applications are denied for
exactly the same reason--that they would violate the new ``commutable
distance'' rule. Each of the decision letters bases its denial on an
unsupported assertion that it would not be in the best interest of the
tribe to own a casino in a desirable market because of the effect on
tribal community life. Given the high levels of poverty and joblessness
on most Indian reservations, this is an extraordinarily paternalistic
rationale that flies in the face of tribal self-determination and
common sense.
The violation of the federal-tribal government-to-government
consultation policy and the abuse of the Administrative Procedures Act
are obvious and we will not belabor them. We do want to make the point
that Indian tribes are particularly vulnerable to these types of
abuses. The Secretary of Interior has very broad discretionary
authority over a range of issues that are extremely important to
tribes. Tribal leaders have worked very hard for decades to put in
place federal policies that require consultation, and it appears we
still have much more work to do.
This leads us to our final point of asking what Congress and the
Administration can or should do to remedy the issue. NCAI does not have
a position for or against any tribe's application for land into trust
for gaming purposes. Instead, NCAI's long held position is that each
tribe must have an opportunity for fair consideration of their
application on its own merits based on the laws passed by Congress.
We do not believe that the right answer is to ask the current
leadership at the Department of Interior to simply go back and do the
process over again. It would not satisfy the tribes to have more
process when the results are predetermined, and tribes are strongly
against any effort to open up the non-gaming land into trust
regulations in this gaming context. The guidelines provide that any
tribe receiving a denial may resubmit the application with further
information. Perhaps it is best that these issues wait for the next
Administration, less than eleven months away, so that they can be given
an opportunity for fair consideration. We have worked very well with
the Department on many issues, but on this issue the agency seems to be
inclined in one direction. In the meantime, we would urge the
Department to withdraw the guidance document.
In the larger picture, NCAI is very concerned about the failures of
the Department to adhere to the government-to-government consultation
policy. We would encourage this Committee to consider legislation that
requires the Department to consult with tribes on any matter that
significantly affects tribal rights. A voluntary policy is not working,
and so a mandatory consultation policy may be necessary.
Thank you for your consideration of NCAI's views on this issue, and
once again we thank you for your commitment to tribal governments and
the federal trust and treaty obligations to Indian tribes.
______
The Chairman. Thank you. Mr. Skibine.
STATEMENT OF ALEX TALLCHIEF SKIBINE, PROFESSOR, UNIVERSITY OF
UTAH, S.J. QUINNEY COLLEGE OF LAW, SALT LAKE CITY, UTAH
Mr. Skibine. Mr. Chairman, a hard-working Member of this
Committee, and staff members, of which I used to be between
1980 and 1990, it is good to be back here after 18 years, and I
appreciate you inviting me to testify on this important issue.
I have been basically teaching administrative law and
Federal Indian law and legislative process for the last 18
years at the University of Utah, and I think I was asked to
testify to give my views as to the legality of the Department's
action relative to the Administrative Procedure Act.
So with this, let me summarize my remarks. There are three
issues.
First, those 11 letters were, in effect, an informal
adjudication under principles of administrative law, and,
therefore, the APA does not technically govern this, but due
process does. So the question is, were those decisions made in
violation of the due process rights of those 11 tribes? That is
the first question.
The second question is a technical one, and that is whether
this guidance document should have been published, according to
Section 553 of the APA notice and comment requirements.
And, finally, the third issue is whether those 11 decisions
were arbitrary and capricious under the judicial review section
of the APA.
So let me go first with due process. The guidance document
was issued on January 3rd, and the decisions were made January
4th. Right here and there, it does not smell good. I kind of
smell a rat, if you know what I mean.
Due process is basically a question of fairness. You have
to give the plaintiff the evidence that is going to be used
against him, and that particular person has to have an
opportunity to respond, and I cannot see that those rights were
respected in this case, since, in effect, the tribes did not
know about the evidence that was going to be used against them,
and, of course, they did not have an opportunity to respond. So
that is the due process issue.
The second one is this technical issue about whether they
should have been published under 553 notice and comment
procedure. You have to figure out whether this is a legislative
rule or a nonlegislative rule. This is a very complex issue.
There is a law review article that was just published in
the Chicago Law Review by a Chicago law professor, and I am
just going to read a couple of sentences: ``The distinction
between legislative rules and nonlegislative rules is one of
the most confusing in administrative law. To describe the
legislative rules debate is to conjure a doctrinal phantoms,
circular analytics, and fundamental disagreement even about
correct vocabulary.''
Then another leading law professor concludes: ``If the
above seems a long and confusing set of factors in determining
whether an agency rule is really an interpretive rule, there is
some solace in the fact that courts find it equally difficult
and have characterized the distinction between interpretive
rule and legislative rule as fuzzy, tenuous, blurred, baffling,
and shrouded in considerable smog.''
So, with this caveat, here I go. Basically, the first issue
is whether this was an interpretive rule or a statement of
policy. My feeling is that if this was an interpretive rule,
then it should have been published under 553, pursuant to
notice and comment, because, as an interpretation, I do not
think that this particular guidance document does not interpret
an existing term, but it comes up with two new criteria:
commuting distance to the reservation and the existence of
intergovernmental agreements.
So if it is going to be an interpretive rule, it should
have been published. The reason that it is important to make a
distinction between interpretive rule and policy statement is
that the interpretive rule will be given some deference on
judicial review, while a policy statement will not. So that is
one.
Number two: If it is, in effect, a policy statement, then
it should really have been published under 553 only if it, in
effect, comes up with some binding norms. In other words, is
that policy statement just a guidance document to give general
guidance to the employees of the BIA on how to decide those
issues, or, really, is it determinative?
So, for instance, if the guidance document would have said,
``No land transfer will be put into trust if they are not
within 50 miles of the reservation,'' that would have been a
binding norm and, therefore, should have been published.
The guidance document does not do this. It basically comes
up with those two new criteria, but the criteria--commutable
distance and existence of intergovernmental agreements--those
two just create a rebuttable presumption.
On the other hand, the fact that the first 11 decisions all
went against tribal interests may indicate that, in effect, it
is much more than a rebuttable presumption.
Anyway, in the academy, there is a movement that because it
is so confusing to decide whether a policy statement is really
a legislative rule that some of us think that the best way to
decide it is really a question of judicial review and the
amount of deference that the government is going to be given.
If it is a policy statement, and it has not been published
under 553, then, in effect, it will be given no deference on
judicial review, so, in effect, it becomes kind of irrelevant.
Let me finally conclude by looking at whether those 11
decisions were made on arbitrary and capricious ground under
the APA, and here it seems that there are some good arguments
why this was arbitrary and capricious.
First, the commuting distance. Ultimately, there is a
presumption that anything not within a commuting distance is
not to the benefit of the tribe, and the question is, what are
the assumptions behind this? I can find four reasons why, in
effect, that is not the case.
One, traditional tribes may very well decide that they want
gaming, but they do not want the gaming on the reservation
because it will interfere with Indian tradition and culture.
Number two: Commuting distance, if it is within the
commuting distance, it may actually make it easy for members of
the reservation to gamble, and that can be detrimental to
tribes.
Number three: Obviously, as the previous testimony
suggested or stated, if a tribe is isolated, hundreds of miles
from any urban areas, that, in effect, having a casino within
commuting distance is not going to make any difference. It is
still not going to be a working economic product.
Finally, number four: I think that most Indians, as the
last census revealed, live off the reservation, and I think
that the Department's obsession about only looking at the
impact of gaming on the reservation Indians, in effect, denies
an overwhelming majority of Indians today in the United States
the right to benefit from gaming as a form of economic
development.
Finally, the last thing has to do with whether the guidance
document conforms to the policy of the Indian Gaming Regulatory
Act, and, in this regard, the IGRA has a very complex procedure
where the tribes have to get the state to agree to a compact,
and then there is another section where the Governor has to
agree with the two-factor determination.
By imposing additional intergovernmental agreements beyond
the compact, and the Governor determination, it seems that this
guidance document goes beyond the requirement of IGRA and,
therefore, is inconsistent with IGRA. I do not think that the
secretary, in this document, has explained why he is doing
this, and that is another factor where it may be arbitrary and
capricious. Thank you very much.
[The prepared statement of Mr. Skibine follows:]
Statement of Alex Skibine, Professor of Law, S.J. Quinney College of
Law, University of Utah, Salt Lake City, Utah
Mr. Chairman, members of the Committee, my name is Alex Skibine and
I am currently a professor of law at the University of Utah. Previous
to coming to Utah, I was for ten years, from 1980 to 1990, a counsel
for this Committee under the chairmanship of Morris Udall. Thank you
for inviting me to participate in this hearing. I want to say at the
outset that I do not currently represent any clients with any interest
in gaming.
The Secretary of the Interior has the power to take land in trust
for the benefit of Indians under Section 5 of the Indian Reorganization
Act of 1934 (IRA). The actual text of the IRA leaves the Secretary with
an extraordinary amount of discretion. Facing a potential court
decision that this broad delegation of authority might amount to an
unconstitutional delegation of legislative power under the non-
delegation doctrine, Interior developed some rules and regulations in
the late 1990's, and issued them pursuant to Section 553 of the
Administrative Procedure Act (APA).
These rules are applicable to any off reservation land acquisition,
not just acquisition for gaming purposes. Under the rules, the greater
the distance the proposed lands are to the reservation, the greater the
scrutiny to be given to the tribe's justification for anticipated
benefits, and the greater the weight to be given to concerns raised by
state and local officials. The ``guidance document ``issued this
January 3rd further delineated how the Department should go about
giving this greater scrutiny. Essentially, the guidance document came
up with two more factors. Concerning the anticipated benefit to the
tribe, the document created a presumption that placing lands in trust
that are located beyond commuting distance from the existing
reservation will not be to the benefit of the tribe. Addressing
concerns raised by state officials, the document creates a presumption
that these have not been satisfied unless there are intergovernmental
agreements between the tribe and the various local governments.
There are two questions with the Guidance Document relative to
whether it is in conformance with the APA. First is whether these two
factors creating presumptions against transferring the land in trust
are truly ``guidance'' or really amendments to the previous
regulations. If they are amendments such that they have the force of
law, the document should have been issued pursuant to the Notice and
Comment requirements of Section 553 of the APA. Secondly, the question
is whether the two factors, commuting distance and intergovernmental
agreements, are legitimate in evaluating the best interest of the
tribes and the concerns of state and local officials. In APA parlance,
we ask: are the factors rational and relevant, or are they arbitrary
and capricious, an abuse of discretion, or not otherwise in conformance
with existing law.
Finally, although I was asked to comment specifically on whether
this Guidance Document was issued in accordance with, and meet the
standards contained in, the APA, there is also an issue of whether the
recent decisions denying the fee to trust tribal applications for the
purpose of gaming respected the tribes' procedural due process rights.
At its very basic, the core concept of procedural due process means
that life, liberty, or property cannot be taken by the government
without notice and a hearing. I noted here that the Guidance Document
was issued on January 3rd, 2008, and the letters denying the fee to
trust applications were sent on January 4th. The Tribes obviously did
not have proper notice of the two new factors, and thus, they did not
have time to respond or rebut if you will the presumptions these two
factors created. Although some may argue that no ``property'' was taken
from the tribes since they do not have an entitlement to have these
lands taken into trust, this lack of notice and opportunity to respond
at least violates the spirit of procedural due process. It was exactly
to avoid such appearance of unfairness that Congress enacted section
553 of the APA, allowing the affected public to be notified of proposed
rules and giving the people an opportunity to comment before such
proposed rules became final.
1. ARE THE FACTORS SPECIFIC AND DETERMINATIVE ENOUGH THAT THEY SHOULD
HAVE BEEN PUBLISHED IN A LEGISLATIVE RULE ACCORDING TO SECTION
553 OF THE APA?
On one hand, policy statements or guidance documents are rather
innocuous in that they are, by definition, not legally binding. They
are intended to provide guidance as to how the agency might act in the
future and therefore may not serve as the basis for enforcement actions
and do not have the force of law. This means that on judicial review of
an agency decision to deny a fee to trust land transfer, a court of law
could overturn the decision of the Agency without giving any deference
to this guidance document, unless this document qualified as an
interpretive rule in which case, what is known as Skidmore deference
might apply.
The test used in determining whether a policy statement or guidance
document is really a legislative rule that should have been published
under 553 of the APA is whether the document creates a binding legal
norm on the agency and the regulated public. In making this
determination, federal courts generally consider (1) whether in the
absence of the Document there would be an adequate legislative basis
for an enforcement action or other agency action to confer benefits or
ensure performance of duties, (2) whether the agency specifically
invoked its general legislative authority, and (3) whether the rule
effectively amends a prior legislative rule. Another simpler way to put
it is to ask whether the document will merely influence the decision of
the agency, or whether it will in fact pre-determine a certain result.
For example, if the document had stated that from now on, there will no
longer be any off reservation land transferred into trust for the
purpose of gaming unless the lands are within, say, 50 miles of the
reservation, this would have been a legislative rule that should have
been issued pursuant to 553.
This Guidance Document, however, does not say that. Instead, it
identified two factors, the presence of which raise a presumption that
the lands should not be placed into trust. Under the first factor, any
land transfer not within commuting distance of the reservation is
presumed ``not'' to be in the best interest of the tribe. Under the
second factor, a failure to achieve intergovernmental agreements with
local communities raise a presumption that the concerns of the local
communities have not been addressed, and this absence of agreement is
supposed to weigh heavily in favor of not approving the proposed land
transfer into trust.
Whether these two factors are determinative enough to be considered
amendments to the existing rule is a close call: Good arguments exist
on both sides. On one hand, the existing rule already mentioned that
the more distance the lands are from the reservation, the more scrutiny
will be given the tribe's claim of anticipated benefits and the greater
the weight will be given to the concerns of state and local
governments. On the other hand, the existing rule never mentioned
commuting distance or the importance of existing intergovernmental
agreements. However, these two factors are only suppose to raise a
presumption that can be rebutted. Yet, the fact that the first 11
tribal applications after the Guidance Document was issued were all
denied may indicate that in reality, these two factors raise much more
than mere presumptions and may, in fact, be binding on the agency. Of
one thing I am sure. Even if it was legally permissible to have
included these two additional new factors in a non-legislative rule not
subject to notice and comment under Section 553 of the APA, it was
definitely bad policy to have done so. In addition, as mentioned
earlier, it may have violated the tribes' procedural due process rights
which at a minimum would seem to require notice of the proposed new
factors, and an opportunity to rebut the presumptions raised by these
factors.
In the next section, I discuss whether an actual decision based on
the Guidance Document and denying a tribal application to take land
into trust, is likely to be considered arbitrary and capricious under
the APA.
2. IS COMMUTING DISTANCE TO THE RESERVATION RELEVANT TO DECIDING
WHETHER GAMING ON SUCH LANDS WILL BE BENEFICIAL TO THE TRIBE?
Even if the commuting distance is flexible enough of a factor to be
considered merely guidance to federal decision makers, any decision
made under this guidance document is subject to review under the
arbitrary and capricious standard. This means, among other things, that
in making these decisions the Secretary has to look at the relevant
factors. In other words, factors Congress would have wanted him to
consider in determining whether the land transfer was to the benefit of
the Tribe.
Concerning whether the land transfer is in the best interest of the
tribe, the guidance document takes the position that the commuting
distance is relevant because one of the benefits to the tribe is
employment for tribal members. If this employment is not located within
commuting distance, the document claims that it will create significant
``negative'' effects on the reservation in that tribal members would
have to move out and relocate outside the reservation. The document
then asks the agency to look at 4 factors. These factors are: (1). how
many Indians are currently employed?, (2) how many Indians are likely
to leave to work at the casinos?, (3) how will their departure impact
the quality of life on reservations? (4) how will working at an off-
reservation casino affect the long term identification of a tribal
member with the tribe?
The question here is whether it is rational--not arbitrary or
capricious--to make commuting distance to the reservation such a
preeminent and important factor so that it dwarfs everything else.
Perhaps this is important to some tribes. But it is definitely not that
important for many other Indian tribes. Accordingly, it seems to me
that there are at least four reasons why decisions based on the
guidance document could be considered arbitrary and capricious or
otherwise an abuse of discretion under the APA:
1. Discounting Non-reservation Indians: Why should the merits of
off reservation gaming only be based on the benefits or detriments to
Indians who live on a reservation? The latest census revealed that way
over half of all tribal members in this country do not live on
reservations. In addition, why should the benefit of gaming as a tool
for economic development be primarily restricted to tribes that happen
to be closer to big urban centers?
2. Paternalism and Discounting Tribal Determinations: Even if the
primary concern with reservation Indians is rational, one has to wonder
whether it is rational to think that it is better to have unemployed
Indians on the reservations than tribal members gainfully employed say
3 hours away from the reservation. The issue here is who should really
be deciding this, the BIA or the tribes, let alone each tribal member?
This seems to be a throw back to the pre IRA paternalistic policy under
which Indians were deemed to be too incompetent to decide for
themselves and needed the great white father to make such decisions for
them.
In addition, it may very well be that some traditional tribes may
take the position that gaming on the reservation will have a greater
negative impacts on tribal culture and traditions. Among other things,
it will make it easier for tribal members to gamble.
3. Discriminating Against Gaming: The next issue that points to
arbitrariness is that this guidance document is only applicable to
gaming. Is there a rational basis for treating gaming differently than
other tribal economic ventures? Perhaps there is, but this is left
unexplained in the guidance document.
4. The Impact of IGRA: One sentence in the document stated that
the BIA should make sure that, in taking land into trust, the purposes
of the IRA should be respected. While this is true, sometimes a
decision can be arbitrary and capricious not only if it focused on
irrelevant factors, but also if it failed to discuss certain relevant
factors. The guidance document seems to minimize, if not ignore the
policies of the 1988 Indian Gaming regulatory Act (IGRA). As the
Guidance Document accurately stated. ``The IRA had nothing to do
directly to do with Indian gaming.'' IGRA, however, changed prior law
and established the federal policy towards gaming as a tool for
economic development. It is mostly the policies of the IGRA that should
influence the Secretary's determination as to what is in the best
interest of the tribe, not solely the IRA. It seems odd to determine
what is in the best interest of the tribe when it comes to gaming by
reference to whatever congressional policies may have been in 1934,
instead of focusing primarily on what the congressional policies are
today or at least, what they were in 1988 when Congress enacted IGRA.
The Guidance Document did summarily state that IGRA ``was not
intended to encourage the establishment of Indian gaming facilities far
from existing reservations.'' There is a section in IGRA that does
impose severe restrictions on gaming on land acquired off the
reservations after passage of IGRA. Although this section specifically
says that nothing in this section shall affect the power of the
Secretary to take lands into trust under other laws, it does say that
no gaming shall take place unless the Secretary finds that gaming on
such lands shall be for the benefit of the tribe and shall not be
detrimental to surrounding communities. However, if one reads the
Congressional findings and the declaration of policy in the preamble to
IGRA, one does not see a restriction to promote economic development
only for reservation Indians. It only says that the policy of congress
is ``to ensure that the Indian tribe is the primary beneficiary of the
gaming operation.'' If anything, IGRA encouraged gaming generally as a
mean to economic development and self-sufficiency for all Indians and
all Indian tribes. To the extent that the guidance document only looks
at the impact gaming has on reservation Indians, it seems inconsistent
with the policy and spirit of IGRA.
3. ARE THE CONCERNS OF STATE OR LOCAL GOVERNMENTS LIKELY TO GROW THE
FURTHER THE LANDS ARE FROM AN INDIAN RESERVATION AND SHOULD THE
ABSENCE OF INTERGOVERNMENTAL AGREEMENTS CREATE A PRESUMPTION
THAT THESE LOCAL CONCERNS HAVE NOT BEEN ADDRESSED?
Another potential problem with the document is whether giving
greater weight to local concerns the farther the lands are from the
reservation is arbitrary and capricious. The Secretary has taken the
position that jurisdictional problems will be larger the farther the
lands are located from the reservation but the Department has failed to
provide any meaningful support for this finding. Instead, the
Department summarily concluded that it is more likely to disturb ``the
established governmental patterns,'' presuming that distant governments
have less experience in dealing with tribal governments. Besides this
being somewhat dismissive of the capabilities of local governments to
adapt to new situations, it also ignores the fact that a local
government can be distant from one tribe but not from other tribes and
therefore may be very familiar with jurisdictional issues involving
Indian tribes. It also ignores the fact that it is often the local
jurisdictions closest to reservations that are more concerned about off
reservation tribal activities.
Finally, the requirement of intergovernmental agreements with local
communities is inconsistent with IGRA. IGRA requires a compact with the
State and also requires the Secretarial determination that the land
will not be detrimental to the surrounding community to be agreed to by
the Governor of the State. The guidance document creates a presumption
against taking the land in trust in the absence of intergovernmental
agreements. This seems to impose an additional requirement on top of
what is required in IGRA. While I agree that the authority to take land
in trust is contained in the IRA and not the IGRA, the Department
should not issue policies that indirectly conflict and add to the
requirements of IGRA, at least not without first acknowledging the
issue and adequately explaining its decision.
CONCLUSION:
Although I have just given some reasons why a Secretary's decision
under the Guidance Document might be considered arbitrary and
capricious, as one of the mainstream administrative law textbook stated
``The reason an agency gives for its policy judgment need not be the
best reasons or even a good reason.'' All the Agency needs to give is
an understandable and coherent reason. In other words, even if a
federal court disagrees, as I do, with the policy choices made by the
Agency, and thinks these are not the best policy choices, this is not
the standard on judicial review. The standard is deferential to the
Agency. The burden is on the party challenging the agency choice to
show that the choices made were unreasonable or irrational enough to
amount to something arbitrary and capricious or otherwise an abuse of
discretion.
Under existing law, although the Secretary cannot make decisions
that are arbitrary or capricious, he is still given broad discretion in
the IRA to decide whether lands should be placed into trust and whether
gaming should take place outside of Indian reservations. The IRA,
however, did not have off reservation gaming in mind. Furthermore, IGRA
did not address the precise question at issue. In narrowing his
discretion, the Secretary decided to make commuting distance from the
reservation a crucial factor. There is no doubt that there should be
some factors limiting the Secretary's discretion to put off reservation
land in trust for the purpose of gaming. The real question is what
those factors should be and who should make those determinations.
Should commuting distance be such a key factor? Should the value of
off-reservation gaming be solely assessed by its impact on reservation
Indians instead of its impact on the majority of Indians who nowadays
live off the reservations? Should the benefit of gaming be solely
accessible to Indians who are lucky enough to have a reservation
located closer to big urban centers? I think these are not legitimate
factors or grounds to refuse to put land into trust for the purpose of
off-reservation gaming. I believe there is a good chance the courts
will see it my way. However, should the courts decide to grant great
deference to the Secretary and uphold his latest decisions, I think
this Committee should be prepared to introduce legislation addressing
these important issues and give some fresh directions to the Executive
Branch.
Thank you.
______
The Chairman. Thank you. Mr. Washburn?
STATEMENT OF KEVIN K. WASHBURN, VISITING ONEIDA NATION
PROFESSOR OF LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Washburn. Thank you, Mr. Chairman, and thank you to
your staff for inviting me to appear with these fine witnesses.
I want to tell you that Professor Skibine is not just one of
the most long-winded professors on this subject in the country;
he is also one of the best. He has been working in
administrative law. He is probably the leading scholar in the
country at the intersection of administrative law and Indian
law.
I want to thank you for holding this hearing. You have
delegated a very, very important power to the secretary. By
``you,'' I mean Congress. It happened many years ago, but this
power that Congress has delegated to the secretary is perhaps
one of the most important powers in Indian affairs; that is, to
take land into trust. And as evidence of that, the U.S. Supreme
Court took certain a case, earlier this week, that is going to
involve interpretation of this power.
I think that the 2008 guidance memo, the recent guidance
memo, is really just not a very impressive document, I guess is
the way to put it. It fails to recognize that off-reservation
gaming is actually very good for tribes. It is good for the
tribes that do it, at any rate.
Gaming is not so much about jobs, as your insightful
questions suggest; it is more like state lotteries. They are
about revenues for state governments and tribal governments.
They are not about jobs so much, but they do create jobs. Off-
reservation gaming creates many jobs in tribal government on
the reservation. It also helps tribes provide all of the
services that they ought to be providing to their constituents:
tribal colleges, tribal healthcare, social services, law
enforcement, reacquisition and protection of sacred sites, land
acquisition generally, tribal land restoration.
All of these services are improved. No matter where the
gaming occurs, whether it is on reservation or off reservation,
if the message to tribes is, we want you to be more self-
sufficient, and we want you to pursue economic development,
then off-reservation gaming helps that just as much as on-
reservation gaming does, and the secretary and the assistant
secretary know that. That is why I do not find the guidance
memo very impressive.
Off-reservation gaming is also very controversial,
obviously, and let us be honest about it. It is not good for
everybody. Some local communities are going to be opposed to
it. Some local tribes are going to be opposed to it. But we
should not try to hide those issues behind rules that do not
make much sense, and that seems to be what the guidance memo
does.
It is a politically controversial area, frankly, and that
counsels not doing things in closed doors, producing guidance
memos with no process. It counsels toward doing things in the
open and giving everybody a chance to speak about these issues.
Just because this process is not happening in Congress does
not mean there ought to be public participation, and I applaud
you for giving some public attention to this issue because, but
for this hearing, Indian tribes would not have been able to
give input about this policy.
I want to talk little bit about Professor Skibine's
comments about administrative law, and he gave you a very good
discourse on the administrative law principles that apply here.
Let me just kind of take it a step back, I guess, and that is
that administrative law, despite its kind of boring name and
the fact that it is kind of technical, really is about good
government. It is about ensuring that agencies follow good
approaches to making policy, that they do so in an open manner
so that the public can be involved.
People may think these processes are not important, but
they give people a place to go to register their voice, and
that is really what administrative law is all about. There is a
lot about these particular actions that look really troubling,
from an administrative law standpoint, but they are troubling
from just a human standpoint.
I work at a law school, and I can tell you that if a bunch
of people who had applied to law schools applied and paid their
admission application fee and then were suddenly told there is
a new rule, and all of their applications were rejected the
next day, they would be upset. That is just a matter of
fairness.
So this is not unique to Indian tribes in any way,
obviously, and, at bottom, I think the problem that you have
revealed here today is there is no really good explanation for
this changing course by the assistant secretary. The assistant
secretary really did not have a good answer to the question as
to why the Department of the Interior changed course.
The 2004 guidance that the Department of the Interior had
reached is flatly contradictory to this new guidance, this 2008
guidance, and agencies are entitled to change their policies,
but they should do so generally only for good reasons because
people rely on those policies. They spend money, they invest
time and resources to follow those policies.
What I heard was that the assistant secretary did not
really answer that question as to why did you need to change
the policy? He presented no compelling reasons for departing
from that policy, and, for that, I think that if there is no
good reason that he can articulate for the policy, then the
policy ought to be withdrawn.
Again, I appreciate this Committee for giving attention to
this important issue.
[The prepared statement of Mr. Washburn follows:]
Statement of Kevin K. Washburn, 2007-08 Oneida Indian Nation Visiting
Professor of Law, Harvard Law School, Cambridge, Massachusetts
Thank you for inviting me to appear before the Committee again to
discuss important matters related to Indian gaming. You have asked for
my views on a recent Guidance Memorandum issued by the Assistant
Secretary of Indian Affairs on the acquisition of off-reservation land
in trust for Indian gaming.
Introduction
The policy of the United States, as expressed by Congress, is to
assist American Indian tribes in restoring some of the 90 million acres
that tribes lost during the allotment era in the late Nineteenth and
early Twentieth Centuries. See 25 U.S.C. Sec. 465. It is also the
policy of the United States, as expressed by Congress, to encourage
Indian gaming as a means of ``promoting tribal economic development,
self-sufficiency, and strong tribal governments.'' 25 U.S.C. Sec. 2702.
Although Congress has delegated to the Secretary of the Interior the
power to help tribes re-acquire lands, public appropriations for tribal
land acquisitions have rarely kept pace with tribal hopes and dreams
for land restoration. In recent years, gaming has given tribes
financial resources, and access to more financing, that will allow them
to acquire more tribal lands. Off-reservation acquisitions of land for
Indian gaming can be justified by Congressional policies favoring
tribal land restoration as well as policies favoring Indian gaming as a
source of tribal economic development and self-sufficiency.
However, off-reservation acquisitions for gaming are controversial.
For neighboring tribes and for state and local communities, gaming can
have ill effects. First, gaming developments, like any construction
projects and commercial activity, can have negative effects on
neighboring communities, related to noise, traffic, disruption and
environmental degradation. Second, casinos may increase social ills,
such as compulsive (or pathological) gambling. Third, the economic
well-being of many tribes depends on having a monopoly or a quasi-
monopoly in the market they serve.
From an economic standpoint, new casinos often cannibalize the
business of existing casinos. While competition is generally a positive
value in business because it leads to a higher quality product (or a
higher quantity of product at a lower price), competition is not
necessarily advantageous in gaming. Indeed, as a matter of public
policy, we should not necessarily want casinos to ``sell more gaming''
at a lower cost, or to offer a better product that is more widely
consumed. The product itself comes with some social costs.
Thus, as a matter of public policy, we do not value casinos because
of the value of the casino ``product.'' Rather, we tolerate casinos for
the governmental revenues they produce and in recognition of the
inevitability of illegal gaming if we try to prohibit legal gaming
activity. If we do not authorize legal gaming from which governments
derive revenues, we will nevertheless have illegal gaming from which
governments do not. In any event, full free market competition in
gaming is not necessarily good. This is why most states now offer
state-sponsored lotteries, but they do not allow private vendors to
compete for lottery customers.
Because of the controversial nature of Indian gaming, decisions
about off-reservation land-into-trust acquisitions often have high
political costs. Because of the political costs, federal decision-
makers naturally look for ways to avoid facing these difficult
questions. Because of the forces of inertia and the power of the status
quo, it is often much easier for the Secretary to deny a land-into-
trust application than to grant one.
On January 3, 2008, the Assistant Secretary of the Interior for
Indian Affairs issued a memorandum providing guidance on taking off-
reservation land into trust for gaming purposes (hereinafter ``Guidance
Memorandum''). The Guidance Memorandum seems designed, first, to make
it easier for the Secretary to deny off-reservation land-into-trust
applications, and second, to discourage new applications for land-into-
trust.
While I understand Interior's cautious approach toward Indian
gaming and its desire for a bright-line rule that will mitigate the
political controversy surrounding such decisions, the Guidance
Memorandum is problematic for several reasons. First, the policy
expressed therein is based on a fundamental misconception of the value
and purpose of Indian gaming. Second, it is overly broad, reaching non-
controversial trust applications, and thereby departing from the values
that ought to drive federal decisions involving Indian affairs.
Finally, it seems unfair as a matter of process and ill-advised as a
matter of policy. In the testimony below, I will explain some of the
problems with the Guidance Memorandum and comment more generally on
Interior's dysfunctional decision-making process in the land-into-trust
context.
I. The Department of the Interior's Guidance Memorandum Misunderstands
the Benefits of Indian Gaming; For Tribes, Gaming is about
Revenue, Not Jobs.
While the Guidance Memorandum is useful in understanding Interior's
position on land-into-trust, Interior's analysis is unsupportable and
misguided. The Guidance Memorandum claims that an off-reservation
gaming operation that lies beyond a ``commutable distance'' from the
reservation has ``considerable'' ``negative impacts'' on reservation
life in that such a casino ``would not directly improve the employment
rate of tribal members living on the reservation.'' Guidance Memo at p.
4. This conclusion is a non sequitur; it is also flat wrong. It
showcases an apparent misconception about the benefits of Indian
gaming.
It is likely impossible to find an off-reservation Indian gaming
operation that has had negative economic effects on reservation life.
The Guidance Memorandum seems to assume that the purpose of Indian
gaming is to provide jobs to tribal members. A little perspective is in
order. While it is true that an Indian gaming operation can provide
some employment advantages to any community, primarily because Indian
gaming tends to provide a living wage and reasonably good benefits for
low- and medium-skilled workers in the service sector, the vast
majority of people who work in Indian casinos nationwide are non-
Indians. Indeed, while Indian gaming may have been a ``full employment
act'' for gaming lawyers and for non-Indians in many communities, it
has not had the same result for Indian citizens.
This should not, however, be particularly troubling. No serious
observer would claim that casino employment for tribal members is the
primary benefit of Indian gaming. Rather, gaming has provided a stream
of revenue to tribes to improve reservation public safety, healthcare
and education, and to pursue other economic development opportunities.
While the Guidance Memorandum misunderstands the importance of
gaming jobs, it also misstates the impact of its new policy on
reservation jobs. The Guidance Memorandum's central claim about jobs--
that off-reservation casinos fail to provide jobs on the reservation--
is patently ridiculous. Revenues from off-reservation gaming operations
pay for tribal jobs on the reservation in a variety of areas, including
healthcare, elderly services, social services, education, law
enforcement, and numerous other areas of public service, many of which
provide direct services to reservation residents. Indeed, such tribal
public service jobs--involving tribal members directly helping other
tribal members--may be much more personally fulfilling than casino
jobs. Indian gaming pays for these jobs in a very direct way.
In presuming that increasing reservation jobs is one of the most
important aspects of Indian gaming, the Guidance Memorandum departs
from the Indian Gaming Regulatory Act. IGRA describes the benefits of
Indian gaming as tribal governmental revenues, not jobs. Indeed,
nowhere in IGRA are jobs specifically mentioned, but IGRA specifically
refers to ``tribal revenues'' or ``tribal governmental revenues''
repeatedly throughout the Act. See, e.g., 25 U.S.C. Sec. Sec. 2701(1) &
(4), 2702, and 2710(b)(2).
The fact that IGRA was not focused primarily on jobs should not
surprise anyone. The closest analogues to Indian gaming operations are
state lotteries. Like tribal casinos, state lotteries are not valued so
much for the jobs they create. Rather, they are valued for the revenues
that they provide, which, in turn, serve other governmental functions.
In many states, lottery revenues are devoted to education. Thus,
lottery revenues pay teachers' salaries and increase jobs in teaching.
Tribal gaming operations work in much the same way. Tribal casinos pay
for teachers, social workers, doctors and nurses, services for the
elderly and myriad other jobs. The Guidance Memorandum is flawed in
failing to understand this very basic point.
While it is possible to find policy-makers extolling the job-
generating virtues of Indian casinos, this is often used to justify
Indian gaming within non-Indian communities and to explain the benefits
to non-members. In sum, for Indian tribes, Indian gaming is not
primarily a jobs initiative; it is a revenue initiative. II.
II. For Indian Tribes, Off-Reservation Gaming Operations Are in Some
Ways Better than On-Reservation Gaming Operations and Should Be
Encouraged, Especially When They Are Supported by State and
Local Governments.
A casino is not an unmitigated good for any community. As any Not-
In-My-Back-Yard (NIMBY) community group will tell you, a casino may
provide some economic benefits in jobs and tourism, but it also has
significant social costs. It can increase traffic and congestion, can
create or exacerbate public safety issues, and can lead to an increase
in gaming-related social harms, such as pathological (or compulsive)
gambling. Thus, one rarely sees wealthy communities clamoring for
casinos. Gaming tends to be sought by communities that need economic
development and are willing to put up with the inevitable negative
externalities. Indeed, much of the planning as to location and siting
of gaming facilities is focused on mitigating such harms.
For Indian tribes, casinos can have even more particular side
effects in that they bring outsiders onto the reservation, sometimes
overwhelming the reservation character of the community and interfering
with tribal culture, tribal daily life, and even tribal values. Indeed,
to Indian communities, the most positive aspect of casinos is the
revenues that they provide. Thus, contrary to the conclusion of the
Guidance Memo, in some ways, the ideal Indian gaming operation is one
that is outside the reservation. Off-reservation casinos can provide
all the revenue benefits of Indian gaming without the corresponding
interference with tribal life.
The Guidance Memo claims that taking off-reservation land into
trust for a casino can ``defeat or hinder'' the Indian Reorganization
Act purpose to restore the tribal land base. This assertion is just as
ridiculous as the claim that off-reservation Indian gaming produces no
jobs on the reservation. The chief obstacle to restoration of the
tribal land base over the past seven decades has been the Department of
the Interior's failure to ask for--and Congress's failure to
appropriate--sufficient funds for tribal land acquisition. Off-
reservation gaming operations can give tribes the revenues to overcome
this obstacle to land restoration. Gaming off the reservation can be
used to support land acquisition on the reservation. Indeed, many
tribes use their gaming revenues, in part, to fund reservation land
acquisition and land consolidation programs.
III. Off-Reservation Casinos That Are Non-Controversial Should be
Approved, Without Regard to Party Politics.
Congressional policy, as expressed in the Indian Gaming Regulatory
Act, suggests that land acquisitions for Indian gaming should be
encouraged, especially if state and local communities concur. In light
of the policy values expressed in IGRA, the Secretary's recent denial
of Indian land-into-trust acquisitions that were supported by local
communities and the governor of a state is difficult to understand. It
is unclear what federal interest justifies rejecting a project
supported by local, tribal and state officials.
While the Secretary has an important role of serving as a buffer
between tribes and states in the context of disagreement, the Secretary
should not become an obstacle to joint efforts at economic development
when tribes and states agree on the value of an off-reservation Indian
gaming operation. The Secretary's denial of land into trust in such
circumstances is contrary to tribal self-determination and self-
sufficiency. It is also contrary to basic values in a federalist
governmental system which suggest that the federal government should
intervene in local affairs only when the there is a clear federal
interest in doing so. While the federal government has a responsibility
to protect tribes from state interference in some circumstances, no
federal interest justifies the Secretary's refusal to take land into
trust when tribes, local communities and the state's governor agree. To
justify taking such action in the face of wide local agreement,
Interior should articulate a clear federal interest. In the absence of
such an interest, the action appears to represent a decision made on
the basis of crass party politics. Indeed, the tortured reasoning in
the Guidance Memorandum may be intended to serve as cover for cynical
political considerations.
IV. In Light of the Haphazard Development of Interior Policy on Land-
Into-Trust for Gaming, a Clear and Consistent Statement of
Policy Is a Good Idea, But It Should Be Developed in a Public
Process with Tribal and Public Input.
Partially because of the many externalities of casinos (and large
economic development projects in general), taking land into trust for
tribes is often controversial, especially outside a reservation. Given
the political salience of this important issue, land-into-trust
policies should not be developed behind closed doors without public
input. Much of the weakness of the Guidance Memorandum is directly
attributable to the failure to consult on these important policies with
tribal governments and other interested members of the public. If
Interior had consulted with affected interests, it likely would not
have produced a memorandum with such weak analytical conclusions.
Current law anticipates broad public involvement in Executive
Branch policy-making on land-into-trust issues. Department of the
Interior regulations on land-into-trust, for example, require
consultation with state and local government officials on such
decisions. See 25 C.F.R. Sec. 151.11. Likewise, although Section 2719
of IGRA generally prohibits gaming on land taken into trust after
October 17, 1988, it gives the Secretary discretion to allow such
gaming when the Secretary has consulted with ``the Indian tribe and
appropriate State and local officials'' as to whether gaming ``would be
in the best interest of the Indian tribe and its members, and would not
be detrimental to the surrounding community'' and the state governor
concurs in such a decision. In other words, the Secretary is given
broad discretion, but only in circumstances in which wide public
participation occurs (indeed, absent such consultation, the Secretary
lacks discretion on these issues and IGRA governs).
Since the New Deal, the notion that the public should have a role
in agency decision-making has been a bedrock principle of American
government. Given the wide interest and significant local ramifications
of decisions about gaming, however, and the very specific
responsibilities for consultation with tribes and others in these
contexts, decisions about Indian gaming policy should not be made
behind closed doors or without significant public participation.
The Clinton administration spent nearly two years attempting to
formulate a coherent policy for land-into-trust decisions. Its
extensive study of this issue produced a rule that was adopted at the
end of President Clinton's second term, on January 16, 2001, to become
effective 30 days later. The Bush Administration may have been wise to
be suspicious of a rule that was adopted by a lame duck administration
so late that it would never apply until after that administration was
gone. However, it was unfortunate that the Bush Administration failed
to capitalize on the significant sophistication that had developed
surrounding this issue. The previous administration had sought
significant public involvement on this question.
In light of the current administration's rejection of the previous
administration's new rule for off-reservation acquisitions, the problem
has festered. In 2004, several high ranking officials produced an
``Indian Gaming Paper,'' ostensibly to answer an inquiry by Secretary
Gale Norton on the extent of her discretion to approve off-reservation
acquisitions for gaming. Though the Indian Gaming Paper was apparently
not developed with public participation, it reached a sensible
conclusion. The Indian Gaming Paper concluded that ``distance limits
should not be grafted onto IGRA. To do so could deny the very
opportunity for prosperity from Indian gaming that Congress intended
IGRA to foster.'' Michael Rosetti, et al., Indian Gaming Paper, at *13
(February 20, 2004).
Though it was never formally enacted as a rule, the 2004 Indian
Gaming Paper received widespread public attention. For almost four
years, Indian tribes relied on this interpretation in myriad ways. They
invested substantial resources into negotiating with communities, as
well as state officials, private developers and investors. And they
submitted land-into-trust applications believing that they could rely
on the Department's guidance. During this time, tribes relied in good
faith on the belief that distance from the reservation would not be a
significant factor in the decision on land-into-trust applications.
Off-reservation acquisitions have continued to occupy public
interest. No less than ten Senate Indian Affairs Committee hearings
have been dedicated to the issue of off-reservation land-into-trust
acquisitions for gaming. Now, four years after the 2004 Indian Gaming
Paper established a policy stance upon which the public largely relied,
Interior has abruptly changed course, imposing an arbitrary and
indefensible standard on land-into-trust applications. While Executive
Branch agencies are entitled to--and indeed have the duty to--change
course when a policy change ought to be made or can be justified for
good reason, they should not change policy for erroneous reasons. While
the decision to take land into trust is a matter committed generally to
the discretion of the Department of the Interior, Interior presumably
must exercise that discretion in a non-arbitrary manner and should not
change policy based on reasons that are patently wrong on the facts and
inconsistent with broader Congressional policy.
If the Department wishes to make policy in this area, as perhaps it
should in light of the importance of the issue, it would be wise to
consult with interested parties in doing so. Such consultation could
have prevented the embarrassingly weak analysis set forth in the
Guidance Memorandum and the inevitable confusion that bad policy can
produce.
V. Because the Guidance Memorandum Effectively Operates as a Rule
Promulgated in Violation of the Administrative Procedure Act,
Its Immediate Use to Deny Applications Is Inconsistent with
Basic Principles of Administrative Due Process.
The Guidance Memorandum advises Interior decision makers that ``all
pending applications or those received in the future should be
initially reviewed in accordance with this guidance'' and that if an
``application fails to address, or does not adequately address, the
issues identified in this guidance, the application should be denied.''
Guidance Memo at p. 2-3. By requiring the decision makers in Interior
to deny an application that does not meet the newly imposed standards,
the ``guidance'' is more than a mere clarification of the factors set
forth in 25 C.F.R. Part 151. It guides Interior's decisions to take
land into trust, effectively having the force of law. Since it is
effectively a legislative rule, it is unlawful in the absence of the
notice and comment procedures spelled out in Section 553 of the
Administrative Procedure Act (APA). It runs afoul of basic
administrative law principles in several respects.
First, the APA requires an agency to engage in a notice and comment
rulemaking procedure when it either adopts a legislative rule or issues
an ``interpretative rule'' or ``statement of policy'' that ``expresses
a change in substantive law or policy'' which ``the agency intends to
make binding, or administers with binding effect.'' General Electric v.
EPA, 290 F.3d 377, 382-383 (D.C. 2002) (finding a Guidance Memorandum
listing specific requirements applicants must meet to be a legislative
rule and vacating because not promulgated in accordance with APA
Section 553). The Guidance Memorandum seems to expresses a change in
substantive law by rewriting, rather than interpreting, Part 151.
The Guidance Memorandum seems to be a legislative rule, rather than
an interpretive one, because it carries the force of law, as reflected
in its binding language and immediate effects. A document has binding
effect, even before applied, ``if the affected private parties are
reasonably led to believe that failure to conform will bring adverse
consequences, such as--denial of an application.'' General Electric v.
EPA, 290 F.3d at 383. The Guidance Memorandum explicitly advises tribes
that failure to satisfy its requirements will result in denial of their
applications. The Guidance Memorandum then goes a step further by
binding reviewers to deny applications that do not address the narrow
and seemingly arbitrary prescribed factors such as whether the gaming
will encourage reservation residents to relocate off-reservation and
whether relocation will affect members' identification with the tribe.
Thus, the Guidance Memorandum effectively offers more than mere
``guidance.''
Second, the Guidance Memorandum was put into effect immediately and
without any notice, reflecting a lack of due process and an appearance
of unfairness. Indeed, on January 4, only a day after the Guidance was
issued, the Secretary rejected numerous applications to take land into
trust for gaming on the basis of the reasoning set forth in the
Guidance Memorandum, and without even giving the affected parties an
opportunity to address the new standard. Indeed, Secretary Kempthorne
explicitly indicated that the applications were rejected because the
gaming operations would be too far from the reservations to offer jobs
to tribal residents, that residents would be forced to relocate as a
result, and that relocation of tribal members would ``have serious and
far-reaching implications for the remaining tribal community.'' See
Anahad O'Connor, Interior Secretary Rejects Catskill Casino Plans, N.Y.
Times (Jan. 5, 2008).
Third, the rule set forth in the Guidance Memorandum operates in an
arbitrary and unreasonable manner. While Part 151 advises the Secretary
to ``give greater scrutiny to the tribe's justification of anticipated
benefits from the acquisition'' of trust land ``as the distance between
the tribe's reservation and the land to be acquired increases,'' it
recognizes that each case involves balancing various factors specific
to the parties involved. Thus, it instructs the Secretary to ``give
greater weight to the concerns'' of ``state and local governments'' as
the distance increases. 25 C.F.R. Sec. 151.11. However, instead of
recognizing the positive as well as the negative impact that state and
local governmental views should merit in the ``greater scrutiny''
review, the Guidance Memorandum identifies two factors that a reviewer
should consider: 1) ``jurisdictional problems'' and ``conflicts of land
use''; and 2) ``removal of the land from the tax rolls.'' Guidance Memo
at p. 5. The Guidance Memorandum ignores the substantial possibility
that state and local governments may have negotiated with tribes around
these issues--which is almost necessarily how local support and
gubernatorial consent is achieved--and does not instruct a reviewer to
consider any positive input from state and local governments. This rule
is unfair and makes little sense. Disapproval by the affected non-
tribal parties may occasionally tip the scale against taking land into
trust for gaming far from a reservation, but likewise, strong support
by the affected state and local government should motivate approval.
Given that the Guidance Memorandum is supported by dubious (and
even erroneous) assumptions about Indian gaming, that it was adopted
without any public or tribal input, and that it was used to deny
applications immediately and without notice to affected parties, it
should be withdrawn. Although the Secretary has wide discretion as to
whether to take land into trust for any legitimate reason, the
Secretary should not decline to take land into trust for illegitimate
reasons. The Secretary has broad discretion, but good government and
basic principles of administrative law suggest that the Secretary's
discretion be exercised wisely and fairly.
Conclusion
Interior should be applauded for focusing on this important issue
and attempting to provide guidance. Indeed, good government requires
clear rules. The only beneficiaries of a mysterious system with vague
rules are the lawyers and lobbyists who can navigate the murky and
overly political land-into-trust process, and land speculators who can
capitalize on the uncertainty in the process to profit from tribal
hopes. Clear rules on land into trust would serve tribes and their
commercial partners by providing greater predictability.
Acquisition of land into trust is a difficult political issue for
the Secretary. Indeed, while Interior has a clear mandate to work to
restore the tribal land base, and to create opportunities for tribal
self-sufficiency and economic development that comes from Indian
gaming, the Secretary bears the brunt of controversial actions in that
area. In light of the longstanding Congressional support for the
restoration of tribal lands, and the more recent Congressional support
for tribal economic development through Indian gaming, however, the
Secretary has political cover for taking land into trust. The Secretary
should exercise the discretion to accomplish the policy goals that
Congress has mandated.
Interior's caution in this area is sometimes well-motivated.
Interior has sometimes believed that it must carefully guard its
authority to take land into trust by using this power cautiously.
Liberal use of the power might cause widespread public opposition that
would motivate Congress to withdraw the delegation of this power to the
Secretary. Withdrawal of this power would have the effect of placing
the power in an even more political body, i.e., Congress, and could
well frustrate the land-into-trust process. That kind of result might
harm all tribes. In general, it is good that the Secretary have the
authority to take land into trust for tribes. However, Congress has
given the Secretary reasonably clear direction and the Secretary should
follow that direction until it is changed.
In exercising this important discretion, Interior must do a better
job of acting in a fairer (and swifter) fashion. Moreover, whatever
rules Interior may adopt as to land-into-trust, the Secretary should be
willing to waive the rules when an acquisition is non-controversial.
While Congress may have believed that the appropriation process would
necessarily serve as a practical limit on restoration of tribal land,
Congress likely never intended Interior to be an additional obstacle to
restoration of tribal lands when tribes could afford to bypass the
appropriations process. In any event, when local communities and the
governor of the state support a land-into-trust application, the
Secretary is not facing a controversial decision. Local and state
officials, who are closer to their respective communities, should bear
the political fallout of those decisions. Such applications should be
approved. When the Secretary of the Interior uses his discretion to
deny a land-into-trust application for gaming when there is agreement
between tribal, state and local officials, the Secretary invites
speculation that the result is not being driven by good government but
by partisan politics.
The Secretary should withdraw the Guidance Memorandum and make a
serious effort to develop clear rules. Because of the high political
salience of these issues, such rules ought to be developed with tribal
consultation and public participation in notice and comment. Such rules
ought to reflect real concerns, and not half-baked policy
considerations unrelated to the purposes of the laws that support
tribal land restoration and Indian gaming.
Thank you for considering these views on this important issue.
Disclaimer: The comments expressed herein are solely those of the
author as an individual professor and do not represent the views of the
Harvard Law School or any other institution with which the author may
be affiliated.
* * *
A bibliography of Professor Washburn's work related to Indian
gaming is set forth below:
Bibliography
Gaming Law Cases and Materials, Casebook and Teacher's Manual
(Forthcoming Aspen/Wolters-Kluwer 2010).
Felix S. Cohen's Handbook of Federal Indian Law, 2006 Supplement,
Principal Author, Gaming Law Chapter (LexisNexis).
The Legacy of Bryan v. Itasca County: How a $147 County Tax Notice
Helped Bring Tribes $200 Billion in Indian Gaming Revenue, 92
Minnesota Law Review----(forthcoming 2008). The Supreme Court's
landmark 1976 decision in Bryan v. Itasca County is known
within Indian law academia its dynamic and pragmatic
interpretation of a termination-era statute to limit
Congressional termination's harmful legacy during a more
enlightened era of tribal self-determination. What is less
well-appreciated about the case is that it provided the legal
bedrock on which the Indian gaming industry was built. This
article explores the genesis of the litigation and traces its
path, describing how it came to produce a unanimous Supreme
Court opinion of surprising breadth. It also demonstrates that
the right to engage in gaming, which ultimately has produced
vast tribal economic development and even riches for some
tribes, had its roots as much in Indian poverty as in Indian
sovereignty. This article can be downloaded electronically at:
http://papers.ssrn.com/abstract=1008585.
The Mechanics of the Indian Gaming Management Contract Approval
Process, 9 Gaming Law Review 333 (2004). This article provides
a detailed description of the formal and informal policies and
procedures of the National Indian Gaming Commission when it
reviews Indian gaming management contracts. It discusses
various substantive and technical factors that the agency
considers in its review.
Federal Law, State Policy and Indian Gaming, 4 Nevada Law Journal 285
(2004) (Essay in Symposium on Cross-Border Issues in Gaming).
This essay underlines the close link between Indian gaming and
state law. Under the Indian Gaming Regulatory Act, Indian
gaming is lawful only if state law allows gaming for at least
some purposes. Yet, Indian gaming is likely to be profitable
only in those states that have restricted gaming by commercial
entities thus preventing substantial competition against tribal
casinos. Indian tribes will have profitable operations only as
long as they can continue to maintain artificial monopolistic
or oligopolistic power through restrictive state laws. In other
words, the economically advantageous position that many tribes
currently occupy is precarious and subject to the whims of
state legislators. Despite its wild success for some tribes,
Indian gaming exists largely at the sufferance of state
governments. Over the long term, any successful tribal endeavor
that depends on the cooperation of a competing sovereign is
destined to come to an end.
Recurring Problems in Indian Gaming, 1 Wyoming Law Review 427 (2001).
This article surveys several of the legal problems that have
arisen repeatedly in this industry around the country, often in
a state-by-state fashion. It has been cited by the Ninth
Circuit in In re: Gaming Related Cases, 331 F.3d 1094 (9th Cir.
2003) (majority opinion by Circuit Judge W. Fletcher).
Past Congressional Testimony
Prepared Statement and Oral Testimony, Oversight Hearing on the
[NIGC] Minimum Internal Control Standards, United States House of
Representatives, Committee on Resources (Richard Pombo, Chair), 109th
Congress, 2d Session (May 11, 2006). This testimony addressed the
importance of internal control standards in casino gaming operations
and the effect of a recent federal court decision on sound gaming
regulation. This testimony can be viewed online at http://ssrn.com/
abstract=1030926.
Prepared Statement and Oral Testimony, Oversight Hearing on the
Regulation of Class III Indian Gaming, United States Senate, Committee
on Indian Affairs (John McCain, Chairman), 109th Congress, 1st Session
(September 21, 2005). This testimony addressed the need for strong
federal regulatory oversight of Indian gaming and the pitfalls of
failing to provide such oversight. Available online at http://ssrn.com/
abstract=1030924.
Prepared Statement and Oral Testimony, Oversight Hearing on the
Regulation of Indian Gaming, United States Senate, Committee on Indian
Affairs (John McCain, Chairman), 109th Congress, 1st Session (April 27,
2005). This testimony discusses some of the problems in the Indian
gaming regulatory structure and suggests that the time for federal
economic decision-making for Indian tribes is long past. Available
online at http://ssrn.com/abstract=1030922.
______
The Chairman. Thank you. Ms. Johnson, let me ask you, do
you believe that the requirement that tribes must now enter
into agreements with local governments places Indian tribes at
a disadvantage in having fee land placed into trust?
Ms. Johnson. Absolutely. I think that the first premise of
the tribes is our relationship with the Federal government, and
by having to have the local governments weigh in to the
decision of the Federal government, it subjects us to a
different relationship.
I applaud the tribes who spoke here earlier today who
worked through those local processes, but it is not always a
place where it is comfortable for the tribes and the local
governments to have relationships, and, of course, they are
encouraged to have good relationships. But the tribal
government's relationship is a trust responsibility with the
Federal government, and our relationship primarily sits here in
the House of Washington.
The Chairman. Professor Skibine, you mentioned that if the
courts uphold the Department's actions, that the Committee
should introduce legislation to address issues and provide
direction to the executive branch. I intend to do just that and
introduce legislation soon that will ensure adequate
consultation is conducted in situations such as this and
others.
Are you willing to work with our Committee to ensure that
all issues are addressed?
Mr. Skibine. Absolutely.
The Chairman. Thank you. I thought that might be the
answer.
Let me ask Professor Washburn, do you agree with Professor
Skibine that the new requirement in the guidance that requires
tribes to enter into agreements with local governments before
off-reservation gaming may be considered as an additional
requirement to IGRA that Congress did not intend?
Mr. Washburn. I do believe it is an additional requirement
that Congress did not intend that has been added summarily by
the assistant secretary without proper consultation with
tribes, yes, Mr. Chairman.
The Chairman. OK. Thank you. We are being rushed to get out
of here because there is a budget hearing being scheduled by
the Parks Subcommittee, and they are waiting to get in. So,
again, I would ask this panel to be open to written questions
that Members of the Committee may wish to submit at a future
time, and we thank you for your patience and being with us
today. Thank you.
The Committee stands adjourned.
[Whereupon, at 2:07 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows:]
[A statement submitted for the record by Hon. David
Burnett, Chairman, Confederated Tribes of the Chehalis
Reservation, follows:]
Statement of The Honorable David Burnett, Chairman,
Confederated Tribes of the Chehalis Reservation
INTRODUCTION
Good morning Chairman Rahall, Ranking Member Young and members of
the Committee:
My name is David Burnett. I am the Chairman of the Confederated
Tribes of the Chehalis Reservation (Tribe), a small tribe in
Southwestern Washington State. I am honored to have the opportunity to
provide my Tribe's views on the Department of Interior's recently
released guidance on off-reservation fee-to-trust applications.
As the Committee is aware, the Department's new guidance makes
significant changes to the manner in which it considers off-reservation
fee-to-trust applications. My testimony today will focus on my Tribe's
protracted but ultimately successful effort to persuade the Department
to acquire a parcel of off-reservation land into trust for non-gaming
economic development purposes. Based on our experience, I will also
provide our views on the guidance.
BACKGROUND ON THE TRIBE
The Reservation location historically was inhabited by our
ancestors at the confluence of the Chehalis River and the Black River.
In 1864, after the Chehalis people and other tribes refused to go to a
single reservation, the United States, by Executive Order, confirmed
the Chehalis choice and set aside our Reservation.
The Chehalis Reservation is a beautiful Reservation, but it is in
an economically depressed area of the State of Washington. Before the
Tribe built a casino on trust land on the Reservation, tribal member
unemployment exceeded 60%. Much of the Reservation is in a flood plain
and floods most years.
The Tribe's casino has been very successful, but the Tribe has
known all along that, to continue our economic progress in an age of
declining federal assistance and where there is a land base
insufficient to provide tax support for government programs, there must
be economic diversity. Economic development is the vehicle Tribes have
used to obtain the resources to meet the needs of their Tribal Members
in circumstances where it is impossible to generate tax revenue.
Since becoming Chairman in 2002, I have worked to diversify the
economic development of the Tribe. I do not want to be recognized as a
``gaming tribe'', but rather a tribe that has taken advantage of the
opportunities and developed businesses to help it achieve economic
independence.
T HE TRIBE'S EXPERIENCE WITH THE DEPARTMENT'S FEE-TO-TRUST PROCESS
In 1999, Thurston County, Washington came to the Tribe and asked
the Tribe to consider moving its casino or some other economic
development project to Grand Mound near Interstate 5 at Exit 88. They
needed help to jump start the economy of South Thurston County. The
County had built a sewer and water plant that had virtually no hook ups
and was costing the County $400,000 in losses a year. It was presumed
that ``an anchor'' development would create growth and generate revenue
to stop the losses incurred by the County.
With the County's assistance, the Tribe identified a parcel of land
approximately seven miles from the Reservation and held two public
meetings in February and May 2002, to discuss moving its casino. There
was support from the County and the non-Indian community and the Tribe
began to collect the information required under the fee-to-trust check
list. However, when discussing the matter with the BIA in March and
April, 2003, it became very clear that an off-reservation casino
project associated with a fee-to-trust application would not be
approved by the BIA even with substantial community and local
governmental support.
The Tribe accepted this limitation and prepared a fee-to-trust
application that would have provided for general economic development
on the site. In the past, the Tribe had actually had such an
application approved by the BIA. However, by June 2004, the BIA told us
that applications for general economic development would no longer be
accepted. The Tribe was told that it would have to have a specific
project and a business plan before its application would be considered
complete.
Fortunately for the Tribe, we found a project and a non-Indian
partner for the creation of a Great Wolf Lodge, an indoor waterpark,
hotel and conference center. Without the waterpark project, get the
land into trust, the Tribe would have had to create a project to
satisfy the BIA. The Tribe would not have been able to maintain the
flexibility of choice, but would have had to find a specific project to
satisfy the United States rather than make considered, economic
decision as a sovereign.
With the project decided, the Tribe again began to prepare its fee-
to-trust application and gather support. The Tribe was able to secure
the support of:
Thurston Economic Development Council
Local Chambers of Commerce
Thurston County, Washington
Local Cities
Sheriff of Thurston County
Members of the Washington State Legislature
The Governor's office
The Tribe's congressional delegation
The other critical piece of support for the Tribe came from the
Portland Regional Office. The Portland Regional Office worked with the
Tribe on its application and then reviewed it in an expedited fashion.
Because it was an off-reservation fee-to-trust application, the
Portland Regional Office was then required to send the application back
to the Central Office in Washington DC.
The Tribe's fee-to-trust application for the waterpark project
arrived in Washington, DC where:
a) there were over 2000 non-gaming fee-to-trust applications from
tribes languishing and
b) the Committee which that considers applications had not met for
over two years, and
c) we could not even determine who was on such committee.
The Tribe was fortunate in getting the interest and support of
James Cason, who was then the Associate Deputy Secretary of the
Interior, and Arch Wells, then the Acting Director for Trust Services
of the BIA. In order to move through the process, the Tribe sent a
delegation to Washington, DC 11 times in 12 months to meet with the
BIA, the Washington State Congressional delegation, and Mr. Cason. The
Tribe also hired outside professionals to keep its interests uppermost
in the attention of the BIA. These efforts cost the Tribe thousands of
dollars, but represented the possibility of future jobs and economic
diversification.
In July, 2006, the United States took the Tribe's land into trust
for the Great Wolf Lodge project. This was after the combined efforts
of the Tribe and its staff, its local government supporters, the
Governor's office of the State of Washington, its Congressional
delegation supporters, the support of the Portland Regional Office, and
the Tribe's own efforts. At one point before approving the Tribe's
application, the Department suggested the idea of a self-managed trust.
The Tribe would retain regulatory jurisdiction over the land, and have
primary management responsibility, and the Department would be absolved
of any potential liability. This was a unique idea that the Tribe, as a
sovereign liked, because we believed we could manage the land better
than the BIA. This was never implemented because of concerns from the
BIA Solicitor's Office.
We began the fee-to-trust process in 2001, and completed it in
2006. The process is arduous and subjective. We were reminded at each
junction that this is a discretionary process, and that the Secretary
was under no obligation to make any kind of decision, let alone a
definite yes or no. There is no need to make the process more
difficult.
RECOMMENDATIONS ON THE RECENTLY RELEASED GUIDANCE
At the outset, it is important to note that while the guidance is
intended to assist evaluating off-reservation land into trust ``for
gaming purposes''; the memorandum is much broader and applies to all
off-reservation fee-to-trust applications, including projects like
ours. Our views and recommendations are shaped by our experience with
this process.
The recently released guidance erodes the sovereignty of tribes. I
can understand the concern that some have expressed about allowing
tribes to acquire off reservation lands into trust for the sole purpose
of gaming. However, reservations in remote locations without natural
resources are not conducive to economic development. Economic
development requires population and transportation to survive and
thrive.
Take the Chehalis Tribe as an example. Our project is seven miles
from the Reservation, but out of the flood plain. It is adjacent to the
freeway and within one-half mile of an interchange. How far away from
the Reservation would our project have to be before the BIA would not
approve our fee-to-trust application under the newly released
guidelines? Will the determining factor be whether the BIA likes the
project? Whether it provides a certain number of jobs to non-Indians
and / or Tribal members? Whether the Tribe is involved in industries or
an economic sector the BIA approves of? What will be the rules so that
a tribe can make a valid, sovereign decision for its economic future?
The idea of commutability is not universally applicable, and the
standard should remain relative to historic ties to usual and
accustomed areas of living. The idea that the BIA is trying to make
sure that the reservation lifestyle and communities are protected is
paternalistic and is offensive to me. What this policy means to me is
that there are non-Indian people who have no problem with Indians being
successful as long as they are not too successful. When they start
getting off the reservation, we begin round them up and keep them on
the Reservation. All of this flies in the face of self-determination.
If this type of policy were applied in the context of education,
then perhaps scholarships should be denied for Indian students. After
all, there are few institutions of higher learning located in Indian
Country, and the students must leave the reservation to pursue an
education. Then, when they have completed their education, there are
few opportunities to maximize their education on the reservation, so
they leave the reservation to pursue their careers. Does all this mean
we should stop educating Indians?
Tribes have worked hard for generations to maintain their identity
and independence, and it is they who will have the best interests of
their tribal members at heart when making these decisions. The BIA
should not be involved in making decisions about the impact of a
business on the quality of life for a particular tribe.
To improve the process, there should be an assumption the land will
be taken into trust, unless there is a valid reason not to do so. Then
if there are valid reasons not to take the land into trust, that would
be the decision point for decline or request for additional
information.
Further, there should be some specific timelines and milestones
identified in the process. It is difficult for a Tribe such as the
Chehalis who are working to develop a specific project with a partner
like Great Wolf Lodge, a publicly traded company, to maintain any kind
of momentum and interest when it is unclear of when certain events will
take place.
The regulations need to reflect the reality in Indian Country and
not the prejudices of either our neighbors or BIA officials.
Sovereignty requires the ability to make choices regardless whether
others like that choice. The guidelines should not subject tribes to
arbitrary standards of distance that are not related to valid economic
decisions.
This concludes my testimony. At this time I would be happy to
answer any questions that members of the Committee may have.
______
[A letter submitted for the record by Larry N. Arft, City
Manager, City of Beloit, Wisconsin, follows:]
[GRAPHIC] [TIFF OMITTED] T0943.003
.eps[A letter submitted for the record by Mike McGovern,
Supervisor, Yolo County, California, and Chair, CSAC Indian
Gaming Working Group, California State Association of Counties,
follows:]
[GRAPHIC] [TIFF OMITTED] T0943.004
.eps[GRAPHIC] [TIFF OMITTED] T0943.005
.eps[NOTE: The information listed below has been retained
in the Committee's official files.]
Brown, Daniel, Vice-President, Ho-Chunk Nation of
Wisconsin, Black River Falls, Wisconsin, Letter submitted for
the record
Chicks, Robert, President, Stockbridge-Munsee
Band of Mohican Indians, Statement submitted for the record
Glover, Federal D., Chair, Board of Supervisors,
Contra Costa County, Martinez, California, Letter submitted for
the record
Greene, Rob, Tribal Attorney, Confederated Tribes
of the Grand Ronde Community of Oregon, Letter submitted for
the record
Los Coyotes Band of Indians, Warner Springs,
California, Statement and questions submitted for the record
Patterson, Brian, President, United South and
Eastern Tribes, Inc., Statement and resolutions submitted for
the record
Silver, Dan, Executive Director, Endangered
Habitats League, Los Angeles, California, Letter submitted for
the record