<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21799.wais]
S. Hrg. 109-18
LYTTON RANCHERIA OF CALIFORNIA
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
S. 113
TO MODIFY THE DATE AS OF WHICH CERTAIN TRIBAL LAND OF THE LYTTON
RANCHERIA OF CALIFORNIA IS DEEMED TO BE HELD IN TRUST
__________
APRIL 5, 2005
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
21-799 WASHINGTON : 2005
_____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
JOHN McCAIN, Arizona, Chairman
BYRON L. DORGAN, North Dakota, Vice Chairman
PETE V. DOMENICI, New Mexico DANIEL K. INOUYE, Hawaii
CRAIG THOMAS, Wyoming KENT CONRAD, North Dakota
GORDON SMITH, Oregon DANIEL K. AKAKA, Hawaii
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
MICHAEL D. CRAPO, Idaho MARIA CANTWELL, Washington
RICHARD BURR, North Carolina
TOM COBURN, M.D., Oklahoma
Jeanne Bumpus, Majority Staff Director
Sara G. Garland, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
S. 113, text of.................................................. 2
Statements:
Arner, Rock, city manager, city of San Pablo, San Pablo, CA.. 14
Brown, Sharon J., council member, city of San Pablo, San
Pablo, CA.................................................. 14
Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice
chairman, Committee on Indian Affairs...................... 3
Feinstein, Dianne, U.S. Senator from California.............. 4
Hancock, Loni, assembly member, 14th Assembly District,
Sacramento, CA............................................. 19
Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 4
Macarro, Mark, chairman, Pechanga Band of Luiseno Indians.... 21
McCain, Hon. John, U.S. Senator from Arizona, chairman,
Committee on Indian Affairs................................ 1
Mejia, Margie, chairperson, Lytton Rancheria, Santa Rosa, CA. 17
Miller, Hon. George, U.S. Representative from California..... 7
Skibine, George T., acting deputy assistant secretary for
policy and economic development for Indian affairs,
Department of the Interior................................. 11
Appendix
Prepared statements:
.............................................................
Brown, Sharon J. (with attachment)........................... 37
Hancock, Loni................................................ 30
Macarro, Mark................................................ 31
Mejia, Margie................................................ 32
Miller, Hon. George, U.S. Representative from California..... 27
Sammut, Dennis J., president, Artichoke Joe's Casino, San
Bruno, CA.................................................. 48
Skibine, George T............................................ 35
Additional material submitted for the record:
Brown, Harold C., president, Marin County, CA, Board of
Supervisors, letter........................................ 59
Gambling on Tribal Lands, Legislative Constitutional
Admendment, Text of Proposition 1A......................... 60
Lyons, Maurice, chairman, Tribal Council, Morongo Band of
Mission Indians, letter.................................... 70
Uilkema, Gayle B., chair, Board of Supervisors, Contra Costa
County, CA, letter with resolution......................... 72
LYTTON RANCHERIA OF CALIFORNIA
----------
TUESDAY, APRIL 5, 2005
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
562, Senate Dirksen Building, Hon. John McCain (chairman of the
committee) presiding.
Present: Senators McCain, Dorgan, Inouye, and Thomas.
STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. Good morning. This morning, we will hear
testimony supporting and opposing S. 113, a bill introduced by
Senator Feinstein to remove language from the Omnibus Indian
Advancement Act that benefited the Lytton Rancheria of
California.
[Text of S. 113 follows:]
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
The Chairman. This language had the effect of making
certain property in the San Francisco Bay Area immediately
eligible for gaming pursuant to the Indian Gaming Regulatory
Act without going through the normal processes required under
that act.
I have said before that I have concerns with the manner in
which the Lytton's off-reservation casino was authorized. The
question before us now, however, is what to do about it. The
Lytton Band of Pomo declared just last month that it is no
longer seeking legislative ratification of the gaming compact
and so the prospect of a class III casino with thousands of
slot machines is not imminent.
Nevertheless, the issue, as we will hear today, is still
controversial. I look forward to hearing from all of our
witnesses. It has been my practice for many years that when a
member of the Senate requests a hearing on an issue that I have
tried to accommodate those wishes. Even after the Lytton
Rancheria changed their plans, I asked Senator Feinstein if she
wanted to still proceed with the hearing. She said she did so,
so therefore we are going to have this hearing today.
This will not be the last hearing in this committee of the
issue of taking land into trust for purposes of gaming. I note
the presence of my friend, Senator Inouye, with whom I worked
on the Indian Gaming Regulatory Act. I think he would agree
that never in our wildest dreams at the time of the formulation
of that legislation did we envision that Indian gaming would
become the $19 billion a year enterprise that it is today. It
is long overdue time to review the impact and implications of
the Indian Gaming Regulatory Act from a broad variety of
aspects, not just that of taking land into trust for gambling
purposes, but whether there is sufficient oversight of Indian
gaming and whether there needs to be better enforcement of
existing law.
I thank Senator Feinstein and my old friend from the House
of Representatives, Congressman George Miller, if he would come
forward. I will recognize Senator Dorgan and then Senator
Thomas and then Senator Inouye.
Senator Dorgan.
STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH
DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Dorgan. Mr. Chairman, thank you very much. Let me
again say I appreciate your holding this hearing. This is a
hearing that is being held at the request of Senator Feinstein
on her bill, S. 113, the Lytton Gaming Compliance Act, a bill
that would require the Lytton Band to utilize the land into
trust process established by the Department of the Interior
before gaming could be conducted on the land.
I think it is important to point out that this hearing is
only about the Lytton Band legislation. It is not intended to
be a general discussion about the policy of off-reservation
gaming. I say that because while I think a discussion of that
issue is important and we likely will have that type of
discussion in other hearings, it will require much more input
and much broader representation than we have called for at this
hearing.
Again, I welcome our colleagues, Senator Feinstein, and my
colleague from my days in the House, Congressman Miller.
The Chairman. Senator Thomas.
Senator Thomas. Thank you, Mr. Chairman. I have no
questions.
The Chairman. I hope you get better soon. [Laughter.]
The Chairman. Senator Inouye.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII
Senator Inouye. Thank you very much, Mr. Chairman, and
welcome to the committee, Senator Feinstein and Congressman
Miller. I believe it is important that we understand the
historical background of the bill that we address today.
For nearly 30 years from 1962-91, the Lytton Rancheria was
terminated from its federally recognized status. As part of its
effort to regain that status, litigation was initiated by the
tribe. The county of Sonoma intervened in that lawsuit and as a
condition of the county's consent to a forthcoming settlement
of the legal action, certain conditions were imposed which
precluded the tribe from initiating economic development
activities on the tribe's traditional lands.
Thus, from the outset of the restoration of the tribe's
federally recognized status, the tribe was forced to look to
other areas for the development of the tribe's economy. In
2000, Representative George Miller proposed an amendment to the
Omnibus Indian Advancement Act of that year, which identified
lands to be taken into trust for the Lytton Band and deemed
those lands to have been taken into trust prior to October 17,
1988, the date of the enactment of the Indian Gaming Regulatory
Act.
The bill, as amended by the House on October 26, 2000, came
back to the Senate, where it was pending on the Senate calendar
until December 11, 2000, when the bill was taken up and passed
by the Senate. In those 45 days in which the amended bill was
pending in the Senate, the customary protocol was followed to
assure that the amendment was agreed to not only by the offices
of the California Senators, but that the amendment was
acceptable to other Senators prior to action on the bill in the
Senate.
Legislative history is clearly documented in the records of
the Senate for all to examine.
Accordingly, I would hope that when this measure is
addressed that we take into consideration these critical
aspects of the legislative history that led to enactment of the
amendment to the Omnibus Indian Advancement Act of 2000,
including a subsequent amendment to the Act which provides that
the Lytton Band must comply with all aspects of the Indian
Gaming Regulatory Act in the conduct of any gaming activities
on the tribe's lands.
I thank you very much, Mr. Chairman.
The Chairman. Thank you, sir.
Welcome, Senator Feinstein.
STATEMENT OF DIANNE FEINSTEIN, U.S. SENATOR FROM CALIFORNIA
Senator Feinstein. Thank you very much, Senator McCain,
Senator Dorgan, Senator Inouye, Senator Thomas. I very much
appreciate this hearing. I introduced this bill, as you know,
in the last Congress and in this Congress as well. I would be
hopeful that you can give it consideration and that we can get
it passed.
This bill is the Lytton Gaming Compliance Act, S. 113. It
has one simple purpose, to ensure that the Lytton Tribe follows
the regular process set out under the Indian Gaming Regulatory
Act for gaming on newly acquired lands. This legislation
strikes a provision inserted into the Omnibus Indian
Advancement Act of 2000. That provision mandated the Secretary
of the Interior to take a card club and adjacent parking lot in
the San Francisco Bay Area into trust for the Lytton Tribe as
their reservation and backdate that acquisition to October 17,
1988, or pre-IGRA.
This backdating was done expressly with the purpose of
allowing the Lytton Tribe to circumvent IGRA's two-part
determination process, an important step that requires both
secretarial and gubernatorial approval, along with consultation
with nearby tribes and the local community. The legislation
that I have introduced would simply return the Lytton Tribe to
the same status as all other tribes seeking to game on newly
acquired lands.
I also want to emphasize what the bill will not do. It
would not remove the tribe's recognition status. It would not
alter the trust status of the new reservation nor would it take
away the tribe's ability to conduct gaming through the normal
IGRA process. Section 20 of the Indian Gaming Regulatory Act
has clear guidelines for addressing the issue of gaming on so-
called newly acquired lands, or lands that have been taken into
trust since IGRA's enactment in 1988.
Most importantly, in my opinion, IGRA includes a process
called the two-part determination, which provides for both
Federal and State approval, while protecting the rights of
nearby tribes and local communities. Circumventing this process
creates a variety of serious and critical multi-jurisdictional
issues, issues which can negatively affect the lives of
ordinary citizens and deprive local and tribal governments of
their ability to effectively represent their communities.
Nevertheless, I think we need to be honest about the real
reason we have seen a proliferation of cases like the Lytton
with an increasing number of tribes attempting to open casinos
outside of traditional Indian lands. Attempts at off-
reservation gaming and the practice of reservation shopping
have increased dramatically in California over the past 5
years.
It is now estimated that there may be over 20 proposals to
game outside of tribal lands in California. I have watched as
out-of-State gaming developers have sought out tribes offering
to assist them in developing casinos near lucrative sites in
urban areas, and along central transit routes far from any
nexus to their historic land. Today in the San Francisco Bay
Area alone, there are at least five such proposals.
Let's go back to proposition 1A. Off-reservation gaming was
clearly not what the people of California voted for when they
overwhelmingly passed proposition 1A in March 2000 to allow
tribes in my State to engage in Nevada-style gaming on tribal
lands. Not only did the proposition language clearly state that
gaming would take place on Indian or tribal lands, but this
claim permeated the entire campaign in support of Indian
gaming.
Let me give you a few examples. Let me read from the
argument in favor of proposition 1A.
We are asking you to vote yes on 1A so we can keep the
gaming we have on our reservations. We thank you for your past
support and need your help now to protect Indian self-reliance
once and for all.
It goes on.
So 1A has been put on the March ballot to resolve this
technicality and establish clearly that Indian gaming on tribal
lands is legal in California.
Then it goes on to describe 1A as a simple constitutional
measure that allows Indian gaming in California.
It protects Indian self-reliance by finally providing clear
legal authority for Indian tribes to conduct specific gaming
activities on tribal lands.
It goes on this way. I would like to submit for the record
proposition 1A, the arguments both pro and con that appeared on
the ballot, if I might.
The Chairman. Without objection.
[Referenced documents appears in appendix.]
Senator Feinstein. Mr. Chairman, in conclusion, without
this bill, the Lytton will be able to take a former card club
and adjacent parking lot as their reservation and turn it into
a large gambling complex outside of the regulations set up by
the Indian Gaming Regulatory Act.
Let me make very clear, I oppose off-reservation gaming in
California. This is not what the people voted for in the year
2000. It is a perversion of that legislation and it should not
happen without another initiative that specifically approves
it.
Even though the tribe recently announced that it was
temporarily dropping its pursuit of a casino, it could reverse
these plans at any time and proceed with both class II and
class III gaming without first going through the regular
process. Allowing this to happen would set a dangerous
precedent, not only for California, but every State where
tribal gaming is permitted. I do not think it is asking too
much to require that the Lytton be subject to the regulatory
and approval processes applicable to all other tribes by the
Indian Gaming Regulatory Act.
I thank the committee for allowing me this opportunity, and
would hopefully ask for your support so that this bill could go
to the floor.
Thank you very much, Mr. Chairman.
[Prepared statement of Senator Feinstein appears in
appendix.]
The Chairman. Thank you very much, Senator Feinstein.
We are pleased to welcome our old friend George Miller.
Senator Feinstein. May I be excused? We have the Patriot
Act in Judiciary.
The Chairman. Yes, ma'am.
Senator Feinstein. I appreciate it. Thank you very much.
The Chairman. I think you answered the only question that I
had, and that was that since the Lytton Band has changed their
proposal that that does not change your commitment to this
legislation.
Senator Feinstein. No; the Governor visited with me not too
long ago. He felt he had the votes for the compact. I
understand there are not the votes for the compact.
Nonetheless, should the situation change, it could move ahead
and again, it would be obfuscating the process and I believe
the process ought to be carried out for each and every tribe on
a regular basis.
The Chairman. Thank you very much.
Welcome, George.
STATEMENT OF HON. GEORGE MILLER, U.S. REPRESENTATIVE FROM
CALIFORNIA
Mr. Miller. Thank you, Mr. Chairman and members of the
committee. Thank you for your time this morning. I appreciate
the opportunity to testify.
Senator Feinstein, it was a pleasure to be with you. We do
not agree on this issue, but we have worked on a number of
other issues with respect to our State.
I would like to submit my written statement for the record.
The Chairman. Without objection.
Mr. Miller. I would also like to recognize several
constituents and local representatives who will testify here.
Assemblywoman Loni Hancock represents part of this area with me
in her district. She is a strong advocate for our community.
Mayor Sharon Brown and City Manager Brock Arner of the city of
San Pablo are here. They are working very hard to stimulate
economic development in the city. I appreciate their efforts on
behalf of the residents of San Pablo.
Today's hearing concerns the Lytton Band of Pomo Indians in
the city of San Pablo in my district and their effort to work
together to meet mutual goals of desperately needed economic
development. I support these efforts.
My involvement with this matter dates back to 1999 and 2000
when I was approached by the city to discuss the interests in
working with the Lytton Band to help them acquire an existing
card room in San Pablo for the purposes of renovating it and
building a modest-sized casino. The tribe made a good-faith
effort to work through the Department of the Interior to win
the right to acquire this land for the purposes of gaming under
the Indian Gaming Regulatory Act, but due to special
circumstances affecting the tribe, it is my understanding the
tribe was told by the department that they would be turned
down.
After much discussion and detailed review of the
circumstances, I agreed to help the city and the tribe. I
supported their project for several reasons. The local
community, including the police department, supported the
project. The city stood to make significant economic
development gains from the project. The tribe had a clear need
and a legitimate right to pursue lands for the purposes of
economic development and made a good-faith effort to work
through the Department of Interior to do so. I have a
longstanding history of supporting the sovereign rights of
Indian tribes.
The issue of whether or not American Indians should be
involved in gaming is not an issue here. There are opponents of
gaming for many reasons, some personal, some moral, some simply
competitive. Of course, there are many proponents of gaming.
There are card rooms throughout the Bay Area and extensive
lottery programs, race tracks and the California constitution
allows Indian gaming. Personally, I am neither a proponent or
opponent of gaming per se. I am, however, a strong defender of
the economic development of Indian sovereignty.
As you will hear in greater detail today from the Lytton's
Chairperson Margie Mejia, the Lytton Band was wrongfully
terminated in the 1960's. A Federal court restored the tribal
status in 1991. The Lyttons are poor people, many of whom are
homeless. The tribe is concerned about preserving its tribal
heritage and providing economic means for its members. The city
of San Pablo and the Lyttons share much in common. San Pablo is
one of the poorest cities in the Bay Area. It is a small city
with little economic activity. It has a poverty rate of 18
percent, twice that of the entire Bay Area and more than twice
of that of the county in which it resides. Its unemployment
rate is higher than that of the Bay Area and the county and
more than 90 percent of the city's residents work outside the
city because there are not enough jobs created within the city.
The key question before this committee is whether it was
appropriate for Congress to have passed section 819 of the
Omnibus Indian Advancement Act in 2000 on behalf of the Lytton
Band. It believe that it was appropriate and that the provision
should stand as written.
As you know, the U.S. Constitution gives Congress plenary
authority over Indian tribes that pass laws for their benefit.
Congress is fully within its rights to pass the legislation
directing the Secretary to place lands into trust for
particular tribes and does so on a regular basis. In just the
last 108th Congress, at least 10 bills became law, placed lands
into trust for various reasons for various benefits to Indian
tribes.
This may happen for any number of reasons Congress
determines is prudent. It may be part of a settlement agreement
of land claims. For instance, in the Pechanga Indian Tribe that
is scheduled to testify later today, the desire was to protect
certain important lands from possible desecration. In the last
Congress, we even took lands out of a national park and placed
it into trust for one tribe. In the Gila River water settlement
law, we were required to act in Congress to concur to bring
lands into trust for the tribe.
In most cases, including the ones I mentioned here, the
tribe attempts to go through the BIA process, becomes
frustrated for one reason or another, and comes to Congress to
plead its case. In fact, the highly touted bill with the Lytton
provision also included 14 other provisions to take lands into
trust for Indian tribes, including one provision that held the
land to be considered in trust as of 1909.
The Lyttons have a special circumstance that I believe
distinguishes them from most other tribes in California that
necessitated congressional action. In 1991, the Federal court
settlement that restored the Lyttons tribal status and that of
numerous other California tribes included one unusual provision
pertaining only to Lyttons. The court order restoring Lytton's
tribal status contained the unique limitation that precluded
the Secretary of the Interior from taking lands in Sonoma
County, the Lyttons ancestral lands, into trust for the benefit
of the Lytton Band for any use inconsistent with the Sonoma
County general plan. In effect, the limitation denied the
Lyttons any rights to use their ancestral land for gaming.
The order, however, did not put any restrictions on the
ability of Lyttons to pursue other lands to be taken into trust
for them for gaming or other activities. The limitation created
a special circumstance when the Lyttons appealed to the
Department of the Interior for the exception of the Indian
Gaming Regulatory Act. I think it is fairly clear that under
any ordinary circumstances they would have qualified for
exception number four, lands that are taken into trust for part
of a restoration of lands for Indian tribes that is restored to
Federal recognition, but that was not so because of the
prohibition on the Sonoma County general plan.
The lands that the tribe sought were not their ancestral
lands, nor contiguous to their ancestral lands. It is my
understanding that the BIA denied the tribe the exception under
IGRA because of the lands issue, and yet as I explained, the
court settlement forbade the tribes from using their ancestral
lands.
The Lyttons are the only tribe in California, perhaps the
only tribe in the United States, that as a condition of
restoration of tribal status, was expressly deprived the
opportunity to exercise rights under the Indian Gaming
Regulatory Act on its ancestral lands. I do not believe that
the existing law anticipated the unusual circumstances, and
therefore Congress, which has the authority to intervene on
these matters, appropriately remedied this situation.
This is what the issue boils down to. Through no fault of
their own, the Lytton Tribe was illegally stripped of their
status as a federally recognized Indian tribe and denied their
rights for decade until it was restored to its proper status by
our judicial system. Had the tribe never been illegally
terminated, there would have been no question of the Lyttons
ability to operate gaming within their ancestral area.
I thought that the BIA would except the land under the IGRA
exceptions for restored tribes, but when I was told it would
not, I believe that was a mistake, and even then Assistant
Secretary for Indian Affairs Kevin Gover was quoted at the time
about the denial of the Lyttons request, saying it was a
``close call and a good case could be made that we were
wrong,'' Grover said.
Every tribe's situation is different and must be evaluated
individually. That was what was done in this legislation. But I
believed then and continue to believe now that it was the fair
and right thing to do in this particular case to make the
Lytton Band whole again. Not only do I believe that it was
appropriate for Congress to have acted with the tribe's behalf,
I want to be clear that the manner in which Congress approved
this legislation was entirely appropriate.
My provision regarding the Lytton Band was added, along
with numerous other tribal issues, as an amendment to H.R.
5528, the Omnibus Indian Advancement Act in the full House. All
of the provisions added were done so with the support of the
leadership of both the House Resources Committee and this
committee as a way to move legislation that for one reason or
another had not passed.
To make it clear this was a compilation of bills, the
omnibus title was given to the bill. This is the most
appropriate way to move legislation near the end of Congress
that had been bottled up. The bill passed the full House on
October 26, 2000. H.R. 5528 was referred to the Senate
Committee on Indian Affairs and passed by the Senate by
unanimous consent on December 11, 45 days after its referral to
the Senate and being sent to both respective cloak rooms for
reviewing and Senate notification.
Section 819 was identified by the heading Lands taken into
trust, and at all times contained the names of the tribes and
the location of the land. Any Senator who questioned or
objected to any provision had the opportunity to review the
provision, to withhold consent. Under the unanimous consent
procedure, no Senator did. Under the provision, Lytton is
subject to all of the provisions of IGRA including the
requirement of California law that any compact negotiated
between the State of California and the Lytton Band is ratified
by the California legislature. A compact was signed in August
of 2004 by the Governor and the tribal chair, but has not yet
been ratified by the legislature.
I am on record as opposing the size of this first proposed
compact between the State and the tribe and the revised
proposed contract. I hope that any final resolution of this
compact will adhere to the proposal originally presented to me
by the tribe and the city. That proposal called for a modest
casino within the parameters of what already exists at the card
room, not a mega-casino that is now under consideration. I
think this is important for this committee to understand. This
was not a controversial action when it was considered for a
modest casino, with strong support in the community for this
economic development.
When it got into the compacting arrangements with
California's deficit problem, this compact became the object of
those who wanted to solve the deficit problem on the backs of
the compacts. So what was proposed as a modest 1,000-slot
machine casino now became a 5,000-slot machine casino, larger
than the MGM Grand in Las Vegas.
I have rejected that. The legislature cut it down to 2,500.
I still believe that that is too extensive. I do, however,
believe the Lyttons are still entitled to have a casino on what
is now their reservation land. I think it is important. Loni
Hancock, our representative in the State legislature, can
address the question of where this is in the legislature at
this time.
It should be noted, however, that the Lytton Band from the
very beginning went to unprecedented lengths to consult with
the local community and the State of California to forge an
agreement with regard to mitigating potential impacts of the
new casino and sharing the benefits of the casino with the
community, but the issue of the compact details is a separate
matter.
The issue today is whether or not the tribe has the right
to these lands and whether Congress acted appropriately in
conveying the lands to the tribe. In both instances, I think
the answer is clearly yes. I do not believe that Congress is
justified in taking away the Lyttons rights that Congress gave.
Doing so would be a significant breach of trust between
Congress and the Indians, a trust that has been broken so often
in our Nation's history. It would also greatly undermine the
economic development opportunity for an impoverished tribe and
an impoverished California city. I believe that S. 113 is
unwarranted and harmful. More importantly, I believe that it
would be a dangerous precedent.
Governor Schwarzenegger expressed a similar view when he
wrote to Senator Feinstein on September 20, 2004 about her
legislation, that, quote, ``this bill would set a dangerous
precedent that could damage the trust and faith with the Lytton
Rancheria Indian Community.'' He added, quote, ``passage of
this bill will destroy the trust which has been built up with
the Lyttons and other tribal governments not just in
California, but throughout the Nation.''
Indian gaming in California is clearly a complicated matter
and there are many aspects of the issue to resolve, but using
the power of Congress to take punitive action against the
Lytton Band is neither justified nor appropriate.
Thank you, Mr. Chairman, for your time and the
consideration of the members of your committee, and my
opportunity to testify here today on this matter.
I would be happy to answer any questions that you may have.
[Prepared statement of Representative Miller appears in
appendix.]
The Chairman. A 1,000-slot machine casino is a modest
gaming operation?
Mr. Miller. In the context of where California was, where
Indian gaming was at that time, yes, that was about what was
taking place in other sites in the State. It is a big State.
The Chairman. A 1,000-slot machines is a lot of slot
machines.
Senator Dorgan.
Senator Dorgan. Mr. Chairman, I have no specific questions
of Congressman Miller. I have read the statements on both sides
and I think I would like to hear from the other witnesses. I
appreciate your statement, Congressman Miller.
Mr. Miller. Thank you.
Senator Dorgan. You have in great detail laid out your
position and why legislative action previously was taken and
also that you believe any further legislative action at this
point would be punitive. So let us hear from the other
witnesses today.
The Chairman. Thank you very much, Congressman Miller. We
appreciate your coming over today.
Mr. Miller. Thank you.
The Chairman. Thank you very much.
Mr. George Skibine, who is the acting deputy assistant
secretary for policy and economic development for Indian
affairs at the Department of the Interior. As always, your
complete statement will be made part of the record.
STATEMENT OF GEORGE T. SKIBINE, ACTING DEPUTY ASSISTANT
SECRETARY FOR POLICY AND ECONOMIC DEVELOPMENT FOR INDIAN
AFFAIRS, DEPARTMENT OF THE INTERIOR
Mr. Skibine. Thank you, Mr. Chairman, Mr. Vice Chairman. I
am very pleased to be here to represent the Department of the
Interior's views on S. 113.
My statement will be made part of the record. It is a
fairly short statement and my comments now will be probably
even shorter.
Essentially, the department has no objections to Senator
Feinstein's bill. The bottomline is that we do not object to it
because we do not believe that it is proper to waive the
requirements of section 20 of the Indian Gaming Regulatory Act
for any particular tribe. We believe that section 20 strikes a
delicate balance between the rights of Indian tribes and the
rights of local communities and the rights of the State. It has
been implemented very carefully by the department over the last
17 years. We believe in that sense that it has worked.
I think that it is true, as Congressman Miller said, that
the application to take land in trust and compliance with
section 20 is a slow process and that the department takes its
time in weighing the considerations. We want to make sure that
the local community, especially for off-reservation
acquisitions, is in support and that their concerns have been
taken care of. In this particular case, as Senator Feinstein
said, this would bypass the requirements of section 20 of IGRA.
To go back briefly to this particular case, as stated
before, the tribe was terminated and it was subsequently
restored through stipulation of entry of judgment in 1991 in
the Scotts Valley litigation. In 1999, the tribe submitted an
application to take land into trust to the BIA, submitted
documentation to the regional office, submitted an
environmental assessment, but that process was overtaken by the
enactment of the act that is under consideration today.
I want to clarify a statement that Congressman Miller
stated. I do not think the tribe was turned down on an
application to take land into trust. We were in discussion with
the tribe. I think one of the issues that we were facing is
whether the tribe would qualify under the restored land for
restored tribes exception.
I think we agreed the tribe is a restored tribe, but for
restored land, I think that is a closer question, certainly.
Right now, for restored land, I think we look for the tribe to
have a geographical, traditional and historical nexus to the
land. So in this particular case, I think that probably would
be problematic. As a result, this provision was passed that
short-circuited the process.
The decision to take the land into trust was made by the
BIA on January 18, 2001. There were subsequent lawsuits in
Artichoke Joe's v. Norton over our decision, but the injunction
was denied in this case. On August 6, 2003, the court ruled in
that case.
The land was subsequently taken into trust. On October 9,
2003 a proclamation of reservation was published in the Federal
Register and issued on July 13, 2004. That is where we are
today. We understand, as stated before, that the tribe has
submitted, is working on a class III gaming compact. We have
not received that compact because of the issues that were
raised in the previous testimony. The tribe nevertheless is
entitled to do class II gaming on the site at this point. If
the bill is enacted, I think it will probably require the tribe
to close down its gaming activities for class II gaming because
essentially they may not satisfy the requirements of section 20
of IGRA. So the land would not be Indian lands over which a
tribe has jurisdiction and satisfies the requirements of
section 20.
This concludes my testimony at this point. I will be happy
to answer any questions you may have.
[Prepared statement of Mr. Skibine appears in appendix.]
The Chairman. Thank you very much. Are you aware of any
other cases in which Congress has retroactively deemed land to
have been taken into trust prior to 1988 in order to relieve a
tribe of having to comply with IGRA?
Mr. Skibine. I am not aware of it. That might not mean that
there is not anything out there, but I am not aware of it.
The Chairman. You indicated that the applicable section of
the Omnibus Indian Advancement Act mandated the secretary to
take the land into trust without consideration of the factors
in the land acquisition regulations. Can you list some of those
factors that did not have to be considered?
Mr. Skibine. Sure. Essentially because it was a mandatory
acquisition, that means that the decision of the secretary is
essentially ministerial. That means that the BIA does not have
to comply with the requirements of the National Environmental
Policy Act, NEPA, which the tribe was in the process of
complying with at the time the act was passed. Under our
regulations, we require consultation with the local community
that has jurisdiction over the site. This was therefore
bypassed also.
In the decisionmaking process, the acquisition of land is
discretionary, but the Secretary follows the criteria in
section 151 which are objective criteria. One of the things we
look at is if there is what is the impact of taking the land
off the tax rolls.
Another issue we look at is the need of the tribe for the
land, what the purpose will be for the acquisition. We also
look at whether there will be any conflicts in land use and
whether there will be jurisdictional issues raised by taking
the land into trust. We also look at whether the bureau is able
to discharge its responsibility with acquiring new land into
trust.
The Chairman. What is the status of the land parcels at
issue here? Are they currently held in trust for the Lytton
Rancheria?
Mr. Skibine. Yes; they are. As Senator Feinstein pointed
out, the bill does not change that. The land will continue to
be held in trust. The tribe will have to comply with the
requirements of section 20 of IGRA because it will be after-
acquired lands.
The Chairman. Do you consider a 1,000-slot machine casino a
small casino?
Mr. Skibine. No; I do not think that, in my experience, a
1,000-slot machine casino can be considered a small casino. It
is true that in California there are casinos with 1,000 or more
slot machines, but I do not think we would consider those small
operations.
Senator Dorgan.
Senator Dorgan. Mr. Chairman and Mr. Skibine, the Lytton
Band's testimony indicates that they believe this would be
deemed an unconstitutional Fifth Amendment taking. Has the
Department analyzed the legislation and determined whether it
would result in a taking and whether that may subject the
Federal Government to some future liability?
Mr. Skibine. Yes; we have look at this issue and the
department has determined that there would not be taking
implications with this legislation.
Senator Dorgan. I have no further questions.
The Chairman. Do you agree with Senator Feinstein's comment
that even though the Lytton Rancheria has decided to only
engage in class II gaming, that at any time they could change
that to a status class III gaming operation?
Mr. Skibine. That can change if the tribe successfully
enters into a compact with the State of California and that
compact is approved by the Secretary of the Interior and notice
of its approval is published in the Federal Register. Right
now, apparently there are problems with that, but it could
happen.
The Chairman. Thank you very much. Thank you for coming
this morning. It is nice to see you again.
Mr. Skibine. Thank you very much, Mr. Chairman.
The Chairman. Our next panelist is Sharon Brown, who is a
councilmember of the city of San Pablo, CA. She is accompanied
by Brock Arner, the city manager of the city of San Pablo;
Margie Mejia, who is the chairperson of the Lytton Rancheria.
Assemblywoman Hancock, are you still here? Would you like
to join the panel and make a comment? You are certainly welcome
to do so.
Senator Dorgan. Mr. Chairman, I am supposed to be speaking
on the floor of the Senate at 10:15 a.m., so I am going to
depart. I will try to come back before this panel is completed
if I am able to do that. I have reviewed the testimony,
however, and appreciate very much the witnesses being here. I
apologize to you, Mr. Chairman, for having to do that, but the
schedule on the floor, as you know, is pretty uncertain and I
am called to go over there at this point.
The Chairman. Thank you very much, Senator Dorgan.
Ms. Brown, welcome.
STATEMENT OF SHARON J. BROWN, COUNCIL MEMBER, CITY OF SAN
PABLO, SAN PABLO, CA, ACCOMPANIED BY BROCK ARNER, CITY MANAGER
Ms. Brown. Good morning. I believe like the rest of the
world, I have a cold. Hopefully my voice will hold out long
enough.
Good morning, my name is Sharon Brown. I have been a San
Pablo city council member for 21 years and have served as Mayor
for 4 of those 21 years. I was formerly the chairperson of the
Metropolitan Transportation Commission and the Association of
Metropolitan Planning Organizations in Washington, DC.
In the early 1990's, the city of San Pablo faced
bankruptcy. Things were so desperate that the city was forced
to borrow $4 million to meet payroll during that year. Our
former city manager approached the city council with the idea
of attracting a card room to San Pablo. After a lot of thought,
we put the item to a vote for the constituents and it passed 67
to 33 in a landslide.
During the campaign, as with other gambling situations,
there was also opposition to us, talking about prostitution,
drugs, et cetera. I will tell you that none of that has
happened. The proposed site was a section 8 mobile home park
and a bowling alley. In 10 years, the crime rate has actually
dropped dramatically. The money generated from the card room
has allowed the city to fund police and recreation programs. We
have basically repaved the entire city and we have a major
decrease in crime.
The card room has also provided new entry-level jobs to
residents who needed them the most. Many of these people were
on welfare their entire lives. Revenue from the card room to
the city decreased dramatically in 1990's due to the Asian
economy and no smoking rules in California.
Plus, there is additional development of nearby Indian
casinos. These Indian casinos are as close as a 90-mile or 90-
minute drive from San Pablo, and at least one is within 25
miles of the State capital. We are referring to the River Rock
Casino in Santa Rosa, the Cache Creek Casino in Yolo County and
the Thunder Valley Casino in Lincoln.
We also wish to point out that the Indian casino in
Highland, CA is situated in an urban-suburban area much like
Casino San Pablo. And please remember, this was a card room at
the time that the Casino San Pablo came into operation.
You have heard about the Federal Government wrongfully
terminating the Lytton Band of Pomo Indians in the 1950's,
resulting in the transformation of their ancestral land into
vineyards. In 1988, the Federal courts ordered that the
Government reverse its decision to terminate the tribe and
restore the Lytton Band of Pomo Indians to full tribal status.
Unfortunately, the court also precluded the Lyttons from
returning to their ancestral lands. I am sure that there is a
lot of nice wine produced there.
The tribe has previously been rejected by a number of
cities closer to their ancestral lands and returned to San
Pablo only because of the existing card room. In 1999, the city
council unanimously approved a municipal services agreement
with the Lytton Band of Pomo Indians acknowledging that type-
III gaming would be coming to the city of San Pablo. Following
the agreement, both the city and tribe approached Congressman
George Miller and requested he introduce legislation to allow
the full Federal Government to take Casino San Pablo into trust
on behalf of the Lytton Band of Pomo Indians. This was
extremely cooperative and a full partnership between the city
and the Indian tribe.
In the fall of 2000, Congressman Miller introduced the
enabling legislation which was unanimously supported by the
city of San Pablo city council because it would bring much-
needed jobs and economic growth to the region which were both
vitally needed. Congressman Miller's legislation was part of an
Indians appropriation bill and was published in the Federal
Register, as is all legislation.
This bill sat in the committee for 3 months prior to being
approved by the House of Representatives, the Senate, and being
signed into law by the President of the United States. This
bill received considerable media attention while undergoing the
legislative process. Given this process, it is difficult to
understand how anyone can describe this as stealth legislation.
Additionally, after the President signed the bill into law,
Nevada Senator Harry Reid attempted to repeal the San Pablo
legislation, which was unsuccessful in that attempt. Senator
Inouye was a particularly strong advocate in opposing Senator
Reid's proposed amendment.
The committee might ask why San Pablo has embraced Indian
gaming. The reasons are many, but relatively straightforward.
San Pablo had the lowest per capita income of any community in
the San Francisco Bay Area. The per capita income of San Pablo
is far less than the national average, yet housing prices in
the Bay Area and San Pablo are some of the most expensive in
the United States.
Eighteen percent of our residents live below the poverty
line as defined by the Federal Government. The unemployment
rate in San Pablo and West County is 175 percent of the county
average. The city of San Pablo serves more free meals to
seniors than any other location in Contra Costa County; 44
percent of our residents are Latino, with the remaining 56
percent being Lao, Vietnamese, African Americans, Cambodians
and Anglos; 92 percent of our residents commute outside the
city for their employment.
As daunting as these statistics are, many of the
neighborhoods just outside our city limits in the
unincorporated county and the city of Richmond are in even
worse financial situations. Job growth and economic development
needs are apparent and the Lytton Compact is the best
opportunity to achieve both.
There is one uncommissioned study on the casino thus far,
and it should be viewed as an objective analysis. The
University of California Graduate School of Planning concluded
that the proposed compact negotiated by the tribe and the
Governor of the State of California would provide the residents
of San Pablo and West County with entry-level jobs, that it
would increase these employees' earnings by 350 percent. These
earnings are augmented by health insurance and retirement
benefits.
The Lytton Tribe also commissioned an economic analysis of
the proposed compact. This study forecast the creation of more
than 3,000 new and permanent jobs at Casino San Pablo if the
compact is ratified by the legislature. The compact before the
legislature would allow up to 2,500 slot machines and 200
gaming tables. The same study estimates that local agencies in
the State of California would gain $155 million annually to
mitigate impacts and provide much-needed revenue to the State.
The same study also forecast more than $600 million in
economic benefits throughout the region. It is the highest
amount of revenue-sharing ever offered by a tribe to the State
and local governments, and for the first time ever includes
revenues from table games.
The Chairman. Ms. Brown, you will have to summarize your
statement. We usually like to have 5 minutes. Please go ahead.
Ms. Brown. Okay. I was looking for a button or something up
there.
We in the city of San Pablo believe the Lytton Band of Pomo
Indians have been the best neighbor and partner imaginable. The
Lytton Band, despite being abused by the Federal Government in
the past, has negotiated agreements with the city of San Pablo
and the State of California that ensures that their facility
will have a positive impact on a community most in need.
It is a sad commentary that the State legislature has not
approved the proposed compact and a sadder commentary that the
Senate would consider legislation that would rob the tribes
sanctioned rights. I urge you to reject S. 113.
Thank you.
[Prepared statement of Ms. Brown appears in appendix.]
The Chairman. Thank you very much.
Chairperson Mejia, welcome.
STATEMENT OF MARGIE MEJIA, CHAIRPERSON, LYTTON RANCHERIA, SANTA
ROSA, CA
Ms. Mejia. Thank you. Thank you for inviting me here today
and thank you in particular, Senator McCain, for the
understanding and support you have shown to Native Americans.
My name is Margie Mejia and I am the chairwoman of the
Lytton Band of Pomo Indians. To understand why we are here
today, it is important to understand something about the
history of our tribe. Like most California tribes, we are a
small group with about 275 members. Like many other California
tribes, most of our members live in poverty. Many have no or
inadequate health care. Alcoholism and substance abuse is a
continuing problem. We have many families living together in
tiny apartments. Only one of our members is buying a home.
But until the 1950's, we did have land. That land was in
Sonoma County and today this is the site of some of the most
prestigious wineries anywhere in the world. But the reason that
today there are vineyards on that land instead of our homes is
a result of actions taken by the Federal Government. But we
never lost our sense of existence as a community. Many of us
continue to live together and to take care of tribal members in
need and we do this even to this day.
Eventually, we sued the United States and the outcome of
that suit was that the Federal Government admitted it had
broken promises it had made in the termination agreement. In
1991, our tribal status was restored. However, that settlement
effectively barred us from returning to our tribal lands in the
Alexander Valley by prohibiting us from operating a gaming
facility in that area. We had no choice but to agree to this
condition because otherwise, with little or no resources of our
own, we would have been forced to fight a protracted legal
battle against a group of wealthy wineries and the county.
After restoration, we reestablished our tribal government,
passed a constitution and elected a tribal council. We also
began to look for a means out of the relentless poverty many of
our members face and to rebuild our tribal community. We turned
to gaming because the government offered that to us as a means
of economic development and because it generates enough money
to allow us to get a loan and finance the rebuilding of our
tribe and our tribal community.
The 1991 restoration agreement, while barring us from
operating a gaming facility in Sonoma County, did not foreclose
our right to find another community that might welcome us as
partners. We found our road to economic self-reliance in the
city of San Pablo, where with the help of private investors we
purchased an existing card club that had been approved by local
voters in 1994.
The city and the tribe then negotiated a municipal services
agreement. At that time, such an agreement was unprecedented in
California and was the most attractive agreement between local
interests and an Indian tribe in California.
But there were other hurdles to come. Although it was the
Government's wrongful actions which resulted in the loss of our
land, by the time the Government had admitted that and prepared
to make good for our loss, the legal landscape for tribes had
changed. A law had been passed which made it extremely
difficult for tribes to operate gaming on lands taken into
trust after 1988 unless Congress made the land eligible. Even
though it was not our fault that we were in this position, and
although the law had not been intended for landless tribes, but
rather tribes with existing reservations, our efforts to seek
help from the Department of the Interior went nowhere.
Finally, Congress acted to take that land into trust for us
as it has in the case of many other tribes in California and
other States. This was the final option after we had tried
everything else. Thanks to the efforts of Congressman George
Miller, that proposal was introduced in legislative form in
October 2000. On December 27 of that year, the President signed
that bill into law. There were newspaper articles about this at
the time and subsequently there were two attempts to repeal
this proposal. Neither of those met with success.
Senator Feinstein's legislation represents the third time
there has been a proposal to take this land from us. We believe
it would be legally wrong to do that. Section 819 conferred a
highly valuable property right on our tribe by specifically
entitling us to acquire land into Federal trust for Indian
gaming. The Feinstein bill would deprive us of this right to
conduct gaming on the land and would be a taking under the
Fifth Amendment of the U.S. Constitution.
That act of taking land into trust for us in San Pablo was
not the beginning of this story. It was the end of a very long
story, a story of poor treatment of our tribe at the hands of
the Federal Government. That was an act of redress, making good
the wrong that had been done to us more than 50 years before.
To have simply said we are sorry and offered up a paper apology
for the treatment of our tribe would have been wrong. Taking
that land into trust represented a meaningful act of redress.
Taking that land out of trust would make that gesture so many
empty words.
That is the background to our proposal for a casino project
on our land in San Pablo. Our initial proposal in 1999 was for
a modest gaming operation, something on the order of 1,000 slot
machines. In the proposed compact that we signed with the
Governor last year, that number was originally 5,000 and was
revised down to 2,500 machines. Since there has been some
controversy about the change, let me address that for a moment.
When we made our initial proposal in 1999, no compact, not
ours or any other tribe's, provided for any revenue sharing
with the State of California, nor did these compacts provide
local and State government opportunities for substantive
environmental review, mitigation of local impacts, or
involvement in gaming regulation.
We stepped up to the plate to do just that, reaching an
agreement to pay an unprecedented 25 percent of net gaming
revenues to the State and local government to pay our fair
share of public services and environmental mitigation. But that
commitment also required more slot machines than originally
envisioned.
We have agreed to two exhaustive environmental impact
reviews prior to anything being built. These provisions are
modeled on the California Environmental Quality Act, such as
the inclusion of project alternatives mitigation and citizen
participation in the process. But the compact took one further
step by requiring the tribe to complete agreements on
mitigation measures with its neighbors in the city of San
Pablo, the local county and the State Transportation
Department.
Over and above our compact obligations, the tribe has spent
the past months engaged with the community to hear their hopes
and concerns about our project. As a result, we reduced the
size and scope of our project to make it a better fit for the
community, while still offering the creation of more than 6,000
new jobs. We negotiated and signed that compact with the
Governor of California. We had the strong support of the city
of San Pablo where the casino would be located. We believe that
the proposed compact represented a good deal for all parties.
Notwithstanding all that, as you know, the California State
legislature has chosen not to act on the compact. As a result,
we will now focus on exercising our rights under Federal law.
We will renovate the interior of the existing building to make
it more attractive and to offer a wider variety of class II
gaming activities, including class II electronic bingo games.
These are not the video lottery terminals. They will fall well
within the definition of what constitutes class II gaming. We
do not intend to push the envelope.
Senator McCain, we did not ask to be in this situation. We
did not ask the Federal Government to take our name and our
land, but that happened. Now, decades later, when this
Government has finally acted to right those wrongs, we believe
it would be wrong to take away our right to pursue economic
self-sufficiency, which is effectively what Senator Feinstein's
bill would do.
If this body wishes to address various issues associated
with Indian gaming, so be it. But I respectfully ask you,
Senators, not to go back and retroactively change the rules for
us. What this body did in 2000 was to do the right thing. It
was to make good a wrong the Federal Government had committed
against our tribe. I ask you to let that act of justice stand.
Thank you.
[Prepared statement of Ms. Mejia appears in appendix.]
The Chairman. Thank you very much.
Assemblywoman Hancock, welcome.
STATEMENT OF LONI HANCOCK, ASSEMBLY MEMBER, 14th ASSEMBLY
DISTRICT, SACRAMENTO, CA
Ms. Hancock. Thank you, Senator McCain.
My name is Loni Hancock. I serve as an assembly member in
the California State legislature. My district is in the East
San Francisco Bay Area and includes the cities of Oakland,
Berkeley, Richmond, and San Pablo.
First, let me thank you, Senator McCain, for having this
hearing today. Senator Feinstein's legislation would require
advocates of Casino San Pablo to follow the two-step process
laid out under the Indian Gaming Regulatory Act. I want to
express my support for Senator Feinstein's legislation.
Second, I would like to speak about the role of the State
legislature and the legislative history regarding Casino San
Pablo. As you know, in order for a tribe to open a casino, they
must negotiate a gambling compact with the Governor. That
compact is then subject to ratification by the State
legislature. The Casino San Pablo proposal came to my attention
in August of last year when it was submitted to the legislature
by the Governor as a package of five compacts in the last week
of the State legislative session when the legislature was
voting on over 100 bills.
The compact negotiated between the tribe and the Governor
authorized 5,000 slot machines in a six-story, 600,000 square
foot building. To put these figures into perspective, the
compact would have made Casino San Pablo the third largest slot
machine operator in the country. Only the two casinos in
Connecticut would be larger operations.
In terms of square footage, this casino would have been the
size of six Wal-Marts combined. It would be built in the middle
of the already heavily congested San Francisco Bay Area.
Other provisions in this compact allowed the Governor's
chief financial officer in his or her sole discretion to
completely obviate any or all of the local government
mitigations provided in the compact. After sustained
legislative opposition, the compact was amended to reduce the
number of slot machines to 2,500.
This amended compact created a casino with as many slot
machines as any major casino on the Las Vegas strip. But also
included in the revised compact is a provision allowing
renegotiation of the number of slot machines in 2008. In
essence, this provision would make it possible for the casino
to go right back to a request for 5,000 slot machines.
Given the nature of this revised compact, my colleagues in
the State legislature made it clear they would not ratify the
compact.
The Casino San Pablo proposal touches on many of the
complex issues surrounding the expansion of Indian gambling in
California and the expansion of off-reservation casinos. In
2000, the voters of California passed initiative Proposition
1A, amending the State constitution to provide economic
development opportunity by authorizing gambling casinos in
rural areas and on traditional tribal lands. That was the
intent of proposition 1A.
What we have seen since proposition 1A's passage is some
tribes with ambiguous ancestral titles to a land parcel making
claims to that land for the sole purpose of operating a casino.
In the San Francisco Bay Area alone, we face the proposed
development of up to five casinos within a 15-miles radius by
tribes who have scant, if any, ancestral connection to those
lands. California is experiencing a proliferation of proposals
for Indian gambling casinos that have little to do with self-
sufficiency on tribal lands. These off-reservation casinos in
reality are being supported by aggressive out-of-State casino
developers who clearly hope to build casinos in every urban
area of the State.
Keep in mind that in California, Nevada-style gambling is
illegal. Through proposition 1A, it was intended to be legal
only for Indian tribes on their traditional tribal lands.
Finally, I would like to talk briefly about the community
opposition to Casino San Pablo. Polls conducted by KPIX, our
local TV station, showed that 57 percent of the respondents
opposed the casino. I personally sent a survey to every
household with a registered voter in my Assembly district.
The returned survey showed overwhelming opposition. Survey
results indicated district-wide, 91 percent opposition to the
casino, and my staff broke down the results by city, and even
within the city of San Pablo, where the casino would be located
and where people had been promised jobs and revenues for the
city budget, over 64 percent of the returned surveys opposed
the casino.
Cities like Albany and Berkeley in the surrounding
community who will experience the negative impacts of increased
traffic, crime and gambling addiction have taken positions
against the proposed casino. Other cities are considering
similar resolutions, and today the local county board of
supervisors will be considering a resolution against urban
gambling and against urban casinos.
Mr. Chairman, I have thousands of letters, e-mails, surveys
that say that Casino San Pablo is a bad economic development
strategy for our community and our State. You have heard that
the Lytton Band of Pomo Indians no longer intends to build a
Las Vegas-style casino. The proponents have said that they will
operate only class II electronic bingo machines, but the 2,500
slot machine compact is still on the table.
Recently, a letter sent by the tribe to members of the
State legislature states that the tribe remains confident that
this or a future legislature will eventually recognize the
benefits of the compact negotiated with the Governor. This is a
2,500-slot machine casino with the ability to negotiate for
even more slot machines when the environment is more
politically favorable for them to do so.
So in the final analysis, I believe that the legislation
authored by Senator Feinstein to remove the backdating, and
without that legislation the Lytton Tribe will continue to seek
a massive gambling casino at Casino San Pablo. This entrance of
tribal casinos on non-ancestral land in densely built urban
areas would set a precedent for authorizing off-reservation
gambling casinos in California and in every State where tribal
gambling is permitted.
Thank you again, Mr. Chairman, for holding this hearing. I
respectfully ask the committee to act in support of Senator
Feinstein's legislation.
[Prepared statement of Ms. Hancock appears in appendix.]
The Chairman. Thank you very much.
Chairman Mark Macarro, Chairman of the Pechanga Band of
Luiseno Indians. Welcome.
STATEMENT OF MARK MACARRO, CHAIRMAN, PECHANGA BAND OF LUISENO
INDIANS
Mr. Macarro. Good morning, Mr. Chairman. Thank you for the
opportunity to testify regarding S. 113, a bill to modify the
date as of which certain tribal lands of the Lytton Rancheria
of California is deemed to be held in trust.
My name is Mark Macarro. I am the duly elected chairman of
the Pechanga Band of Luiseno Mission Indians. I have been asked
to discuss the Pechanga Tribe's position with regard to S. 113.
The Chairman. What is your geographic position as compared
with Councilwoman Mejia's tribe?
Mr. Macarro. The Lytton Band is in Northern California in
the Bay Area. We are in Southern California, about 60 miles
north of San Diego, 20 miles inland of Camp Pendleton.
The Chairman. And does your tribe engage in gaming?
Mr. Macarro. We do.
The Chairman. How big a casino do you have?
Mr. Macarro. We have a 522-room hotel and 2,000 slot
machines.
The Chairman. Please proceed. Thank you.
Mr. Macarro. Thank you.
The Pechanga believe that each and every federally
recognized tribe is a sovereign and in its own right enjoys all
the rights and privileges that flow from sovereignty, including
the right to pursue economic development opportunities which
improve the quality of life for all tribal members. However, it
is our sincere belief that all Indian tribes also have a
responsibility to the larger community and that the specific
instance of the backdating of the fee-to-trust acquisition of
the Lytton Rancheria is contrary to the best interests of all
of Indian country.
The Pechanga Tribe supports S. 113 for two reasons. First,
we believe that the Lytton fee-to-trust acquisition should
follow the same procedure that all other tribes must follow to
authorize gaming on what are termed after-acquired trust lands.
While the process is not perfect, it allows tribes, States and
local communities to have input and a chance to participate in
the process, including the ability to resolve differences
before decisions are made. The manner in which this acquisition
was placed into trust deprived those communities who are most
affected by the acquisition a chance to address important
issues before the land was placed into trust.
The other reason we support this legislation is that it
will reverse an action which violates a promise that all
California Indian tribes made to the citizens of California
when propositions 5 and 1A were considered and approved. During
the time those propositions were considered, tribes in
California pledged that the passage of those propositions would
not result in the proliferation of urban gaming, but would be
confined to a tribe's existing reservation lands, the vast
majority of which are not located in urban areas.
The legislation which directed the Lytton land acquisition
to be placed into trust status violated that public policy
promise to the citizens of California and denied the citizens
affected by the acquisition to play a part in the process which
determines whether land should be placed into trust status.
We believe S. 113, by providing that the trust acquisition
of the Lytton Rancheria, while remaining in trust status, is
considered to be placed in trust as of its actual date of
acquisition. It levels the playing field. It requires the
Lytton Rancheria to deal with the local community and the
Governor before it may operate gaming on the parcel, or it must
apply to the BIA before the land can be declared meeting one of
the exceptions to the prohibition on gaming on lands acquired
after October 17, 1988.
Both processes provide for more detailed, thoughtful
consideration on the merits of the application before gaming
can be conducted on those lands.
This concludes my testimony. Again, I would like to thank
you for the opportunity to provide our views on S. 113. I would
be happy to answer any questions you may have.
[Prepared statement of Mr. Macarro appears in appendix.]
The Chairman. Thank you very much.
Ms. Mejia, how do you respond to Chairman Macarro's comment
that a commitment was made at the time of the passage of the
propositions 5 and 1A that there would not be an expansion of
Indian gaming in urban areas?
Ms. Mejia. As I stated in my testimony, back in 1999, the
compacts that were signed with the State of California and 62
tribes were signed September 9 of 1999. We had already
negotiated, were in negotiations with the city of San Pablo on
our municipal services agreement. We were in every paper and,
you know, we were going into an existing facility in a
community that had already passed a referendum for gaming. We
were not hiding anything.
The Chairman. Why was it that your tribe was not included
in this ballot proposition which gave numerous tribes the
opportunity to engage in a compact with the State?
Ms. Mejia. Governor Davis said that we could not enter into
that agreement because we did not have the land in trust. When
I attended the compact negotiations with the other tribes of
California and asked them to put language in there that would
apply to us, they said no, that they needed to move forward.
They had to act in their tribe's best interests and that is
what they did.
The Chairman. Ms. Brown, your view of the public support
for this enterprise seems to vary rather dramatically from
Assemblywoman Hancock's view of the support for this
enterprise.
Ms. Brown. We had 2,000 petitions of support in the last
few months.
The Chairman. You have to move the microphone closer.
Ms. Brown. I am sorry.
We had 2,000 petitions of support in the last few months,
which have been submitted.
The Chairman. Is the tribe currently operating a casino at
the San Pablo site?
Ms. Mejia. The tribe is currently operating a class II
facility.
The Chairman. And how many members of our tribe are
employed there?
Ms. Mejia. Actually, right now, none, because we have not
been able to. We have been working toward doing this and the
card club is not generating revenue for teaching job skills and
addressing those issues so that they can participate in
employment there. Right now, it is just operating as it was
before. Hopefully with the move to adding the class II
machines, we will generate revenue. We will bring in tribal
members to work there.
The Chairman. Assemblywoman Hancock, do you have objection
that class II gaming be conducted?
Ms. Hancock. I think that it would be a good idea if it
were part of the two-step negotiations that I understand are
required under IGRA. Certainly, class II gaming, although my
understanding, again, is that the electronic bingo machines
look and feel very much like slot machines and that there would
be obviously an impact on the community from that.
I think it would be good to have those impacts discussed,
which is one of the reasons that I support Senator Feinstein's
bill. But in addition, the fact is that right now the 2,500-
slot machine compact is still before the California
legislature. It can be brought forward at any time that the
proponents believe they can get the votes. I think it
illustrates the enormous pressures and problems that we are
facing in California around off-reservation gambling.
So it seems to me that simply as a fairness measure, there
ought to be the community discussion around the traffic impacts
and the social impacts of class II gambling in a very densely
built-up region. The city of San Pablo is actually a city of
30,000 people, totally surrounded by the city of Richmond, also
a very poor city, that will benefit in no way from this
compact.
The Chairman. Go ahead, sir.
Mr. Arner. Senator, you have asked a question about size of
casinos and the number of slots previously. I would like to
respond to that. I am Brock Arner, the city manager.
Thunder Valley Casino within 48 miles of the capital of the
State of California has 2,700 slot machines. Cache Creek has
2,500.
The Chairman. Not much different from the original proposal
of 2,500.
Mr. Arner. No, sir; it is not. What I was trying to show
was the relative request of the Lytton Band of the Pomo Indians
in this regard.
I would also like to point out that no local city other
than Albany has opposed. None of our neighbors have opposed
this proposal by the Lyttons. The 3,000 jobs that would be
generated by this proposal will greatly benefit the residents
of the city of Richmond who are even poorer than the residents
of the citizens of San Pablo. Finally, $150 million would be
made available to State and local governments to offset and
mitigate issues like traffic raised by this proposal. That is
in the compact negotiated by the Governor with Tribal Chair
Mejia.
I am almost finished. I am sorry for taking your time.
The Chairman. Go ahead.
Mr. Arner. We have also received support from the Richmond
Chamber of Commerce, the Rodeo Chamber of Commerce, the San
Pablo Chamber of Commerce, and a variety of other clubs,
including the Rotary Club in San Pablo, supporting the job
creation and the economic development in the poorest area of
the Bay Area as a result of Casino San Pablo and the proposed
type III gaming.
The Chairman. Your survey shows that 3,000 jobs, and how
much money would be created by this?
Mr. Arner. The University of California Graduate School
indicates that the jobs are attainable by the folks that we
serve. Those 3,000 jobs are identified an economic analysis
paid for by the tribe.
The Chairman. 3,000 jobs and how much money?
Mr. Arner. They estimate $150 million annually to be
divided between the State of California, the county of Contra
Costa, the city of San Pablo, and CALTRANS.
The Chairman. Chairman Macarro, how many slot machines are
in your operation?
Mr. Macarro. We have 2,000.
The Chairman. Have you created anywhere near 3,000 jobs
associated with that?
Mr. Macarro. Actually, yes. We have about 5,000 employees.
We are the second-largest private employer in Riverside County.
The Chairman. It is interesting to me that many times where
gaming operations take place, there is very little impact on
the surrounding community. Has that been your experience,
Assemblywoman Hancock?
Ms. Hancock. Well, this is really my first experience with
urban gambling. I have learned more about gambling than I ever
thought I would, since last August, Senator McCain.
The Chairman. During March Madness, it is appropriate.
Ms. Hancock. Really. [Laughter.]
Ms. Hancock. One of the things I have learned is that there
are a number of studies indicating other things. A study that
was commissioned by a coalition of card rooms, from Professor
William Thompson at the University of Nevada, estimated that
the Bay Area economy would lose $138 million a year as a result
of the casino. It is based very much on an analysis that he
calls the difference between destination gambling and grocery
store gambling.
Destination gambling, meaning when people fly to a place
like Las Vegas, they are on vacation. They know what they can
afford to lose and spend. They leave their money in Las Vegas
and they go home. If you do not have a destination, what you
have is grocery store gambling where he estimates 80 to 90
percent of the customers would come from the adjacent area, a
very poor area.
This is where somebody is driving by, they decide to stop.
They just got their paycheck and pull the handle or press the
button a few times, and they leave without the lunch money for
the kids. They leave without the money for clothes or rent. And
this is money that would go back into the local economy, but
instead it goes out, 30 percent or so, to the investors who are
typically out of State gambling casino operators and the rest
in various places.
So that the economic impact on the communities may be to
move money around, but it actually can be a very negative
economic impact.
The Chairman. Chairwoman Mejia, would you like to make any
additional comments?
Ms. Mejia. No; I would just urge the committee, Senator
McCain, yourself, to really look at the impact this is going to
have on my people.
The Chairman. Thank you.
Ms. Brown.
Ms. Brown. Basically, the same as Margie Mejia, is that the
concerns we have in San Pablo is the impacts for San Pablo.
The Chairman. Thank you very much. This hearing is
adjourned.
[Whereupon, at 10:48 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
=======================================================================
Prepared Statement of Hon. George Miller, U.S. Representative from
California
Mr. Chairman and members of the committee, thank you for the
opportunity to testify today.
And Senator Feinstein, it is good to be with you. While you and I
do not agree on this particular matter today it is always good to work
with you on issues that affect the State of California. I appreciate
what you do for us.
Mr. Chairman, with your permission I would like to submit my
written statement for the record.
I would also like to recognize several constituents and local
representatives who will testify later today.
Assemblywoman Loni Hancock is a strong advocate for her district
and. I appreciate her being here.
And Mayor Sharon Brown and City Manager Brock Amer of the city of
San Pablo are here. They are working very hard to stimulate economic
development in their city and I appreciate their efforts on behalf of
the resident of San Pablo.
Today's hearing concerns the Lytton Band of Pomo Indians and the
city of San Pablo in my district and their effort to work together to
meet mutual goals of desperately needed economic development. I support
their efforts.
My involvement with this matter dates back to 1999 and 2000 when I
was approached by the city to discuss its interest in working with the
Lytton Band to help them acquire an existing card room in San Pablo for
the purposes of renovating it and building a modest sized casino.
The tribe made a good faith effort to work through the Department
of the Interior to win the right to acquire this land for the purposes
of gaming under the Indian Gaming Regulatory Act [IGRA] but due to
special circumstances affecting the tribe, it is my understanding that
the tribe was told by the Department that they would be turned down.
After much discussion and a detailed review of the circumstances, I
agreed to help the city and the tribe. I supported their project for
several reasons:
<bullet> \\\\\\the local community, including the police department,.
supported the project;
<bullet> \\\\\\the city stood to make significant economic
development gains from the project;
<bullet> \\\\\\the tribe had a clear need and a legitimate right to
pursue lands for the purposes of economic development and made
a good faith effort to work through the Department of the
Interior to do so;
<bullet> \\\\\\I have a long standing history of supporting the
sovereign rights of Indian tribes.
The issue of whether or not American Indians should be involved in
gaming is not at issue here. There are opponents of gambling for many
reasons, some personal, some moral, some simply competitive. And of
course there are many proponents of gaming. There are card rooms
throughout the Bay Area, an extensive lottery program, and the
California constitution allows for Indian gaming. Personally, I am
neither a proponent nor opponent of gaming per se. I am, however, a
strong defender of economic development and of Indian sovereignty.
As you will hear in greater detail later today from the Lytton's
tribal chairwoman, Marge Mejia, the Lytton Band was wrongfully
terminated in the 1960's. A Federal court restored its tribal status in
1991. The Lyttons are a poor people, many of whom are homeless. The
tribe is concerned about preserving its tribal heritage and providing
economic means for its members.
The city of San Pablo and the Lyttons have much in common.
San Pablo is one of the poorest cities in the Bay Area. A small
city with little economic activity, it has a poverty rate of 18
percent--twice that of the entire Bay Area and more than twice that of
Contra Costa County. Its ``unemployment rate is higher than that of the
Bay Area and the county. More than 90 percent of the city's residents
work outside of the city, because there are just not enough jobs
created within the city.
The key question before the committee is whether it was appropriate
for the Congress to have passed section 819 of the Omnibus Indian
Advancement Act in 2000 on behalf of the Lytton Band. I believe that it
was appropriate and that the provision should stand as written.
As you know, the U.S. Constitution gives Congress plenary authority
over Indian tribes to pass laws for their benefit. Congress is fully
within its rights to pass legislation directing the Secretary of the
Interior to place lands into trust for a particular tribe and does so
on a regular basis.
In the 108th Congress, at least 10 bills became law that placed
lands into trust for various reasons to benefit various Indian tribes.
This may happen for any number of reasons that Congress determines is
prudent. It may be as part of a settlement agreement of a land claim,
or in the instance of the Pechanga Indian Tribe, who are scheduled be
testify later, the desire to protect certain important lands from
possible desecration.
Last Congress, we even took lands right out of a national park and
had it placed in trust for one tribe. In the Gila River water
settlement law we required an act of Congress occur to bring some lands
into trust for that tribe.
In most cases, including the ones I mention here, the tribe
attempts to go through the BIA process, becomes frustrated for one
reason or another, and comes to Congress to plead its case. In fact,
the highly touted bill that the Lytton provision was--in also included
14 other provisions to take lands into trust for Indian tribes,
including one provision that held the land be considered in trust as of
1909.
The Lyttons had a special circumstance that I believe distinguished
them from most other tribes in California and that necessitated
congressional action.
The 1991 Federal court settlement that restored Lyttons' tribal
status and that of numerous other California tribes included one
unusual provision that pertained only to the Lyttons.
The court order restoring the Lyttons' tribal status contained a
unique limitation that precluded the Secretary of the Interior from
taking land in Sonoma County the Lytton's ancestral lands--into trust
for the benefit of the Lytton Band for any use that was inconsistent
with the Sonoma County General Plan. In effect, the limitation denied
Lytton any right to use its ancestral land for gaming.
The order however did not put any restrictions on the ability of
Lytton to pursue other lands for gaming or other activities.
This limitation created a special circumstance when the Lyttons
appealed to the Department of the Interior for an exception under the
Indian Gaming Regulatory Act for permission to have lands put into
trust and to be allowed to conduct gaming.
The lands that the tribe sought were not their ancestral lands, nor
contiguous with its ancestral lands. It is my understanding that the
Bureau of Indian Affairs [BIA] denied the tribe this exception under
IGRA because of this land issue. And yet, as I explained, the court
settlement forbade the tribe from using their ancestral lands.
The Lyttons are the only tribe in California--and perhaps the only
tribe in the United States--that, as a condition of the restoration of
its tribal status, was expressly deprived of the opportunity to
exercise rights under the Indian Gaming Regulatory Act on its ancestral
land.
I do not believe that existing law anticipated this unusual
circumstance and therefore Congress, which has the authority to
intervene in these matters, appropriately remedied this situation.
This is what the issue boils down to. Through no fault of its own,
the Lytton Tribe was illegally stripped of its status as a federally
recognized Indian tribe and denied its rights for decades until it was
restored to its proper status by our judicial system. Had the tribe's
status never been illegally terminated, there would have been no
question as to the Lytton's ability to operate gaming on lands within
its ancestral area.
I thought that the BIA would accept the land under the IGRA
exceptions for restored tribes, but was told it would not. I believed
that was a mistake, and even then Assistant Secretary for Indian
Affairs Kevin Gover was quoted at the time about the denial of Lytton's
request that ``it was a close call. A good case could be made that we
were wrong Gover said.
Every tribe's situation is different and must be evaluated
individually. But I believed then, and continue to believe now, that it
was the fair and right thing to do in this particular case to make the
Lytton Band whole again.
Not only do I believe that it was appropriate for Congress to have
acted on the tribe's behalf, but I want to be clear that the manner in
which Congress approved this legislation was entirely appropriate.
My Provision regarding the Lytton Band was added, along with
numerous other tribal issues, as an amendment to H.R. 5528, the Omnibus
Indian Advancement Act,'' in the full House.
All the provisions added were done so with the support of the
leadership of both the House Resources Committee and this committee as
a way to move some legislation that for whatever reason had not passed.
To make it clear this was a compilation of bills, the ``omnibus'' title
was given to the bill. This is a most appropriate way to move
legislation near the end of a Congress that has been bottled up. The
bill passed the full House on October 26, 2000.
H.R. 5528 was referred to the Senate Committee on Indian Affairs
and passed in the Senate by unanimous consent on December 11, 2000--45
days after its referral to the Senate and its being sent to both
respective cloakrooms for viewing and Senate notification.
Section 819 was identified by the heading ``Land to be Taken Into
Trust'' and, at all times, contained the name of the tribe and location
of the land. Any Senator who questioned or objected to any provision
had the opportunity to review the provision and to withhold consent
under the unanimous consent procedure. No Senator did so.
Under the provision, Lytton is subject to all of the provisions of
IGRA, including the requirement under California law that any compact
negotiated between the State of California and the Lytton Band be
ratified by the California legislature.
A compact was signed in August 2004, by the Governor and the Tribal
Chair, but it has not yet been ratified by the legislature.
I am on record as opposing both the size of the first proposed
compact between the State and the tribe and the revised proposed
compact. I hope that any final resolution on the compact will adhere to
the proposal originally presented to me by the tribe and the City. That
proposal called for a modest casino within the parameters of what
already exists at the card room, not a mega casino as is now under
consideration.
It should be noted, however, that the Lytton Band from the very
beginning went to unprecedented lengths to consult with the local
community and the State of California to forge an agreement with regard
to mitigating potential impacts of a new casino and sharing the
benefits of the casino with the community.
But the issue of the compact details is a separate matter.
The issue today is whether the tribe has the right to these lands
and whether Congress acted appropriately in conveying the lands to the
tribe. In both instances, the answer clearly is yes.
I do not believe Congress is justified in taking away from the
Lytton's the rights that Congress gave to it. Doing so would be a
significant breach of trust between Congress and the Indians, a trust
that has been broken so often in our Nation's history. And it would
also greatly undermine the economic development opportunity of an
impoverished tribe and an impoverished California city.
I believe that S. 113 is unwarranted and harmful but more
importantly I believe that it would be a dangerous precedent.
Governor Schwarzenegger expressed a similar view when he wrote to
Sen. Feinstein on September 20, 2004 about her legislation that, ``This
bill would set a dangerous precedent that could damage trust and faith
with the Lytton Rancheria Indian community.'' He added, ``Passage of
[this bill] will destroy the trust which has been built with the Lytton
and other tribal governments, not just in California but throughout the
Nation.''
Indian gaming in California is clearly a complicated matter, and
there are many aspects of the issue to resolve. But using the power of
Congress to take punitive action against the Lytton Band is neither
justified nor appropriate.
Thank you again Mr. Chairman and members of the Committee for the
opportunity to testify today.
______
Prepared Statement of Loni Hancock, Assemblymember, 14th Assembly
District California
Good morning Chairman McCain, Senator Dorgan, members of the
committee. My name is Loni Hancock and I serve as an assemblymember in
the California State Legislature. My district includes most of the East
San Francisco Bay Area including the cities of Oakland, Berkeley,
Richmond, and San Pablo.
Let me first say thank you for having this hearing today on S. 113
authored by Senator Feinstein. This legislation requires the proponents
of Casino San Pablo to follow the process set out under the Indian
Gaming Regulatory Act. So let me first clearly express my support for
Senator Feinstein's legislation.
Second, I would like to speak about the role of the State
Legislature and the legislative history regarding Casino San Pablo. As
you know, in order for a tribe to open a casino they must negotiate a
gambling Compact with the Governor of that State. That Compact,
negotiated between the tribe and the Governor, is subject to
legislative ratification by the State Legislature.
The Casino San Pablo proposal came to my attention in August of
last year. The Compact was submitted to the Legislature by the Governor
as part of a package of 5 compacts in the last week of the legislative
session when the Legislature was voting on roughly 800 bills.
The Compact--negotiated between the tribe and the Governor--
authorized 5,000 slot machines and a 6-story, 600,000-square-foot
facility. To put these figures into perspective, the Compact would have
made Casino San Pablo the third largest slot machine operator in the
country. Only the two casinos in Connecticut have larger operations.
In terms of square footage this casino would have been the size of
six Wall Marts combined. Keep in mind this casino would be built in the
middle of the already heavily congested San Francisco Bay Area. Other
provisions in this Compact allowed the Governor's chief financial
officer in his or her sole discretion to completely obviate any or all
of the local government mitigation provided for in the Compact.
After sustained legislative opposition, the Compact was amended to
reduce the number of slot machines to 2,500. This amended Compact
created a casino with as many slot machines as any casino on the Las
Vegas strip. Also included in the revised Compact was a provision
allowing renegotiation of the number of slot machines in 2008. In
essence, this provision made it possible for the casino to go right
back to 5,000 slot machines.
Given the nature of this revised Compact, my colleagues in the
California Legislature made it clear they would not ratify the Compact
or authorize an expansion of Las Vegas style gambling into one of the
State's most densely populated urban areas.
The Casino San Pablo proposal touches on many of the complex issues
surrounding the expansion of Indian gambling in California and the
expansion of off-reservation casinos. In 2000, the voters of California
passed a Statewide initiative--proposition 1A. Proposition 1A amended
the State Constitution to provide for economic development by
authorizing casinos in rural areas and on traditional ancestral tribal
lands. This was the intent of proposition 1A.
What we have seen since proposition 1A's passage is some tribes,
with ambiguous ancestral ties to a land parcel, making claims to that
land for the sole purpose of opening a casino. In the San Francisco Bay
Area alone we face the proposed development of up 5 casinos within a
15-mile radius by tribes who have scant, if any, ancestral connection
to those lands. In the case of the Lytton Tribe at Casino San Pablo,
the casino's location is 50 miles from Sonoma County--the traditional
ancestral territory of their tribe. In another case, the Koi Nation
Tribe is proposing to build a casino adjacent to the Oakland
International Airport. This casino proposal located in Oakland is
nearly 150 miles from the tribe's traditional lands in Lake County.
California is experiencing a proliferation of proposals for Indian
gambling casinos that have little to do with self sufficiency on tribal
lands. These ``off reservation'' casinos are, in reality, being
supported by aggressive out-of-state casino developers and their
lobbyists who clearly hope to build casinos in every urban area of the
State. Keep in mind that in California, Las Vegas style gambling is
illegal. Las Vegas style gambling was only intended to be legal only
for Indian tribes on their traditional ancestral land.
Finally, I would like to talk briefly about the community
opposition to Casino San Pablo. Polls conducted by KPIX our local TV
station showed that 57 percent of the respondents oppose the casino. I
personally sent out a survey to every household with a registered voter
in my Assembly District, which contains 156,000 voters and the returned
surveys showed overwhelming opposition. The survey results indicated
that 91 percent of my district is against the casino proposal. My staff
has broken down the results of the survey by city. Even within the city
of San Pablo--where the casino would be located--and where the city has
been promised jobs and revenues for the cities budget, 64 percent of
the returned surveys opposed the casino. Cities such as Albany and
Berkeley who are in the surrounding community and will experience the
negative impacts of increased traffic, crime, blight and gambling
addiction have taken positions against the proposed casino. In
addition, other cities are considering similar resolutions against the
Casino and against expanding urban gambling in general. In fact,
tonight, the local county Board of Supervisors, in which Casino San
Pablo resides, will be approving a resolution against urban gambling
and urban casinos. Mr. Chairman and members, I have thousands of
letters, e-mails and surveys that say that Casino San Pablo is a bad
economic development strategy for our community and for our State.
You will hear from the proponents of the Casino that they no longer
intend to build a ``Las Vegas'' style casino, that they no longer
intend to build entertainment venues, or that the casino now will not
feature slot machines. The proponents will say that they will operate
only class II gaming machines that is, electronic bingo machines.
But the one thing we have learned from this experience is that once
land is placed into trust everything can change.
In a letter to the BIA in 1999, Mrs. Mejia the chairwoman of the
tribe told the BIA that ``No other changes to the physical
configuration or internal operation of the existing facility are
proposed.'' The letter goes on to say ``Based upon the Band's review of
the physical constraints of the Facility, the Band believes the
capacity of 1,200 to 1,500 gaming positions [this means slot machines
and poker tables]--will not increase.
After these statements were made to the BIA, the tribe negotiated
with the Governor a 5,000-slot machine casino and 600,000 square foot
facility--and they said, no other changes to the physical facility
would be made!
Recently a letter sent by the tribe to members of the State
Legislature states that ``. . . the tribe remains confident that this
or a future legislature will eventually recognize the benefits . . .
that the Compact we negotiated in good faith offers.'' In other words,
the supporters of the casino intend to continue to put forward this
Compact for a 2,500-slot machine casino and massive gambling complex
with the ability to negotiate for even more slot machines when the
environment is more politically favorable for them to do so.
In the final analysis, it is my belief that without the legislation
authored by Senator Feinstein, the Lytton Tribe will be able to open a
massive casino at Casino San Pablo. This would be the first urban Las
Vegas style casino that was never intended by the voters of the State
of California, and is a direct violation of the Federal regulations
outlined in the Indian Gaming Regulatory Act. The entrance of tribal
casinos on non-ancestral land--such as Casino San Pablo--in densely
built urban areas would set a precedent for authorizing off reservation
gambling casinos in California and every state where tribal gambling is
permitted.
Thank you again, Mr. Chairman, for holding this hearing. I
respectfully urge the committee to act in support on Senator
Feinstein's legislation a soon as possible.
______
Prepared Statement of Mark Macarro, Chairman, Pechanga Band of Luiseno
Mission Indians
Good morning, Mr. Chairman, Mr. Vice Chairman and members of the
committee. Thank you for the opportunity to testify regarding S. 113, a
bill ``to modify the date as of which certain tribal land of the Lytton
Rancheria of California is deemed to be held in trust''.
My name is Mark Macarro, and I am the chairman of the Pechanga Band
of Luiseno Mission Indians. I've been asked to discuss the Pechanga
Tribe's position with regard to S. 113.
The Pechanga believe that each and every federally recognized tribe
is a sovereign in its own right and enjoys all the rights and
privileges that flow from sovereignty, including the right to pursue
economic development opportunities which improve the quality of life
for all tribal members. However it is our sincere belief that all
Indian tribes also have a responsibility to the larger community, and
that the specific instance of the backdating of the fee to trust
acquisition of the Lytton Rancheria is contrary to the best interests
of all Indian country.
The Pechanga Tribe supports S. 113 for two reasons.
First, we believe that the Lytton fee to trust acquisition should
follow the same procedure that all other tribes must follow to
authorize gaming on what are termed ``after-acquired'' trust lands.
While the process is not perfect, it allows tribes, States, and local
communities to have input and a chance to participate in the process,
including the ability to resolve differences, before a decision is
made. The manner in which this acquisition was placed into trust
deprived those communities who are most affected by the acquisition a
chance to address important issues before the land was placed in trust.
The other reason we support this legislation is that it will
reverse an action which violates a promise that all California Indian
tribes made to the citizens of California when propositions 5 and 1A
were considered and approved. During the time those propositions were
considered, tribes in California pledged that the passage of those
propositions would not result in the proliferation of urban gaming, but
would be confined to a tribe's existing reservation lands, the vast
majority of which are not located in urban areas.
The legislation which directed the Lytton land acquisition to be
placed into trust status violated that promise to the citizens of
California and denied the citizens affected by the acquisition to play
a part in the process which determines whether land should be placed
into trust status.
We believe S. 113, by providing that the trust acquisition of the
Lytton Rancheria, while remaining in trust status, is considered to be
placed in trust as of its actual date of acquisition, levels the
playing field. It requires the Lytton Rancheria to deal with the local
community and the Governor before it may operate gaming on the parcel,
or it must apply to the BIA before the land can be declared meeting one
of the exceptions to the prohibition on gaining on lands acquired after
October 17, 1988. Both processes provide for more detailed, thoughtful
consideration on the merits of the application before gaming can be
conducted on those lands.
This concludes my testimony. Again, I would like to thank you for
the opportunity to provide our views on S. 113. 1 would be happy to
answer any questions you may have.
______
Prepared Statement of Margie Mejia, Tribal Chairwoman, Lytton Band of
Pomo Indians
Thank you for inviting us today, and thank you in particular,
Senator McCain, for the understanding and support you've shown for
Native Americans.
My name is Margie Mejia, and I am the chairwoman of the Lytton Band
of Pomo Indians. To understand why we are here today, it's important to
understand something about the history of our tribe.
Like most California tribes, we are a small group, with about 275
members. Like many other California tribes, most of our members live in
poverty. Many have no or inadequate health care. Alcoholism and
substance abuse is a continuing problem. Living as we do in the San
Francisco Bay Area, where housing is very expensive--we have many
families living together in tiny apartments. Only one of our member's
owns a home.
But until the 1950's, we did have land. That land was in Sonoma
County, and today this is the site of some of the most prestigious
wineries anywhere in the world. But the reason that today there are
vineyards on that land, instead of our homes--is the result of actions
taken by the Federal Government.
In the 1950's, the Government decided to ``terminate'' small Native
American bands like ours. The Government gave tribal members individual
titles to land and houses, in exchange for a promise to provide needed
infrastructure--water, electricity, roads, and sewage. The tribe was
dissolved as a legal entity. But the Government did not fulfill any of
its promises to make improvements on our land, and the Government gave
those titles to individuals with no experience of managing either
property or money.
The result was that we lost both our legal identity and our land,
which in fact, was the intended outcome. [As a historical aside, the
same Government official who presided over this policy at the BIA, had
also been in charge of the Government's policy of interning Japanese-
Americans during WWII.]
But we never lost our existence as a community. Many of us
continued to live together, and to take care of tribal members in need,
as we do to this day. Eventually, we sued the United States, and the
outcome of that suit was that the Federal Government admitted it had
broken its promises during termination. In 1991, our tribal status was
restored. However, that settlement effectively barred us from returning
to our tribal lands in the Alexander Valley by prohibiting us from
operating a gaming facility in the area. We had little choice but to
agree to this condition because otherwise, with little or no resources
of our own, we would have been forced to fight a protracted legal
battle against a group of wealthy wineries and the county.
After restoration, we re-established our tribal government, passed
a constitution and elected a tribal council. We also began to look for
a means out of the relentless poverty many of our members faced, and to
rebuild our tribal community. The tribal council conducted a needs
assessment to determine what alternatives were available to finance our
tribe's mission of buying the land, building homes, providing roads,
electricity, water, sewer and the other infrastructure necessary for
our tribal community.
We turned to gaming because the government offered that to us as a
means of economic development, and because it generates enough money to
allow us to get a loan and finance the rebuilding of our tribe and
tribal community.
Let me take a moment to explain the connection between Native
Americans and gaming, and specifically about our tribe, and the gaming
business. We are a poor people with few options for economic
development. If we went to a bank and asked for money to build houses
for our people, or a school, or even a business venture--they would
show us the door. We have nothing to guarantee such a loan, and trust
land cannot be used for collateral. Revenues from gaining will help us
get members off welfare and provide them basic health care, education,
job training and housing in a new small community on rural land in
Sonoma County.
The 1991 restoration agreement while barring us from operating a
gaming facility in Sonoma County did not foreclose our right to find
another community that might welcome us as partners. We found our road
to economic self-reliance in the city of San Pablo where with help from
private investors we purchased an existing card club that had been
approved by local voters in 1994.
The city and the tribe then negotiated a Municipal Services
Agreement. At the time, such an agreement was unprecedented in
California, and was the most protective arrangement between city and
regional interests and an Indian tribe in California.
But there were other hurdles to come. Although it was the
Government's wrongful actions which resulted in the loss of our land,
by the time the Government had admitted that, and prepared to make good
our loss--the legal landscape for tribes had changed. A law had been
passed which made it extremely difficult for tribes to operate gaming
on lands taken into trust after 1988 unless Congress made the land
eligible. Even though it was not our fault that we were in this
position, and although the law had not been intended for landless
tribes, but rather tribes with existing reservations, our efforts to
seek help from the Department of the Interior went nowhere.
Finally, Congress acted to take that land into trust for us as it
has in the case of many other tribes in California and other States.
This was the final option, after we had tried everything else. Thanks
to the efforts of Congressman George Miller, who represents the
district which includes our land, that proposal was introduced in
legislative form, as an amendment to a large piece of Indian
legislation. That was October 2000. On December 27 of that year, the
President signed the bill into law.
There were newspaper articles about this at the time, and
subsequently, there were two attempts to repeal this proposal. Neither
of those met with success. Senator Feinstein's legislation represents
the third time there has been a proposal to take this land from us.
And, as I explained earlier, given the economics of tribal life, to
leave us with the physical earth, but to take away our right to do
business on it--gaming in this case--makes the granting of the land an
empty gesture. We believe it would be legally wrong to do that. Section
819 conferred a highly valuable property right on our tribe by
specifically entitling us to acquire land into Federal trust for Indian
gaming. The Feinstein bill would deprive us of this right to conduct
gaming on the land and would be a ``taking'' under the fifth amendment
of the U.S. Constitution. And most certainly it would be morally wrong.
That act, of taking land into trust for us in San Pablo, was not
the beginning of this story. It was the end of a very long story--a
story of poor treatment of our tribe at the hands of the Federal
Government. That was an act of redress, making good the wrong that had
been done to us more than 50 years before. To have simply said, ``We're
sorry,'' and offered up a paper apology for the treatment of our tribe
would have been wrong. Taking that land into trust represented a
meaningful act of redress; taking that land out of trust would make
that gesture so many empty words--and Senators, whatever you may think
of this issue, I am sure you know our people have heard many empty
words from this Government over the years.
That is the background to our proposal for a casino project on our
land in San Pablo.
Our initial proposal in 1999 was for a modest gaming operation with
something on the order of 1,000 slot machines. In the proposed compact
that we signed with the Governor last year, that number was originally
5,000, which was then revised down to 2,500 machines. Since there has
been some controversy about the change, let me address that for 1
moment.
When we made our initial proposal in 1999, no compact, not ours or
any other tribe's, provided for any revenue-sharing with the State of
California. Nor did these compacts provide local and State governments
opportunities for substantive environmental review, mitigation of local
impacts or involvement in gaming regulation.
We stepped up to the plate to do just that, reaching an agreement
to pay an unprecedented [not just in California, but anywhere in the
Nation] 25 percent of net gaming revenues to State and local government
to pay for our fair share of public services and environmental
mitigation. But that commitment also required more slot machines than
originally envisioned.
Along with various provisions to pay for mitigation measures
required by our project, we agreed to two exhaustive environmental
impact reviews prior to anything being built.
Potential traffic and environmental problems would be identified
and addressed. These provisions are modeled on the California
Environmental Quality Act such as the inclusion of project alternatives
and citizen participation in the process. But the compact took one
further step by requiring the Tribe to complete agreements on
mitigation measures identified in this environmental review with its
neighbors in the city of San Pablo, the local county and the state
transportation department.
The tribe also agreed to participate in the State workers'
compensation, unemployment compensation and disability benefit systems.
The tribe has agreed to strong state oversight and review of gaining
operations, including independent audits, background checks on
employees, and prohibitions on gambling by anyone under 21.
Over and above our compact obligations, the tribe spent the past
months engaged with the community to hear their hopes and concerns
about our project. We spoke with more than 3,000 individuals, met with
dozens of elected officials and community leaders, and participated in
more than 50 community meetings and forums.
As a result, we reduced the size and scope of our project, to make
it a better fit for the community, while still offering the creation of
more than 6,600 new jobs and generation of an estimated $618 million
each year in economic benefits, regionally and statewide. These jobs
were particularly important in the city of San Pablo and surrounding
region, where unemployment is high and there are not other major
employers offering good jobs with health and retirement benefits. The
tribe also committed to a local preference hiring policy, to help steer
jobs to where they were most needed.
We promised the Bay Area that our project would not include a hotel
or nightclub, convention facility, amusement arcade or other facilities
that would generate additional traffic. We also committed to advance
$25 million to the state once our project was approved, to jump start
necessary work on the freeway interchange closest to our facility.
We negotiated and signed that compact with the Governor of
California. We had the strong support of the city of San Pablo, where
the casino would be located. We believe that the proposed compact
represented a good deal for all parties. But notwithstanding all that,
as you know, California's state Legislature has chosen not to act on
the compact.
As a result, we will now focus on exercising our rights under
Federal law to operate a wider variety of class II gaming activities at
Casino San Pablo. We will renovate the interior of the existing
building to make it more attractive and to offer a wider variety of
class II gaming activities, including class II electronic bingo games.
These are not video lottery terminals. They will fall well within the
definition of what constitutes class II gaming. We don't intend to push
the envelope.
For decades we worked to regain our name and our land. We obeyed
the law, even when it was used against us. We followed the law. When
the law allowed us to pursue gaming on our restored land in San Pablo,
we did so. But already twice since then, there have been attempts to
undo what you rightfully did. This legislation represents the third
attempt to undo that act of justice toward our tribe. I ask you to say
enough.
I know that we are a small group, without much money, power, or
influence. We have received more attention in the last year, over this
casino proposal--than anyone paid to us for the decades that went
before. I understand that there are many issues involved here today. I
hear the talk about Indian gaming and all the other questions. What I
don't hear, is any talk about our people, and Senators, this hearing is
also about us.
Senator McCain, we did not ask to be in this situation. We did not
ask the Federal Government to take away our name and our land. But that
happened. Now, decades later, when this Government has finally acted to
right those wrongs--we believe it would be wrong to take away our right
to pursue economic self-sufficiency--which is effectively what Senator
Feinstein's bill would do. As I explained earlier, without the right to
operate gaming on our land, which is a right given to us by both the
Federal Government and the State of California, we cannot use that land
to help ourselves.
If this body wishes to address the various issues associated with
Indian gaming, so be it. But I respectfully ask you, Senators, not to
go back and retroactively change the rules for us. What this body did
in 2000, was to do the right thing. It was to make good a wrong the
Federal Government had committed against our tribe. I ask you to let
that act of justice stand. Thank you.
______
Prepared Statement of George Skibine, Acting Deputy Assistant
Secretary, Policy and Economic Development for Indian Affairs,
Department of the Interior
Good morning, Mr. Chairman, Mr. Vice Chairman, and members of the
committee. My name is George Skibine, and I am the Acting Deputy
Assistant Secretary for Policy and Economic Development in the Office
of the Assistant Secretary--Indian Affairs at the Department of the
Interior [Department]. I am pleased to be here this morning to offer
the Department's views on S. 113, a bill to modify the date as of which
certain tribal land of the Lytton Rancheria of California is deemed to
be held in trust by the United States for the benefit of the Lytton
Band of Pomo Indians [Lytton Band]. For the following reasons, the
Department does not have any objections to this bill.
The Bureau of Indian Affairs [BIA] authorized the transfer of
several parcels of land in the city of San Pablo, in Contra Costa
County, CA, on January 18, 2001, pursuant to section 819 of the Omnibus
Indian Advancement Act of 2000, Public Law 106-568, which mandated the
acquisition of the parcels, also known as the San Pablo Casino site, in
trust for the Lytton Band. The Lytton Band's application was originally
made under the authority of section 5 of the Indian Reorganization Act,
25 U.S.C. 465, and was under consideration by the BIA under the
authority, procedures, and policies governing the discretionary
acquisition of land into trust by the Secretary contained in
regulations at 25 CFR part 151. However, enactment of section 819 of
Pubic Law 106-568 mandated the Secretary to take the San Pablo site
into trust without consideration of the factors in the land acquisition
regulations. The fact that the Lytton Band wanted to acquire the San
Pablo Casino site for gaming purposes was immaterial to what had become
the ministerial decision of the Secretary to accept the land into
trust.
The last sentence of section 819 provides that the San Pablo Casino
site ``shall be deemed'' to have been held in trust as part of the
reservation of the Rancheria prior to October 17, 1988.'' This
provision permitted the Lytton Band to immediately operate a class II
gaming establishment on the site without having to meet any of the
requirements of section 20 of the Indian Gaming Regulatory Act of 1988
[IGRA] which contains a prohibition on gaming on lands acquired in
trust after October 17, 1988, unless one of several statutory
exceptions contained in section 20 of IGRA is satisfied. The Lytton
Band cannot operate a class III gaming establishment under IGRA unless
it negotiates a compact with the State of California, and notice of the
Secretary of the Interior's approval of the compact is published in the
Federal Register. The Lytton Band and the State have not yet submitted
such a compact to the Secretary for approval.
S. 113, if enacted, would strike the last sentence of section 819.
The practical effect of removing the so-called ``retroactive'' clause
of section 819 will be to require the Lytton Band to seek an exception
to the gaming prohibition contained in section 20 of IGRA if the Band
wants to engage in either class II or class III gaming activities. We
believe that the only exception under which the tribe could qualify is
the exception contained in section 20(b)(1)(A) which requires the
Secretary to make a determination that a gaming establishment on the
trust land would be in the best interest of the tribe and its members,
and not detrimental to the surrounding community, and is subject to the
Governor of the State of California's concurrence. Unless and until the
Secretary makes such a determination and the Governor concurs, class II
or class III gaming activities would not be permitted on the San Pablo
Casino site, effectively requiring the Lytton Band to shut down its
current class II gaming operation on the property.
The Department does not object to this bill because we believe that
it is inappropriate to waive the requirements of section 20 of IGRA for
any particular tribe. Section 20 imposes reasonable restrictions on the
right of Indian tribes to engage in gaming activities on off-
reservation lands acquired in trust after the enactment of IGRA. The
exception in section 20(b)(1)(A) in particular requires consultation
with the local community, consideration of detrimental impacts, and
gives the state ultimate veto power over gaming on the off-reservation
land. We believe that the standard in section 20(b)(1)(A) has required
Indian tribes to negotiate with the State and affected local
governments before a casino is placed on off-reservation land. The
Department supports the process of consultation and cooperation between
Indian tribes and affected local communities and sees no reason to
exempt any tribe from this process.
Thank you for the opportunity to testify on S. 113. I will be happy
to answer any questions you may have.
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