<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
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S. Hrg. 109-50, Pt. 3
GAMING
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
OVERSIGHT HEARING ON LAND ELIGIBLE FOR GAMING PURSUANT TO THE INDIAN
GAMING REGULATORY ACT
__________
JULY 27, 2005
WASHINGTON, DC
__________
PART 3
__________
U.S. GOVERNMENT PRINTING OFFICE
22-848 WASHINGTON : 2006
_____________________________________________________________________________
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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
Statements:
Barnett, John, chairman, Cowlitz Indian Tribe................ 28
Coleman, Penny, acting general counsel, National Indian
Gaming Commission.......................................... 13
Dorgan, Hon. Byron L. U.S. Senator from North Dakota, Vice
Chairman, Committee on Indian Affairs...................... 2
Enyart, Charles D., chief, Eastern Shawnee Tribe of Oklahoma. 30
Gray, Walter, tribal administrator, Guidiville Band of Pomo
Indians.................................................... 24
McCain, Hon. John, U.S. Senator from Arizona, chairman,
Committee on Indian Affairs................................ 1
Norris, Christine, principal chief, Jena Band of Choctaw
Indians.................................................... 26
Skibine, George, acting deputy assistant secretary, Policy
and Economic Development for Indian Affairs, Department of
the Interior............................................... 9
Vitter, Hon. David, U.S. Senator from Louisiana.............. 3
Voinovich, Hon. George V., U.S. Senator from Ohio............ 6
Appendix
Prepared statements:
Barnett, John................................................ 44
Coleman, Penny............................................... 42
Enick, Jerry Kanim, tribal chief, Snoqualmie Tribe........... 50
Enyart, Charles D. (with attachment)......................... 53
Gray, Walter (with attachment)............................... 71
Hillaire, Darrell, chairman, Lummi Indian Nation (with
attachment)................................................ 124
Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 41
McGowan, Mike, chairman, Indian Gaming Working Group,
California State Association of Counties (with attachment). 187
Norris, Christine (with attachment).......................... 204
Skibine, George (with attachment)............................ 225
Vitter, Hon. David, U.S. Senator from Louisiana.............. 234
Voinovich, Hon. George V., U.S. Senator from Ohio (with
attachment)................................................ 241
Additional material submitted for the record:
Lindsay, Barbara M., national director and spokesperson, One
Nation United, (letter).................................... 248
Schmit, Cheryl A., director, Stand Up For California (letter
with attachment)........................................... 254
GAMING
----------
WEDNESDAY, JULY 27, 2005
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
216 Senate Hart Building, Hon. John McCain (chairman of the
committee), presiding.
Present: Senators McCain, Dorgan, and Smith.
STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. Good morning. This hearing is the third
oversight hearing held by the committee into the implementation
of the Indian Gaming Regulatory Act. That act has been very
successful for many tribes, yet it has not been without
controversy or challenge, as our hearings have shown.
Among the issues that have been both controversial and
challenging are the determinations of what Indian lands are
eligible for gaming. Under the Indian Gaming Regulatory Act,
trust lands outside of a reservation are generally not eligible
for gaming if acquired after October 17, 1988, the date IGRA
was enacted.
However, IGRA provides exceptions to that ban if the
Secretary and Governor agree after making certain findings;
also for three specific situations: Settlement of land claims,
tribes that are newly acknowledged by the Department of the
Interior, and tribes that are registered to recognition.
When IGRA was drafted, notions of fairness led to
considerations for those tribes who, through no fault of their
own, lost lands or were not recognized by the Federal
Government prior to 1988. However, in recent years this
committee has been made aware of attempts by some tribes and by
some non-Indian developers to expand the use of these
exceptions in ways not contemplated when IGRA was enacted.
Recognition of tribes and the creation, restoration or
recovery of reservation lands are significant events to Indian
and non-Indian communities. When coupled with the establishment
of a gaming facility, the impacts to the affected communities
are even greater and the need for clarity in the law is
especially important. It is time this committee reviewed the
uses of these exceptions to determine if they are meeting their
intended purpose.
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.
I think we all agree that Indian gaming has grown very
substantially. It has become a very big success for many Indian
tribes. They have generated over $18 billion of revenue from
gaming, employed over 200,000 people. There are Indian
reservations in this country that have substantially reduced
their unemployment as a result of gaming activities. I will not
go through the list, but I think there is no question but that
there are substantial benefits.
The opportunities for Indian tribes to locate gaming
activities near large population centers is certainly something
that tribe aspire to do to the extent they can. We know that
the success in many cases of Indian gaming is primarily
determined by location. We know that there are some very large,
extraordinarily successful operations, Foxwoods and Mohegan Sun
come to mind, and then many other smaller gaming facilities. In
my State there are I believe five, all located in generally
rural areas, but nonetheless still providing significant jobs
for members of the tribes.
The exceptions in IGRA, the three exceptions that we will
primarily talk about today are expressly for tribes whose lands
were illegally taken, whose governments were wrongfully
terminated, or who are just establishing their government-to-
government relationship with the our country. The exceptions
are intended to correct some of the many injustices that have
been bestowed upon Native people. I believe there is a need for
these exceptions. I support these exceptions and the need to
correct these injustices.
But I do not believe that tribes should use the IGRA
exceptions to place itself in a better position than had the
injustices not occurred. By that, I mean a tribe historically
located in the Adirondack Mountains, for example, should not
now be able to use an exception to acquire land and open a
casino in downtown Manhattan. I wonder about some of the
stories you hear about some tribes willing to settle very large
land claims for mere acres in a metropolitan acre or resort
area. So that is the issue I raise with respect to the use of
the exceptions.
Once again, IGRA provides a mechanism for those tribes
seeking to obtain more economically viable lands, but this
mechanism is burdensome. It requires local input, gubernatorial
support. It is still the proper mechanism to be used in certain
cases, and I think this particular hearing will give us the
opportunity to learn about the use of the IGRA exceptions and
about whether any changes need to be made.
I think this hearing is an important discussion about a
significant piece of Indian gaming because we see these
pressures all around the country now to find ways to locate
gaming facilities in the middle of major population centers.
Mr. Chairman, thank you very much. I am anxious to hear
from the witnesses.
The Chairman. Thank you very much.
We are pleased to have with us Senator David Vitter, our
colleague from Louisiana. Please proceed.
STATEMENT OF HON. DAVID VITTER, U.S. SENATOR FROM LOUISIANA
Senator Vitter. Thank you, Mr. Chairman and Mr. Vice
Chairman. Thank you for holding this hearing.
I am really pleased to be here today to express my concerns
about the proliferation of, in particular, off-reservation
Indian casino gambling. It is an issue that directly affects my
home State of Louisiana, but it is also clearly a national
issue as well, as both of you have pointed out. Thank you for
inviting me to testify.
In 1988 when Congress passed IGRA, gambling on Indian
reservations was a very small industry. At the time, virtually
no one could foresee the future growth of class III casino-
style gambling or that it would become an $18 billion a year
industry, with 400 casinos in 30 States. Now, that in and of
itself does not mean there are problems with the law, but I do
think there are problems with the law that are being unfairly
exploited, and you all have alluded to some of those
possibilities.
My testimony will mention several problems that my
legislation addresses: But the biggest concern is the need to
discourage the recent trend known as ``forum shopping'' or
``reservation shopping'' by Indian tribes. That is the
troubling practice, on the part of a growing number of tribes,
of selecting land to which the tribes have little or no
connection for the sole purpose of building casinos at the most
economically advantageous location.
As widely reported in the press, various tribes are now
attempting to claim rights that would allow them to engage in
gambling operations in States where they have no reservation or
trust land status. Tribes making such claims include landless
tribes, as well as tribes with an existing reservation.
Affected States include many, including California, Illinois,
Ohio, Colorado, Oregon, New York, New Mexico, and Louisiana.
Allow me to quickly summarize of some of these
developments. In California, by one account as many as 40
tribes are pursuing off-reservation gambling proposals there
alone. California is a State which is already home to
approximately 55 Indian casinos. I commend the members of this
committee for recently approving, by a bipartisan 10 to 3 vote,
a measure authored by our colleague, Senator Dianne Feinstein,
which would make it more difficult for one California tribe to
proceed with an off-reservation casino.
In Ohio, where there are no federally recognized Indian
tribes, the Eastern Shawnee Tribe of Oklahoma is trying to open
casinos in multiple Ohio locations. The tribe is pushing its
casino proposals with help from non-Indian investors--against
the wishes of many folks in Ohio. The tribe has sued the State
to seek reparations for tribal lands in Ohio that were taken
170 years ago.
New York offers another example of possible forum shopping.
There, several out-of-State tribes and additional in-State
tribes have attempted to negotiate for casinos in the Catskill
area to settle land claims. And of course, Louisiana, my home
State, provides yet another possible example of where a tribe
has engaged in forum shopping, that is the Jena Band of
Choctaws, who you will hear directly from later today. The Jena
Band attempted to take land into trust for gambling purposes in
an area of my State that is outside of its traditional service
area.
I think the history of the Jena Band's action is
instructive. I just use it as an example. There are plenty of
examples, but this is an example with which I am very familiar.
The Jena Band has been rejected in its pursuit of land for
casinos in two counties in Mississippi. It made a number of
applications for land across Louisiana. It may have considered
land in Texas as well, I understand.
I am concerned about this forum shopping. The Jena Band
first received Federal recognition in 1995; and after receiving
that recognition, the tribe courted the Rapides Parish Police
Jury which is basically the county government, in July 1996,
with promises to pay them up to 6 percent of the net profits
made off the proposed casino.
However, then-Louisiana Governor Mike Foster opposed these
attempts and refused to negotiate a compact. The Jena Band
actually filed a lawsuit in an attempt to force the Governor to
negotiate, but the judge threw out the lawsuit in December
1996.
The Band then courted the Natchitoches Parish Police Jury
in 1998, offering them 50 percent of its ``planned local
monetary contributions.'' That was unsuccessful. Then they
reached out to Mississippi, actually, and were rejected by two
counties there in 2001, Greene and Tishomingo. Mississippi's
Governor stated he would refuse another Indian casino in
Mississippi. So the Jena looked back to Louisiana; and, in
October 2001, on hearing that the Jena might be looking to
their parish, the Sabine Parish Police Jury passed a resolution
declaring their opposition to a casino.
After that, the Jena Band and former Governor Foster then
quietly negotiated a compact centered on the town of Vinton in
Southwest Louisiana and sent it to the Bureau of Indian Affairs
[BIA] for approval in January 2002. There was a real outcry
about that, particularly in the local area. Several leaders
joined in that outcry, including myself, Congressman Jim
McCrery, Congressman Chris John, and Senator Mary Landrieu, as
well as 30 other members of the U.S. Congress. The BIA rejected
that proposed compact on March 7, 2002.
The Jena Band has argued that it has the ability to force a
State into agreeing to a gambling compact, circumventing the
State process designed by Federal law and instead working
directly with the U.S. Department of the Interior. The current
Governor of Louisiana opposes the expansion of casino gambling
in our State, and even the suggestion that the Federal
Government would ever force States to accept casinos they
oppose is very troubling. That is another distinct issue I
address in my bill.
In June, I joined my colleague, Senator George Voinovich,
who is here as well, and other members of the Senate in
offering a floor amendment to ensure that Governors of affected
States will have input when decisions are being made to take
land into trust on behalf of Indian tribes for gambling
purposes. This amendment was endorsed by the National Governors
Association, but we did not call for a vote on the Voinovich
amendment due to jurisdictional concerns of this committee.
That amendment actually complements a bill I introduced in
June, and I want to spend just a few minutes outlining that
bill. It is titled the Common Sense Indian Gambling Reform Act
of 2005, S. 1260. It is a nearly identical companion to a House
measure introduced by Congressman Mike Rogers of Michigan, H.R.
2353. Our legislation does not specifically target any
particular tribes. Rather, it proposes seven reasonable
reforms, which I have alluded to, to current Federal law
related to Indian gambling.
First, the bill we introduced would require that an
economic impact study be conducted in an area within a 60-mile
radius of a proposed new Indian casino. The rationale for
requiring such a study is to ensure that we fully understand
the effect of a proposed new casino on all surrounding
communities.
Second, the bill we introduced calls for more local input.
The bill we introduced will eliminate several existing
exceptions to the existing ban on Indian casino gambling under
IGRA, thereby ensuring that Federal officials must consult with
officials of all potentially affected State or local
governments, or other Indian tribes, before making what is
known as their two-part determination with respect to a
proposed Indian casino. Striking these exceptions would simply
ensure that State and local input is garnered and honored.
Third, the bill we introduced would ensure an enhanced role
for State legislatures. The measure requires State
legislatures, as well as each Governor, to concur in the two-
part determination. I mentioned just now. The bill would
enhance the role of State lawmakers in conjunction with the
Governor.
Fourth, under this bill, off-reservation casinos would be
virtually rendered impossible. Our bill effectively precludes
Indian tribes from proposing new casinos on land to which the
tribes have little or no connection. It does so by imposing
these conditions. First, an Indian casino must be on a single
contiguous parcel of Indian lands for a casino; and second, the
casino must be within the State in which the tribe is primarily
located and on land to which the tribe has its primary
``geographical, social and historical nexus.''
Fifth, the bill we introduced calls for additional
background checks. The bill would clarify that any financial
top-10 interest involved in opening an Indian casino operation
will be subject to normal background checks and that the
National Indian Gaming Commission would approve all top-10
financial arrangements and would perform the background checks.
Sixth, the bill we introduced would require that tribes
declare an intent to gamble when initially making an
application for land, and that declaration would be binding in
the future.
Seventh, the bill would require that a tribe submit a new
environmental impact statement to the Secretary of the Interior
if the tribe changes the use of its land from non-gambling or
general purpose to a gambling purpose.
As I said, this I think is a widespread and growing set of
concerns in the Nation and in the Congress. I thank so many
others of my colleagues, including Senator Voinovich here, and
Senator Feinstein for joining in this national effort. I look
forward to working with you, Mr. Chairman, you, Mr. Vice
Chairman and this entire committee in developing and refining
legislation in this area. I would urge my colleagues to join us
in enacting these sensible reforms.
Thank you very much.
[Prepared statement of Senator Vitter appears in appendix.]
The Chairman. Thank you very much.
Senator Voinovich, welcome.
STATEMENT OF HON. GEORGE V. VOINOVICH, U.S. SENATOR FROM OHIO
Senator Voinovich. Thank you, Mr. Chairman. I want to thank
you and Senator Dorgan for having this hearing. Mr. Chairman, I
appreciate your keeping your word to me when I wanted to amend
the Interior Appropriations bill that if I backed off from it
that you would hold a hearing. You are a man of your word.
Thank you very much.
Senator Vitter has done a good job of defining the problem,
and that it is not just a problem in Ohio or in Louisiana, but
it is a problem that we have throughout the United States of
America. I can tell you, it is becoming a real problem in my
home State of Ohio. Currently, there are over 400 tribal
casinos in 30 States. The tribes who run these casinos have
seen a substantial financial benefit to their tribes. Last
year, the annual revenue of Indian casinos had grown to almost
$19.5 billion. With the continued expansion of Indian casinos,
that annual revenue will continue to grow.
To build on this financial success of tribal casinos, some
Native American tribes are aggressively seeking to take
gambling off reservations and into local communities all across
the United States. In this practice, commonly referred to as
reservation shopping, tribes are looking to acquire new non-
contiguous land to open casinos near large communities or next
to major roads with easy access.
A loophole in the law that regulates Indian gaming, the
Indian Gaming Regulatory Act, allows the Department of the
Interior to take land into trust for a tribal casino, even at
great distances from their home reservation. While some casinos
on tribal reservations have been very successful, many
reservations are located in rural areas at great distances from
population centers. These tribes are looking at lands hundreds
of miles away from their reservations and near population
centers like Cleveland, Chicago, Miami, and the Bay Area of
California.
In early 2003, a tribe secretly began courting communities
in Ohio with the lure of financial gain from casinos. Since
then, agreements have been reached between the tribe and four
separate mayors in our State to site casinos in their
communities under the pledge that a casino complex would bring
new jobs and increase their tax base. All of this has been done
without any land claims filed or any determination in terms
that the claims would be successful.
The Eastern Shawnee and the developers behind their casino
plans are so confident that they can pull off their land claim
that they are garnering political support for casinos. Last
month, the Eastern Shawnee Tribe of Oklahoma filed a land claim
in Federal court for the rights to 146 square miles of land and
hunting rights to 4 million acres of land throughout the State.
To put this in perspective, Mr. Chairman, 146 square miles is
almost the size of Cleveland and Cincinnati combined. This
claim is filed against the State of Ohio, 36 counties in the
State and a number of cities and private landowners.
As indicated in this article from the Columbus Dispatch,
the Eastern Shawnee's lawyer has stated that the tribe will
drop the land claim in exchange for the right to put casinos in
these communities throughout the State. Mr. Chairman, I ask
unanimous consent that this article be made part of the record.
The Chairman. Without objection.
[Article appears in appendix.]
Senator Voinovich. The Eastern Shawnee and the groups
financing their efforts in Ohio are clearly blackmailing the
State and they are not even being subtle about it. The reality
here is that they were looking at location and then looking at
the legality of bringing a casino into my State after that. By
filing this claim, the Eastern Shawnee Tribe is exploiting
loopholes in existing Federal law.
The Indian Claims Commission Act of 1946, which was created
expressly to resolve land claims against the Federal
Government, required that any claims be filed within 5 years of
enactment. Because the tribe is now precluded from suing the
Federal Government, they are now suing the State.
The Eastern Shawnee was successful in pursuing a claim
against the Federal Government in the Indian Claims Commission.
In the 1970's, the commission concluded that claims against the
Government were valid and Congress appropriated funds to pay
these claims.
Mr. Chairman, I respectfully request that as you develop
legislation in your committee, you consider that tribes are now
using land claims against State and local governments, as well
as private landowners as leverage for casinos. The real goal
behind this land claim is to site casinos, not to seek
financial restitution.
As you consider this, also consider the need to strengthen
IGRA to specifically prohibit tribes from moving across State
lines, hundreds of miles from their reservations. Clear
language such as this would prevent frivolous lawsuits such as
the one that we are experiencing now in the State of Ohio.
Another loophole the Eastern Shawnee is taking advantage of
is the ambiguity of how the provision in the Indian Gaming
Regulatory Act which determines which gambling activities are
permitted. As you know, IGRA defines casino-style gambling as
class III, which includes slot machines, blackjack, craps,
roulette, some lotteries, and parimutuel racing. This class of
gambling activity on Indian lands can only be ``located in a
State that permits such gaming for any purpose by any person,
organization or entity.'' It is unclear whether this means that
the statutory language should be read and applied in a class-
wide or categorical sense, or whether it should be read and
applied on an activity-by-activity basis.
District and Circuit Federal Courts have both considered
this question. In 1991, a district court in Wisconsin ruled
that if a State permits one type of class III gaming, then all
other types of class III gaming can be conducted in that State
under IGRA. On the other hand, in 1993 and 1994, the Eighth and
Ninth Circuit Courts of Appeal construed the language of IGRA
to mean that class III gaming in a particular State is limited
under Federal law to the specific activities that are permitted
under the State's laws.
Earlier this month, the 10th circuit revealed that these
uncertainties continue by finding in favor of the Northern
Arapaho Tribe who want to build a casino in Wyoming. Gambling
is illegal in the State of Wyoming except for social and
charitable gambling. In this instance, the tribe contended that
it is entitled to offer full casino-style gambling on its
reservation because the State allows casino-style activities
for social and nonprofit purposes.
In Ohio, gambling for commercial purposes is prohibited by
the State Constitution. However, parimutuel racing and lottery
are both permitted, as well as charitable gambling on a very
limited and controlled basis. The Eastern Shawnee and the
developers they have partnered with recognize this ambiguity in
existing Federal law. In order to address this loophole, I will
be introducing legislation today that clarifies congressional
intent that the provisions of IGRA which permit class III
gambling only apply on an activity-by-activity basis and do not
permit the full gamut of gaming.
Mr. Chairman, I respectfully request that you hold a
hearing on the questions that are raised by the ambiguity in
the law and that you consider my bill as you develop
legislation to address the unintended consequences of the
Indian Gaming Regulatory Act. The Eastern Shawnee already
operate a casino on the reservation at the border of Oklahoma
and Missouri. Chief Enyart testified before the House Resources
Committee earlier this year that their economic potential is
limited by the rural character of where the casino and
reservation are located.
This tribe has been courted by investors with the
attraction that they can find dollar signs out of State, dollar
signs they will make at the detriment of my constituents. Ohio
is a much larger and more populated State. In fact, the
population of Ohio is more than three times the size of the
population of Oklahoma. The Eastern Shawnee and the financial
backers of their proposals are promising local communities in
Ohio that casinos and gambling will address the economic
problems Ohio is facing right now.
Mr. Chairman, that is another issue that I encourage you to
consider as your committee continues to investigate this issue.
Who is actually funding the efforts to bring Indian casinos
off-reservation and across State lines? Who are these people?
In Ohio, it is well recognized that the Eastern Shawnee efforts
are being paid for by a number of ``unnamed private
investors.'' Think about that. Is this the tribe or are these
unnamed private investors promoting casinos so that they can
benefit substantially from the proceeds that the Indians would
garner from locating one of these casinos in a State like Ohio?
With private investors such as these, Indian gaming and its
consequences have gone far beyond what was originally intended
by Congress when IGRA was passed. This has become a gigantic
shell game instead of righting earlier wrongs against tribes.
We are no longer looking at giving tribes the self-sufficiency
needed for economic gain, but rather lining the pockets of
investors with large sums of money.
Mr. Chairman, this issue is ultimately a public policy
question. I oppose gambling in all forms, whether commercial or
Indian. To me, this is ultimately a question of States rights,
one that our founding fathers addressed in the 10th Amendment.
I believe that States should have the authority over whether or
not to allow for gambling within their borders. However, in
Ohio we are facing blackmail by Indian tribes and the financial
backers who are funding these efforts.
I just want to thank you very much for doing this. I think
that this proliferation of Indian casinos around the country is
something that we all ought to be very, very concerned about.
It goes far beyond anything that was anticipated in terms of
rightfully reimbursing these tribes for what was done to them
or to fulfill the treaties that they signed that the Federal
Government did not fulfill.
I thank you very much.
[Prepared statement of Senator Voinovich appears in
appendix.]
The Chairman. I thank you both for being here. It has been
very helpful. Obviously, there is some passion associated with
this issue. I thank you for your input and we look forward to
working with you.
Byron.
Senator Dorgan. Mr. Chairman, let me thank both of the
witnesses. I do not have any questions because they have well
and very clearly expressed their interest in this, and as you
said, with great passion as well.
Let me ask consent to have Senator Inouye's opening
statement put in the record at this point.
The Chairman. Without objection.
[Prepared statement of Senator Inouye appears in appendix.]
Senator Dorgan. Your comments are very helpful to this
Committee and we appreciate very much your being here.
The Chairman. I would just like to add again, as one of the
authors of the Indian Gaming Regulatory Act, we never
anticipated that gaming would turn into as large and widespread
involvement as it has.
As you mentioned, Senator Voinovich, one of the decisions
of the courts that basically said that full-blown gaming can
take place if there is charitable gaming taking place. In other
words, one Las Vegas night a year then equates to a full-blown
24-7 gaming. It was a court decision and that certainly had a
great affect on the proliferation of gaming throughout America.
I thank you both very much.
Senator Vitter. Thank you.
Senator Voinovich. Thank you.
The Chairman. Our other panel is George Skibine, who is the
acting deputy assistant secretary for Policy and Economic
Development for Indian Affairs; and Penny Coleman, who is the
acting general counsel of the National Indian Gaming
Commission.
Welcome to both of you. George, we will begin with you.
Welcome back.
STATEMENT OF GEORGE SKIBINE, ACTING DEPUTY ASSISTANT SECRETARY,
POLICY AND ECONOMIC DEVELOPMENT FOR INDIAN AFFAIRS, DEPARTMENT
OF THE INTERIOR
Mr. Skibine. Thank you, Mr. Chairman and Mr. Vice Chairman.
I am pleased to be here today to present testimony on the
section 20 exceptions to the gaming prohibition on after-
acquired land.
My written testimony will be part of the record.
The Chairman. Without objection.
Mr. Skibine. What I want to discuss today is how we have
implemented section 20 since 1988; what is currently pending
before the department; and what we hope to accomplish, what we
are facing in the future.
For that purpose, we have produced in my testimony a number
of charts. Here we have a visual aid that will help with
showing what we have. We will start first to discuss briefly
the approved gaming acquisition that are on-reservation or
contiguous with the boundaries of a reservation. Since 1988, we
have had essentially eight of these. You can point to what they
are. That is the first chart. That is where they are. Of these,
four were on-reservation and three were contiguous to the
reservation, or sort of both on and off the boundaries of the
reservation. So this exception has not really been used very
much. And I think what that shows is that by far the majority
of tribes are operating gaming establishments on their
reservations on lands that have been part of the trust before
October 17, 1988.
Of course, our position is that the definition of Indian
lands would authorize gaming by the tribe on the reservation if
the land is not in trust as long as it is owned in fee by the
tribe. But there are some advantages to taking the land into
trust, and essentially that is what has happened for these.
The next exception that I wanted to talk briefly about is
the initial reservation of an Indian tribe acknowledged by the
Secretary under the Federal acknowledgment process. Here, we
have approved three of these acquisitions. The first one was
for the Mohegan Tribe back in 1995, and the next two were for
tribes in Michigan. I want to point out that under this
exception, only one has actually gone in to trust. The other
two are the subject of a lawsuit, so the land has not been
taken into trust. The fact on our chart, we show that those
that were approved does not mean that the land itself has been
taken into trust because a number of them can be challenged for
various purposes.
For instance, even under number one, I think that for White
Earth in Minnesota, that land has still not been taken in to
trust because there are encumbrances of other issues.
Now, with the initial reservation of Indian tribes
acknowledged by the Secretary under the acknowledgment process
our position has been that in order to qualify for this
exception, the tribe has to show substantial historical,
cultural and geographical ties to the land. What we do when we
look at the application is we look at the record that is
compiled by the Federal acknowledgment process, which are
thousands and thousands of pages that essentially follow the
history of the tribe and where it has been, and it essentially
will tell us in a fairly objective way whether that tribe will
qualify under that exception.
The Chairman. How does that work if a tribe, as testified
by the two previous witnesses, want to acquire lands in another
State for purposes of a gaming operation?
Mr. Skibine. They cannot take advantage of that exception.
If they try to take advantage of that exception, it will be
disapproved. I think that, for instance, for the Jena Band of
Choctaws who will testify later, I know that as Senator Vitter
mentioned, we disapproved the compact for that tribe for land
that was off-reservation. I think the reason for the
disapproval was that, well, the reason for the disapproval was
not really because there was all this congressional objection.
Hopefully, we followed the law, and essentially we found that
the payment that the tribe was agreeing to make to the State
was in exchange for the Governor's support of the tribe's
initial reservation at that location. We felt that that
designation is not the Governor's to make, but the Secretary's.
Secretary Norton indicated in her letter of disapproval that
she, although that was not an issue in the compact, that she
would not be willing to approve an initial reservation under
this exception, several hundred miles from the tribe's
traditional area.
That is why it is a fairly difficult process. We look at
the historical record. I know there are tribes where there are
pending initial reservations. That is what we do. I know that I
have talked to some groups who have challenged whether the
tribe actually is from the area where they claim to be. I think
we will look very carefully at all the records, not only the
one that is submitted by the tribe, but the one that is
submitted by the local community or anyone who has an issue
with that because I think the Secretary definitely does not
want to place a tribe in a community for an initial reservation
where they do not belong, in other words, where they are not
from.
So the test that we have, we have devised on a case-by-case
basis. It has not been applied many times, but that is the one
we have.
And that is why, for this exception, to call that
reservation shopping is misguided. These tribes are not
shopping, the ones that will be approved are not shopping for a
reservation far from their homeland. They are tribes that
essentially have nothing. They have no land. A lot of them have
no money. They have been denied recognition for years, and
after a very arduous process, sometimes it takes 20 or 25
years, they are finally recognized. They are seeking to take
advantage of that exception for gaming, but really what they
want is land for economic development. Because we insist that
they have strong geographical and cultural ties to the land, I
am not sure that the reservation shopping tag can be applied to
that exception.
Let me move on to the next one. That is the approved gaming
acquisition for the restoration of lands for an Indian tribe
restored to Federal recognition. In that case, we have had 12.
In the chart that we have, the chart only concerns those lands
where the tribe needed to acquire land in trust, and then the
way it works is if the land is not in trust, when the tribe
applies and we have to make a determination on whether it fits
within the exception. My colleague, general counsel of the
NIGC, will delve into this issue in much more detail, so I
think I am going to skip over it except to mention that if you
look at the list that we have of the 12 tribes that have
qualified under this exception, I think all of these have been
qualified because they were restored by Federal statute. The
land that was the subject of the exception was land that was
specifically mentioned in that statute, the restoration
statute, as being land that the Secretary could or had to take
in trust for the tribe.
Some of these that are listed in our chart are mandatory
acquisitions and some of those were discretionary. For
instance, I see here that at number eight, we have the Lytton
Band that was the subject of the previous hearing before this
committee. This was a mandatory acquisition for that tribe.
When that happens, of course, we have no discretion at all to
say yea or nay, but some of them are discretionary.
Finally, let me briefly mention the approved gaming
acquisition for settlement of a land claim. Here, we have had
essentially since 1988, it has been applied once, and that is
for the Seneca Nation of New York. It is listed four times in
our charts, but they are all for the one tribe. Three of these
acquisitions, in fact, are gaming related, but not for gaming.
So this was under the 1990 Seneca Settlement Act. I do not
think that it was enacted with IGRA in mind, but it just so
happened that it would have qualified.
So the bottomline is that if we look at past practices, we
really do not see the problem that has been mentioned by the
Senator in the previous panel. Essentially, we have had not
that many applications. They have been carefully considered. As
you can see from the record, it has not been a runaway problem
of Indian tribes seeking lands off-reservation.
Now, there may be a problem in the future. We are not
discounting that. We share the committee's concern in this
regard. For the department, for instance with the Eastern
Shawnee Tribe that Senator Voinovich mentioned, we do not have
an application. We have not talked to the tribe about that. We
have had essentially no communication at all. We are aware of
what is going on basically because of clips in the newspapers.
That is true in some of these other instances.
I have seen a list, for instance, that a group in
California, Stand Up For California, puts together of pending
and rumored acquisitions. It is true that, as the Senator
mentioned, that there may be close to 40 in there, but in fact
what we have pending, and that is the second chart we have. As
to the pending Indian acquisitions, we only have about 11
pending right now, certainly not 40. The reason there are 40 is
because there is a lot of money to be made in gaming and this
is the land of free enterprise and people are looking for
opportunities. So these deals are talked about and they are
raised by the newspapers, but in fact we have not seen many
coming to actual fruition. The reason is that it is a very
difficult process.
Briefly, let me mention the two-party termination is not
part of this meeting. I have said on many instances, we have
only approved three since 1988, and we have about eight pending
right now. This is for the two-party termination exception. I
think some call it the true reservation shopping exception
because it allows a tribe to submit an application when none of
these other exceptions apply, for land that could be
potentially out of state, and where the tribe has no
significant cultural and historical connection. But in effect,
it is a very difficult process. It goes through a rigorous test
and we have to make a determination that the gaming
establishment is in the best interest of the tribe and its
members; and it is not detrimental to the surrounding
community. We have to consult with local and government
officials, and finally the Governor of the State has
essentially veto power over that acquisition.
For practical purposes, in all three cases where we have
approved these applications, the local community and the
Governor have in fact supported it. Even though the local
community's support is not mandated under the act, in fact I
think that if you take that in connection with the land
acquisition regulations that we have in section 25 CFR part
151, it is extremely unlikely that the Secretary here would
ever make a positive two-part determination if the local
community in fact is opposed to this. When I go around, I
stress to tribes who are thinking about this that local
community support is absolutely crucial to have this process go
forward.
Now this is what we have done, let me just mention briefly
what we are doing. As you may know, we published regulations in
25 CFR part 292 back in 2000 or maybe a little earlier that
would have implemented the two-part determination. I think the
Bush administration when it came over was not really interested
in pushing those regulations. We are now trying to revive them,
and we are thinking about moving forward again on those. We
would essentially put in the regulations not only the
implementation of section 20(b)(1)(a), the two party
determination, but also the definitions and a test that we have
for these other exceptions, like initial reservation,
settlement of a land claim, and other things of this nature.
We will see essentially where that goes. We want to work
with the committee on addressing the problems that have been
identified for the future, to make sure that we understand what
was the intent of Congress in 1988 in enacting these
exceptions. We definitely would be interested in looking at
some of these issues that we think can be nailed down.
With that, I will end my comments and I will be available
for questions. Thank you very much.
[Prepared statement of Mr. Skibine appears in appendix.]
The Chairman. Thank you very much.
Ms. Coleman, welcome.
STATEMENT OF PENNY COLEMAN, ACTING GENERAL COUNSEL, NATIONAL
INDIAN GAMING COMMISSION
Ms. Coleman. Thank you. Good morning.
Chairman McCain, Vice Chairman Dorgan, Senator Smith, my
name is Penny Coleman. I am the acting general counsel for the
National Indian Gaming Commission. I really appreciate the
chance to come and speak to you. A lot of people do not realize
that the National Indian Gaming Commission has an important
role in these Indian land decisions. So I wanted to come here
to tell you that we do; that it is a very important process to
us. These decisions are difficult and we struggle with them. So
I wanted to tell you a little bit about that.
Indian lands, that is the foundation on which you have
Indian gaming. Indian gaming can only be conducted on Indian
lands. IGRA defines Indian lands, requires gaming to be on the
Indian lands, and limits the commission's authority to Indian
lands. It establishes the general prohibition against gaming on
lands after October 1988.
And then of course we have all of the exceptions we have
been talking about so far. Those Indian lands are central to
our functions because we have to determine whether the gaming
facility is on Indian lands and is central to our function
because we can only regulate on Indian lands. So we have to
know whether or not there are Indian lands there. If there
aren't any Indian lands, for instance we took a position in
Oklahoma, fee lands, no reservation, and we said, these are not
Indian lands. We cannot regulate it. We sent that information
to the State, and so now the State has moved to close down that
particular facility based on the theory that it is within its
jurisdiction.
The Chairman. When you say ``Indian lands,'' that means
Indian-owned lands as well as trust lands?
Ms. Coleman. There is so much more to it, because first
Indian lands is defined as reservation lands. So if it is
within a reservation, no problem.
The Chairman. That is trust status, yes.
Ms. Coleman. But if it is off-reservation, then it has to
be either held in trust or restricted status, and the tribe has
to exercise governmental authority over it. And to exercise
governmental authorities over it, they have to do both present-
day exercise. So in other words, they have to have law
enforcement, maybe have tribal offices. They have to do actual
right-now exercise of governmental powers over it.
But they also have to have that theoretical right to
exercise that power. So for instance if you have fee lands off-
reservation, as a general matter a tribe is not going to have
that theoretical right.
The Chairman. What about tribally owned lands, not fee, but
they buy some land in downtown Denver.
Ms. Coleman. Those are fee lands.
The Chairman. Those are fee lands.
Ms. Coleman. Right; those are still fee lands.
The Chairman. So they set up a police force and a
government entity; they own the land. They bought it. Now, is
that under your jurisdiction?
Ms. Coleman. No; generally not, because the tribe owns
those lands in fee and cannot just by buying the lands take
them outside of the jurisdiction of the State.
Senator Dorgan. When you say ``generally not,'' are there
conditions under which it is under your jurisdiction?
Ms. Coleman. I am aware of in Alaska there are fee lands
that are held as restricted against alienation. It is a very
unusual situation. I have not actually run into it in any other
place. It was a result of the unusual history of Alaska where
the lands were fee lands that were restricted against
alienation.
The Chairman. So these lands, they have to not only acquire
some way, but they have to have it be in trust status.
Ms. Coleman. Yes.
So we get into it. We, the commission, both trying to
determine whether or not we can regulate this, but also because
we have management contracts that are subject to our approval.
The Chairman. Management contracts are subject to your
approval, but consulting contracts are not.
Ms. Coleman. That is correct, Senator.
The Chairman. We have very few management contracts
anymore, and we have lots of consulting contracts.
Ms. Coleman. We do not have all that many consulting
contracts anymore because we have taken a rather broad view as
to what consulting contracts mean. So we have taken the view
that just because they call it a consulting contract does not
make it a consulting contract. It has to actually be one. Where
they are providing just very specific deliverables for a
specific sum of money, if it looks like a management contract,
then we have concluded it is a management contract.
The Chairman. So have you taken action that has reduced the
amount of money that a so-called ``consulting'' contract, but
is actually a management contract?
Ms. Coleman. To do that, we issue advisory opinions. Tribes
and contractors submit their contracts to us, to the Office of
General Counsel. We review them and we look at them primarily
for two reasons. One to see if they are management and the
other to see if they violate the requirement that the tribe has
the sole proprietary interest in the gaming.
The Chairman. Do you know of any tribe that has had to void
a contract because of your determination?
Ms. Coleman. Yes.
The Chairman. Go ahead, please.
Ms. Coleman. So besides management contracts, on occasion
we do have site-specific tribal ordinances that we have to
approve or disapprove. So if the ordinance is site-specific, we
will also have to make a decision on those.
The Chairman. How large is your staff?
Ms. Coleman. There are approximately 10 attorneys.
The Chairman. And there are how many Indian gaming
operations?
Ms. Coleman. There are approximately 404.
The Chairman. We have 10 attorneys monitoring the
activities of 404?
Ms. Coleman. Yes, sir.
The Chairman. Please proceed.
Ms. Coleman. Thank you.
Now, we offer advisory opinions also on these Indian lands,
the Office of General Counsel does. The reason why we do that
is for a couple of reasons. One is that if the tribe wants to
go ahead and game, it is in their best interest and everyone's
best interest to find out beforehand whether or not they are
going to be able to game on that particular piece of property.
So we will review those for them.
Also, though, we will review Indian lands when the tribe
has already opened a facility and we have a reason to believe
that the property may not be Indian lands. So we need to do
that in order to make sure that they are gaming in accordance
with IGRA. There have been occasions where they have not and we
have had to tell tribes to shut down. That, of course, is not
the way to go, to have a facility already in place before you
have that kind of determination made.
The Chairman. Have they fought you in the courts?
Ms. Coleman. Pardon?
The Chairman. When you tell them they have to shut down,
have they fought you in court?
Ms. Coleman. Absolutely.
The Chairman. Have they won or lost?
Ms. Coleman. Well, there is one that is still pending. In
Miami, we won. What other ones have we had?
The Chairman. Don't look at him. [Laughter.]
Ms. Coleman. George is my memory.
Senator Dorgan. You would remember your losses, wouldn't
you? Wouldn't you remember your losses?
Ms. Coleman. Yes; so we must not have had any. [Laughter.]
The Chairman. Submit that for the record, would you please?
Ms. Coleman. Absolutely.
The Chairman. Thank you. Go ahead.
Ms. Coleman. The reason why I am looking at George is
because we share this responsibility with the department.
Obviously, the department has a really important role in this.
So we entered into a memorandum of understanding with the
Office of the Solicitor to share our work and to work together
on these issues. The Division of Indian Affairs has a few
people who work on these issues. George, of course, does, and
then our office. And we provide drafts and we share
information. The Bureau of Indian Affairs obviously has the
copies of the deeds and a lot of the relevant information we
need to make these decisions. So we try to work very closely
together.
For many years, the department assumed the primary role for
making these decisions, but a gaming has expanded, as there has
gotten to be more and more facilities, as we have needed more
and more to make these decisions, the Office of General Counsel
started writing more of the opinions. It was rather a natural
transition. I worked in the Office of the Solicitor before I
worked in the Office of General Counsel. So we know and
understand what the department's issues are. We try to work
really closely with them.
Nonetheless, we wanted to let you know that this is not a
small undertaking; that this is difficult; that we have
altogether in the last 10 years have probably only issued about
50 full-blown opinions, and that is with the department, too.
We have about 50 pending right now, somebody counted them for
me. And some of these are really simple. If it is trust land
and it is on the reservation, no problem. It is Indian lands.
We do not have to spend a lot of time looking into this issue.
We do not have to write a full-blown opinion. All we have to do
is determine it is.
But there are other ones that are very complex and
difficult. The one that was alluded to by George, the restored
lands, that exception to the general prohibition for gaming on
after October 1988 when lands are taken into trust as part of
the restoration of a tribe when it has been restored to Federal
recognition.
To fall within the restored land exception, a tribe must
establish that it is restored and then it must establish that
the parcel has been restored. So to be restored to Federal
recognition, you must have been recognized at one point; you
must have been terminated; and then you must be re-recognized.
Being recognized right now is usually pretty easy. We can look
to the Secretary's list of recognized tribes or we can look to
recent enactment of Congress where the tribe has been restored
to recognition.
But to determine whether somebody has been previously
recognized is a lot more complex. There are tribes that are
recognized through the BIA's BAR process that were not
necessarily previously recognized, but they are now recognized.
So we have to look at their relationship back in the 18th and
19th century. We have to look to their political history, their
ethnographic history. We work with the tribe. We work with the
department. We work with the State. We work with historians and
archivists, and just pull all of that information together.
And then we have to go even further when we are trying to
determine whether lands are restored. Just because you
reacquire lands does not mean that they are restored lands.
Every time a tribe acquires land into trust does not mean that
just because they are a restored tribe that the lands are
restored. We have had several court cases on this, so we have
some real guidance on what restored lands means now.
What we do is we look to the factual circumstances of the
acquisition. We look to the location of the acquisition. For
instance, the location of the acquisition, if the tribe is
located in California, are they seeking to acquire the land a
mile away from where their population base is? Or are they
looking to get it in Nevada? Well, we would say that if they
are trying to acquire it in the next State, that is way too far
afield. We are looking to where the population base is.
And we are looking to whether or not this land is important
to the tribe, whether they still have some relationship with
that land; whether it was important to them throughout history;
if that was the place where they had village settlements; where
they did their hunting and fishing; whether they have burial
grounds; whether they have this really important historical
nexus besides the present day nexus to the land.
And we look to the temporal relationship to the
acquisition. So a tribe that was restored to recognition 40
years ago and acquired land 2 years later, that is going to be
its restored lands. The fact that it has been restored to
recognition and wants to acquire land now, that does not make
it restored lands because that is just too far after the fact.
So it has to be close in time.
So for instance in the litigation that we are in in
Wyandotte, Ok, the tribe had acquired land into trust in the
State of Kansas. We said, population base is in the State of
Oklahoma. This land was not important to the tribe as a general
matter. They were only located on that property for 11 years.
It was transitioning through, essentially, through Kansas. It
was 18 years after their restoration that they actually
acquired this land into trust, so we concluded that these were
not restored lands.
So we are looking very closely at all of this. To do that,
the tribe has to provide voluminous historical documents,
archaeological evidence. It takes tribes time and money to
submit this information. It takes time for us to review it.
Does it mean that we have a really broad exception to the
general prohibition? Absolutely not. It is a very narrow
exception and there have only been a few that have come within
these guidelines.
As George mentioned, most of the restored tribes are
actually congressional actions. It is not an action based on
looking at IGRA and trying to determine what the terms mean. It
is statutory construction instead.
Now, with respect to your notation that there is only 10 of
us, we have been criticized by the Office of Inspector General
because we are not making these decisions on Indian lands
before a tribe opens the gaming facilities, and because we do
not really have a systematic approach to making these
decisions. We are making the decisions as we determine that
they are important, and when we find out that there might be a
big problem. That is not necessarily great government.
So we have do share the Inspector General's concern on
this. What we are moving to do is to fix that within our
office. So just a couple of weeks ago, a team from the Office
of General Counsel went down to Oklahoma. We started pulling
deeds for the Oklahoma facilities. Our regional director in
California hired a title search company to do some title
searches. We are developing files with the goal that at some
point we will have a file on all 404 and we will be able to
pull a file at any point and be able to tell you whether or not
it is on Indian lands. We will now whether or not we should be
regulating and know whether we should be attempting to close it
down.
If we do not make these decisions before the tribe opens,
well then we will have litigation. It is just going to be
guaranteed. A tribe is going to have to fight us if they have
already opened their facility and we say you cannot have a
facility. And so consequently one of the things that we are
looking at is developing regulations that ties the licensing of
the facility to an Indian lands determination. So that we can
ask tribes to notify us ahead of time that they are planning on
opening. And I don't mean the day before. I mean enough time so
we can actually determine this and get all of the information
we need to make sure that they are gaming on Indian lands.
So that is our involvement in Indian lands determinations.
I thank you very much. If you have any questions, please ask.
[Prepared statement of Ms. Coleman appears in appendix.]
The Chairman. Thank you very much.
Mr. Skibine and Ms. Coleman, I get the impression from your
statements that you think that perhaps the danger here has been
somewhat exaggerated, or the problems have been somewhat
exaggerated. Is that accurate?
Mr. Skibine. Well, I do not think that there has been the
problems in the past. As my testimony indicates, we have
followed IGRA very carefully and it has not resulted in that
many casinos proliferating everywhere. I think potentially we
are concerned about what is in the future because of the
potential for abuse that is there under the Act currently, but
we have not seen that. As I said, with some of these they are
to us just rumors and we have no involvement so we do not know
for a fact that that is an issue.
The Chairman. Which means that perhaps some legislation may
be necessary in order to prevent some of these things from
happening. Do you agree with that?
Mr. Skibine. It may be. As I stated, we would be willing to
discuss with you what would be the appropriate mechanism and
where it needs to change to tighten things up.
The Chairman. We need to do that, but let me give you
examples of why there seems to be concern. Stories about a
member of the Bureau of Indian Affairs literally signing
recognition papers on his way out the door in his car. I mean,
that is a fact. Those were rescinded because of those
circumstances of his last day in office. Rumors or stories that
are carried that a tribe is willing to trade their claims for
half of the State of Colorado, as Byron Dorgan mentioned, so
they could establish a casino in downtown Denver.
When these stories start circulating like that, people area
asking, what is this all about? You see my point?
Mr. Skibine. Yes; and that is an issue. I was in Colorado.
The Governor of Colorado had a conference regarding that. I
think it is a real issue. With respect to the Colorado issue, I
think the department has determined that the claim that is
asserted by the tribe is not genuine and lacks merit. So for
purposes of the settlement of a land claim, the reason we have
only had one so far is that our view is that the settlement of
a land claim has to be a settlement that is ratified by
Congress, as the Seneca claim was. As a result, there is a
phenomenal check on an abuse of that exception. If it has to
come before this body, it will be scrutinized to the nth degree
so that the settlement legislation is not enacted willy-nilly
here.
The Chairman. So Senator Voinovich's concern about a casino
in downtown Cleveland is not, his concern is not as compelling
as perhaps we might think?
Mr. Skibine. Perhaps. That is right. In our view, there
would have to be settlement legislation introduced in Congress.
That is our view, and we have a Solicitor's opinion that states
that. Now, potentially some tribes may disagree with the view
of the department on that and challenge it in court if they
apply for settlement of a land claim, and we say you do not
have congressional legislation, goodbye. And they may sue us
because of that.
So I do not know where that would go. Maybe the act could
be tightened on that score to make sure that we are talking
about settlement legislation that is ratified here.
The Chairman. Let me go back with you to one of the
fundamentals. When IGRA was passed, as we all know, it was as a
result of the Cabazon decision, which said that if a State
allows a certain level of gaming, then Indian tribes that
reside within that State would certainly have the right to
engage in gaming at that level. Isn't that a proper
interpretation of the Cabazon decision in your view?
Mr. Skibine. Yes; that is correct.
The Chairman. But then there was a decision that was made
that if a charitable organization has a Las Vegas night once a
year where gaming is conducted, therefore you can have a 24-7,
12-month a year gaming operation on an Indian reservation. That
changed things rather dramatically, didn't it?
Mr. Skibine. Well, yes. The view of the department is
really to follow the decision of the Ninth Circuit in the
Rumsey decision that was appealed to the Supreme Court and the
cert was denied, but I think the Solicitor General filed a
brief in support of that decision. Under the Ninth Circuit
reasoning, I think that the scope of gaming has to be by
activity, so that for instance the issue there was, let's say
the State of California authorizes horse racing, which is class
III gaming activity. Well, that would mean that all class III
gaming activities are open, like slot machines. The court said,
no, that gaming activity has to be authorized, and that is our
view right now.
Senator Dorgan. But that is not responsive to the question
that the Senator asked. He asked the question about a State
that allows a Las Vegas night once a year.
The Chairman. For charitable purposes.
Senator Dorgan. For charitable purposes.
Mr. Skibine. Right.
Senator Dorgan. And the consequences of that of triggering
an opportunity in a State for something broader.
Mr. Skibine. That is correct, because charitable gaming
nevertheless is gaming, and if that gaming activity is
authorized by charities, then it will be authorized for Indian
tribes under IGRA. I think that is our view and certainly would
have been the view of the courts right now.
The Chairman. Is it the department's view that the land
claim exception authorizes a tribe to open a casino in
geographic locations it has not been possibly more than 100
years? In other words, Ms. Coleman mentioned that one of the
reasons why they did not approve of a Kansas acquisition is
because they had passed through. In other words, what is the
criteria here? Many of these tribes tragically moved all the
way from our east coast out to the west, not of their own
volition, by the way, but they had various stops along the way.
Mr. Skibine. Right. The settlement of a land claim, which
as I said we have applied once, I think the way that would work
is that the settlement legislation that is introduced in
Congress, and if it is eventually passed, will in all
likelihood specifically say we settled this land claim, and as
part of the claim the Secretary of the Interior is mandated to
take land in trust, and it will probably say specifically where
it is, by county or even by lot. So that in the Seneca Land
Settlement Act, for instance, it was specifically stated in the
Act where the land could be taken into trust. That is what we
would be looking for.
So what we think is really not important because we would
be following what Congress tells us to do in the settlement
legislation.
With respect to the Eastern Shawnee, if there is
legislation that says that Congress sells the claim, and in
exchange for whatever reason, but the Secretary has to take
land in trust in Ohio in a specific community, then we will
have to do that. But we will look to you to tell us how to
interpret that in the law.
The Chairman. Ms. Coleman, it sounds to me like you could
use some more help.
Ms. Coleman. Absolutely.
The Chairman. Thank you very much.
Senator Dorgan.
Senator Dorgan. Ms. Coleman, let me ask a question about
licensing. If I am a tribe and there aren't any of these land
issues and I just want to open a casino and our State has
gaming, so I want to develop a compact. I have to get a license
from whom?
Ms. Coleman. From the tribe's regulatory authority.
Senator Dorgan. So that license, based on your testimony,
that license may be granted in other circumstances before land
claims are settled?
Ms. Coleman. Well, as Mr. Skibine testified, the settlement
of a land claim exception is so rare, it has only happened
once, that it really has not come up. The one time it did come
up is the same Wyandotte, KS situation where the land was
already acquired into trust and the tribe argued that that
acquisition was a settlement of a land claim. We determined
that it was not because there was an ICC case and we concluded
that ICC cases are not settlement of land claims; that they are
settlement of money damages against the Federal Government, but
not actually for settlement of a land claim.
Senator Dorgan. But with the size and the growth of Indian
gaming, my expectation and I assume yours would be that these
things will come up more and more often because the stakes are
so high.
Let me just mention, Mr. Chairman, last evening or
yesterday late afternoon we finished in the Interior
Appropriations Subcommittee, I am the ranking member on that,
we finished that piece of legislation. My colleagues from
Oklahoma were trying to, and we were not able to do this, I
wish we had been, but we were not able to put this in an
appropriations bill, but there is an issue which you are
probably familiar with in Oklahoma dealing with the Shawnee
Tribe Status Act.
That act was passed and somehow it gives the Shawnees, and
this is according to the Senators from Oklahoma, it gives the
Shawnees the ability to take land into trust so long as it does
not interfere with other tribal jurisdictions, and requires the
Secretary to approve the land in trust, ``shall'' versus
``may,'' and they say this loophole would allow the Shawnees to
take land into trust within Oklahoma County, in the middle of a
major city, and the Secretary would have to approve it.
They say that circumvents existing law and regulation and
normal land and trust application. And they feel that is a
self-executing circumstance currently in law and they are
trying very hard to change it.
The Chairman. Which I might add was put in an
appropriations bill.
Senator Dorgan. Right.
The Chairman. An omnibus appropriations bill.
Senator Dorgan. Right. But my point about is, there is a
powerful reason for tribes to try to find ways through these
exceptions to locate a casino in the middle of a major
population area. I understand that. If we were able to and our
purpose was to be able to run a casino, we would want to be in
the middle of a population center. That is a natural market.
And yet we have certain guidelines and restrictions and we
rely on our regulatory agencies to deal with them
appropriately. We also rely on the Congress to make the right
decisions on these things. Occasionally, we do not make the
right decisions.
I think one of the things that I have learned from your
testimony, Ms. Coleman, is that this issue of the resources
that are available to respond to the needs to effectively
regulate a very growing industry is an important consideration
for this Congress. I think we need to get additional
information from you. You indicated that you have not really
had a system by which you move things out the door, make
judgments and move things, but you are now developing that
system. I would say hurry because I think there are going to be
enormous pressures from many different directions to find ways
through the exceptions.
Mr. Chairman, I have to leave at 11 o'clock, but I know
that we have another panel coming and I will be able to hear
part of that panel. I thank the two witnesses. Mr. Skibine,
thank you again for being with us, and Ms. Coleman, thank you.
Ms. Coleman. Thank you.
The Chairman. Senator Smith.
Senator Smith. Thank you, Mr. Chairman and Senator Dorgan.
Mr. Skibine, in May you testified that IGRA's two-part
determination suggests that Congress sought to establish a
unique balance in determining exceptions. Only three tribes, as
I understand it, have acquired exceptions under that provision
since 1988. But those are in-State, and yet a lot of concerns
remain.
My question is, would restricting the two-part
determination exception only to in-State lands remedy most of
the concerns that remain?
Mr. Skibine. I think it will help remedy some of the
concerns. I do not think it will certainly address the issue
with the settlement of a land claim that was raised by Senator
Voinovich here. That tribe would be taking exception of another
exception, the land claim exception where there is no
restriction on State boundaries under that exception either.
The fact is, we of course have only approved three two-part
determinations for tribes since 1988, all within the State
where they are located. We currently have eight that are
pending, and of those I think all are within the State where
they are located except for one, which is the Stockbridge-
Munsee community of Wisconsin. At this point, that application
is for land in the Catskills and it is submitted as a two-part
determination for land in New York, but in fact I think if this
goes through, it probably would go through as a settlement of
land claim rather.
So in fact, if you discount this one, we really do not have
any that are pending under the two-part determination for out-
of-State tribes.
Senator Smith. A question for both of you. I think one of
the most unseemly things that has happened on Capitol Hill in a
long, long time, frankly seems to grow out of IGRA and the
number of developers apparently seeking Indian tribes to pursue
gaming interests.
Frankly, that has led to some very shameful things
happening. These developers often are looking for a tribe. They
pay for the lawyers. They pay for the up-front lobbyist costs.
I wonder if this is just perceptional on my part, or are you
seeing more applications that are driven by these kinds of non-
Indian interests on behalf of tribes to pursue their gaming
interests?
Mr. Skibine. I am not sure if there is an increase in that.
I think if you look back to some of the earliest applications,
also the tribes were supported by outside developers. Let's
take for instance the Mohegan Tribe of Connecticut was
supported by a large gaming corporation out of South Africa. I
think that part of the reason for that is that some of the
tribes, new tribes especially, have very little means and they
essentially are pretty much penniless on their own. I think it
is not necessarily what they want to do to come into a
partnership with an outside group, but it is certainly
something that is, when it is offered, they can see it as an
easy way to access capital and to essentially move their
applications along and move their plans along.
Whether there is an increase, it could be, based on the
rumors that are out there, but we do not really have a handle
on that specifically at the BIA. I am not sure, maybe the
commission can address that.
Ms. Coleman. I don't know as there is an increase. We do
know that the harder we make it for tribes that are landless to
get land into trust, the more dependent they have to be on the
outside resources because tribes that do not have money and
have to go through the process, who have to go through the
department, go through the NIGC, to acquire land into trust, to
get it to be designated Indian lands, that takes time and that
takes money. And so they need to look to the outside interests.
In some of these, as I said earlier, they are very
difficult. They do take a lot of money. If you have to hire an
ethno-historian, if you have to hire an environmentalist to do
all of the NEPA work and prove it is restored lands, it is
going to require somebody to put up the money.
Senator Smith. I assume, though, that there is a concern in
the Department of the Interior about it. Is there any effort
made to identify the tribal interest from the developer's
interest and to provide some level of direction that gets in
the way of some abuse of tribes?
Ms. Coleman. We definitely are aware of that issue all of
the time. We want to make sure that tribes do not end up in a
situation where it is not really the tribe's gaming anymore. It
is one of the driving forces behind our sole proprietary
interest advisory opinions, that we have kind of tried to draw
a line, saying to a tribe if you give this much of your gaming
to this company, well then you are no longer the sole
proprietor of this. You have to retain the bulk of it. IGRA is
intended for the tribes. They are to be the sole beneficiaries.
So we have taken a pretty hard line on this sole
proprietary interest issue. I think it has really helped. We
have also been talking to Senator McCain about more background
investigations for a larger number of people who are involved
in gaming. I think that makes a lot of sense. You want to make
sure you have good guys in gaming. A lot of tribes do really
good background investigations. Not all tribes have access,
though, to like the FBI criminal history checks and the
fingerprint checks and all of those kinds of things that the
Federal Government has access to.
The Chairman. Thank you very much. We will look forward to
continuing to work with you as we contemplate some legislation
to address some of the issues that continue to come before the
committee.
Thank you both for coming.
Mr. Skibine. Thank you, Mr. Chairman.
Ms. Coleman. Thank you.
The Chairman. Our next panel is Walter Gray, who is the
tribal administrator of the Guidiville Band of Pomo Indians;
Christine Norris, principal chief, Jena Band of Choctaw
Indians; John Barnett, chairman, Cowlitz Indian Tribe; and
Charles D. Enyart, chief, Eastern Shawnee Tribe of Oklahoma.
As you take your seats, I would like to say, Chief Norris,
I have read your testimony and let me make a couple of points
for the record. First, this hearing is not about Jack Abramoff
or the investigation this committee is conducting into his
activities. Second, I am particularly concerned about the
possibility that this hearing may be used to cast aspersions on
the integrity of, in particular, the Senator from Louisiana.
To assure that there will be no further discussion of this
issue, I will say the following: Incidental to its reviews of
matters within its jurisdiction, the Committee has seen
absolutely no evidence whatsoever that Senator Vitter's
opposition to the Jena Band's attempt to obtain a gaming
facility in Louisiana had to do with anything other than his
longstanding principled opposition to the expansion of gaming
in that State. I would like to make that very clear.
We will begin with you, Mr. Gray, and thank you and the
witnesses for coming. All four of your written statements will
be made part of the record.
STATEMENT OF WALTER GRAY, TRIBAL ADMINISTRATOR, GUIDIVILLE BAND
OF POMO INDIANS
Mr. Gray. Good morning, Mr. Chairman. I am Walter Gray. I
serve as the tribal administrator for the Guidiville Band of
Pomo Indians of California. I would like to thank you for the
opportunity to testify this morning.
The Guidiville Band was illegally terminated and is now
seeking to restore its land base. We believe that the restored
lands provisions of IGRA work and we are here to explain why.
Historically, the Pomos used and occupied land that extends
from the San Francisco Bay Area north to what is now Mendocino
County. In 1851, the Pomos entered into a treaty with the
United States ceding over two million acres of land in exchange
for a reservation of 254,000 acres. Unfortunately, at the
request of the State of California, these treaties were never
ratified and the Pomos, as well as the majority of other
California Indian tribes were left landless and without means
of support.
The California Indian population was decimated by the
deliberate policies of the State of California. As a result,
the California Indian population, estimated to be 200,000 at
the time of statehood in 1850, was reduced to a mere 15,000 by
the year 1900.
In 1915, the Guidiville Rancheria was established by the
Federal Government. However, in 1962, the Rancheria was
illegally terminated. In 1987, before passage of the IGRA, the
tribe filed its lawsuit challenging the Federal Government's
actions. In 1991, a Federal court reversed the wrongful
termination, but to date no significant funds have been
appropriated for the tribe to reestablish the lands which were
wrongfully taken.
When Congress enacted IGRA in 1988, it understood that
there were tribes like Guidiville who were terminated and
landless at the time of its passage. We believe the exceptions
in IGRA demonstrate Congress' commitment to treat tribes
equally. As a restored tribe struggling to reestablish a land
base and achieve economic self-sufficiency, we applaud
Congress' concern about equity when enacting IGRA and we urge
this committee not to lose sight of this concern.
As the Federal courts have held, the exceptions in IGRA
serve purposes of their own, ensuring that tribes lacking
reservations when IGRA was enacted are not disadvantaged
relative to more established ones. The tribe is now faced with
the daunting task of restoring its land base. Guidiville has
looked hard for nearly a decade to find lands in what may be
the most expensive market to purchase lands in the continental
United States.
Recently, the tribe has found land which it can purchase,
the now-closed naval fuel depot in Richmond, California. The
site is several hundred acres and will allow for open spaces
and parks, gaming, hotel, and retail facilities, and land for
tribal administrative and cultural uses.
Guidiville has worked with the city of Richmond in a
transparent process. The city of Richmond held five public
hearings with regard to our purchase of the land. This land
acquisition will restore the tribe's terminated lands,
remediate the environmental contamination on the land resulting
from the Navy's use of the property, and produce over 6,000
jobs to help revitalize the local community.
We think that the Congress may be interested in how we have
structured our contractual agreement with the city of Richmond.
This agreement affords other tribes, local governments, and
California citizens the same level of legal protections as non-
tribal developments in California. Most importantly, we have
accomplished this without infringing upon the sovereignty of
the tribe or the city of Richmond.
Though there may be a number of gaming projects that have
been proposed, few will meet the high standards required by the
Federal agencies. We believe that the current regulatory
process is rigorous and will safeguard against ill-conceived
projects. Interior and the National Indian Gaming Commission
require that a restored tribe show historic and contemporary
ties to the land in order for the land to qualify as restored.
To our knowledge, there are no gaming projects that have been
built after restored lands approval that are causing any
significant public policy problem.
In short, the restored lands provisions of IGRA work. They
are not broken, nor will they result in the proliferation of
tribal gaming facilities. Illegally terminated tribes like
Guidiville did not choose to be terminated, nor did they choose
to lose their lands. Left to find a solution for ourselves, the
Guidiville Tribe has decided to use tribal governmental gaming
as a tool to acquire a land base.
We are not here today to ask that the law be changed to
benefit the Guidiville Band of Pomo Indians. We are here to let
you know that the current law can and does work and that the
Guidiville Band should in all fairness be allowed to complete
the restoration of its lands.
It would simply be unfair to change the rules when the
tribe is so close to correcting the wrong that was perpetrated
40 years ago when the tribe was illegally terminated.
Thank you.
[Prepared statement of Mr. Gray appears in appendix.]
The Chairman. Thank you very much.
Christine Norris. Welcome.
STATEMENT OF CHRISTINE NORRIS, PRINCIPAL CHIEF, JENA BAND OF
CHOCTAW INDIANS
Ms. Norris. Mr. Chairman, thank you for giving me this
opportunity to come before you. My name is Christine Norris. I
am tribal chief of the Jena Band of Choctaw Indians.
I have been privileged to serve for the past 30 years in
the tribal government of my tribe. I thank you for letting me
share with you briefly our experience with the fee-to-trust
process and IGRA's section 20 process. The Jena Band was
recognized through Interior's Federal acknowledgment process in
1995. Because we were a landless tribe, all of our lands that
were sought were considered off-reservation. The majority of
our tribal members live within the three parishes designated by
the Bureau of Indian Affairs as the Jena Band Service Area.
The Jena Band needs a reservation land base where we can
provide health, housing, education benefits, social services,
as well as land to develop a gaming facility for my tribe
because my tribe has almost no other means to generate revenue
to fund our government. After recognition, we began to work to
identify lands within our service area that could be proclaimed
our reservation.
However, the three parishes that compose our service area
lie within a very conservative, a very religious part of our
State. All three of these parishes voted out gaming in a
referendum.
Because of this referendum, former Governor Mike Foster
refused to negotiate a gaming compact for a facility located
within this three parish service area. He threatened to
actively oppose our efforts to acquire trust land for non-
gaming purposes within our service area if we persisted in
locating a gaming facility. He insisted that we find an
alternative parcel in a parish that supported gaming.
In order to cooperate with the government, with our
Governor, we worked to identify an alternative site for our
gaming facility outside the service area. This was not an
effort to forum shop that we have been accused of. To even
address Senator Vitter's comments about the Jena Band looking
to Texas, looking to Mississippi, we did accept an invitation
from Chief Philip Martin of the Mississippi Band of Choctaw to
come to his State in a collaborative effort to look at gaming
with his tribe. This did not work out.
We did look at areas in Texas. We do say that this was a
mistake on our part. We were beginning to worry that we would
never find a place to establish a gaming facility. We are
pleased that Interior is drafting regulations to govern section
20 exceptions. This will give newly recognized tribes much
better guidance as to what is deemed acceptable. There was not
a clear guidance 10 year ago when we started this process.
To work with the Governor, we satisfied three criteria that
he had. He said the land had to be not too distant from our
service area; the land had to be within a parish that supported
gaming; and in our project in particular, the land had to be
within an area with which we could demonstrate a historical
Choctaw connection. We did this in Logansport, LA.
Logansport is located approximately 64 miles from our
service area. Our land there was located in an area with strong
Choctaw historical connections. The local municipal and parish
government supported us with our facility there. We applied to
the Department of the Interior asking that the Logansport land,
along with several other non-gaming parcels located within our
service area, be taken into trust and proclaimed to be our
reservation. In addition, we submitted extensive documentation
demonstrating that the Logansport parcel also met the
requirements for the restored lands exception in IGRA.
However, the department declined to accept the Logansport
parcel into trust as part of our initial reservation. It also
declined to issue an opinion as to whether the Logansport
parcel qualified for the restored lands exception. Rather,
Interior suggested that it would consider our Logansport
request under IGRA's two-part determination exception.
At great expense to the tribe, we submitted such an
application to the department. Governor Foster repeatedly
expressed his support for our two-part application to the
tribe, to Interior, throughout the media in Louisiana. With
that support, Interior issued a positive two-part determination
in December 2003. To our disappointment and surprise, Governor
Foster left office a few weeks later without concurring with
the Secretary's determination.
Immediately after Governor Kathleen Blanco took office, I
asked to meet with her about the two-part determination and
about a gaming compact; 15 months later, Governor Blanco sent
the tribe a letter stating that she would not support the
establishment of another gambling casino. A few weeks before we
received the Governor's letter, Senator Vitter had come out in
the media warning her not to sign a compact with the Jena Band,
whether for Logansport or any other area, even located in our
service area.
It appears, or I feel like the Governor's response was
influenced by Senator Vitter. He further urged the Governor not
to negotiate with the tribe in good faith pursuant to IGRA.
Senator Vitter has been a constant and vocal opponent of our
efforts in establishing a gaming facility. He put language to
be included in Interior's appropriation report that would have
prevented Interior from acquiring land for us. He has
introduced legislation designed to ensure that we will never
have the opportunity to engage in the same economic endeavor
that has been allowed the other three federally recognized
tribes in Louisiana, and 16 non-Indian gaming facilities in
Louisiana.
His bill eliminates the initial reservation exception
altogether. In its place, he inserts a provision that would
require the Jena Band and other newly recognized Federal
acknowledgment process tribes to satisfy a modified version of
the two-part determination. It would require showing that the
proposed gaming facility would have no impact whatsoever on the
surrounding local, tribal or State government.
This bill also requires the preparation of a costly
environmental impact statement regardless of whether the impact
of the proposed casino is expected to be significant or not.
This requirement is contrary to NEPA's general approach of
first preparing an environmental assessment to determine
whether preparation of an EIS is necessary.
Finally, Senator Vitter's proposed legislation attempts to
rewrite State law for Louisiana and all the other States by
mandating that the tribal State gaming compact be approved by
both the Governor and the State legislature. Every existing
tribal-State compact in Louisiana was executed by the Governor
without approval of the State legislature. We respectfully ask
that Congress reject these proposed amendments to section 20's
initial reservation exception and instead please consider some
small amendments that would make it more fair and efficient.
First, Congress we ask impose hard deadlines on the
Department of the Interior for taking land into trust for
landless tribes. No tribe in the United States is more needy or
is more worthy of the department's focus and prioritization
than a landless tribe which has survived decades in the Federal
acknowledgment process. Congressional direction requiring early
designation of a service area and strict time deadlines for
initial land acquisition would also go a long way to taking out
some of the politics that is fostered by letting fee-to-trust
and reservation proclamations linger for extended periods of
time.
My second request is that Congress amend the initial
reservation exception to clarify that the first parcel or
parcels of land taken into trust by the Secretary shall be
automatically deemed the newly recognized FAP tribe's initial
reservation. This would spare tribes like ours the great
expense and the frustration of being made to jump through the
hoops that serves no purpose other than to further delay the
day when we are put on a level playing field with other tribes.
With these constructive changes, Congress can help, not
hinder, newly federally recognized tribes.
Thank you so much for the opportunity to come before you
this morning.
[Prepared statement of Ms. Norris appears in appendix.]
The Chairman. Thank you very much.
John Barnett. Welcome.
STATEMENT OF JOHN BARNETT, CHAIRMAN, COWLITZ INDIAN TRIBE
Mr. Barnett. Thank you, Mr. Chairman.
Chairman McCain, Vice Chairman Dorgan and respected members
of this committee, I thank you for the opportunity to testify
this morning.
Mr. Chairman, as you have spent your whole life serving our
country, I have spent my whole life serving my tribe. I devoted
almost one-third of my life to the fight to regain recognition
for the Cowlitz Tribe through Interior's Federal acknowledgment
process. I traveled to Washington, DC more than 50 times over
the last quarter-century to represent my people before the
Federal Government. I have paid for those trips out of my own
pocket.
Now, I have one last goal, one last promise to my people,
to regain a homeland so that we may live and prosper on our own
lands as our ancestors did before our land was taken from us.
Maybe then they will let me retire.
For this reason, I greatly appreciate the opportunity to
share our views about the crucial importance of IGRA's initial
reservation exception. When Congress passed IGRA in 1988, it
understood that newly recognized tribes would be unfairly
disadvantaged and thus carved our a limited exception that
allows these newly acknowledged tribes to conduct gaming on
their initial reservations, just as if that reservation had
been in existence in 1988.
By doing so, Congress tried to put newly acknowledged
tribes on a level playing field with previously recognized
tribes. However, newly acknowledged tribes are significantly
disadvantaged in the current fee-to-trust process. The Cowlitz
emerged penniless from decades of struggling through the
bureau's administrative recognition process only to find that
they have no reservation from which to generate revenue to run
social, health, and governmental services for our people, or on
which to conduct the only form of economic development which
almost universally has been proven to be successful, Indian
gaming.
As a result, the Cowlitz and other newly acknowledged
tribes are immediately thrust into the political controversy
surrounding off-reservation land acquisition and Indian gaming.
Consider this: Interior's off-reservation fee-to-trust
regulations simply were not drafted with landless newly
recognized tribes in mind.
Among other things, those off-reservation regulations
specifically give greater weight to the views of the local
jurisdictions in which the land is located. Consider further
that either the community is generally opposed to gaming and so
will fight the tribe's fee-to-trust acquisition, or the
community may support gaming in which case there likely are
established competing gaming interests that will devote
significant financial and political resources to fighting the
newly recognized tribe's proposed land acquisition.
This presents a terrible no-win situation for the newly
recognized tribes. The Cowlitz Tribe has worked hard navigating
the fee-to-trust process in an honorable way. We chose a parcel
of land located within the service area designated exclusive
Cowlitz by both HUD and IHS so it is well placed to serve the
modern-day needs of tribal members who live in the surrounding
area.
We chose a parcel squarely located within an area where we
have strong historical ties, ties that are documented in the
Bureau of Indian Affairs' recognition documents and in our
Indian Claims Commission land claim litigation. We chose a
parcel in a local community that has demonstrated its tolerance
for gaming by allowing four non-Indian card rooms to operate
there. By choosing a parcel of land with which we have
demonstrated modern and historical connections and which is
located in a community tolerant of gaming cannot fairly be
called reservation shopping.
Congress needs to reject proposed amendments to section 20
that would eviscerate the initial reservation exception. I
would respectfully suggest a few improvements to the current
initial reservation provision.
First, newly acknowledged tribes currently must apply for a
reservation proclamation pursuant to section 7 of the Indian
Reorganization Act before we may game on that trust land. Did
Congress really intend to impose this additional administrative
hurdle on newly recognized tribes? We ask that Congress clarify
that the first land taken into trust under the exception
automatically becomes the tribe's initial reservation so that
the tribe is not subjected to yet another expensive time-
consuming process.
Second, Congress should impose time deadlines on Interior's
processing of fee-to-trust and section 20 applications. The
process now takes years to complete and costs millions of
dollars. We think the only way to protect the integrity of the
system is to require Interior to make decisions within 2 years
of receiving the application.
In closing, I would like to recognize the Snoqualmie Tribe
from Washington State, whose Chief Jerry Kanim is sitting
behind me today. The Snoqualmie, too, are a landless newly
recognized tribe struggling with many of the same land
acquisition issues as do we.
In addition, I would like to recognize Mark Brown, chairman
of the Mohegan Tribe and Tribal Councilman Bruce Two Dogs
Bozsum. The Mohegan Tribe completed the Federal acknowledgment
process 10 years before we did, and today they are working with
us to reinvest in Indian country. We hope that our partnership
will show that Indian tribes can and will reach out to help
each other. I would hope that the Mohegan's example will
encourage other successful tribes to help those who are less
fortunate.
All my life, I have served my tribe in the pursuit of what
is right and what is just. I have grown old, but my purpose is
not complete. That day will come when the Cowlitz have a
federally protected homeland that will ensure a brighter day
for our future generations.
The Cowlitz Tribe thanks you for the opportunity to provide
this testimony and we offer our continuing assistance to the
committee as it considers whether and/or how to amend section
20 of IGRA.
Thank you.
[Prepared statement of Mr. Barnett appears in appendix.]
The Chairman. Thank you very much.
Charles Enyart. Welcome.
STATEMENT OF CHARLES D. ENYART, CHIEF, EASTERN SHAWNEE TRIBE OF
OKLAHOMA
Mr. Enyart. Thank you.
Mr. Chairman, I have oral testimony here, but with your
permission I would like to address a couple of comments that
the Senator from Ohio made at the end of this, if I may.
Good morning, Chairman McCain. My name is Charles Enyart. I
am the chief of the Eastern Shawnee Tribe of Oklahoma, a
federally recognized tribe whose aboriginal homeland was in
what is now the State of Ohio. I appreciate the opportunity to
be here today to explain the importance of our land claims in
Ohio for our people.
I am here for three reasons: No. 1, to ensure that we have
the opportunity to return to our aboriginal homeland in
present-day Ohio; No. 2, to ensure that we have the same rights
as other Indian tribes to conduct Indian gaming on our lands
under current laws; and No. 3, to advocate for the rights of
tribes, States and local communities to work together for their
mutual benefit.
The Shawnee want to return to Ohio. Our historic cultural
ties to Ohio are undeniable. It was 150 years ago that the
tribe was driven out of its homeland in the State of Ohio.
Violence against our people, disruptive raids, and the burning
of Shawnee Indian villages by the U.S. Army was methodical.
The unauthorized taking of the Shawnee lands by encroaching
occurred. Our people were forcibly removed from their villages
and sent to reservations first in Ohio, then in Missouri, and
ultimately Oklahoma. It was an ugly and shameful time in
American history in which our people endured unspeakable fear,
intimidation and military violence by the United States and the
early Ohioans.
When we return to Ohio, we wish to do so on the same legal
basis as other federally recognized tribes. That is, we want
the right to conduct activities on our land that would be
permissible for any other recognized tribe anywhere in the
United States. We do not want to return as a second-class
citizen by only being allowed to conduct certain activities.
Thus, we would strongly oppose any legislation that would bar a
federally recognized tribe with legitimate claims from
regaining land in its historical area and using that land for
any permissible tribal activities, including gaming.
I am sure you would agree that to bar a tribe such as the
Shawnee from using any land it may gain in its aboriginal
homeland for federally recognized purposes would create a group
of second-class Indians who are only allowed to do limited
things on that land. It is clear the people of Ohio are
receptive to the establishment of Indian lands and Indian
gaming. They desire the introduction of gaming for the
unquestioned economic benefits that it produces. There are many
reasons for them to prefer Indian gaming over alternatives.
First, there are numerous controls on the scope of tribal
gaming which diminish the potential for uncontrolled expansion.
Only so many tribes have a historical or cultural connection to
any given State. Second, tribal gaming revenues as a matter of
law may only be expended for social benefit purposes approved
by Congress. Commercial gaming only benefits private interests.
In historic contrast, tribal gaming lifts entire
communities out of poverty, educates children who once had
little hope for higher education, builds schools, roads,
bridges, funds law enforcement and emergency services,
preserves languages and cultures, builds clinics and hospitals,
and provides dialysis and diabetic centers, and funds
charitable activities of every kind.
Gaming has yielded economic benefits to our tribe. Until
very recently, our historic legacy was one of poverty and
isolation. Left virtually landless for over 1\1/2\ centuries,
our people had very little realistic hope that things would
ever improve. Like other tribes in similar circumstances, we
had no economy and no tax base.
Indian gaming has changed our bleak outlook as to our
future. The revenues from our modest gaming operation,
Bordertown Casino, located in West Seneca, OK, has provided us
the means to make improvements in the lives of our people and
to rekindle the hope for a better life for our children and
grandchildren.
However, the rural character of the land we now occupy,
combined with the economic conditions in the surrounding area,
severely restrict our economic potential. The lot of the
Eastern Shawnee people has improved, but we have a long way to
go to achieve the level of prosperity that once was ours.
Our interest in returning to Ohio is to establish a mutual
benefit political and economic relationship with the State of
Ohio and the communities that have reached out to us with a
vision of what is possible. We do wish to fully resolve our
outstanding land claims, but not in a manner that will be
detrimental to the people of Ohio. Those with whom we have
established a relationship understand our intentions and have
welcomed us into their communities to discuss the potential for
tribal gaming.
In fact, local communities in the State of Ohio have
recently sought out the tribe and asked us if they could help
bring the Shawnee back to our homeland. We are committed to
working through appropriate governmental channels in Ohio to
ensure that we are welcomed back to our homeland.
On June 27, 2005, we filed a valid land claim in Federal
court in Ohio. The tribe brought the action to vindicate our
aboriginal land rights. We further seek damages for wrongful
possession and trespass on our former reservation lands in
Ohio. These violations continue today. The tribe has sought
redress for these wrongs from the State of Ohio. The State of
Ohio has refused to take any action to redress these wrongs or
even discuss the matter with us. We had no choice but to take
our valid claims to the court for redress.
The full explanation of these claims is contained in
material from our attorneys which I have submitted with my
written remarks for the record. Tribes with legitimate claims
should be allowed to regain portions of their homeland and
should be allowed to enter into agreements including gaming
agreements that promote economic development and benefit
tribal, State and local economies.
Thank you, Mr. Chairman, for this chance to testify to the
committee.
Again with your permission, if I may address a couple of
comments. The Senator made a comment about secret negotiations.
Senator, there have been no secret negotiations. It has been in
the newspaper. It is all over TV in Ohio. He talked about the
agreements we have with certain communities. That is true. We
have four. Only one of the agreements did we pursue ourselves.
The other three pursued us, these communities.
He also talked about economic blackmail. Senator, our land
claim has never been intended to be blackmail. We have been up
front with the State of Ohio. In fact, I have mailed, I think
it was in April, a letter to the Governor, Governor Taft, and
to Attorney General Petro explaining that we would like to meet
with him and discuss our land claim to see if there is
something we can work out. At no time was this blackmail.
[Prepared statement of Mr. Enyart appears in appendix.]
The Chairman. Thank you very much, sir.
Mr. Gray, prior to termination, where was your Band
located?
Mr. Gray. When you ask prior to termination, do you mean
when the original lands were ceded? Which territory are you
searching for?
The Chairman. No; the termination that took place in the
1950's, I guess it was.
Mr. Gray. Okay. The original rancheria is located in what
is now Ukiah, CA.
The Chairman. Which is near?
Mr. Gray. Mendocino County.
The Chairman. Do any of the tribe still reside in that
area, or do they live in the Bay Area?
Mr. Gray. When you ask ``any of the tribe,'' are you asking
specifically about Guidiville? There are several tribes in the
area.
The Chairman. The Department has testified that it applies
a rigorous historical nexus test for restored lands. How do you
think you are going to be able to meet that historical nexus
test?
Mr. Gray. Well, it is very difficult, as they testified,
and very expensive and time-consuming. The tribe would not
pursue this particular piece of land if it did not believe that
it had a strong historical tie to the property. So what we
would like to see happen is that the exception under which we
fall would be left alone as it is and that we be allowed to go
through that rigorous process. The tribe is willing to live
with the end result.
The Chairman. How do you answer the charge that your
interest in the off-reservation sites is only in conducting
gaming?
Mr. Gray. Well, off-reservation, just the term alone
presupposes that the tribe has a reservation.
The Chairman. But you are interested in off-reservation
sites, are you not?
Mr. Gray. We do not have a reservation. I understand your
question. This is within our historical area, and we firmly
believe that. But in California where we are from, it is simple
economics. In an area where lands at our northern boundary of
our territory and lands that are at our southern boundary of
our territory are approximately the same, well in excess of
$200,000 an acre. It will take us over $100 million just to do
the land purchase.
So you have to be able to draw enough people to the casino
to make enough money to be able to pay just for the land. That
is not infrastructure or any of the other things that need to
occur.
The Chairman. Chief Norris, you indicate that the
Department declined to consider your request to have land in
Logansport declared restored lands. What was the basis for
their decision?
Ms. Norris. On Logansport?
The Chairman. Yes; was it due to a lack of sufficient
historical nexus?
Ms. Norris. We proved that there were ties to the port in
Logansport. We were not saying it was the Jena Band that were
originally there, but we were saying that it was the Choctaw
Nation. We proved through documentation that there were Choctaw
people there during the removal period from the east to
Oklahoma.
With the Logansport package, they did give us a two-part
determination in that, with the support of our Governor from
Louisiana at the time. Unfortunately, all indications were that
we were going there for the two-part determination which
Interior did issue that proclamation, but the former Governor
Foster did not carry through with his decision before leaving
office.
The Chairman. You state in your testimony that you have a
three parish or county service area. How was that service area
determined?
Ms. Norris. It was determined by the Bureau of Indian
Affairs when we began our process for the Federal
acknowledgment process. The people in my tribe resided in
Grant, Rapides and La Salle Parishes. This is where we would
have a delivery service area for health services for our tribe.
The Chairman. Did the Department indicate that this was the
area in which you could have an initial reservation? Or did the
Department tell you that there was a certain area where it
would take land into trust for your initial reservation?
Ms. Norris. No, sir; it did not. It only deemed this area
for delivery of services to my people for health care,
education, and social services.
The Chairman. Obviously, you have had a very difficult
time.
Ms. Norris. Yes.
The Chairman. If you had to do it over again, what would
you have done differently? Anything?
Ms. Norris. I think that my tribe I feel during the
relationship that I have had in Government for the 30 years, we
worked with our State, we worked with our Governor. Perhaps
there lies the reason that we have been criticized most in the
media because we went to the areas where our Governor, he very
adamantly came out and said, I will not give you a compact in
those service areas of the three parishes in which you reside
because those areas voted out gaming. If you will go where they
want you, where the people will accept you, where they already
have a form of gaming, I will support you.
Because of that statement that was issued, we sought to
seek these places. The three parish area that voted out gaming
is where we reside, where we live and go to church. We go to
school with these people. We wanted to be good neighbors. I
would have not chosen any other course than what we
participated in. I believe it was right. I believe we worked
with our local government to get to these areas, to get to
where we are today.
The Chairman. You must feel a little betrayed.
Ms. Norris. Of course I do. I feel betrayed by the
administration in my own State, because of the other three
federally recognized tribes. As a leader, as you have heard
from the testimony of these other tribal leaders, it is up to
me to give my people a better way of living, to improve their
quality of life.
That is what I am here for and that is my journey and that
is what my mission is to my people. My story has been an open
book. It has been published in the media around the country. We
have everybody looking at the decisions that are made today
based on the Jena Band of Choctaw. It is before you to see and
everyone else to see. We have tried to work with governments
and with local bodies to do what is right, to do the right
thing.
The Chairman. Chairman Barnett, welcome back.
Mr. Barnett. Thank you, sir.
The Chairman. You state that the site you are proposing is
14 miles from the territory identified by the Indian Claims
Commission as the traditional territory of the Cowlitz. Why did
the tribe not seek a site within the traditional territory as
identified by the Indian Claims Commission?
Mr. Barnett. In 1973, we went through the process, a
hearing with the Indian Claims Commission. We were awarded $1.5
million for 1,716,000 acres of land. We were not allowed to
include Clark County because we could not at that point in time
prove exclusive use and occupancy. There is a reason for that
and I think it is a very important reason. The Cowlitz Tribe
has always been since time immemorial the resident tribe all
the way down to the Columbia River.
When the Hudson's Bay Company built Fort Vancouver, which
is just north of Portland, OR, across the river, it changed
things, because other tribes, for instance the Umatilla, the
Nez Perce, Grand Ronde, those tribes came to Fort Vancouver for
the benefits of trade or to get supplies or whatever it
happened to be. The Cowlitz were already there. These tribes
came, did their business and went back home. We did our
business and we stayed there because that is where we were
from.
The Chairman. But the Indian Claims Commission does not
acknowledge that.
Mr. Barnett. That is right. They did not acknowledge that
fact that we were there and we have proven all along. And that
is one of the problems that we have had with Clark County is
that these four card rooms there are throwing tons of money to
try and say we do not belong in Clark County, when we have
documented proof that we do.
I think that is a very valid point that has to be
considered here is that we are different. We are within our
aboriginal area, even though the difference between exclusive
use and occupancy and just being there, use and occupancy in
the area because of the other tribes coming in, makes it a
little bit different ball game.
The Chairman. Does the local community support your efforts
to get land and a casino?
Mr. Barnett. Some do, some don't. I think we are making
some progress. There has been a lot of misinformation that is
coming out. We have always tried to take the high road and not
get into defensive battle with Clark County. I think we are
going to have to go on the offensive a little bit here to
explain truthfully to the people of Clark County just exactly
why we are there. There are some people that say you belong up
in Toledo, way up in the middle of Washington, things like
that. We find that hard to swallow, but it is something we just
have to deal with, and we will be coming out with documentation
before this fee-to-trust issue is done that will conclusively
prove that this is our aboriginal area, even though we were not
paid for it.
I might mention that approximately 500,000 acres of land we
are talking about here that were not included by the Indian
Claims Commission as a result of this distinction between use
and occupancy.
The Chairman. Chief Enyart, you filed your land claim on
June 27 of this year. Isn't that a long time to have waited
after you were removed from Ohio?
Mr. Enyart. Yes; it is, Senator, but let me give you a
little history of our tribe. We were removed from Ohio in 1832.
We eventually wound up in Oklahoma. We were awarded
approximately, not quite 59 acres. That is what we had for our
tribal headquarters. The only income that the tribe had was
moneys that farmers would pay to farm that 59 acres. We had no
income. The tribal leaders had to meet in churches, in
courthouses, and their budget in the 1940's and 1950's was $50,
and that was to get stamps.
So then in the 1980's, we were able to get grants to build
some buildings where have a tribal headquarters down there now.
And then also the 1980's, we went into gaming. To go on, we did
not have the resources to do it. It is only through the gaming
that we have been able to have some monies that we can be doing
things that we were not able to do at that time.
Gaming has been very good to the Eastern Shawnee. We put
our money right back into the tribe. We have all kinds of
social programs for our tribal members such as children having
clothing allowances, scholarships for people going to college,
a trade school. So this money goes right back in.
Yes, it was a long time, Senator, but we did not have the
resources then.
The Chairman. How would you answer people who say you are
just looking to leverage a better, more lucrative gaming
location?
Mr. Enyart. I would say this, let me tell you my vision for
the Indian tribes. I foresee the day, and part of it is now,
the Federal dollar is getting harder to get, drying up. In my
opinion, the tribes that want to make it in the future need to
be self-sufficient. There is only one way that we can do this
and that is to use our profits from gaming to get into other
businesses so that down the line we can become self-sufficient.
We would no longer be dependent upon the Federal Government to
take care of us.
It is our homeland. We do want to go back. Is it lucrative?
Sure it is, but we are also willing to share in this with the
State, with the community. We are not just trying to take all
of this for ourselves. We have been very open about this in the
press and on TV coverage, too.
The Chairman. So people are correct when they say you are
looking to leverage a better, more lucrative gaming location?
Mr. Enyart. The terminology gets me, Senator. Are we
looking for a better economic place to build, yes, but again
the funds are going to be used in the State and also in the
community and the tribe, so this would not only benefit us, but
the State and the community as well. So to put that in, is it
100 percent, I could not say that, no.
The Chairman. Assuming you obtain the land, are you
confident the Ohio Governor would sign a compact with your
tribe?
Mr. Enyart. The present Governor? No, if Governor Taft is
in there. I am sure you are familiar with a famous Oklahoman,
Will Rogers. Well, Will Rogers used to say, all I know is what
I read in the paper. Well, that is all I know about the
Governor and the Attorney General because we made an effort to
meet with them. They didn't even respond to my letter.
So the only thing I know is what I see in the paper and
what I read and what is forwarded to me. He has made comments
that he would not sign that. Again, I understand that he made
the same comments when the lottery was coming in. He made the
same comments, but lottery was approved.
The Chairman. Are there any limits to where a tribe should
be able to return to exercise sovereignty either in geography
or in the amount of time that has elapsed?
Mr. Enyart. I think if you have a legitimate land claim,
you have historical data that proves that you were there, I
don't think there should be any limits on it.
The Chairman. Shouldn't that be a decision of the Indian
Claims Commission?
Mr. Enyart. Well, I am sure that they would like to have
part of that, but also it is a legal question. If we have legal
reasons to go and file land claims, why can't we pursue those
legal reasons? Now, it would be determined in court anyway.
The Chairman. Do you want to respond to that question also,
Chief Barnett? Are there any limits to where a tribe should be
able to return to exercise sovereignty?
Mr. Barnett. Sovereignty is an issue I think that all
tribes, whether we are federally recognized at one time,
restored through the acknowledgment process. Senator Inouye
told me at a fundraiser for Maria Cantwell, I sat next to him
for dinner. He was the keynote speaker and he said two things
and they really impressed me. He said, always protect your
sovereignty and always protect your traditions. Those words I
think are true and I think all Indian tribes adhere to those
words, that if we are going to survive as tribes, we have to do
that.
But in this day and age, we do have to make certain
adjustments to the way we do things. Indian gaming is one of
the things. As a landless tribe, you might say, well, are we
reservation shopping? Well, how can you be reservation shopping
when you do not have a reservation to begin with? That is our
problem and it is the problem of having to say that we are in
our own aboriginal area, and I think that ``aboriginal'' word
is important because that means that we have been there since
time immemorial.
The Chairman. I was speaking because of the odious
practices of the Federal Government tribes were moved from east
to west and resided in certain areas for long periods of time
before they were finally relocated, if that is the right word.
Do you see my point?
Mr. Barnett. Yes; I do. In our situation, for instance, we
did not sign a treaty. The reason we did not sign a treaty was
because we were asked to move by Governor Isaac Stevens, 200
miles away over to the coast of Washington, to be on the
Quinault Reservation with eight other tribes. At that point in
time in our history, there was slave-taking between the Cowlitz
and the Quinaults. You know, it was a situation where we would
not even consider those types of things. We stayed on our
aboriginal lands because that is where we wanted to be, and
that is where we want to make our living and that is where we
want our children to come.
I agree with you on reservation shopping, if there are
valid reasons, this gentleman here, I do not know that much
about his situation, if there are valid reasons and if the
legal situation is there to take it to court, I think that is
certainly their prerogative to do.
I think the big issue here on reservation shopping is the
opportunists that get involved. They are there for one reason,
to convince tribes that may not have as much smarts that this
is the way you are going to make yourselves lots of money. And
oh, incidentally, we might make some at the same time. And
there is a lot of that going on. I do not know how you people
are going to handle it, but I know that you will handle it in
an equitable way. I am confident of that.
The Chairman. We have seen ample evidence of what you just
stated.
What is your next step, Chairwoman Norris?
Ms. Norris. Our next step is to pursue gaming in one of our
home parishes of Grant Parish. We went the route, as I
explained earlier, with the Governor and the movement of the
State. We are back home in our parish area. How can they deny
us a gaming facility, Federal land to be taken into trust?
We are waiting for it to be declared initial reservation.
With the three other tribes who are federally recognized that
have gaming facilities in Louisiana, we will be the next. I do
not look at it as a form of expansion of gaming. I look at it
as this is our right to be there to pursue this economic
development.
Unfortunately, gaming is the most lucrative in economic
development. I wish it wasn't. I wish there was something else.
I feel like we are put in a box.
The Chairman. I think that is their view in New Orleans.
Ms. Norris. Yes; I feel we are put in a box by these gaming
developers with the money. Unfortunately, as everyone has
stated here before, landless tribes, we do not have any money
to pursue economic development. We do have to depend on, but we
still maintain our Indian sovereignty by making these decisions
to accept or not to accept.
So my next move will be to establish a facility in the
Grant Parish area.
The Chairman. Thank you.
Again, since you mentioned Senator Vitter, I would repeat
the committee has seen absolutely no evidence that Senator
Vitter's opposition to your attempt to obtain a gaming facility
has had to do with anything other than his longstanding
principled opposition to the expansion of gaming.
Mr. Gray, what is your next move?
Mr. Gray. Hopefully with the assistance of the committee,
we will continue to pursue the project that we have proposed
under the existing rules. We hope that they are not changed. We
have made extreme investments of money and time into the
process and we feel we are halfway there. We do not feel that
the rules are broken and we hopefully will be able to continue
to pursue the project under those rules.
The Chairman. Thank you.
I thank the witnesses. It has been very helpful.
This hearing is adjourned.
[Whereupon, at 11:50 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. Daniel K. Inouye, U.S. Senator from Hawaii
Senator Inouye. Thank you Mr. Chairman.
Today is the sixth hearing of the 109th Congress in which the
committee will receive testimony about off-reservation gaming, with
today's hearing focusing on the exceptions specified in the Indian
Gaming Regulatory Act.
As the original sponsor of the Indian Gaming Regulatory Act, I want
to assure everyone that the exceptions for conducting off-reservation
gaming were thoughtfully considered and deliberately included. At the
time the act was drafted, the committee was well aware of the United
States' responsibilities to, and past actions toward, the Indian
tribes.
I am sure that most of those present today know that history but it
is important that it be restated. For the Federal Government's past
treatment of Indian tribes was a shameful period in our history and is
part of the reason that the exceptions were included in the Indian
Gaming Regulatory Act.
Indian tribes were forced to sell millions of acres of land to the
U.S. Government through treaties that were never honored. Some treaties
were not even signed without providing any notice to the signatory
tribes, thus leading them to believe that they had a valid agreement
with the United States.
Lands reserved by the Indians were usually the lands that the
United States felt were the least undesirable as were the lands upon
which the United States forced other Indian tribes. Even then we did
not stop our dishonorable treatment. Many of the lands reserved by
Indian tribes were divided up and provided to the individual Indians in
an attempt to break tribal ties. So-called excess lands were sold to
non-Indians.
But we did not stop there.
We went through an era of terminating our government-to-government
relationship with some tribes and continued to ignore our obligations
to others. Although we restored our relationship with some tribes,
others were and are still forced to go through an administrative
process at the Department of the Interior in order to gain Federal
recognition.
But gaining Federal recognition does not ensure that the United
States will honor its responsibilities and obligations to tribes. It
does not guarantee that a tribe has the land or the tools necessary to
fully exercise its sovereignty or to provide for its members.
And that is why we purposefully included a mechanism for off-
reservation gaming. The exceptions were intended to acknowledge the
Federal Government's dishonorable treatment of Indian tribes. They were
intended to be a mechanism for Indian tribes to gain a measure of
economic self-sufficiency and to further tribal self-governance and
self-determination.
I am confident that the exceptions have not been abused. It is
estimated that since 1988, approximately 27 applications have been
approved pursuant to the exceptions. A few months ago, the Department
of the Interior testified that only eight land into trust applications
under the section 20 exceptions have been approved since 2000, and
three of those applications were on-reservation. Under the two-part
determination exception, State Governors have only concurred in three
of the decisions by the Secretary of the Interior. While the Department
testified that there are 11 pending applications, the Department also
testified that it is a lengthy, time-consuming process.
Some tribes have been criticized for attempting to conduct gaming
off-reservation while others have been accused of abusing the
exceptions. I am confident that the exacting processes established by
the Department of the Interior will prevent any such abuse.
It saddens me that there are those who ignore the purpose of the
exceptions included in the Indian Gaming Regulatory Act. For doing so
seems to also ignore Congress' continuing responsibilities, the Federal
Government's past actions, the sovereign status of Indian tribes, and
the benefits that gaining provides to Indian tribes.
I have repeatedly made it clear--I do not support gaining. But
Indian gaming is about tribal sovereignty and the Federal Government
needs to start living up to its responsibilities. While it must be
well-regulated, I am confident that the regulatory mechanism included
in the Indian Gaming Regulatory Act does that.
Indian gaming has provided the resources necessary for Indian
tribes to strengthen their governments. It provides jobs in Indian
country. It has helped to alleviate the deplorable conditions that
exist in Indian country. Most of all, it has helped tribes meet the
needs of its members for which the Federal Government is responsible
but has failed to do. Yet there is still so much more that needs to be
done.
Thank you.
______
Prepared Statement of Penny J. Coleman, General Counsel [Acting],
National Indian Gaming Commission
Chairman McCain, Vice Chairman Dorgan and members of the committee:
My name is Penny Coleman. I serve as the acting general counsel for the
National Indian Gaming Commission. Thank you for allowing us to speak
with you today. We appreciate the opportunity to testify today about
the Commission's involvement in Indian lands questions.
Indian land is the foundation upon which Indian gaining is built.
The Indian Gaming Regulatory Act [IGRA] defines Indian lands; it
requires that gaming take place on Indian lands; it limits the National
Indian Gaming Commission's regulatory authority to gaming that takes
place on Indian Lands; it establishes a prohibition against gaming on
trust lands acquired after October 1988; and it exempts many lands from
that general prohibition.
Thus, Indian lands are central to many of the Commission's
functions. The Commission must determine whether gaming facilities are
located on Indian lands in order to determine whether the IGRA permits
gaming on those lands and permits the Commission to regulate it. If a
facility is not located on Indian lands, the NIGC has no authority
whatsoever over any gaming occurring there or any jurisdiction to stop
the activity. The Commission is also required to decide whether a
specific parcel is Indian lands when a management contract or a site-
specific tribal ordinance has been submitted to the Commission for
approval; such determinations are part of our final agency actions on
management contracts and tribal ordinances.
The Office of General Counsel also issues advisory opinions on
Indian lands. These opinions are often intended to advise tribes
whether they should attempt to proceed with gaming on a given site.
Sometimes our opinions confirm that a specific parcel is Indian lands.
Sometimes they warn a tribe that we do not consider the gaming to be
legal.
We share the responsibility for deciding Indian lands questions
with the Department of the Interior. The Department makes decisions on
lands when a tribe seeks to acquire land I
into trust, seeks a trust-to-trust transfer for gaining, or seeks
approval of a land lease or a tribal-State compact.
For many years, the Department of the Interior assumed the primary
responsibility for making Indian lands determinations. However, as
gaming expanded in recent years, the Commission's need to make such
decisions became more and more pressing. The Commission thus began
making these decisions on its own. Because of the shared responsibility
with the Department, we entered in a Memorandum of Understanding that
requires each agency to notify the other when Indian lands questions
are pending and to provide advice and assistance on the Indian lands
determinations.
This is not a small undertaking. Altogether, the Department's
Office of the Solicitor and the Office of General Counsel have issued
over 50 written opinions and the Commission has made decisions on over
40 management contracts.
Right now, the Commission has approximately 50 Indian lands
determinations pending. Some of these will be simple decisions. The
land will be held in trust and within the tribe's reservations
boundaries, and no lengthy analysis will be required.
Many Indian lands determinations, however, are complex and
difficult. For example, IGRA exempts from the general prohibition of
gaming on lands acquired after the date of its enactment when ``lands
are taken into trust as part of...the restoration of lands for an
Indian tribe that is restored to Federal recognition.'' To establish
that a tribe's lands fall within the restored land exception, a tribe
must establish that it is a tribe restored to Federal recognition and
that the parcel on which the gaming is being conducted is restored
land.
For a tribe to be restored to Federal recognition under the IGRA,
it must have been previously recognized; it must have lost its
recognized status; and it must be returned to a recognized status. This
last can be straightforward, for, in most instances, it will or will
not have been included by the Secretary of the Interior on her list of
federally recognized tribes. The first two elements, however, require
much delving into our history. Beyond looking to 18th and 19th Century
Treaties and laws, the specific political and ethnographic history of
the tribe must be reviewed. Just gathering the relevant information
requires a large, cooperative effort among the tribe, various divisions
within the Department of the Interior, and perhaps historians and
research archives.
Beyond all of that, determining that lands are restored lands
requires the casting of an even broader research net, for not all lands
re-acquired by a tribe are ``restored'' lands within the meaning of
IGRA. Whether lands are restored lands requires a case-by-case
determination.
We must look to the factual circumstances of the land acquisition.
We must look at the location of the acquisition and consider such
questions as whether it is close to the tribe's population base and
important to the tribe throughout its history. We must look at the two
temporal relationship of the acquisition to the tribal restoration (in
other words, was this land acquired 1 year after the tribe was restored
to recognition or 30 years later and after the tribe acquired 20 other
parcels). All of this requires the tribe to hire historians and
ethnographers and also to produce voluminous historical documents and
archaeological evidence, which, of course, can take time to assemble
and submit, not to mention time for the NIGC to digest.
A number of our determinations have also resulted in litigation,
which slows down our ability to make decisions even further, and to add
to the complexity, Congress has the ability to, and occasionally does,
legislate the status of lands belonging to individual tribes, and that
can change the Indian lands analysis completely.
The Commission and the Department have been criticized by the
Department's Office of Inspector General for failing to decide the
Indian lands questions before a facility opens and for failing to have
a systematic approach to making such decisions. We share the Inspector
General's concern on this. Good government requires that regulators
know the extent of their jurisdiction. Furthermore, if we decide that a
tribe should not have opened a facility because the lands did not
qualify for gaming under the act, extensive litigation is guaranteed
and, if the Commission is correct, the tribe will have incurred
millions of dollars in debt with few options for repaying the debt.
We are, therefore, developing a system which is designed to track
Indian lands determinations and to identify new problems quickly.
Recently, we sent a team to the State of Oklahoma to obtain copies of
deeds, maps and other documentation on some of the gaming sites. In
California, we also hired a title company to conduct title searches on
some sites. This information as well as other information we obtain
will be used in establishing the central file system for the Indian
lands documentation. We hope to convert this file system into an
electronic system in the near future. We are also considering
regulations that would require a tribe to establish that a gaming
operation is on Indian lands before it licenses the facility.
We thank the committee members and staff and stand ready to assist
you as you continue to review these Indian lands questions. If you have
any questions, I would be happy to answer them.
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<all>