<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:25887.wais]
S. Hrg. 109-298, Pt. 1
OFF-RESERVATION GAMING
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
OVERSIGHT HEARING FOR THE PROCESS FOR CONSIDERING GAMING APPLICATIONS
__________
FEBRUARY 1, 2006
WASHINGTON, DC
__________
PART 1
__________
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON: 2005
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COMMITTEE ON INDIAN AFFAIRS
JOHN McCAIN, Arizona, Chairman
BYRON L. DORGAN, North Dakota, Vice Chairman
PETE V. DOMENICI, New Mexico DANIEL K. INOUYE, Hawaii
CRAIG THOMAS, Wyoming KENT CONRAD, North Dakota
GORDON SMITH, Oregon DANIEL K. AKAKA, Hawaii
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
MICHAEL D. CRAPO, Idaho MARIA CANTWELL, Washington
RICHARD BURR, North Carolina
TOM COBURN, M.D., Oklahoma
Jeanne Bumpus, Majority Staff Director
Sara G. Garland, Minority Staff Director
(ii)
C O N T E N T S
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Page
Statements:
Alexanderson, Alvin, on behalf of Citizens Against
Reservation Shopping, Stand Up For Clark County, and
American Land Rights Association........................... 18
Coleman, Penny, acting general counsel, National Indian
Gaming Commission.......................................... 6
Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice
chairman, Committee on Indian Affairs...................... 2
Harju, Philip, councilman, Cowlitz Indian Tribe.............. 20
Kromm, Duane, supervisor, Solano County Board of Supervisors,
on behalf of the California State Association of Counties.. 22
McCain, Hon. John, U.S. Senator from Arizona, chairman,
Committee on Indian Affairs................................ 1
Skibine, George, acting deputy assistant secretary, Policy
and Economic Development for Indian Affairs, Department of
the Interior............................................... 3
Thomas, Hon. Craig, U.S. Senator from Wyoming................ 2
Thomas, Liz, spokesperson, Tax Payers of Michigan Against
Casinos.................................................... 25
Appendix
Prepared statements:
Alexanderson, Alvin (with attachment)........................ 41
Coleman, Penny............................................... 37
Confederated Tribes of the Warm Springs Reservation of Oregon 72
Harju, Philip (with attachment).............................. 77
Kromm, Duane (with attachment)............................... 89
Little Coyote, Eugene, president, Northern Cheyenne Tribe of
Tongue River Reservation................................... 115
Lynch, Edward L., chairman, Citizens Against Reservation
Shopping................................................... 117
Miles, Rebecca A., chairman, Nez Perce Tribal Executive
Committee.................................................. 38
Skibine, George (with attachment)............................ 131
Thomas, Liz.................................................. 38
Additional material submitted for the record:
Montgomery, Marilee Taylor, Stop the Casino 101 Coalition,
letter..................................................... 150
Testimony Questionnaire Reservation Shopping and Tribal
Casinos.................................................... 155
Note: A number of Questionnaires regarding Reservation Shopping
and Tribal Casinos are retained in the committee file. A total
of 848 are against (agree) 62 are for (disagree) and 53 are
undecided.
OFF-RESERVATION GAMING
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WEDNESDAY, FEBRUARY 1, 2006
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:32 a.m. in room
106 Senate Dirksen Office Building, Hon. John McCain (chairman
of the committee) presiding.
Present: Senators McCain, Dorgan, Cantwell, Smith, and
Thomas.
STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. This morning, the committee is holding its
sixth oversight hearing on the Indian Gaming Regulatory Act.
Since IGRA was enacted in 1988, Indian gaming has grown from a
few bingo halls on scattered reservations to a $19-billion
industry featuring Las Vegas-style casinos and entertainment
offered by nearly 200 tribes.
The previous hearings in this committee demonstrated
several areas of the law that are in critical need of
improvement. Last fall, we introduced a bill containing a
comprehensive set of amendments, S. 2078. However, certain
controversial activities continue to concern me, my colleagues,
and many communities around the country. Therefore, I have
determined, working with Senator Dorgan, to continue to look at
these activities and whether additional changes to IGRA are
needed.
While the majority of tribes have built casinos on their
reservations, a growing number have applied to use the
exceptions in section 20 of IGRA to obtain casinos off their
reservations in more economically viable locations. As might be
expected, the success of off-reservation casinos leads others
to seek similar success.
State officials have a role in land-into-trust decisions
under the two-part determination. I am concerned, however, that
the process of taking land into trust under the restored lands
and initial reservation exceptions may not be adequate to be
fair to all the people impacted by the arrival of a casino.
At the same time, we recognize that the restored lands and
initial reservation exceptions were originally intended to
provide a fair chance for newly recognized tribes to achieve an
equal footing with their sister tribes. Having received a great
deal of information about newly recognized tribes looking for
the best place to place a casino, rather than a location that
meets the cultural and social needs of their members when
looking for an initial or restored reservation, we must now try
to fairly balance the interests of tribes seeking reservations
and the communities affected by new casinos.
We will also hear from individuals who can testify to three
locales' experiences with the land-into-trust process, as well
as an Indian tribe that currently has its application for an
initial reservation pending before the Bureau of Indian Affairs
[BIA] and that has at the same time received an opinion from
the National Indian Gaming Commission [NIGC] stating that if
land is taken into trust, it should be considered restored
lands. It is these two exceptions to IGRA's general ban on
gaming on recently acquired land, the initial reservation and
restored lands for restored tribes exceptions, that we are
interested in today, along with many other aspects of IGRA.
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 agree with what you have said in your opening statement.
There is no question but that the application process for these
exceptions is something that we should hold these hearings on
to try to better understand.
Today's hearing will focus on two exceptions to the general
ban against gaming on lands that were acquired after 1988: No.
1, those lands that are the initial reservations of tribes; and
No. 2, those lands that are the restored lands of tribes. The
exceptions, my understanding is, from the origin of IGRA, are
intended for those tribes whose lands were illegally taken;
whose governments were wrongfully terminated; or who are just
establishing their government-to-government relationship with
the United States.
The two exceptions were are discussing today are intended
to correct some of the many injustices bestowed upon native
people. It is true, Mr. Chairman, as you indicated, that
location for these facilities is critical. It is also true that
there are many who would want to find the best locations
possible and the largest possible centers possible. We
understand all of that.
As a result, we want to evaluate how these exceptions are
working; how the applications for these exceptions are being
considered; and understand the consequence of all of that. For
that reason, I think these hearings are going to be very
productive and very important as we move forward.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Thomas.
STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM WYOMING
Senator Thomas. Thank you, Mr. Chairman.
I appreciate your having this hearing. I think this is an
issue of increasing concern and interest to all of us. I have
no particular statement. I look forward to the testimony. I
believe this is a very important issue and I am glad we are
dealing with it.
The Chairman. I thank my colleagues. I would like to again
state we will be having several more hearings on this entire
issue of Indian gaming, and also the issue of political
involvement and contributions. I intend to mark up legislation
within 1 month or so that I hope can be passed by both Houses
of Congress.
I want to emphasize, as I said in my opening statement,
this went from a very small revenue and small enterprise
business, to now approaching $20 billion a year; 99 percent of
the patrons of Indian gaming are not Indians, so we have an
obligation not only to Native Americans to preserve their
rights and their sovereignty, but also to protect the rights of
those who patronize Indian gaming facilities as well.
So I am very aware that there is a great deal of
controversy out there in Indian country about addressing this
issue. It needs to be addressed. Every law that is passed over
time needs to be updated and reauthorized. IGRA was passed in
1988 and it is time that law be reviewed and reauthorized in
keeping with changing circumstances.
I thank my colleagues. I would like to ask the first panel,
George Skibine, an old friend of the committee, who is the
acting deputy assistant secretary for Policy and Economic
Development for Indian Affairs of the Department of the
Interior; and Penny Coleman who is the acting general counsel
of the National Indian Gaming Commission, as our first
witnesses.
Mr. Skibine, we will begin with you. Again, 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 very much, Mr. Chairman, Mr. Vice
Chairman, Senator Thomas. I am pleased to be here to represent
the Department of the Interior at this hearing.
I submitted a statement for the record. In my testimony, I
describe the process.
The Chairman. Without objection, both statements will be
made part of the record. Please proceed.
Mr. Skibine. I describe the process that a tribe has to go
through in submitting an application to take land into trust
for gaming. I am not going to repeat what I said here; just
outline it. Essentially, the way it works is that, first of all
let me mention that before a tribe submits an application,
there are often a lot of rumors going around, and articles in
newspapers.
We are not really involved in that at all. That creates a
lot of controversy and gives the impression that something is
already pending, when in fact when we receive these calls, for
many, many of these applications, the BIA is not yet involved.
The BIA's involvement is triggered when a request is
submitted to the regional office under our regulations for
taking land into trust, contained in 25 CFR part 151. That
triggers the BIA to consider the application. What usually
happens next is that the BIA will begin the environmental
documentation processing under NEPA to decide whether an
environmental assessment or an environmental impact statement
is needed.
That usually takes 6 months to 1 year, we are involved with
that process. The process includes public input. There are
scoping sessions that are held in the field, and then
eventually, a draft environmental statement is submitted for
comment. We get most of our information on environmental
consequences from that process.
The Chairman. What is the average length of that process?
Mr. Skibine. For NEPA, I would say it is at least a year,
sometimes much longer than that.
As this is going on, the tribe will continue to submit its
application and the local BIA will conduct consultation
meetings if its off-reservation. We will do consultation with
State and local communities that have jurisdiction over the
land. We will examine the impact based on the comments that are
received. Eventually, there will also be a determination that
is going to be made in Washington, if the land is for gaming,
on whether the land will qualify under one of these exceptions
that you mentioned at the outset.
We look at the information that the tribe has submitted and
we decide whether one of the exceptions applies. In some cases,
we do not have to make a determination because the tribe will
say, we are applying under the two-part determination, which is
off-reservation. In that case, the process moves forward under
that two-part determination test that you talked about earlier.
If not, then we will make a determination as to whether
section 20(b)(1)(A), the two-part determination, applies or
not. If it does not apply, it will be because it fits under one
of these exceptions. Under these exceptions, we have approved
since 1988 one under the restoration of land exception. We have
approved three under the initial reservation exception,
although we have not actually taken land into trust yet under
the initial reservations exception because two of those cases
are now in court. The third one was just approved a few days
ago.
We have approved 12 applications since 1988 under the
restored tribe exception. A restored tribe can be either
restored by Congress or restored by judicial decision. We have
about 10 applications under the two-part determination
currently pending before us and we also have about 10 under the
restored tribe exception that are currently pending in the
Bureau of Indian Affairs.
As the process goes along, a determination will be made
whether the tribe qualifies under the exceptions. Then the
recommendation of the regional office will come to my office,
where we will take a look anew at that application. We will
decide whether to sign a finding of no significant impact under
NEPA for an environmental assessment, or whether to sign a
record of decision if an environmental impact statement is
done.
We will look at whether to recommend to the Secretary who
has delegated authority, actually the Assistant Secretary for
Indian Affairs, to take land into trust. Since 1990, when
Manuel Lujan was Secretary, there was a policy made that
applications to take land into trust for gaming would be made
at the central office. We have continued that policy since
then.
Now, what I want to emphasize is that what we have sought
to do here is to have a very transparent process from the
beginning. We understand, and I have talked to many people out
there who have sometimes had a problem with the regional office
of the BIA in getting sufficient information. I have talked to
Congressmen representing Districts who have had that issue. We
are trying to fix that because I think that the philosophy that
we have and that essentially follows Secretary Norton's
position on communication and consultation, is that we want the
process to be very transparent.
We want to be able to do consultation and cooperation with
local communities. At the central office, we often encourage
the tribes to reach out to their local communities. We feel
that agreements between local communities and tribes to reduce
adverse impacts are extremely important. We emphasize that to
the tribes and to the local communities when we go out there
and talk about the process.
We understand that it is a somewhat confusing process. It
is long and arduous. There are a lot of pieces there. It is
sometimes difficult to explain that to the local communities,
especially to the people who are not lawyers or involved in the
process. We are developing a draft regulation to implement
section 20 of the Indian Gaming Act. We had a draft regulation
published in 2000 under the previous Administration that
implemented section 20(b)(1)(A), the two-part determination
process, but we never went final with that regulation in the
new Administration.
Now we are reviving the process and broadening it to
include dealing with the other parts of section 20. We are
doing that in order to try to get clarity into the process so
that a process can be followed and has to be followed in every
case. The regulations have been developed.
We will hopefully in the next couple of weeks send a
working document to tribes and do tribal consultation. We will
make it available to the committee and to anyone else who wants
it. Eventually, we hope to have regulations implemented before
the end of this year.
With respect to the initial reservation, we have done that
only a couple of times. I want to talk about that particular
exception, finally, because our position is that to qualify
under the initial reservation of a tribe recognized under the
acknowledgment process, there has to be a reservation
proclamation.
The reservation proclamation is published in the Federal
Register pursuant to the Secretary's authority to proclaim
reservations in section 7 of the Indian Reorganization Act.
That act authorizes the Secretary to proclaim reservations on
land that is held in trust. It is fairly broad.
We are also separately in the process of developing
regulations that will implement section 7 of the IRA for
reservation proclamations. Right now, there are no regulations.
There are guidelines that were issued in the past that the BIA
follows.
The Chairman. When do you expect those regulations to be
completed?
Mr. Skibine. Hopefully we can do that in the next couple of
months or so, in terms of producing a draft.
The Chairman. Senator Dorgan just made a comment: Seventeen
years of IGRA without regulations?
Mr. Skibine. Without regulations on what?
The Chairman. On section 20.
Mr. Skibine. On section 20?
The Chairman. Yes.
Mr. Skibine. That is correct. We do not have regulations
implementing section 20 of the Indian Gaming Regulatory Act. We
tried to do that in the 1990's. Personally, I thought it would
have been helpful. When we initially published our draft
regulations for section 20, there were a lot of objections from
tribes. I think the new Administration decided not to press the
issue. I think that now the Administration feels that this is
something that is going to be very worthwhile.
With that, this will conclude my brief comments. I am
available for questions if you have any. Thank you very much.
[Prepared statement of Mr. Skibine appears in appendix.]
The Chairman. Thank you very much.
Ms. Coleman.
STATEMENT OF PENNY COLEMAN, ACTING GENERAL COUNSEL, NATIONAL
INDIAN GAMING COMMISSION
Ms. Coleman. Thank you, Mr. Chairman, Mr. Vice Chairman,
committee members.
My name is Penny Coleman. I am the acting general counsel
of the National Indian Gaming Commission. I appreciate that you
took the time to let me speak to you today. I understand that
you are concerned about off-reservation gaming and that you are
concerned about gaming where there are tribes that are
landless, and they are looking to find a place where they can
establish their home base and establish a place where they can
have economic development, and that includes gaming.
Our office is somewhat involved in that, but not
extensively. The Indian Gaming Regulatory Act defines Indian
lands. It makes the NIGC the primary regulator for the Federal
Government. Consequently, there are several times when we have
to decide that they are Indian lands. In fact, all of the time
we have to decide whether or not they are Indian lands. The
primary one, of course, is that we only have jurisdiction over
Indian lands. So we need to know whether we are supposed to be
regulating, whether we are supposed to be making sure that a
tribe follows the Indian Gaming Regulatory Act.
There are a couple of other times when we look specifically
to Indian lands and make Indian land determinations. That is
when we have a pending management contract and if we are going
to approve it, we obviously cannot approve a contract for
gaming that is off of Indian lands. And then on very rare
occasions, we have site-specific tribal ordinances. Those are
ordinances where the tribal ordinance will say the Indian lands
are all of the Indian lands of the tribe, and they include this
specific site and it will list that site.
We do not issue formal opinions that often. They take a lot
of time. They are a lot of work. But as I mentioned to you the
last time I spoke, we are working on an Indian lands database
so that we will have all of the information necessary to make
those determinations for all of the gaming facilities. That is
a work in progress and we are moving along on it quite well.
When we do write Indian lands opinions, we make every
attempt to get the consensus of the Department of the Interior.
That is important because we both have responsibilities on
Indian lands, and it is necessary for us to agree with whether
or not those are Indian lands. We do that through a memorandum
of understanding that calls for us to provide the Department's
Office of the Solicitor with drafts. We notify them when we are
going to write one of these opinions so that they will be able
to give us any information that they might have. We try to work
together on that.
We also notify the State Attorney General when we are going
to do one of these because the State and its people may have
information that might be helpful in our analysis, and the
State sometimes has information or analysis that impacts how we
approach these. So we send them a letter, and that is a process
that started several years ago as a result of a request from
the Conference of Western Attorneys General, and that seems to
be working.
Regarding public notice and participation, we try to
respond openly to any requests. We meet with anyone who wants
to meet to give us their views. We accept all comments. We
respond to all FOIA requests. We have a wonderful FOIA officer
who provides information very quickly. But generally, we
consider these to be legal opinions, so we have not really
developed anything beyond that.
When we are doing these opinions, if in the rare instance
that they are dealing with a trust acquisition, we do not make
any recommendations on the merits of whether the land should be
acquired into trust; whether or not there should be gaming
there; whether there is an economic impact on the surrounding
community; whether there is environmental impacts. That is not
our call. That is something that the Department of the Interior
does. So they are the ones that have the whole process for
making those decisions.
Right now, we have four pending that deal with trust
acquisitions. Those are pending because we have management
contracts. With respect to the environmental and economic
impacts, we are a cooperating agency, or a lead agency under
NEPA. So our NEPA compliance officer is right there
participating with the Bureau of Indian Affairs NEPA officers.
That concludes my statement. Thank you.
[Prepared statement of Ms. Coleman appears in appendix.]
The Chairman. Thank you.
With both witnesses, let's go back to basics. A tribe is
operating and they want to acquire additional lands to be taken
into trust. That would be all of your responsibility. Right,
Mr. Skibine?
Mr. Skibine. That is correct, yes.
The Chairman. What if their application was to take land
into trust for purposes of gaming? Whose responsibility is
that?
Mr. Skibine. It is ours also.
The Chairman. What about if it is non-contiguous land? Does
that have any affect on your decision, whether it is contiguous
or not contiguous? I am talking about somebody that wants to
buy land in downtown Denver and take it into trust.
Mr. Skibine. They would have to apply to the BIA to have
the land taken into trust. It makes a big difference on what
the final decision will be, but the responsibility to look at
the application is with the Department of the Interior.
The Chairman. If a tribe just buys land and it is not taken
into trust, are they allowed to conduct gaming operations?
Mr. Skibine. If it is off-reservation?
The Chairman. Yes; they just bought some land.
Mr. Skibine. No; not if it is off-reservation.
The Chairman. What if it is contiguous to a reservation?
They buy additional land. It is not taken into trust. They just
purchase it. Can they start a gaming operation?
Mr. Skibine. No; if it is contiguous to the reservation,
the land has to be taken into trust also. It fits under the
exception in section 20(a) of IGRA for gaming on land taken
into trust.
The Chairman. Okay. How many times have you seen a
situation where a tribe bought land for taking into trust
purposes, and then later on began gaming operations?
Mr. Skibine. Began gaming operations later on?
The Chairman. After they had received permission to take
land into trust.
Mr. Skibine. Okay, so the land is in trust and then they
want to do gaming? I would have to double-check on the number
of times that has happened.
The Chairman. In other words, when there is a change in
use.
Mr. Skibine. Yes; it has happened in a few instances, and
we would have to get back to you on that.
[Information follows:]
Lands Converted From Non-Gaming to Gaming Uses According to BIA
Regional Offices\9\
---------------------------------------------------------------------------
\9\ This list was not independently confirmed by the 01G.
Additional information on each parcel was supplied, as available, from
the NIGC. In addition, since the BIA did not maintain a central list of
lands taken into trust after 10/17/88 that were converted from gaming
to non-gaming, it is not known whether this list is complete.
---------------------------------------------------------------------------
1. Keweenaw Bay Indian Community: 22.38 acres in Marquette
County, MI, were brought into trust on 9/24/90 for housing
purposes. According to BIA the land was converted to gaming use
in September 1994. The tribe eventually received the
Secretary's approval and the Governor's concurrence to an off-
reservation gaming application (two-part determination) on May
9, 2000.
2. Confederated Tribes of Coos, Lower Umpqua, and Siuslaw
Indians: 98 acres in Florence, OR, were brought into trust on
1/28/98 for future economic development. Converted to gaming in
July 2003. According to NIGC officials, the tract was
administratively determined to fall within the IGRA exception
for restored lands.
3. Confederated Tribes of Siletz Indians of Oregon: 10.99
acres located in Lincoln City, OR, were brought into trust on
12/5/94. According to NIGC, the parcel was brought into trust
under a legislative amendment that revised the Tribe's
Restoration Act and allowed gaming under the IGRA exception for
restored lands. Gaming commenced in May 1995.
4. Confederated Tribes of Grand Ronde, OR: 5.55 acres
located in Willamina, OR brought into trust on 3/5/90 for
administration and governmental uses. Land converted to gaining
in October 1995. According to NIGC officials, the parcel is
subject to the IGRA exception for restored lands.
5. Kalispet Tribe: 40.06 acres located in Airway Heights,
WA, were brought into trust on 6/26/98 for future economic
development. Land converted to gaming in 2000. According to
NIGC officials, tribe received a two-part determination from
the Department and the Governor.
6. Kickapoo Tribe: 769 acres in Lincoln County, OK, were
brought into trust on 5/3/95 for housing and economic
development BIA could not provide a date for when the land was
converted to gaming. They did state that 3 acres were released
for economic development on 6/1/02. They further stated that
the business was named ``Kickapoo Casino.''
7. Mooretown: 34.59 acres in Butte County, CA were brought
into trust for HUD tribal housing units and community uses on
7/26/94. Land converted to gaming on 6/11/96. NIGC officials
were not aware of applicable IGRA exceptions or status.
8. Smith River Rancheria: 6.45 acres in Del Norte County,
CA, were brought into trust on 4/13/89 for HUD Grant for tribal
housing. Land converted to gaming use in August 1996. NIGC
officials were not aware of applicable IGRA exceptions or
status.
9. Wyandotte Tribe of Oklahoma. Unknown quantity of land
(Shiner Tract) located in Kansas City, KS, was brought into
trust for economic development, including gaming on July 15,
1996. On 7/12/96, prior to taking the parcel into trust, the
State and four Indian tribes in Kansas sought to enjoin the
Department from taking the land into trust for non-compliance
to NEPA and other reasons. The tribe appealed to the Tenth
Circuit on 7/15/96 and the injunction was vacated by the Court.
On 8/28/03, the tribe commenced gaming on the land. On 9/22/03,
the tribe notified NIGC it had commenced gaining. Most
recently, the State appealed the District Court's ruling to the
Tenth Circuit. On July 27, 2005, the Tenth Circuit ruled that
the Department's determination, in taking the land into trust
status, that only Federal judgment funds ``were used to
purchase the Shiner Tract was not supported by substantial
evidence in the record:' The Department must review the new
evidence and report back to the Tenth Circuit within 60 days.
10. Porch Creek Band of Alabama. NIGC informed us that the
tribe is conducting gaming on land brought into trust after 10/
17/88 for a non-gaming purpose. No other details were
available.
The Chairman. So where do you come in, Ms. Coleman? Where
do you come into this equation? A tribe has acquired land,
taken it into trust, and then they say they are going to start
gaming operations, or want to start gaming operations. Is that
where you come into it?
Ms. Coleman. That is exactly where we come in. As a general
matter, if the land is already in trust, then the Department of
the Interior does not have as much interest in the issue
because they do not regulate gaming. They do not decide whether
or not it can be gamed on once it is already into trust. So
then we are the ones who assume the responsibility for looking
at that.
The Chairman. Once it is has been established that they
will begin gaming operations?
Ms. Coleman. Yes.
The Chairman. That is the only time you come into it?
Ms. Coleman. Yes.
The Chairman. What about November 2005, your organization
reviewed a site-specific gaming ordinance and determined that
lands sought to be taken into trust by the Cowlitz Tribe was
``restored land'' and could therefore be used for gaming. The
NIGC issued this opinion at the same time the BIA was
considering a land-into-trust application for Cowlitz as a
``initial reservation.''
We are told that communities, local governments and other
tribes affected by the Cowlitz proposal seem to have been
caught completely off-guard by your decision, Ms. Coleman. What
is going on here?
Ms. Coleman. The Cowlitz ordinance decision is really an
anomaly. It is the only time that we have been in a situation
where it was trust acquisition that had not happened, and we
had a site-specific ordinance. The ordinance was written in
such a way that it said that if the lands are acquired into
trust, then these lands would be Indian lands.
The Department of the Interior and the State attorney
general's office was notified of this issue. They knew that
this was happening. In fact, when the tribe came to us and told
us they were going to do it, we were not exactly thrilled with
it because we knew that this was a very unusual situation. It
is generally much better to let the processes go through. The
Indian Gaming Regulatory Act requires that we make a decision
on an ordinance in 90 days.
So when push came to shove, on November 25, the chairman of
the National Indian Gaming Commission had to make a decision as
to whether to approve or disapprove this ordinance. So he
needed to know whether or not the ordinance was illegal. So we,
the office of the general counsel, gave him an opinion on it.
The Chairman. What do you have to say, Mr. Skibine, about
that situation? How can we avoid that in the future?
Mr. Skibine. How can we avoid that situation?
The Chairman. Yes.
Mr. Skibine. Yes; I think that the Department is working
with the chairman of the National Indian Gaming Commission at
this point to see if we can find a solution so that situations
like this do not continue to occur. Hopefully, we can come to
an understanding between the secretary and the chairman on how
these can be processed in light of the chairman's obligation
under IGRA.
The Chairman. If you do not know at the beginning of the
process that land will be used for gaming, how can you engage
in a NEPA that has any meaning?
Mr. Skibine. If we do not know that the land will be used
for gaming, then the tribe's application under 25 CFR part 151
regulations, has to state what the purpose of the acquisition
will be.
The Chairman. But we already know that there are some
tribes that have taken land into trust initially, in fact a few
that stated there would be no gaming conducted, and then
changed their minds with due tribal governments, which they are
entitled to do. Shouldn't they at least be required to go
through another NEPA?
Mr. Skibine. If the land is off-reservation and is not
Indian lands.
The Chairman. No; I am talking about land taken into trust.
Mr. Skibine. Yes; it could be. For instance, it could be
land that is off-reservation that would still have to comply
with the requirements of section 20. Potentially, the tribe
would have to do a two-part determination to be able to game,
if the land does not qualify under any of the other exceptions.
In that case, NEPA will be required and the tribe cannot game
unless it gets the determination.
If the tribe thinks the land does qualify under one of the
exceptions, it can commence gaming at its peril because if the
National Indian Gaming Commission decides that it does not
qualify under the exceptions, then the gaming establishment can
be closed down.
There is a potential issue if the tribe takes the land into
trust, let's say for housing. It is off-reservation, but then
it decides to change its mind and do gaming, and if the NIGC
finds that the land qualifies under the exception for restored
land, that would be the only one, I think, that would apply.
The Chairman. Thereby, you could avoid NEPA, that would
take into the calculation that it is a gaming operation?
Mr. Skibine. That is correct. That is because as far as the
Department is concerned, there would be no Federal action
required. When we do take land into trust, we do not put title
restrictions or encumbrances on the title, so that the tribe
has the freedom down the road to change the use of the land. It
would still have to comply with the requirements of IGRA, but
potentially they can satisfy that.
The Chairman. Finally, we will hear from the next panel,
and we hear every hour of every day from local people who say
that Indian gaming is established in their community, and they
do not have sufficient input into the process. And that it has
had significant effects on their communities, economically and
in many other ways, and that they do not feel that they were
involved in the process.
What is my response to those concerns that are raised all
the time to this committee?
Mr. Skibine. I think with respect to the process of taking
land into trust, there is a lot of involvement by the local
community. The Department does consult with local communities.
We are trying to be available to clarify the process. Right
now, there are extensive consultations under NEPA.
We have a checklist that we have had since 1994, internal
guidance, but under that checklist we have revised it to
require local agreements to be included as part of the
recommendation of the regional office, if they exist. We have
pretty much decided that if a gaming establishment is off-
reservation, and is going to be of a certain size, and if it is
controversial, that we would require an environmental impact
statement rather than an environmental assessment, which will
include extensive public participation.
In addition, I know the Department is in the process of
revising its trust regulations, including the land acquisition
regulations in 25 CFR Part 151. I think the process for
consultation and input of the local communities in off-
reservation acquisitions will be enhanced as a result of that
process.
So even now, I think there is extensive participation by
the local community. For off-reservation, what I do when I go
out to talk to tribes and to local communities about off-
reservation is acquisitions make a point of stressing that the
Secretary is very interested in consultation, in cooperation
with local governments, and that to us the public input and
having the local communities support the application is an
extremely important factor in our consideration for off-
reservation acquisitions.
The Chairman. Senator Dorgan.
Senator Dorgan. Mr. Chairman, thank you.
Mr. Skibine, I thought I had understood this last evening
when I was reading about it, until I have heard your testimony.
Now, I realize there is much I do not yet know. Let me ask you
a couple of questions.
You just described this consultation and the process, but I
thought you also just prior to that described circumstances
where that consultation would not exist. For example, land
taken into trust perhaps after October 17, 1988, and taken into
trust for the purpose of a housing tract, and then after it was
taken into trust for the purpose of building a housing tract,
they decide that they want to do gaming on that land.
I thought you answered to a question that Senator McCain
asked, that you would not then have to go through the process,
the tribe would not have to go through the NEPA process and the
consultation process. Is that correct?
Mr. Skibine. Yes; that is correct.
Senator Dorgan. And you said there was no Federal
involvement there.
Mr. Skibine. Right; I was addressing the chairman's
question, if the application is to take land into trust for
gaming.
Senator Dorgan. All right. But there are circumstances
where that is not the case.
Mr. Skibine. That is correct, and we discussed that
possibility before. That is an issue.
Senator Dorgan. As I understand it, let me ask about this
contiguous issue. The chairman asked the question about wanting
to get a parcel of land in downtown Denver, off-reservation and
so on. The question there deals with the four exceptions. You
would have to judge whether there are any of these four
exceptions that are met. You have to go through the whole
process, right?
Then he asked the question about contiguous lands, lands
that are contiguous to the reservation. Section 20 provides
that if lands are acquired in trust after the date in 1988, the
lands may not be used for gaming unless one of the following
statutory exceptions applies. These are different than the four
exemptions or four conditions in IGRA. One of them is the lands
are located within or contiguous to the boundaries of the
tribe's reservation as it existed in 1988.
So someone purchases a rather substantial piece of land
that is contiguous to the reservation, and they want to provide
gaming facilities there because that is closer to the
population center. Do they then have to go through the process
of taking that into trust?
Mr. Skibine. That is correct.
Senator Dorgan. And that process then triggers all of the
rest of the things you have testified to this morning?
Mr. Skibine. That is correct.
Senator Dorgan. Now, you indicated that you are doing
regulations. That makes a lot of sense to me, so that everybody
can understand what is the template; what exactly do you
confront when you deal with this. This law has been around
about 17 years, and we have had different Administrations here
and there. It makes sense at some point to have regulations.
The question I have is, what are you doing in the construct
of these regulations to reach out and consult with tribes, with
communities? As you create regulations, tell me about the
consultation process because it has been a long, long time and
you are now saying that you think this year you are going to
have a set of regulations.
Mr. Skibine. Right. We are planning on doing consultation
with tribes and we will make the draft document that we have
available to anyone who wants it. And as we do the
consultation, we have not at this point exactly figured out how
we will proceed. It is a little premature. I think that
internally we will get together and decide how we are going to
conduct the consultation when that happens.
Right now, the first thing that will happen is there will
be a letter to all tribal leaders throughout the country that
will go out with this draft document, advising them that we
will produce this document for implementing section 20, and
that we will consult, and together and that we will get
together and make a decision. At this point, we have not come
up with a plan yet, except that we will do it for sure.
Senator Dorgan. Senator McCain pointed out that Indian
gaming is $19 billion, perhaps $20 billion, at this point and
growing, growing rather rapidly; producing in many cases a
stream of income to address the real crisis that exists in some
areas; crisis in health care, housing, education, for people
that have in many cases not had the resources to address these
things.
In many areas, particularly on reservations, you have some
people living in third world conditions; children not having
any access to adequate health care; adults not having access to
adequate housing. So there is much to be said about this income
stream that can be beneficial to tribes to address these
issues.
On the other hand, the purpose of this hearing is there are
competing interests here, very significant competing interests,
an interest of a tribe that has the opportunity to game to very
much wish to game in the middle of the largest population
center they can possibly find. I understand that. I understand
if we were on tribal councils and we were going to have a
gaming operation to produce a stream of income, that is exactly
what we would want to do, is put it in the largest population
center possible.
On the other hand, there are other competing interests,
population centers and others who feel very strongly about
that. So this is a controversial and difficult issue, and I
think regulations are necessary; uniform interpretations are
necessary. And we must understand that when Congress passed
this legislation, we generally created prohibitions. The larger
prohibition here is October 17, 1988, and then with that larger
prohibition, created some exceptions that needed to be created
just based on merit.
So the method by which this is administered is very, very
important to this committee. It is also important in the
context of what the chairman indicated, the need from time to
time to update these laws. That is the purpose of these
hearings.
I appreciate the testimony that both of you have given us.
We are trying to better understand a very complicated area.
Thank you for being here.
The Chairman. Senator Thomas.
Senator Thomas. Thank you, Mr. Chairman.
I agree. It is very complicated. It seems to be.
What do you think, Mr. Skibine? Is the law clear? It sounds
like you have to go through a great deal of determinations?
Doesn't the law pretty well prescribe what the conditions are?
Isn't that a rather simple decision to be made, as to whether
these lands qualify or not?
Mr. Skibine. I am not sure it is that simple. I think that
the opinions that have been issued by the NIGC General Counsel
are often lengthy and complex decisions.
Senator Thomas. So why is that?
Mr. Skibine. Because I think that to decide whether a tribe
qualifies as a restored tribe and whether the land they are
seeking is restored land, the statute just says that it
qualifies if it is restored land for a restored tribe.
Senator Thomas. Well, isn't ``restored land'' defined?
Mr. Skibine. No; it is not. There has been litigation on
this issue. I think there are at least three or more decisions
on the books that interpret that exception. Those were
difficult decisions. The National Indian Gaming Commission
tried to, in making their opinions, follow those court
decisions, but I am not sure it is all that simple.
I am not sure if my colleague wants to add something.
Senator Thomas. Would you comment? It just seems like there
ought to be a criteria for the acquisition of land, and it does
not seem like it ought to be thrown up into the legal dispute
each time that happens.
Ms. Coleman. When we are looking at restored lands, it is
not really the acquisition of the lands. The acquisition is
under section 151, and to make the decision as to actually
acquire the land into trust. But what we look to is based on
what the court cases have said. The court cases have said that
you look to the factual circumstances; you look to the
historical relationship of the tribe to the lands; you look to
the modern relationship; you look to the actual location. In
other words, if a tribe is in Wyoming and wants to move to
Denver, well then that would suggest those were not restored
lands. And you also look at the timing. When was the tribe
recognized? If they were recognized in 1979, and in 2006 they
come and say, ``we have already acquired 2,000 acres of land
into trust, but we want this piece because it is in a big
population area.'' And 30 years later, we are going to say,
your timing is off.
All of those criteria come from the court cases, who have
looked at these issues. We have been guided by those.
Senator Thomas. Does there need to be a more clearly
defined role in terms of the law?
Ms. Coleman. I think that even to the extent that Mr.
Skibine's regulations try to define it more clearly, it is
playing off of those court cases. You can only go so far as far
as establishing standards. There has to be some interpretation.
I would expect that restored lands for a restored tribe is
going to continue to be the most difficult analytically.
Senator Thomas. I know. My question is, could it be
described more clearly in the law?
Ms. Coleman. It could be described more clearly in the law,
but it probably could not be described any more clearly than
the case law has already described it.
Senator Thomas. Thank you, Mr. Chairman.
The Chairman. Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman. Thank you for
having this hearing.
Obviously, much has changed since the Indian Gaming
Regulatory Act was passed. I think there are many issues here
to address, not just in how the legislation has been
implemented and how it has been impacted, but how we move
forward on transparency of the process as well.
I wanted to ask you, Mr. Skibine, there have been three
off-reservation land-into-trust transactions since the
legislation was passed. One of those, I believe, was the
Kalispel Tribe.
Mr. Skibine. That is correct.
Senator Cantwell. Can you talk about the Kalispel Tribe
process from the oversight perspective, because it was one of
the things that fell into an exemption. Is that correct, in the
sense that everybody agreed? And so the way the oversight
agency looked at it, everybody was in agreement, so it moved
forward? Is that correct?
Mr. Skibine. The Kalispel Tribe process goes back to
something the chairman said earlier, in that the tribe acquired
the land not for gaming, but for a tribal facility of another
kind. It was operating as such for a few years. And then the
tribe decided that it wanted to use the land for gaming.
Right at the outset, it was determined that the only
exception that the tribe could qualify on was the two-part
determination exception, which is the true off-reservation
exception, because where the Secretary, after consultation with
nearby tribes and appropriate State and local officials, makes
a determination that the gaming establishment will be in the
best interests of the tribe and its members, and will not be
detrimental to the surrounding community.
Senator Cantwell. How did you determine that?
Mr. Skibine. We tried to submit an application to the
regional office, and the application would follow something we
had in our checklist for gaming acquisitions and section 20
determinations, where we cite a number of issues that we look
at in making those two determinations.
There also has to be compliance with the National
Environmental Policy Act [NEPA], so in that case, an
environmental assessment was done.
To make the best interests determination, the Department
looks at the anticipated benefits to the tribe from the gaming
establishment to its members. We look at income projections; at
employment; at what it will do for benefits on the reservation.
We try to get as much information as possible from the tribe as
to why they think this is going to work for them. That would
include projections to show that the gaming establishment will
be actually making money for the tribe, rather than losing
money. We look at all of that for best interests.
For not detrimental, we look at the environmental
compliance, and we have to do consultation with nearby tribes
and with the appropriate State and local officials. The way we
do that is that in the Kalispel case, letters were sent to all
communities around, it is actually in a suburb of a larger city
whose name totally escapes me.
Senator Cantwell. Spokane. Are you talking about in
Spokane?
Mr. Skibine. Spokane, right. Thank you very much.
I think we consulted with the county where it is located,
and with the city of Spokane, and with all the other suburbs
that are within the surrounding community. In looking at those
comments, we determined whether the local community supports
the project, because the local community felt that there was no
negative impacts on them.
Senator Cantwell. What would be your criteria, though, for
community input? Do you have a criteria for community input?
Mr. Skibine. Yes; In the consultation letter, we ask the
community to tell us about any adverse impacts that they think
they will have, and we look at whether it will be traffic,
increased crime, impacts on wastewater treatment, on almost any
impacts on the human environment, and also whether there are
any socio-economic reasons why the local community is opposed
to it.
Senator Cantwell. What would have happened in the Kalispel
case is you would have had a division within the community?
What do you think would have happened?
Mr. Skibine. Well, we would have taken a very close look at
that, to see exactly who was opposed, who was in favor, and for
what reasons. It would have been essentially a decision based
upon a very analysis of the facts.
For the record, in the three applications that we have
approved since 1988, and that have been signed off by the
Governor of the State, the local communities have always
supported the applications. So we have never sent in a two-part
determination to a Governor unless the local community was in
support.
Senator Cantwell. Is that where you think we are today, Mr.
Skibine? Do you think there are a lot of applications where
everybody is unified on the support?
Mr. Skibine. Do you mean of the ones that are pending?
Senator Cantwell. Here is my question. I appreciate the
chairman having this hearing, and the oversight, and his
legislation because to me one issue is whether we really know
what we are doing with the exemptions that were put into the
original legislation, and whether the agency of oversight
actually does know how they would interpret these various
proposals, given that exemption language.
I am not sure how transparent that process is to everyone
else. So I do not know if you have any recommendations that you
are making as far as the transparency of the process, because
again the exemptions of the bill. Now, we have had some playout
of those exemptions in these three cases, but now we are
getting to a much more complex phase. I am just curious as to
whether you believe there is enough transparency in the
process.
Mr. Skibine. I think there is enough transparency. As I
mentioned in our proposed regulations that we have developed,
we deal in great detail with what is required in the two-part
determination process. I think the regulations will really
help.
Senator Cantwell. So you are not recommending anything else
to clarify that process, as far as reform of legislation?
Mr. Skibine. The Department may do that in time. Right now,
I am not authorized to do that on behalf of the Administration,
not at this hearing, anyway.
Senator Cantwell. Okay. I am not sure how much time we
have, Mr. Chairman, but thank you.
The Chairman. Mr. Skibine, it has been 17 years since the
passage of the law. As Senator Dorgan has pointed out, we need
to have regulations. We are going to send you a letter today
asking for the exact time in which we can expect regulations to
be sent to the Federal Register and implemented. I am a little
dispirited when you sort of as an aside said, well, we have not
begun a consultation with the Indian tribes over proposed
regulations. That means that we have a long way to go.
I do not see how we can effectively regulate Indian gaming
and certainly exercise congressional oversight unless there are
regulations to implement the law we have passed. So I would
like for you to take the message back to the Secretary that we
expect the issuance of regulations implementing a law that was
passed 17 years ago to be issued.
That has covered various Administrations, but it really is
unacceptable 17 years later not to have regulations written to
implement a law which now applies to a $19 billion- or $20
billion-a-year business. We should not be doing that. Okay?
Mr. Skibine. I agree, Senator. I want to point out that
when I came on board as the Director of the Indian Gaming
Office in 1995, I immediately began to look at regulatory
implementation. We did develop regulations for the distribution
of per capita revenues. We have regulations for that at 25 CFR
part 290. We also developed regulations for secretarial
procedures. We have that at 25 CFR part 291.
Those were developed shortly after I came on board under
the Clinton administration, and they are 25 CFR part 292. With
the change of Administrations, there was sort of a period of
uncertainty, but now I think everybody is on board and agrees
with that assessment.
The Chairman. Ms. Coleman, we will probably see you again
in this series of hearings that we are having to try to again
ensure you have sufficient oversight authority, sufficient
funding, and sufficient ability to oversee this very large
enterprise that we call Indian gaming.
Senator Dorgan.
Senator Dorgan. Mr. Chairman, might I just observe I did
not respond on the consultation issue, but consultation does
not mean you seek permission from someone. Consultation is very
important, however, when you construct these kinds of things
because consultation develops a base of knowledge about what
exists and how it exists from various perspectives.
When you said to me that apparently no consultation had
existed, but it will exist at some point after you send out the
drafts, I really encourage you to consult as much as you can
with all the parties as you think through these things, not to
seek permission. That is not my point, but to better understand
the circumstances that exist for all parties. Consultation is
very important.
Mr. Skibine. I totally agree. It is not permission. We are
not going to be seeking permission from interested parties, but
we are seeking their input.
The Chairman. Thank you very much.
Mr. Skibine. Thank you very much.
Ms. Coleman. Thank you.
The Chairman. Our next panel is Al Alexanderson, on behalf
of the Citizens Against Reservation Shopping, Stand Up for
Clark County, and American Land Rights Association; Philip
Harju, councilman, Cowlitz Indian Tribe, Longview, WA; Duane
Kromm, supervisor, Solano County Board of Supervisors, on
behalf of the California State Association of Counties, of
Fairfield, County; and Liz Thomas, spokesperson, Tax Payers of
Michigan Against Casinos, Union Pier, MI.
Mr. Alexanderson, we will begin with you. Welcome.
STATEMENT OF AL ALEXANDERSON, ON BEHALF OF CITIZENS AGAINST
RESERVATION SHOPPING, STAND UP FOR CLARK COUNTY, AND AMERICAN
LAND RIGHTS ASSOCIATION
Mr. Alexanderson. Thank you, Mr. Chairman, Mr. Vice
Chairman and members of the committee.
I am here for myself. I am not representing any
institutional interests. I am a landowner within about 2,000
feet of the proposed Cowlitz casino. My trip was sponsored by
three citizens organizations that have risen up and put up
websites and attempted to intervene in this process over the
last 4 years.
I am here to tell you about my experience. Their
experiences are written in letters that I have submitted with
my prepared testimony. I recommend them to you for the long
recitation of attempts to participate in the process, and the
strong sense of betrayal that they feel with respect to the
issuance of this NIGC opinion, after 7 months of secrecy,
including the fact that it was not mentioned that this was
pending at the hearings here before your committee in July of
this year, when the NIGC was present, and the Cowlitz Tribe was
present, and Mr. Skibine was present and listed all of the
other pending applications for exemptions under section 20, but
not the Cowlitz.
For me, this started about 4 years ago. I got a notice, a
neighborhood association notice that David Barnett, son of the
tribal chairman would appear and talk about plans for the
property that he and his wife had optioned, which was now a
150-acre dairy farm and had been for 80 years, right next to my
property.
The land had been preserved as agricultural, because as you
know, the local communities under State law go through a long
and intensive land-use planning process to decide what kinds of
uses go where. This land had been preserved as agricultural,
with possible future use as a low-intensity industrial uses,
but not the kind of intense traffic-creating commercial uses
that, say, a large shopping center, a theater complex, or a
casino would bring.
At the meeting, Mr. Barnett told us that there were no
plans for a casino, no plans to change the current agricultural
use of the property. Later, or at the time, the tribe's
application to the BIA said that there were no plans. As a
result, the BIA issued internally, and not publicly, a
categorical exclusion checklist, which had 9 or 12 questions
that said, will there be any environmental consequences from
this acquisition, and the answer was always checked no.
So they tried to run it through as a complete exclusion to
NEPA. This took about the first year. Fortunately, that was
stopped. The national BIA office said if you do not admit that
you are gaming on the property, then if you do succeed with the
acquisition, you will not be able to game.
I called the local BIA office to get the application. I was
suspicious that this might not be the whole story. They said,
well, you cannot have the application. I said, well, could I
just come down and read it. No, you cannot get in the building.
Well, are there any procedural rules for me to participate in
this process? No, you are not a participant. They said the two
participants are the State and the county, because those are
the jurisdictional entities that they have to consult with, and
that is it. They will accept comments, but we were unable to
have access to the materials submitted by the tribe.
Process is extremely important, and I think the committee
knows that because people have their life savings tied up in
homes and small businesses that are going to be displaced if
the awesome Federal power of the Federal Government is used to
effectively site a development like this. As we have gone
through this process, the casino has grown faster than our
fears.
It is now going to be eight stories high. It is going to
create traffic jams, 40,000 car trips a day, and completely
change the character of our neighborhood. It was sited where it
was in part to cut off the existing traffic to the competing
card rooms, so it was intended to destroy the existing economy,
is my point.
What we are asking for is a thorough and open and fair
process to determine the facts of the Cowlitz application. We
want to see a stop to the backroom end-runs around the current
law. We want our own government to put stuff out on the table
where we can see what it is. If we have a factual dispute over
what the project will do, or where the tribe was from, we want
to have an opportunity to present those facts to an open-minded
fact-finder.
And there should be no exemption for the Cowlitz project
because the Cowlitz project itself is seeking an exemption from
all the protections in section 20. That is the most important
issue a community faces up front, is whether this will be an
exempt casino or an non-exempt one. If it is an exempt casino,
it eliminates the consultation process. It eliminates the
Governor's veto. It eliminates the consultation with other
tribes. And it permits the Secretary to avoid finding that the
project will not be detrimental to the surrounding communities.
One major fact which has never come up in the discussions
so far and was not considered by the NIGC is where is the
tribe's other land. This tribe has 2,500 square miles, almost
1.5 million acres, of acknowledged aboriginal territory lying
north along the I-5 corridor.
I have brought CD's with photographs of that are, aerial
photographs, which I will leave for the committee and the
staff. You can literally fly down and look at other undeveloped
land in various quadrants of existing freeway interchanges,
probably 10 of them; thousands and thousands of acres of
undeveloped land in places where the casino would be closer to
the tribe's population, its historical center.
When we turn these maps over on the wall, you will see the
only official U.S. Government 19th century depiction of where
the various tribes were in Washington State. It shows where the
tribe's homeland was, far north of where this site is. The site
was chosen for its proximity to Portland and Vancouver gaming
opportunities.
The Chairman. You are going to have to summarize, Mr.
Alexanderson.
Mr. Alexanderson. Thank you. All right.
We appreciate your efforts to put procedures in place. The
procedures have to have rights for people like myself and my
community to substantively participate and present evidence,
and most important, know what is going on and meet the evidence
being put forward by the tribe.
Thank you for looking into this.
[Prepared statement of Mr. Alexanderson appears in
appendix.]
The Chairman. Thank you, sir.
Councilman Harju.
STATEMENT OF PHILIP HARJU, COUNCILMAN, COWLITZ INDIAN TRIBE
Mr. Harju. Chairman McCain, Vice Chairman Dorgan, and
members of the committee, I want to thank the committee for
this opportunity to testify. My name is Philip Harju. I am an
elected member of the Cowlitz Tribal Council. Our chairman,
John Barnett, recently suffered the loss of one of his sons,
and I know you will understand why he cannot be here today. He
has testified, as you know, numerous times here. He is a great
leader and a great spokesman for our tribe.
Again, I feel it is both an honor and a privilege to
testify in front of this committee. It is also an honor and a
privilege to represent the Cowlitz people here.
Just a little background on myself. I was born and raised
in Clark County, WA. I currently reside in Olympia, WA, where I
am a deputy prosecuting attorney. I am a lawyer and I have been
representing the people of the State of Washington, prosecuting
criminals, for the last 27 years. I donate my time as a tribal
council member to my tribe, the Cowlitz people.
I want to thank the first panel for their explanation. As a
lawyer, I have some understanding of this. It is a complicated
area. I do want to briefly respond to Senator Cantwell's
question about the Kalispel Tribe, just for the record. That
two-part determination, that was not stressed, also required
the concurrence of the Governor of the State of Washington,
which was done.
So there was input on the Kalispel decision by the people
of the State of Washington through the elected Governor of the
State of Washington. That would not have happened without the
Governor's concurrence. That was the two-part exception to
Indian gaming on off-reservation land.
I want to stress that, Mr. Alexanderson said that this
started 4 years ago for him. This started for the Cowlitz
people probably in 1792 when Captain Gray came over the bar of
the Columbia River; in 1805, when Lewis and Clark reached the
mouth of the Columbia River; in the 1820's and the 1830's when
many of the tribes on the Columbia River were decimated and
destroyed, and the Cowlitz people were nearly wiped out by the
fevers and the diseases that were brought from the Europeans to
this area; and also in 1855, when the tribes in Southwest
Washington did not sign treaties with then-territorial Governor
Stevens.
The Cowlitz controlled their land at that time, and
negotiating with the Federal Government, and received no land
or no reservation or no treaty. Then in 1863, as the Indian
Claims Commission has documented, when President Lincoln opened
the then-Washington Territory to settlers, the Cowlitz lost
over 1 million acres of their territory and land without
compensation.
So it has been a long time for the Cowlitz people in this
history. The Cowlitz throughout this time have attempted to
obtain a land-base in their historic area of Southwest
Washington, which includes all of Clark County, I would submit
to you. The records, if you read the reports from the Indian
Claims Commission, they found that the Cowlitz has sole and
exclusive occupancy to all of this land, all of the way down to
the Kalama River, which is about 14 miles north of the present
site.
They also acknowledged that this area south of the Kalama
River down to the Columbia River, that they could not find that
the Cowlitz had sole and exclusive use and occupancy of this
area, but they found that the Cowlitz occupied this area since
the first contact with Europeans in this area.
Just to remind the committee, the first contacts with
Europeans in this area was with the British. They controlled
Fort Vancouver and the north side of the Columbia River, and
most of the documentation of the Cowlitz Tribe are because of
the Hudson Bay Company, and the documentation from the British
at that time. This did not become American territory until
1846, when we signed a treaty with Great Britain and they ceded
this land to the United States.
So the Cowlitz have always been there. They have always
sought their land base. They have always negotiated and been
with the Federal Government. Their history is bleak. They got
nothing from the Federal Government until 1969, when the Indian
Claims Commission did grant compensation to them, but then
never awarded them the money.
In 1975, the Cowlitz asked for a land-base and asked that
the money that they were granted be applied to acquire land.
The Interior Department refused at that time. It took 35 years
and an Act of Congress signed by President Bush 2 years ago to
get that compensation that was awarded in 1969 for the Indian
Claims Commission.
The tribe in 1975 petitioned the BIA for acknowledgment or
re-recognition. That process took 25 years and then 2 years of
appeal. So in 2002, when the Cowlitz Tribe applied for a fee-
to-trust application for this property, we are now four years
from that time. I would submit to you, and I give this history
just to show that it has gone longer for the Cowlitz Tribe and
the Federal Government and the agencies involved.
The Cowlitz have been up front and have followed the rules
from the very beginning. Our fee-to-trust application followed
the current BIA guidelines back in 2002, which required us to
submit the fee-to-trust application to the Portland Regional
Office, and we did not have to designate other than economic
benefit of the tribe.
The BIA's rules changed and they required us then, if we
were going to use the property for gaming, we had to resubmit
an application to the central office and we did tell them that
we were proposing gaming on this. We have been up front and we
have followed the rules. It has been a long time for justice
for the Cowlitz Tribe. These exceptions to the Indian Gaming
Regulatory Act are very important to the Cowlitz because this
151 acres is clearly restored lands for the Cowlitz Tribe.
The opinion that was sought from the Commission is an
excellent opinion. It is well-documented. It is factual and
followed adjudicated facts, and gives guidance to everyone in
this area. The important thing is, if the Cowlitz Tribe goes
forward and it is not our restored lands, we are spending close
to $2 million for a full environmental impact statement to take
this land into trust.
There is more open process over this land than anything
else I think in Western Washington at this time. We will
complete a full environmental impact statement. In fact, the
draft has been delayed because many of the local communities
have put comments in as participating agencies, and so we are
hoping next month to have that draft. There will be the full
environmental impact statement. There will be public hearings,
and there will be a time to appeal if the Department then takes
the land into trust.
So I submit to you that in the two exceptions that we are
dealing with, restored lands or initial reservation, the
Cowlitz have done nothing but follow the rules. They only ask
that the Congress and the local agencies and the Federal
Government provide the Cowlitz with the means to, as Senator
Dorgan had earlier said, illegal actions and land that was
taken from the Cowlitz needs to be restored.
The Cowlitz have to buy this 152 acres, then we have to
petition the government to take it into trust. Nothing has been
given to the Cowlitz Tribe. We are a landless tribe with no
economic base. We have over 3,500 members. I submit to you,
what the Cowlitz want and what the Cowlitz need are adequate
funds to provide housing, jobs, health care, education and to
help restore our cultural artifacts and our history in this
area. I would urge this committee, and I commend Chairman
McCain, the BIA does need to have regulations in place so that
these procedures are open and transparent.
I would submit to you the Cowlitz, using the Cowlitz case
here, is a classic example of why the restored lands exception
or the initial reservation exception is important. There are
not many of those pending with the BIA, but those exceptions
are important for tribes such as the Cowlitz, who are fighting
for their very existence in Southwest Washington.
Thank you.
[Prepared statement of Mr. Harju appears in appendix.]
The Chairman. Thank you.
Mr. Kromm.
STATEMENT OF DUANE KROMM, SUPERVISOR, SOLANO COUNTY BOARD OF
SUPERVISORS, ON BEHALF OF THE CALIFORNIA STATE ASSOCIATION OF
COUNTIES
Mr. Kromm. Thank you.
On behalf of the California State Association of Counties,
I would like to thank Chairman McCain, Vice Chairman Dorgan,
and the other distinguished members of the Committee on Indian
Affairs for giving us the opportunity to submit testimony as
part of this oversight hearing.
I am Duane Kromm, a member of the Solano County Board of
Supervisors, a member of the CSAC Indian Gaming Working Group,
and a member of the Northern California Counties Tribal Matters
Consortium.
Every Californian, including every tribal member, depends
upon county government for a broad range of critical services,
from public safety and transportation to waste management and
disaster relief. Most of these services are provided to
residents both outside and inside city limits. Because counties
are so intricately involved with services to all residents, we
strongly believe the counties must be significantly involved in
the process of approving tribal gaming proposals.
California is at the epicenter of the reservation-shopping
phenomenon. For example, there have been vigorous efforts by
three tribes with no nexus to the land to engage in Indian
gaming in Contra Costa County, a highly urbanized Bay Area
county. Counties are now experiencing tribes with established
casinos trying to leapfrog over other tribal gaming operations
to get closer to a population center.
In California, the reservation-shopping problem has been
driven in large part by the restoration exception contained in
section 20 of IGRA. This exception allows tribes that are
restored to Federal recognition to avoid the two-part test
under IGRA. The restoration exception is by far the most
frequently used exception under IGRA and serves to avoid the
two-part test. Since 1988, the Secretary has approved 26 Indian
trust acquisitions that were determined to meet one of the five
section 20 gaming exceptions. Of these exceptions, 12 were
under the provision for restored land to a restored tribe. Of
these 12, one-quarter were in California.
Of the 10 or 11 pending gaming applications before the BIA
claiming an exception under section 20, nine of them are in
California, all of which are claiming an exemption from the
two-part test under the restored land exception.
The experience in California, driven in part by the
restoration of the legally terminated rancherias, is that the
restored land exception is being misused. CSAC therefore
supports continuation of the two-part test for the acquisition
of new lands, along with an increased level of local government
participation in the decision of whether land should be taken
into trust for gaming purposes.
Chairman McCain has recently introduced legislation to
increase Federal oversight of Indian gaming operations and to
alter the lands-into-trust process. CSAC sincerely appreciates
the efforts of Chairman McCain and the members of the committee
for investigating the problems with the oversight of and
current legal framework for determining the eligibility of
Indian lands for gaming.
Today, we are primarily interested in Chairman McCain's S.
2078, which contains language to limit the two-part test to
petitions already being considered for fee-to-trust in 2005.
The bill also amends the restored lands exception to require
the finding that a tribe has a temporal, cultural and
geographic nexus to the piece of land in question before
granting permission for the tribe to take it into trust.
While CSAC supports increased oversight of section 20
proposals and supports the existing two-part test, we must add
that any amendments to the process must include the early
direct participation of both State and local governments,
particularly counties, before a land-into-trust application is
granted.
Furthermore, under the current system, States and affected
communities are not even notified by the National Indian Gaming
Commission when a tribe files a request for determination of
whether tribal lands are Indian lands, and thus eligible for
gaming. CSAC believes that Congress must specifically require
the NIGC and the Department of the Interior to provide for the
timely notice, comment and the submission of evidence from
affected parties in all proceedings.
We also question the BIA's practice of beginning the
environmental review process under NEPA before lands are
determined to be Indian lands. Counties and other affected
parties are required to expend considerable time and money in
evaluating the environmental documents, when it might be
entirely unnecessary if the land is ultimately not eligible for
gaming. S. 2078 also includes amendments to increase the
regulation of class II gaming.
With relative ease, a tribe can now establish a large
gaming facility, install class II devices, and trigger
virtually the same impacts on local government as those that
result from a class III facility, without any of the safeguards
afforded by IGRA. This, in fact, has happened already in Contra
Costa County in I think a casino you are well familiar with,
the Lytton Band of the Pomos in San Pablo.
Many tribes have expressed concern for such participation
by local government, equating it with relinquishment of
sovereignty and a land-acquisition veto. This is simply untrue.
There are many examples of California counties working
cooperatively with tribes on a government-to-government basis.
Madera, Placer and Yolo Counties have reached comprehensive
agreements with the tribes operating casinos in their
communities. These comprehensive agreements provide differing
approaches to the mitigation of off-reservation impacts of
Indian casinos, but each is effective in addressing unique
community concerns.
CSAC supports the committee's efforts to craft amendments
to IGRA that preserve its original goals of supporting tribal
economic development, while minimizing the impacts of
reservation shopping of local communities. We believe that the
single most important provision you can enact would be the
formal participation of affected State and local governments,
particularly counties, in the process of granting trust lands
to tribes who wish to operate gaming casinos.
CSAC has submitted written testimony to assist the chairman
and committee members in their efforts to amend IGRA. In
California, there is an urgent need for counties to have a
greater voice in matters that create impacts that the county
will ultimately be called upon by its constituents to address.
Enactment of amendments that strengthen IGRA by limiting its
exceptions and allowing a greater role for local government
would further the original goals of IGRA, while helping to
minimize abuses that have created a backlash against Indian
gaming and the opportunities its affords.
As such, CSAC offers its assistance to Chairman McCain and
the Committee on Indian Affairs in any manner that you
determine to be helpful as you tackle this complex issue.
Thank you.
[Prepared statement of Mr. Kromm appears in appendix.]
The Chairman. Thank you very much.
Ms. Thomas. Welcome.
STATEMENT OF LIZ THOMAS, SPOKESPERSON, TAX PAYERS OF MICHIGAN
AGAINST CASINOS
Ms. Thomas. Thank you. Thank you very much for allowing me
to testify in front of this committee. I am a representative of
a community of grassroots organizations called Tax Payers of
Michigan Against Casinos. We have worked to prevent a tribal
casino from opening in our area in New Buffalo, MI for almost
10 years.
New Buffalo is right along Lake Michigan. It is about 2,500
residents, and it is about 1.5 hours from Chicago. We and other
members of our group feel that a large, generally unregulated
casino will fundamentally change the character of our community
forever.
Throughout the past 10 years, those of us who oppose the
casino in New Buffalo have found our voices and fought in many
different ways to prevent the casino. The fight has been
constant, costly and often demoralizing, none more so than last
Friday when we received word that the government had taken the
land into trust and the tribe announced that they would begin
construction soon.
Our opponents are funded by powerful gaming companies that
have always had more resources than we do. I have come to
believe that over the last 10 years, the only way to ensure
that people in small communities like ours will have a genuine
say in whether an unwanted casino comes to its town is with
changes to the IGRA legislation, which must come from the U.S.
Congress.
After hearing the news reports over the weekend, so many of
our supporters called and pleaded with me to come today and
tell you our recommendations and how we think the process might
be improved. So here I am. I would like to give you a little
history first.
In September 1994, the Pokagons received status as a
federally recognized tribe, with the help of cosponsors, U.S.
Representative Fred Upton and U.S. Representative Tim Roemer.
Both Congressmen claimed that the tribe promised that gaming
was not in their interest, but by November the Pokagons were
negotiating with Leisure Time and Harrah's entertainment
companies about opening a casino. Congressman Upton told us
later that he felt that he had been double-crossed by the
tribe.
For the next year, the Pokagons held informational meetings
along the I-94 corridor from Kalamazoo into Indiana, in at
least 30 communities, looking for the right spot to open a
casino. By the spring of 1996, the tribe had narrowed it down
to three locations: New Buffalo and Bridgeman in Michigan, and
North Liberty in Indiana.
On May 3, 1996, the tribe announced that New Buffalo was
their choice. A few days later, our group of casino-fighters
met in the basement of the local Methodist Church and took the
name Tax Payers of Michigan Against Casinos.
We first fought at the local level. In 1996, we worked hard
to support candidates for local offices who opposed the casino.
We were even successful in electing a slate of anti-casino
candidates, only to see them fall under the spell of promised
revenue from the casino. This very same group that had run on
an anti-casino platform, turned around and signed a local
revenue-sharing agreement with the tribe.
We have fought the casino at State level. The Pokagon Tribe
was trying to pass a compact with the State of Michigan in
1998, and several of us from TOMAC were there in Lansing when
the compact passed in December, on the last day of the
legislative session, at 1 o'clock in the morning.
The compact was passed not as a bill, but as a resolution
so that it would not require a majority of members of the
legislature, just a majority of the people that were there on
the floor voting. It was going to be a very close vote, and we
watched as many legislators walked out of the chamber so that
they would not have to make a public vote, a public stance on
this very controversial project, so that it could the majority
of people who were on the floor at the time.
We have fought this casino in Michigan court, arguing that
the compact was invalid because it was passed as a resolution
instead of a full law. We won in the circuit court. We lost in
the appellate court, and then lost again in the Michigan
Supreme Court, though a piece of this case still remains alive
and to be determined in the Michigan Appeals Court.
We filed suit in Federal courts, too. We sued the BIA,
asking that the tribe be forced to conduct an environmental
impact study because it seemed plain and simple enough to us
that a massive casino designed to attract over 4.5 million
people a year into a community of 2,500 people, would have a
significant impact. The court initially agreed with us, and
rejected the BIA's conclusion that the casino would be
insignificant. But the court later deferred to the BIA, and
then it reached the same conclusion after further study. The
appellate court agreed.
Overcoming agency deference is a big hurdle, even when any
citizen on the street will tell you that a casino will
obviously have a transforming and significant impact on a
community. The tribes should not be allowed to have it both
ways. They should not be allowed to have it both ways. They
should not be allowed to garner support from local governments
with the promise of thousands of jobs, millions of visitors and
even more millions of dollars, and then turn around and ask the
BIA to declare that the casino will have no significant impact.
The BIA made its initial decision that this casino would be
insignificant on the last moments on the last day of the
Clinton administration, January 19, 2001. The person who signed
the papers was Michael Anderson from the BIA. He went to work
for tribal interests shortly thereafter. This kind of blatant
duplicity does not inspire public confidence in the fairness of
government operations, now that the Jack Abramoff scandal shows
that the level of public corruption and the money involved in
Indian gaming matters has gotten completely out of control.
There are other communities in Michigan that are struggling
with the threat of a proposed casino. We are thankful and
grateful for their generous support that we have received over
the years, and share their concerns about what may be happening
in their own communities, people from CETAC in Battle Creek,
MI; Gambling Opposition and 23 Is Enough in Grand Rapids, MI;
Positively Muskegon in Muskegon, MI. We have also had the
pleasure of working closely with Tom Grey from the National
Coalition Against Gambling.
Casino gambling is spreading throughout the country, and it
is time for Congress to get its arms around the problems before
it is too late. I would like to offer what TOMAC thinks would
be improvements to this process, based on our experience.
First and foremost, what we have asked for all along is a
chance for the people of the community to have a vote on this.
When the casino project was announced, we the community
residents were told it was a done deal and that there was
nothing that we can do about it, and there certainly was
nothing we could do to stop it.
But we the people never had a chance to register our formal
vote. I believe there should be a local public referendum on
every tribal casino project to ensure that the majority of the
community actually wants it. If a community wants a casino, God
bless them. But if a community does not want a casino, then
that community deserves the right to self-determination.
Another more serious problem is this reservation shopping.
Newly minted tribes and existing tribes work with their casino
sponsors to find the best possible site for commercial
gambling, and then they ask the Government to put it into trust
for them.
The Chairman. Ms. Thomas, you are going to have to
summarize.
Ms. Thomas. Okay. Fine. I am sorry.
Last, there is the issue of the EIS, which is required
under the IGRA land-to-trust process. We believe there should
be an independent agency that would conduct analysis of the
environmental, economic, and social impacts, with an honest
picture.
We also support the legislation being proposed by Mike
Rogers that basically would offer a moratorium of 2 years on
tribal land and casino processes.
We thank you very much for allowing us to testify today.
[Prepared statement of Ms. Thomas appears in appendix.]
The Chairman. Thank you very much, Ms. Thomas.
A pretty simple question. You know, we like to deal with
citizens, but we also place great credence on the testimony and
views of the local elected officials, on the theory that
Government closest to the people is probably the most aware of
the views of the community they represent. If the local
government supports the casino, shouldn't those elected
representatives be deemed to express the will of the community,
Ms. Thomas?
Ms. Thomas. I think that in order to know what the will of
the community is, they need to have a vote taken. You have been
in Government for a very long time. You know very well that
people can say one thing to get their job, and do the other
thing when they have their job. And that is what has happened
in our community.
The Chairman. I have never seen a case of that. [Laughter.]
Ms. Thomas. Maybe you just have not been paying close
attention. [Laughter.]
The Chairman. Thank you.
Mr. Kromm, would you respond to that question?
Mr. Kromm. I understand that concept real well. We wrestle
all the time at the local level with representative government
versus the initiative process. I do not have an absolute
opinion on it. I am a person that personally has participated
in urban growth boundary campaigns because I think local
government officials often get blinded to where the interests
of the community are when they start talking with big dollars.
I think that goes to what Ms. Thomas' experience is with in her
community.
So I tend to favor the initiative process on very major
land-use issues. I find it intriguing that Congressman Pombo's
draft legislation talks about the thought of having some kind
of local initiative process before a casino would be sited. At
CSAC we have not taken a formal position on that yet because it
is not a full-blown bill.
In general, I think that appeals to many of us. These are
exceptional types of development. It is not the typical, do you
put in condos, or do you put in houses, or do you put in a
shopping mall. This is something that can fundamentally change
the character of a community.
The Chairman. In your county, if there was a referendum on
the construction of towers to allow cell phones to operate,
would it ever pass?
Mr. Kromm. I do not think so.
The Chairman. You see, it is a bit of a dilemma here.
Mr. Kromm. Yes.
The Chairman. I am asking the questions. I am not reaching
any conclusions. It is a very difficult issue here as to the
degree of public and grassroots organizations, versus the
elected representatives. I think Ms. Thomas also described part
of the problem.
Mr. Kromm. If I may, one of the experiences that many of us
in California have had is that a tribe will start the
reservation-shopping process, and they will fairly quietly
approach a local government. That is what happened in our
county. It was a tribe that was looking at an agricultural area
that was in my supervisorial district outside of a local city.
In our case, it is an area that has heavy land-use protections
to keep it in ag. They wanted to know if they could start
government-to-government discussions without having a public
discussion.
It only took me about a nano-second to realize that what
was going to happen was massive dollars were going to be put on
the table as an incentive for us to negotiate, and that we
would start down that path before it became very public. That
just fundamentally I was opposed to, to have that discussion
before the public process.
Once we started the public process, it took all of one
public hearing. The only person who showed up in favor of the
casino, citing the proposed site, was the broker who was
brokering the land. The community in toto came out in
opposition. I thought it was pretty interesting.
This exact same tribe has been marching around the Bay
Area. They are into their third site now in the Richmond,
California area, further into the bay. When they first arose in
the Bay Area, it was in the city of Antioch, which is south and
a little bit east of us. The local city council there was very
much in favor, until they had their first public hearing. They
had to move it out of the council chambers into the high school
gymnasium because 500-plus people showed up. That city council
rapidly decided that, hmmm, we think we have heard from our
community in a very meaningful way.
So whether it is a vote or whether it is a process that
pretty much mandates a very early public participation, it has
to be day lighted very, very early, and not start down the path
of how many millions of dollars will come to your community if
you start down the approval process. Dollars, well, you know
what dollars do.
The Chairman. Mr. Alexanderson.
Mr. Alexanderson. Senator, one problem with relying on
local officials is the question which ones. We have the State
involved. We have two counties. In our situation, we have at
least four cities and that is not counting going across the
river toward Portland, where the effects will be great.
I think a vote is a good idea, but I worry the opposite
about the vote. Not that they will always be voted down, rather
that the farther away you are from the casino, the more likely
you are to think of it as a good idea.
The Chairman. Councilman Harju.
Mr. Harju. Yes, Senator; Before I answer that question, I
would like to send greetings to Senator Cantwell from her
Cowlitz constituents from the great State of Washington. I do
want to put that in the record.
To answer your question, yes, there should be consultation
with the local officials.
The Chairman. I was talking about a vote.
Mr. Harju. A vote, as you pointed out, what group would we
have vote on our casino? Would we have the State of Oregon?
Which county? Which city? What we have done is, as you know, we
have done a full environmental impact study, which allows all
of the agencies to participate in that. So we have plenty of
public process.
I think to answer your question, and I think Mr. Kromm
touched on it a bit, the thing I think that gets lost in here
is tribal sovereignty. The federally recognized tribes are
sovereign nations that are afforded a government-to-government
relationship. Part of the problem that the Cowlitz Tribe has
had in Clark County and in Southwest Washington is that they
have never had an Indian reservation in their area. They have
never had a government-to-government relationship with a
federally recognized Indian tribe.
I know in the State of Arizona, your tribes have
longstanding reservations and the governments have worked
there.
The Chairman. By the way, we have a compact between the
State and the Indian tribes which was ratified by a ballot
referendum throughout the entire State.
Mr. Harju. And our State has a compacting procedure. We
have a State Gaming Commission. We have the Governor involved
in that. As Senator Cantwell knows, the established tribes that
have reservations and that have had government-to-government
relations with local communities, that has been established
over years because they have been there.
The Cowlitz problem in Clark County is that they have not
had a federally recognized tribe to deal with. So the answer I
think is to stress the government-to-government relationship
with the communities.
The Chairman. I have been and remain a strong advocate of
tribal sovereignty and the government-to-government
relationship which has been decided by our courts and by our
American citizenry. But when you have an operation where 99.94
percent of the patrons are non-Indians, then this puts a
different cast on the entire issue.
If this were an Indian agricultural project which only
Native Americans were involved in, and received the benefits
of, or many other things to do with Native Americans. But when
it is non-Indians that are the primary source of the revenue,
then I have an obligation to look out for the non-Indians as
well as preserving the government-to-government relationship,
with full respect to tribal sovereignty. I would be glad to
hear your response to that.
Mr. Harju. I do not disagree with that characterization,
but again if you look at an example. We are talking about the
two Section 20 exceptions to the Indian Gaming Regulatory Act,
which prohibits gaming on any lands after October 17, 1988.
There are tribes such as the Cowlitz. There are not many. As
you know, the Federal recognition process is difficult, long,
and there are not many. But tribes like the Cowlitz that are
landless, we have no land-base.
If you follow your reasoning, there will be no area where
the Cowlitz would be able to pick a reservation to do gaming.
We are not involved in reservation-shopping.
The Chairman. I do not know how my reasoning moves in that
direction, but go ahead.
Mr. Harju. I mean, the reasoning that is here, that the
Cowlitz will never find any land that will satisfy everyone. So
we are going to follow the rules of IGRA which allow these
exceptions, and we have done that. We have followed the law. We
have had an open process. I would submit to you, I think that
the there were some, I just want to correct the record here,
there is some insinuation that the Cowlitz have all this other
land that they could use. There is no other land that the
Cowlitz can do a gaming facility on.
We own some property that is not in trust on the Cowlitz
River. It could never be, under the shoreline management rules
and NEPA, it could never be turned into a gaming facility on
the side of the river. We own a small parcel of land in the
city of Longview, where we have our tribal office.
There is no room for a gaming facility there. The parcel of
land that we have at St. Mary's, interestingly enough, was
donated to the church by the Cowlitz Indian Tribe so they could
put a mission there to help the Cowlitz Tribe. The Cowlitz
Tribe has purchased that property back for tribal housing in
that area. It is not in trust either, and there is not enough
land there to build a casino.
The Chairman. Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman.
I thank the residents of Washington for being here today.
As much as the microscope is on this particular project and as
painful or as enlightening as that may be, it is a timely
example of the challenges I think we face, Mr. Chairman, on the
current statute and what changes we need to make to it.
I wanted to ask Mr. Alexanderson, in your statement on page
4 there is a list of recommendations. Sixth on that list, you
have ``no site should be restored to the tribe that was not
part of the historical sovereign.'' Would you elaborate on
that?
Mr. Alexanderson. Yes; Thank you, Senator.
This I believe, I call it a Federal-tribal casino siting
process because the issue is where to put them. In order to put
them someplace under the law, the land on which they are placed
has to be handed over to the sovereignty of the requesting
tribe. So it becomes land that is taken away from the
sovereignty of the State and the tribe governs it. All State
and local regulations are nullified.
So what I am saying here is that the concept of restoring
land to a tribe, as I see what Congress was thinking about, is
where did they once have sovereignty and govern the land; where
did they have their villages and homeland and where were the
missions established; and particularly where did all that occur
pre-European contact, because after European contact a lot of
stuff got mixed up and a lot of things changed. But where is
the historical base of the tribe; where can we look and say,
this is where they ruled.
When you have a landless tribe, but you can look at their
history and see where they ruled, it seems to me you can only
restore that situation within that area. It makes no sense to
me to restore the Cowlitz Tribe to sovereignty on a parcel that
was the original land of the Chinook.
Senator Cantwell. To restore them to sovereignty?
Mr. Alexanderson. Yes.
Senator Cantwell. At all?
Mr. Alexanderson. No; to restore them to sovereignty on
this parcel. The decision to restore them to sovereignty, well,
actually it has not been made, I guess, yet, because they are
not sovereign over any land yet. They do not own this land, the
proposed land, and the other tribal land has not been taken
into trust. I believe technically it is the taking into trust
that restores the sovereignty, because it then allows the tribe
to govern.
Senator Cantwell. You are not questioning their sovereignty
in general.
Mr. Alexanderson. No; absolutely not. That has been
decided.
Senator Cantwell. Okay.
Mr. Harju, do you want to comment on this?
Mr. Harju. Well, I guess if we follow his analogy, the
Federal Government will give the million acres back that were
taken from the Cowlitz without compensation in 1863, but that
is not realistic. Most of that land is now in the Gifford
Pinchot National Forest, the Mount St. Helen's National
Monument, Mount Rainier National Park, the Fort Vancouver
Monument.
So most of that land is not available for the Cowlitz to
regain sovereignty to, or to purchase and ask to be placed into
trust. There is not that much land that is just out there for
the taking.
As I pointed out, we are only asking for 152 acres that is
in our historic area to be taken into trust to help the
economic benefit of our tribe, a landless tribe. We are not
reservation-shopping. We are attempting to obtain land in our
historical area. The restored lands opinion, which is a legal
opinion, it is just one part of this process. It is a
determination by the Federal agency that has the jurisdiction
in this area, that this was restored lands under the Indian
Gaming Regulatory Act for the Cowlitz Tribe. But that is just
one piece of it.
Senator Cantwell. You are saying that it is in a historical
area.
Mr. Harju. Oh, it is.
Senator Cantwell. You are saying it has been determined
already that it is an historic area.
Mr. Harju. Well, the restored lands opinion that was
authored by Ms. Coleman clearly demonstrates that, and that is
their administrative finding that this is in the historic
cultural area of the tribe. I would point out, the Cowlitz
Tribe from time immemorial occupied all areas in Southwest
Washington. It shared some of those lands on the Columbia
River.
As you know, Senator Cantwell, the Columbia River divides
Oregon and Washington. Pre-European contact, the Columbia River
was the interstate highway for the tribes in that area. They
used the river to navigate and for transportation. So on the
river, there were different bands of different Chinookan tribes
on the river many times.
As I have pointed out, in the 1820's and 1830's, many of
those bands were wiped out by the fever and the cholera and the
epidemics. But the Cowlitz have always been in that area, and
as the opinion points out, this is our historic land.
So I do take offense to people saying, well, you should
just go build your casino where you had land. We do not have
any land in trust at this time. We are going through the
complicated process to take this land into trust, as Mr.
Skibine has pointed out. This land, we are going through the
fee-to-trust process. We are going through the full
environmental impact statement.
Before the BIA takes it into trust for the Cowlitz Tribe,
we will have to fulfill all of those requirements. Once that
happens, we have the opinion from the Indian Gaming Regulatory
Act that it is our restored lands, and it is clear to everyone
that then on that land we could either build a casino, and as
we have pointed out, we also want to put tribal housing, a
cultural center, and a governmental office there on that land.
It is only 152 acres.
Senator Cantwell. But I think, Mr. Harju, you could also
could see from my colleague's perspective, too, on the process
that we are trying to make sure is established since the
implementation of this act and transparency, that when people
are discussing these issues of the historical lands, you are
right. There are many other examples of these trade offs that
we deal with every day in our office as it relates to tribal
sovereignty and the non-further use of tribal land that the
Federal Government has taken and the implications of that,
particularly as it relates to fish and to water and to power
resources.
So are you suggesting that we do not need to make any
changes to the Indian gaming law as it relates to transparency?
Mr. Harju. My suggestion is in regards to the two
exceptions that we are discussing today, either the restored
lands exception or the initial reservation exception, I agree
with Senator McCain that I think what direction the committee
and the Congress should take would be to direct the BIA to
implement regulations so that everyone knows exactly what the
BIA does, and what is expected of all the parties, the tribes,
the public, and they have their input. So in regards to those
two, the two exemptions that we are talking about, I think
regulations are what we need right now, not amendments to IGRA.
Now, the two-part determination is what gets into
reservation-shopping. I am not discussing that. The tribe has
not asked for a two-part designation from the BIA or the State
of Washington at this time. We are asking that the land be
taken into trust and we will be applying one of the other
exceptions, then. We have asked for an initial reservation
proclamation and we have also asked for the restored lands
opinion.
I might add that there is some indication that we have done
this secretly. If you read the restored lands opinion, you will
see that a State Representative responded. Several of the
groups opposing the casino responded to them. They got input
from another Indian tribe. A whole bunch of individuals
opposing the tribe did have input on this opinion. It states
that in the opinion. So it can hardly be said this was a secret
process.
Senator Cantwell. Mr. Alexanderson.
Mr. Alexanderson. It was secret from March to October, and
was discovered because Mr. Skibine advised one of the people
that he visited with that the process was underway. Indeed, it
was nearly over and at the very last minute that was some
opportunity to put input in, but it did not apply to everybody,
and it was inadequate.
If I may just clarify my position on one thing.
Historically, you could find an area that everyone agrees was
the exclusive area of tribe A. And you could find another area
that was the exclusive area of tribe B. And you might find an
area in between that you cannot tell, or was shared. Maybe
there were resource sites that were shared and so on.
I am saying that when you are restoring a tribe to
sovereignty over land, they should have had to make a showing
that they once had sovereignty, exclusivity over that land. In
that middle-land where more than one tribe has a claim, it is
not right to restore it to the exclusive governance of one of
the tribes and exclude the other. That is my position.
Senator Cantwell. And what if that is not clear?
Mr. Alexanderson. I am sorry?
Senator Cantwell. I am not sure that is always so clear. I
see Mr. Kromm smiling. I do not know in your experience in
California if that is always so clear. I mean, how do you
determine dominance on a particular parcel? I think if you were
talking about a broad geographic area, east or west of the
Cascades or north or south of the Columbia River, you know, it
is easier.
But when you start getting into smaller territories, my
guess is they were fighting over this for a long time about who
was dominant. So I am just saying, it gets complicated.
Mr. Alexanderson. That is absolutely true. In this case,
that very issue was fought out twice before in the case of the
Cowlitz, and the Indian Claims Commission, after a long trial
that lasted years, I believe, made a determination as to where
their exclusive area was, and where it was not. The
determination they made as to where it was not was the mouth of
the Lewis River area, the area we are talking about.
So that has been found, and it was found again when the
Bureau of Acknowledgment and Recognition spent years with
expert historians looking into the Cowlitz history. Again, the
Cowlitz representatives claimed that they had a band of the
Cowlitz that lived in that area. The BAR found they did not.
So it has been ruled twice before already. It is a very
difficult process, very fact-intensive. It involves reading the
journals and evidence and maps of the time to see what the
answer is. But once you get the answer, we should live with it.
Senator Cantwell. Thank you.
Mr. Chairman, I am sure the case study of the Cowlitz could
go on all day, and so could my questioning, but I will continue
to work with you on the larger reform issues and appreciate my
constituents being here.
I am not sure we like to be in the limelight on this issue,
but I do think it is a case study of the challenges of the Act
that we have now had for so long, and so many changes that have
come along that require us to look at revisions. So I think the
chairman for this hearing.
The Chairman. Thank you very much.
Ms. Thomas, we will allow you to make a closing comment if
you would like.
Whoops, Senator Dorgan is back. Okay.
Senator Dorgan. Mr. Chairman, sorry. I had to be at another
committee hearing to introduce a witness, so I apologize.
The Chairman. Ms. Thomas.
Ms. Thomas. I would just like to say that I know that this
committee worked, or the committee that you were a part of that
worked so hard on the IGRA, did their level best to make sure
that they had anticipated all the problems that might happen,
and make provisions for those. And we do know that a lot of
things have changed in the last 17 years. I just wanted to let
you know how grateful communities like mine are that this is
actually happening, because it is something that in our fight
for the last 10 years, we have wanted to see happen, and we
really appreciate it.
The Chairman. Thank you very much.
Mr. Kromm.
Mr. Kromm. Thank you.
Maybe a brief point I could make is that the California
State Association of Counties has probably been the most active
of the local government groups in the country of working on
this issue. I want to thank Mr. Skibine. I came out here a
couple of years ago when an issue first arose in our county,
and just was kind of alone, a very inexperienced supervisor. He
made time to meet with me. I have heard this from numerous
other county supervisors in California, that the door has been
open back here.
I think the challenge is, as you hear across the country,
is that most folks do not quite know where to go and do not
know how to address the problem, and it is difficult. We have
been working with the National Association of Counties. CSAC
has very much taken the lead. We are putting on workshops for
the Western Regional group of counties as part of NACO later
this year. Mr. Skibine is going to be meeting with the League
of Cities representatives.
I think an education process is part of what is needed.
Part of it, I think, then goes back to your transparency
questions earlier, about how do we make the process more open,
more transparent. Good regs would help. It gives people
something that they can put their hands on.
At the local government level, to kind of have an
understanding that you do have a seat at the table; you need to
have an appropriate recognition of the sovereignty of the
tribes that are involved; and the difference between when land
that is well-recognized is in trust versus when the
reservation-shopping process comes about.
So I think a giant educational process nationwide is very
necessary. We have been active in that. We would be glad to
continue to help. I think reforms to IGRA could help that
process also. Thank you.
The Chairman. Thank you very much, sir. I hope you work as
quickly as possible to return Arizona's water from California.
Thank you. [Laughter.]
Mr. Kromm. I am from California. Wine is for drinking and
water is for fighting, right? [Laughter.]
The Chairman. Mr. Alexanderson.
Mr. Alexanderson. Thank you.
Mr. Chairman, I think I have been clear about what I want
from the process in terms of open access to information and
opportunity to meet and present evidence, and a neutral, open-
minded person to run the process and to make the decisions.
Substantively, I do not understand in this day and age why
there should be exceptions to section 20. Those exceptions
basically say that this giant Federal machine siting giant
tribal casinos does not have to consult with anyone in the area
and does not have to get the Governor's okay, and it can be
proved that it will be damaging to the community. That is not
okay with me. So urge substantive reform, as well as procedural
reform.
Thank you.
The Chairman. Thank you.
Councilman Harju.
Mr. Harju. Again, thanks to the committee for this
opportunity. I do have a written statement and I would ask that
that be submitted for the record.
The Chairman. Without objection.
Mr. Harju. I guess, just to followup on that, there is need
for regulation. Oversight is always important, but again I
think there was a reason for these two exceptions that we have
talked about today. It only affects a very few tribes, as you
know, and any changes to those could have devastating results
for tribes like the Cowlitz, and there is now the Snoqualmie
Tribe in the State of Washington that has just recently
obtained Federal recognition.
It is important to allow those tribes to have the same
economic benefits of the tribes that had reservations and have
gaming facilities or other economic benefits to help their
tribal members. All the Cowlitz want are to be able to take
care of the Cowlitz people.
Thank you.
The Chairman. Thank you, sir.
Senator Dorgan.
Senator Dorgan. Mr. Chairman, thank you very much.
As I said, I had a Commerce Committee hearing I had to rush
off to, so I missed part of this, but I have read the
statements offered today and I think they are very constructive
and very helpful to this committee.
Again, Mr. Chairman, thank you for continuing on, and I
thank all of you for traveling here today to be a part of this
hearing.
The Chairman. Thank you very much.
This hearing is adjourned.
[Whereupon, at 11:31 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 Penny J. Coleman, Acting General Counsel National
Indian Gaming Commission
Good morning Chairman McCain, Vice Chairman Dorgan, members of the
committee, and staff. My name is Penny Coleman. I am the Acting General
Counsel of the National Indian Gaming Commission [NIGC]. Thank you for
this opportunity to discuss the NIGC's role in, and process for, making
Indian lands determinations for off-reservation gaming. I understand
that you are specifically concerned about such determinations when a
tribe is trying to establish gaming off of its reservation or when a
tribe is trying; to begin gaming when it does not have a reservation at
all.
Under the Indian Gaming Regulatory Act (IGRA), tribes may conduct
gaming operations only on ``Indian lands,'' a term which is defined by
the statute to include reservation land, as well as non-reservation
land held in trust or restricted status by the United States for the
benefit of a tribe or individual member of a tribe. IGRA prohibits
gaming on non-reservation trust lands acquired after October 17, 1988,
unless the tribe and its proposed gaming site qualify for one of six
statutory exceptions in 25 U.S.C. section 2719.
In fulfilling its statutory duties under IGRA, there are three
circumstances when the NIGC must make determinations regarding whether
a site qualifies as ``Indian land'' on which a tribe is allowed to
conduct gaming operations. The first circumstance arises under the
chairman's duty to approve all management contracts between Indian
tribes and gaming management contractors. In those cases, the NIGC will
first confirm that the gaming operation to be managed is located on
Indian lands eligible for gaming. Similarly, the second circumstance
that may call for an Indian lands determination is created by the NIGC
chairman's duty to approve all tribal gaming ordinances. Third, the
Office of General Counsel, within the NIGC, issues Indian lands
opinions when the Commission must determine whether it has regulatory
authority over an existing gaming operation since the NIGC's authority
is limited to Indian gaming operations on Indian lands. In conducting
our analysis, we attempt to reach consensus with the Department of the
Interior.
The working relationship that we have with the Department of the
Interior on these issues is guided by a memorandum of understanding.
Our practice of notifying, the State Attorney General is based on our
internal policy developed as a result of a request by the Conference of
Western Attorneys General. Regarding the issue of public notice and
participation, our policy is to respond openly to inquiries and accept
and consider any information provided by the subject tribe, other
governments, community groups, or any member of the public. We
typically do not provide public notice that any articular Indian lands
analysis is, underway because this process involves a narrow, legal
determination that does not require the solicitation of public comment.
Presently, we have approximately 21 active Indian lands opinions
pending. The NIGC has assumed the responsibility for drafting 17 and
the Department of the Interior is drafting 4. Of the 21, four include
pending management contracts as well as pending trust acquisitions:
Ione Band of Miwok Indians; Elk Valley Rancheria; Federated Indians of
Graton Rancheria and Hopland Band of Pomo Indians. The public will
receive notice of these pending trust acquisitions through the
environmental compliance processes, as well as the Department of the
Interior's trust acquisition process.
I am available to answer any questions or provide further
information that might assist in your review of this issue.
______
Prepared Statement of Rebecca A. Miles, Chairman, Nez Perce Tribal
Executive Committee
Mr. Chairman, the Nez Perce Tribe appreciates the opportunity to
submit the following brief comments for the record of the hearing
conducted by the Senate Committee on Indian Affairs on February 1,
2006.
First, the Nez Perce Tribe is concerned that Congress is
considering taking such drastic action as amending the Indian Gaming
Regulatory Act [IGRA] based on anecdotal evidence that does not
necessarily comport with the known facts. As Mr. Skibine stated in his
testimony, it appears that the media have created a firestorm of
controversy about an explosion of off reservation gaming by Indian
tribes that simply does not exist.
In order for a tribe to conduct such activities, tribes are
required, under existing law, to go through a two-part determination
test. The two-part determination process requires the approval of the
BIA and the concurrence of the State Governor where the off-reservation
casino would be located. The BIA must consult with local governments
and nearby tribes before making a decision. According to Mr. Skibine,
since IGRA was passed in 1988, only three casinos have been opened
under the two-part determination process required under the existing
law. In addition, the Department of the Interior has approved only one
tribal acquisition under the land settlement exception and three tribal
land acquisitions under the initial reservation exception but no land
has been taken into trust yet.
The above process in conjunction with the required compliance with
the National Environmental Policy Act means an adequate regulatory
structure already is in place. It is at this point that the public is
given an adequate outlet to comment on the process. As a result, it is
the opinion of the Nez Perce Tribe that adequate safeguards are already
in existence to regulate the area of applications for off reservation
gaming by Indian tribes.
However, if the committee still believes that action needs to be
taken, the Nez Perce Tribe believes that the current regulatory process
can be amended to achieve the desired result without taking the drastic
step of opening up IGRA for amendment. The draft regulations
implementing section 20 that are being promulgated by Mr. Skibine's
office should help resolve existing concerns over the off reservation
gaming issue by fleshing out the exceptions allowed in section 20,
providing more guidance with the secretarial determinations allowed,
and defining important terms related to the process. The promulgation
of these regulations will include tribal involvement before they become
final. This helps insure the sovereign voice of the tribes is heard.
Finally, it should be noted that although the tribal gaming
business has grown greatly since 1988, it has only grown because of the
demand by the public. Each person that patronizes a tribal gaming
facility does so at their own discretion. If customers did not feel
welcome and safe at tribal facilities they would not visit. Statements
made by the committee that the growth of the industry requires
governmental intervention by the State are misplaced. The sovereignty
of the tribes that conduct such gaming should be respected. It is
important to allow tribes to grow and nurture our limited opportunities
for economic development and as a result become more self sufficient
and able to provide the services and programs that all governments are
expected to provide.
Thank you for the opportunity to comment on this issue.
______
Prepared Statement of Liz Thomas, Taxpayers of Michigan Against Casinos
Good morning. Thank you Chairman McCain and members of the Senate
Committee on Indian Affairs for giving me the opportunity to testify. I
am a representative of a community grassroots organization called
Taxpayers of Michigan Against Casinos. We have worked to prevent a
tribal casino from opening in New Buffalo, MI, for almost 10 years. New
Buffalo is a Lake Michigan community of about 2,500 residents. My
husband and I opened a small resort in 1990. We and the other members
of our group firmly believe a large, generally unregulated casino will
fundamentally change the character of our community forever.
Throughout the past 10 years, those of us who oppose the potential
Pokagon casino in New Buffalo have found our voices and fought in many
different ways to prevent the casino. The fight has, been constant,
costly, and often demoralizing, none more so than last Friday when we
received word that the Government had taken the land in trust or the
casino and the tribe announced they would begin building the casino
soon.
Our opponents are funded by powerful gaming companies that always
have more resources at their disposal than we do. I have come to
believe over these 10 years that the only way to ensure that people in
small communities like mine have a genuine say in whether an unwanted
casino comes to town is with changes to the IGRA legislation, which
must come from the United States Congress. And after hearing the news
reports over the weekend, so many of our supporters called pleading
with me to come today and tell you our recommendations about how to
improve this process. So that is why I am here today, and before giving
my recommendations I would like to give you a little history.
In September 1994, the Pokagons received status as a federally
recognized tribe with the help of cosponsors U.S. Representative Fred
Upton and U.S. Representative Tim Roemer. Both Congressmen claimed that
the tribe promised that gaming was not the tribe's interest. By
November the Pokagons were negotiating with Leisure Time and Harrah's
entertainment companies about opening a casino. Congressman Upton told
TOMAC he felt he had been double-crossed by the tribe.
For the next year the Pokagons held ``informational meetings''
along the I-94 corridor from Kalamazoo into Indiana, in at least 30
communities, looking for the right spot to open a casino. By the spring
of 1996, the tribe had narrowed it down to three locations New Buffalo
and Bridgeman in Michigan and North Liberty in Indiana. On May 3, 1996
the tribe announced that New Buffalo was their choice. A few days later
our group of casino fighters met in the basement of the local Methodist
church and took the name of Taxpayers of Michigan Against Casinos.
We first fought the casino at the local level. In 1996, we worked
hard to support candidates for our local offices who opposed the
casino. We were even successful in electing a slate of anti-casino only
to see them later fall under the spell of promised revenue from the
casino. This very same group that had run on an anti-casino platform
turned around and signed a local revenue sharing agreement with the
tribe. In a small community like ours, the lure -of much-needed revenue
to help support the budget just became too much. And one thing casinos
bring is a basket full of promises about lots of money flowing into
town.
We have fought the casino at the State level. The Pokagon Tribe was
trying to pass a compact with the State of Michigan in 1998, and
several of us from TOMAC were there in Lansing when the compact passed.
This compact passed in December on the last day of legislative session
that year, at 1 a.m.
The compact was passed not as a bill but as a resolution so that it
wouldn't require a majority of members of the legislature, just a
majority of the people there on the floor voting. It was going to be a
very close vote and we watched as many legislators walked out of the
chamber so they wouldn't have to make a public vote a public stance on
this very controversial project and so that it could get the majority
of people who were on the floor at the time.
We have fought the casino in the courts. We filed suit in Michigan
court, arguing that the compact was invalid because it was passed as a
resolution instead of a full law. We won in the circuit court, lost in
the appellate court, then lost again in the Michigan Supreme Court
(though a piece of this case remains alive in the Michigan Appeals
Court).
We filed suit in the Federal courts, too. We sued the BIA asking
that the tribe be forced to conduct an Environmental Impact Study,
because it seemed plain and simple enough to us that a massive casino
designed to attract over 3 million people a year into a Community of
2,500 residents would have a significant impact.
The court initially agreed with us and rejected the BIA's
conclusion that the casino would be insignificant, but the court later
deferred to the BIA when it reached the same conclusion after further
study. The appellate court agreed. Overcoming agency deference is a
very big hurdle, I learned, even when any common citizen on the street
will tell you that the casino will obviously have a transforming,
significant impact on our community.
The tribes shouldn't be able to have it both ways. They should not
be allowed to garner support from local governments with the promise of
thousands of jobs, millions of visitors and even more millions of
dollars, then, turn around and ask the BIA to declare the casino will
have No Significant Impact on a community.
The BIA made its initial decision that this casino would be
insignificant on the last day of the Clinton administration, January
19, 2001. The person who signed the papers was Michael Anderson from
the BIA. He went to work for tribal interests shortly thereafter. This
kind of blatant duplicity does not inspire public confidence in the
fairness of government operations. And now the Jack Abramoff scandal
shows that the level of political corruption and the money involved in
Indian gambling matters has gotten completely out of control.
There are other communities in Michigan struggling with the threat
of proposed tribal, casinos. We are thankful and grateful for the
generous support we've received over the years and share their concerns
about their own communities--people from CETAC in Battle Creek, MI;
Michigan Gambling Opposition and 23 Is Enough in Grand Rapids, MI;
Positively Muskegon in Muskegon, MI. We've also had the pleasure of
working closely with Tom Grey from the National Coalition Against
Legalized Gambling.
But casino gambling is spreading throughout the country and it is
time for Congress to get its arms around the problems before it is too
late. Now that you know the history of our fight, I'd like to offer
what TOMAC thinks would be improvements to this whole tribal casino
process, based on our experience.
First, most important, and what we have asked for all along, is a
chance for the people of the community to vote on this. When the casino
project was announced, we, community residents, were told it was a DONE
DEAL. We were told what was going to happen, when, how wonderful it was
going to be for our community, and that we shouldn't ask questions and
that we certainly couldn't do anything to stop it. Fortunately for us,
we had good souls like Tom Grey who told us it WASN'T a done deal and
that there were ways we could try to stop it. But we the people have
never had a chance to register our formal vote.
I believe there should be a local, public referendum on every
tribal casino project to ensure the majority of the community actually
wants it. If a community wants the casino, God bless them. But if a
community does not want it, that community deserves the right to self
determination.
The other, serious problem with this process is the ``reservation
shopping'' as it is being called. Newly minted tribes and existing
tribes work with their casino sponsors to find the best possible site
for commercial gambling, and then they ask the government to put it in
trust for them.
The Pokagons wish to build on land that they bought in 1996. This
is not the Pokagons' existing reservation land. This is not even where
the majority of Pokagons live now. The tribe's tribal hall is in
Dowaigac, but the property there just isn't an attractive site for a
commercial casino.
And yet once this newly acquired land is given trust status, it
will be viewed forever more as a sovereign nation that belongs to the
Pokagons, and on which they can build a casino that attracts 4.5
million people a year to our community of 2,500. The Pokagons decided
on New Buffalo after they openly shopped ``in probably all of the
communities along the I-94 corridor in our service area''. [Matt
Weesaw, Harbor Country News, 5/9/96] We believe tribal casinos are best
when built on tribal land and that ``reservation shopping'' was never
the intent of the IGRA.
And last, there is the issue of the EIS which is required under
IGRA in the land to trust process. We believe there should be an
independent agency that would conduct an analysis of the environmental,
economic and social impacts studies that would be an honest picture of
the land in question. The present system allows the tribes to hire a
firm that has experience with the BIA and knows what they want. These
studies are inadequate, biased and often glaze over issues of great
importance to host communities.
What has happened in my community, we call it Harbor Country, is
not unique and that is what makes it so sad. It is not unusual or
extraordinary because this nightmare is happening to towns all across
America. As we debate this issue today here in Washington, there are
grassroots groups all across America, calling their legislators, asking
for help only to be told that this is an issue out of their
jurisdiction. I ask you, who do we go to when our local, State, and
Federal Governments have been seduced by the mere promise of millions
of dollars of ``revenue'' that. once was some family's ``paycheck''.
And I respectfully ask this committee, when did our rights as American
citizens cease to matter on any day that was not an election day?
In the late 1980's the committee that drafted the IGRA did their
best to include. Very thing they could imagine into the regulations
that would govern an industry of gambling and an alliance with tribal
nations. After nearly 20 years we know there is much more to learn. We
applaud this committee's efforts to reach out to its critics and
supporters and craft a solution that would be welcomed by all.
Thank you so much again for allowing me to speak today.
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