[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
EXECUTIVE BRANCH STANDARDS FOR LAND-IN-TRUST DECISIONS FOR GAMING
PURPOSES
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON INDIAN AND
ALASKA NATIVE AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
Thursday, September 19, 2013
__________
Serial No. 113-42
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Steven A. Horsford, NV
Raul R. Labrador, ID Jared Huffman, CA
Steve Southerland, II, FL Raul Ruiz, CA
Bill Flores, TX Carol Shea-Porter, NH
Jon Runyan, NJ Alan S. Lowenthal, CA
Mark E. Amodei, NV Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Chris Stewart, UT Vacancy
Steve Daines, MT
Kevin Cramer, ND
Doug LaMalfa, CA
Jason T. Smith, MO
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
------
SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS
DON YOUNG, AK, Chairman
COLLEEN W. HANABUSA, HI, Ranking Democratic Member
Dan Benishek, MI Tony Cardenas, CA
Paul A. Gosar, AZ Raul Ruiz, CA
Markwayne Mullin, OK Eni F. H. Faleomavaega, AS
Steve Daines, MT Raul M. Grijalva, AZ
Kevin Cramer, ND Peter A. DeFazio, OR, ex officio
Doug LaMalfa, CA
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, September 19, 2013..................... 1
Statement of Members:
Hanabusa, Hon. Colleen W., a Representative in Congress from
the State of Hawaii........................................ 3
Prepared statement of.................................... 4
Young, Hon. Don, a Representative in Congress from the State
of
Alaska..................................................... 1
Prepared statement of.................................... 2
Statement of Witnesses:
Longmire, Hazel, Vice Chairperson, Colusa Indian Community
Council.................................................... 35
Prepared statement of.................................... 37
Mielke, Todd, County Commissioner, County of Spokane......... 31
Prepared statement of.................................... 33
Skibine, Alexander, Professor, University of Utah............ 44
Prepared statement of.................................... 45
Washburn, Kevin K., Assistant Secretary for Indian Affairs,
U.S. Department of the Interior............................ 5
Prepared statement of.................................... 6
Questions submitted for the record....................... 8
Additional Material Submitted for the Record:
California State Association of Counties, Prepared statement
of......................................................... 56
City of Kenosha, Kenosha, WI, Letter submitted for the record 74
City of Medford, OR, Prepared statement of................... 75
Confederated Salish and Kootenai Tribes (CSKT), Flathead
Indian Reservation, MT, Prepared statement of.............. 65
Cowlitz Indian Tribe, Letter submitted for the record........ 68
Dragonslayer, Inc. and Michels Development, LLC, Prepared
statement of............................................... 70
Enterprise Rancheria, Estom Yumeka Maidu Tribe, Letter
submitted for the record................................... 71
List of documents submitted for the record retained in the
Committee's official files................................. 89
Menominee Indian Tribe of Wisconsin, Keshena, WI, Letter
submitted for the record................................... 79
San Manuel Band of Mission Indians, Highland, CA, Letter
submitted for the record................................... 80
Spokane County, WA, Prepared statement of.................... 81
Spokane Tribe of Indians, Spokane Tribal Business Council,
Letter submitted for the record............................ 83
Tohono O'odham Nation, Office of the Chairman and Vice
Chairman, Prepared statement of............................ 87
Towns of Ledyard, North Stonington and Preston, CT, Prepared
statement of............................................... 74
OVERSIGHT HEARING ON EXECUTIVE BRANCH STANDARDS FOR LAND-IN-TRUST
DECISIONS FOR GAMING PURPOSES
----------
Thursday, September 19, 2013
U.S. House of Representatives
Subcommittee on Indian and Alaska Native Affairs
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 2:19 p.m., in
room 1334, Longworth House Office Building, Hon. Don Young
[Chairman of the Subcommittee] presiding.
Present: Representatives Young, Mullin, Cramer, LaMalfa,
Hanabusa, Cardenas, Ruiz, and DeFazio.
Mr. Young. The Subcommittee on Indian and Alaska Native
Affairs is meeting today to hear testimony on executive branch
standards for land-in-trust decisions for gaming purposes.
Under Committee rule 4(f), opening statements are limited
to myself and the Ranking Member of the Subcommittee. However,
I ask unanimous consent to include any other Members' opening
statements in the hearing record, if submitted to the clerk by
the close of business today.
[No response.]
Mr. Young. Hearing no objection, so ordered. I will
recognize myself.
STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ALASKA
Mr. Young. The purpose of today's hearing is to broadly
examine the administration's process for approving gaming
rights on lands acquired in trust after 1988. To simplify the
discussion of a complex issue for the purpose of this hearing,
I will use the term ``off-reservation gaming'' to refer to
tribal gaming conducted pursuant to any exemptions in Section
20(b) of the Indian Gaming Regulatory Act.
I have always been a strong advocate of Indian gaming.
Indeed, I was the Ranking Republican Member on the Interior
Committee that drafted and passed the Indian Gaming Regulatory
Act, which was signed by President Ronald Reagan on October 17,
1988. Tribal gaming has been one of the most successful revenue
generators for tribal governments, and has raised the standard
of living for many tribal communities in most regions of the
United States. It is because of my support for protecting the
integrity of tribal gaming that I scheduled this hearing.
The BIA's recent approval, some say, rubber-stamp, of
certain trust land applications over the objections of other
tribes and surrounding communities, is causing public support
to erode for tribal gaming. Many tribes are currently operating
successful facilities on their own reservations, in accordance
to IGRA. However, the BIA is approving off-reservation
facilities that threaten the viability of these existing
operations. It is remarkable how tone-deaf the administration
has been, and concerns expressed by Members of Congress, Indian
Tribes, and other government officials regarding the impacts of
off-reservation casinos.
A number of Indian tribes understand what's at stake. They
are requesting reasonable policy changes. The more that BIA
approves off-reservation projects, the more that existing
tribal operations are harmed. And more States are encouraged to
authorize private competition in urban areas, which may drain
revenues from tribal casinos. In this kind of scenario, who
wins? It isn't going to be the tribes. It should be the
intention of this committee to consider reforming Federal
gaming policy to address growing opposition to off-reservation
gaming so as to avoid a backlash that might reverse the gains
that Indian Country fight for, and won, when IGRA was enacted.
The passage of a House bill this week to block off-
reservation casinos in Phoenix is a sign of popular support of
taking the off-reservation gaming rubber stamp away from the
administration, and letting Congress make decisions regarding
gaming.
And I would yield to the Ranking Member at this time.
[The prepared statement of Mr. Young follows:]
Prepared Statement of The Honorable Don Young, Chairman, Subcommittee
on Indian and Alaska Native Affairs
The purpose of today's hearing is to broadly examine the
administration's process for approving gaming rights on lands acquired
in trust after 1988.
To simplify the discussion of a complex issue, for the purpose of
this hearing I will use the term ``off-reservation gaming'' to refer to
tribal gaming conducted pursuant to any of the exceptions in section
20(b) of the Indian Gaming Regulatory Act.
I have always been a strong advocate of Indian gaming. Indeed, I
was the Ranking Republican Member of the Interior Committee which
drafted and passed the Indian Gaming Regulatory Act, which was signed
by President Ronald Reagan on October 17, 1988.
Tribal gaming has been one of the most successful revenue
generators for tribal governments and it has raised the standard of
living for many tribal communities in most regions of the United
States.
It is because of my support for protecting the integrity of tribal
gaming that I scheduled this hearing. The BIA's recent approval--some
would say ``rubber-stamping'' --of certain trust land applications over
the objections of other tribes and surrounding communities is causing
public support to erode for tribal gaming.
Many tribes are currently operating successful facilities on their
own reservations in accordance with IGRA. However, the BIA is approving
off-reservation facilities that threaten the viability of these
existing operations.
It is remarkable how tone-deaf the administration has been to
concerns expressed by Members of Congress, Indian tribes, and other
government officials regarding the impacts of off-reservation casinos.
A number of Indian tribes understand what is at stake, and they are
requesting reasonable policy changes.
The more that BIA approves off-reservation projects, the more that
existing tribal operations are harmed, and the more States are
encouraged to authorize private competition in urban areas, which may
drain revenues from tribal casinos.
In this kind of scenario, who wins? It isn't the tribes.
It should be the objective of this committee to consider reforming
Federal gaming policy to address growing opposition to off-reservation
gaming so as to avoid a backlash that might reverse the gains that
Indian Country fought for and won when IGRA was enacted.
The passage of a House bill this week to block an off-reservation
casino in Phoenix is a sign of popular support for taking the off-
reservation gaming rubber stamp away from the administration, and
letting Congress make decisions regarding gaming.
______
STATEMENT OF THE HON. COLLEEN W. HANABUSA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF HAWAII
Ms. Hanabusa. Thank you, Mr. Chairman, for holding today's
oversight hearing on the executive branch standards for placing
land in trust for gaming purposes.
As this subcommittee is well aware, gaming has provided
economic opportunities for Indian tribes that, prior to the
passage of the Indian Gaming Regulation Act, IGRA, in 1988,
were practically unimaginable. According to the National Indian
Gaming Commission, in 2012 alone, revenues generated by the
Indian gaming industry totaled $27.9 billion. These are the
highest revenues ever recorded in the history of the industry.
I applaud this record growth in large part because many
Indian tribes use gaming revenues to fund economic development
activities on reservations and to provide government services
to their people, including health services, early education
programs, and language and cultural preservation activities.
Clearly, gaming has become what Congress intended, a means
of promoting tribal economic development, self-sufficiency, and
strong tribal governments. Yet, decisions by the Secretary of
the Interior to take land into trust for gaming purposes
pursuant to the legal standards set forth in Federal law,
including the Indian Reorganization Act and IGRA, have raised
difficult and contentious issues, especially when those lands
are located off-reservation. The result has, unfortunately,
pitted tribes with existing gaming operations against their
neighbors, both Indians and non-Indian.
But it is my strong belief that the existing statutory and
regulatory framework, the IGRA, its implementing regulations at
25 CFR part 292, and the land in trust regulations at 25 CFR
part 151 contain adequate safeguards to ensure that the
Secretary's decision to allow off-reservation gaming are made
wisely, prudently, and in full consideration of local
communities that are impacted by those activities.
The IGRA, unlike any other Federal law, and at significant
expense to tribal sovereignty, grants a State's Governor veto
power over the Secretary of the Interior's two-part
determination to authorize off-reservation gaming.
In a legal memorandum issued during the Bush
administration, counselors to the Secretary of the Interior
opined that the veto power potentially limits the market
opportunities of sovereign Indian tribes, but determined that
providing States with authority to deny tribes access to lands
for gaming was a critical check on the Secretary's discretion
under the law. This delicate balance of Federal, State, and
tribal power is what makes IGRA an exceptional Federal law.
That said, with the ever-increasing success of Indian
gaming enterprises comes increasing competition over the gaming
market share between tribes. Tribes with existing gaming
facilities and those tribes who seek to join their ranks have
battled publicly over location and authority to conduct gaming
activities in the first instance. I am fully aware of these
disputes and respect that hard-earned tribal economic self-
determination is worth protecting.
But when it is believed that a tribe seeks to encroach on
another's market under circumstances that reach beyond IGRA,
Congress can step in and be the final arbiter. I, and Ranking
Member DeFazio, both supported H.R. 1410, legislation that
passed the House by voice vote this week. If enacted into law,
H.R. 1410 would prevent any Arizona Tribe from circumventing
existing Federal authorities to conducting gaming off
reservations. I view that legislation as an example of the
safety valve Congress can provide when tribes seek to engage in
so-called reservation shopping.
As we hear from our witnesses today, it is important to
remember that during the Obama administration alone, 1,300
parcels have been taken into trust for the benefit of Indian
tribes. And less than 15 of those parcels are connected to
gaming projects. It is also remarkable that, since 1988, under
the Republican and Democratic administrations, the Department
of the Interior has approved only 15 two-part determination
applications, and disapproved 14. Of those 15 successful
applications, 5 were vetoed by State Governors and 1 has not
yet been acted upon.
I believe these numbers demonstrate that IGRA, part 292,
and part 151, work together to provide a system of checks and
balances, transparency, and meaningful tribal and local
community input in departmental review of tribal gaming
applications. I yield back, Mr. Chair.
[The prepared statement of Ms. Hanabusa follows:]
Prepared Statement of The Honorable Colleen W. Hanabusa, Ranking
Member, Subcommittee on Indian and Alaska Native Affairs
Thank you, Mr. Chairman, for holding today's oversight hearing on
the executive branch standards for placing land into trust for gaming
purposes.
As this subcommittee is well aware, gaming has provided economic
opportunities for Indian tribes that, prior to passage of the Indian
Gaming Regulatory Act (IGRA) in 1988, were practically unimaginable.
According to the National Indian Gaming Commission, in 2012 alone
revenues generated by the Indian gaming industry totaled $27.9 billion.
These are the highest revenues ever recorded in the history of the
industry. I applaud this record growth in large part because many
Indian tribes use gaming revenues to fund economic development
activities on reservations and to provide government services to their
people, including health services, early education programs, and
language and cultural preservation activities. Clearly, gaming has
become what Congress intended: ``a means of promoting tribal economic
development, self-sufficiency and strong tribal governments.''
Yet, decisions by the Secretary of the Interior to take land into
trust for gaming purposes pursuant to the legal standards set forth in
Federal law, including the Indian Reorganization Act and the IGRA, have
raised difficult and contentious issues--especially when those lands
are located off-reservation. The result has unfortunately pitted tribes
with existing gaming operations against their neighbors, both Indian
and non-Indian.
But it is my strong belief that the existing statutory and
regulatory framework--the IGRA, its implementing regulations at 25 CFR
part 292 and land-into-trust regulations at 25 CFR part 151--contain
adequate safeguards to ensure that the Secretary's decisions to allow
off-reservation gaming are made wisely, prudently, and in full
consideration of local communities that are impacted by those
activities.
The IGRA, unlike any other Federal law and at significant expense
to tribal sovereignty, grants a State's Governor veto power over the
Secretary of the Interior's two-part determination to authorize off-
reservation gaming. In a legal memorandum issued during the Bush
administration, counselors to the Secretary of the Interior opined that
this veto power ``potentially limits the market opportunities of
sovereign Indian tribes'' but determined that providing States with
authority to deny tribes access to lands for gaming was a critical
check on the Secretary's discretion under the law. This delicate
balance of Federal, State, and tribal power is what makes the IGRA an
exceptional Federal law.
That said, with the ever increasing success of Indian gaming
enterprises, comes increasing competition over gaming market share
between tribes. Tribes with existing gaming facilities, and those
tribes who seek to join their ranks, have battled publicly over
location and authority to conduct gaming activities in the first
instance. I'm fully aware of these disputes and respect that hard-
earned tribal economic self-determination is worth protecting. But when
a tribe that seeks to encroach on another's market under circumstances
that reach beyond the IGRA, Congress may choose to step in.
I and Ranking Member DeFazio both supported H.R. 1410, legislation
that passed the House by voice vote this week. If enacted into law,
H.R. 1410 would prevent any Arizona tribe from circumventing existing
Federal authorities to conducting gaming off-reservation. I view that
legislation as an example of the safety valve Congress can provide when
tribes seek to engage in so-called ``reservation shopping.''
As we hear from our witnesses today, it is important to remember
that, during the Obama administration alone, 1,300 parcels have been
taken into trust for the benefit of Indian tribes, and less than 15 of
those parcels are connected to gaming projects. It is also remarkable
that, since 1988, under Republican and Democratic administrations, the
Department of the Interior has approved only 15, 2 part determination
applications, and disapproved 14. Of these 15 successful applications,
5 were vetoed by the States' Governors and one has not been acted upon
yet.
I believe these numbers demonstrate that the IGRA, part 292 and
part 151 work together to provide a system of checks and balances,
transparency and meaningful tribal and local community input in
Departmental review of tribal gaming applications. I yield back.
______
Mr. Young. I thank the good lady. We now have one witness
on the first panel. Mr. Washburn is there as the Assistant
Secretary of Indian Affairs, U.S. Department of the Interior.
Mr. Washburn, thank you. And I won't read you the rules,
but you have 5 minutes or as long as you wish to take, as long
as you are not filibustering. So go right ahead, Kevin, go
right ahead.
[Laughter.]
STATEMENT OF KEVIN K. WASHBURN, ASSISTANT SECRETARY FOR INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Washburn. Chairman Young, thank you so much. Ranking
Member Hanabusa and members of the committee, it is an honor to
be here to talk about Ronald Reagan's, Don Young's and Mo
Udall's Indian Gaming Regulatory Act.
In IGRA, Congress gave the power to the Secretary to allow
certain off-reservation gaming to occur on lands taken into
trust after October 17, 1988. Like Congress, the Secretary has
a trust responsibility to American Indian tribes, and so we
cannot simply refuse to consider off-reservation gaming
applications, nor would we want to do that.
As the Ranking Member Hanabusa has so eloquently stated, it
is a very important resource to tribes. Off-reservation gaming
has produced great success, often for tribal communities that
have very significant economic challenges and very few economic
advantages.
That said, most tribes conduct gaming on land that is
within their reservations. And it is very rare for us to use
the authority provided in IGRA to take land into trust off the
reservation for Indian gaming.
In any given case, these tend to be very difficult and very
controversial decisions. I come to each one, frankly, with a
healthy skepticism because I know that it needs to be taken
very seriously and carefully justified before we move forward.
These decisions take such a long time because we have a lot of
process that is involved to make a decision. The process occurs
in the field and then here in Washington. The process involves
seeking input from the tribes and other communities, such as
the counties and the cities nearby, and sometimes the State.
The process is lengthy and related to several different
substantive areas. We must look at environmental
considerations. We must consider substantive decisions
regarding not just the gaming, but historical connections to
the land, cultural values, economic and other considerations.
We also have to make substantive decisions about the land
itself, the land to be taken into trust. So, the process is
very rigorous, and uses a lot of different factors, an
extensive list of factors, as you can see from my written
testimony.
The process also costs tribes hundreds of thousands of
dollars, even when the final outcome is negative. For the tribe
that has run the gauntlet successfully, they must obtain not
only an approval from the Department of the Interior, but, in
many cases, approval by the Governor of the State in which the
land is located. In other words, the State has a veto over any
off-reservation land-into-trust gaming.
It routinely takes several years for a tribe to get any
land into trust for gaming. It tends to be much longer for off-
reservation lands. And, Chairman, I understand it seems like a
rubber stamp to some people, but it is a very slow rubber
stamp, if it is a rubber stamp. It takes us a very, very, very
long time to make these decisions. And whether it happens too
quickly or too slowly depends on your perspective. Tribes
interested in having lands taken into trust for gaming tend to
complain over and over that the process takes way too long.
People who are opposed tend to complain that it moves too fast,
even when it does take years.
Our job at Interior is to listen to the opinions of all the
relevant constituencies, and try to make an informed decision,
a decision that has been given to us by Congress to make. We do
the best we can. We make these decisions in a context in which
we also have to make decisions about housing, about law
enforcement, about social services, about fire suppression,
about dam maintenance. Lately we have been having lots of
floods and fires. Courts and justice systems, we have to deal
with corrections systems, we have to deal with schools and
education, which are very important. Agricultural and
irrigation systems, and highways and roads, and many other
issues.
And so off-reservation gaming is one of the very many
things that we think that are important in Indian Country. But
we are happy to hear your thoughts on this subject, and happy
to be here to answer any questions. Thank you, Chairman.
[The prepared statement of Mr. Washburn follows:]
Prepared Statement of Kevin K. Washburn, Assistant Secretary for Indian
Affairs, U.S. Department of the Interior
Good afternoon Chairman Young, Ranking Member Hanabusa, and members
of the subcommittee. My name is Kevin Washburn, and I am the Assistant
Secretary for Indian Affairs at the Department of the Interior
(Department). Thank you for the opportunity to provide the Department's
views at this oversight hearing on the executive branch's standards for
land-in-trust decisions for gaming purposes.
background and overview of federal policies relating to tribal lands
As this committee is well aware, in 1887 Congress passed the ill-
fated General Allotment Act. More than a century later, tribes continue
to feel the effects of this repudiated and devastating policy that
divided tribal lands, allotted parcels to individual tribal members and
provided for the public sale of any surplus tribal lands remaining
after allotment. The General Allotment Act resulted in the loss of
approximately two-thirds of the tribal land base, set in motion the
current fractionation problem of individual trust allotments and
established the ``checkerboard'' pattern of ownership on many Indian
reservations. In less than 50 years, tribal ownership of tribal lands
plummeted from 130 million acres to 49 million acres with tribes losing
80 percent of the value of their lands.
In 1934, Congress took action to reverse the destructive
assimilation policies of the General Allotment Act, enacting the Indian
Reorganization Act (IRA) to promote tribal self-determination and
economic development. The Indian Reorganization Act expressly
discontinued the allotment of Indian lands and permanently continued
the trust status of those lands retained by tribal members. In order to
promote tribal self-determination and economic development, Congress
authorized the Secretary to place lands in trust for Indian tribes.
This fundamental component remains the primary means by which the
Department implements the IRA's ``overriding purpose'' of ensuring that
``Indian tribes would be able to assume a greater degree of self-
government, both politically and economically.'' Morton v. Mancari, 417
U.S. 535, 542 (1974). Nearly 80 years later, self-determination and
self-governance have proven to be the right Federal policy. Lands held
in trust for tribes continue to fall woefully short of the 130 million
acres owned by tribes in 1887, despite the administration's efforts to
prioritize fee-to-trust acquisitions.
fee-to-trust land acquisition for gaming purposes
The Department's process for acquiring land in trust for tribes is
rigorous. Before any land will be placed into trust, regardless of the
purposes for which it will be used, the applicant tribe must satisfy
the requirements set forth at 25 CFR part 151 (part 151). Pursuant to
part 151, the Department considers the following factors before
accepting any land into trust: the tribe's need for the land; the
purpose for which the land will be used; the statutory authority to
accept the land in trust; jurisdictional and land use concerns; the
Bureau of Indian Affairs' ability to manage the land; and compliance
with all necessary environmental laws. 25 CFR Sec. 151.10. Compliance
with all necessary environmental laws includes compliance with the
National Environmental Policy Act (NEPA). NEPA is used as the vehicle
for identifying and addressing the various Federal, tribal, State, and
local environmental requirements necessary for accepting the land into
trust. NEPA requires preparation of an Environmental Assessment or
Environmental Impact Statement, both of which provide opportunities for
State, local and public comment on the potential impacts of placing the
land into trust. Importantly, the Department also considers the impact
that the acquisition will have on the State and local governments with
regulatory jurisdiction over the land resulting from removal of the
land from the tax rolls, and any jurisdictional problems and potential
conflicts of land use.
Off-reservation acquisitions must meet a heightened standard. Along
with the requirements for tribal trust acquisitions under Sec. 151.10,
the Department considers additional factors under Sec. 151.11 relating
to the location of the land relative to State boundaries; the distance
of the land from the tribe's reservation; the tribe's business plan;
and concerns from State and local governments. The Department gives
``greater scrutiny to the tribe's justification of anticipated benefits
from the acquisition . . . [and] greater weight to the concerns
raised'' by the local community the farther the proposed acquisition is
from the tribe's reservation. Further, the Department notifies State
and local governments having regulatory jurisdiction over the land at
issue and requests their comments concerning potential impacts on
regulatory jurisdiction, real property taxes and special assessments.
There is a misperception that the Department commonly accepts off-
reservation land into trust for gaming purposes. However, the facts
show that of the 1,300 trust acquisitions since 2008, fewer than 15
were for gaming purposes and even fewer were for off-reservation gaming
purposes. There are presently four applications pending that were
submitted by tribes seeking to conduct gaming on lands contiguous to
their reservations and nine applications pending for gaming on off-
reservation land acquired in trust after the enactment of IGRA.
As you know, section 20 of the Indian Gaming Regulatory Act (IGRA)
allows for gaming on off-reservation lands acquired in trust after
IGRA's enactment on October 17, 1988 only in very limited instances.
There are a few limited and narrow statutory exceptions that operate to
provide equal footing for tribes that would otherwise be disadvantaged.
These include: the initial reservation of an Indian tribe acknowledged
by the Secretary under the Federal acknowledgment process, restored
lands for tribes restored after termination, and lands acquired in
settlement of a land claim. In other cases, off-reservation trust lands
are eligible for gaming only if the tribe satisfies the rigorous
standards set forth in Departmental regulations at subpart C of 25 CFR
part 292, and generally known as the ``Secretarial Determination'' or
``two-part determination.'' These regulations, promulgated by the
previous administration, require a tribe to demonstrate that the
proposed off-reservation gaming establishment is in the best interest
of the tribe, taking into account a wide range of information,
including information regarding:
Projected tribal income and employment;
Projected benefits to the tribe and its members from
projected income;
Possible adverse impacts on the tribe and its members and
plans of addressing such impacts; and
Distance of the land from the location where the tribe
maintains core governmental functions.
The tribe must also demonstrate that the proposed gaming facility
will not be detrimental to the surrounding community. The applicant
must provide information on the following:
Anticipated impacts on the social structure,
infrastructure, services, housing, community character and
land use patterns of the surrounding community;
Anticipated impacts on the economic development, income
and employment of the surrounding community; and
If any nearby tribe has a significant historical
connection to the land, the impact on that tribe's
traditional cultural connection to the land.
Further, the Department consults with State and local officials,
including officials of nearby tribes, regarding the application. The
Department then evaluates all the information. Even if the Department
concludes that the gaming establishment is in the best interest of the
applicant tribe and not detrimental to the surrounding community, the
Governor of the State retains the ultimate authority to veto any gaming
on the parcel. In the 25 years since the passage of IGRA, only eight
times has a Governor concurred in a positive two-part Secretarial
determination made pursuant to section 20(b)(l)(A) of IGRA.
It is important to note that the public, State, and local
governments, and other tribal governments, have many opportunities to
participate throughout the process. As noted above, prior to deciding
whether to place the off-reservation land into trust, the Department
seeks comment from State and local governments; the public and local
governments may also provide input during the NEPA process. Moreover,
before off-reservation land can be found eligible for gaming through
the two-part determination process, the Department requests additional
comments from nearby tribal, State and local governments. In most
cases, tribes and local governments enter into agreements to address
impacts of placing land into trust for gaming, often compensating local
governments for impacts.
In sum, the Department's review of land in trust applications--
regardless of location or the activity that is proposed for the land to
be acquired--is rigorous and considers the concerns of all
stakeholders, including the applicant tribe as well as potentially
impacted State, local and tribal governments and the public at large.
This concludes my prepared statement. I am happy to answer any
questions the subcommittee may have concerning land-into-trust
applications for gaming.
______
Questions Submitted for the Record to Kevin K. Washburn
Questions Submitted for the Record by The Honorable Peter A. DeFazio
Question. If a tribe already has one casino in their aboriginal
territory, should they be allowed to place land into trust outside
their aboriginal territory--and in another tribe's aboriginal
territory--to open a second casino?
Answer. The Department follows all statutory and regulatory
requirements when making determinations for tribal applications to
acquire land in trust for gaming. The Indian Reorganization Act (IRA)
does not impose aboriginal territory limitations on trust land
acquisitions. The Indian Gaming Regulatory Act (IGRA) also does not
limit the number of casinos a tribe may have, nor does it limit the
locations where those facilities may be located. Section 20 of IGRA
prohibits tribes from using land acquired in trust after October 17,
1988 for gaming purposes unless the land meets one of the statutory
exceptions.
The Department's regulations at 25 CFR part 292 require that tribes
seeking to conduct gaming on off-reservation sites pursuant to the
``Secretarial determination,'' or ``two-part'' exception, include
information regarding the distance of the land from the location of the
tribe's government headquarters and its core governmental functions.
The regulations also require that tribes include evidence of
significant historical connections to the land, if any. See 25 CFR
Sec. Sec. 292.16-292.18. Although Congress did not explicitly require
these factors to be considered in IGRA, they are considered in the
Department's Secretarial determination.
Question. If a tribe already has a casino, but wants an additional
casino in a bigger market, how does your agency view that proposal if
the desired new market is not in that tribe's aboriginal territory?
Answer. As noted in the response to the previous question, the
Department follows all statutory and regulatory requirements when
making determinations for tribal applications to acquire land in trust
for gaming. Neither the IRA nor IGRA impose aboriginal territory
limitations on off-reservation gaming sites. The regulations at 25 CFR
part 292 provide specific criteria that the Department follows when
making determinations on tribal applications to take land into trust
for gaming. Part 292 requires tribes to include evidence of significant
historical connections to the land, if any. The criteria in part 292
are considered in the Department's final two-part determinations
regarding land acquisitions for gaming.
Question. There is no authority under the Indian Reorganization Act
for placing lands into trust for gaming after 1988, correct? So any new
trust land request for gaming cannot be authorized under the IRA?
Answer. The IRA places no temporal limitations on the Secretary's
discretion for placing land into trust for gaming or other purposes.
The IGRA does, however, in certain circumstances prohibit gaming on
trust lands acquired after October 17, 1988, unless the land meets
certain statutory exceptions enumerated in section 20 of IGRA.
Question Submitted for the Record by The Honorable Paul A. Gosar
second amendment business lease between the pima center and members of
the salt river pima--maricopa indian community
Question. On May 23, my Arizona colleague Congressman David
Schweikert sent a letter to Assistant Secretary Washburn asking him to
facilitate conversations between the BIA Western Regional Office and
the PIMA Center management to ensure the timely agreement and
completion of a Second Amendment Business Lease between the PIMA Center
and Members of the Salt River Pima--Maricopa Indian Community.
In August, he finally received a response from the BIA Western
Regional Office. Despite assurances from the BIA Western Regional
Office that they were working diligently to complete the approval
process, it is my understanding that the agreement still has not been
completed.
This lease agreement has approval from the Tribal Council of Salt
River Pima--Maricopa Indian Community and an overwhelming majority of
the property's landowners. What is holding up the completion of this
agreement? Is there some legal issue preventing final approval?
Answer. The Second Amendment that was the subject of Congressman
Schweikert's inquiry has now effectively been withdrawn, and replaced
by a Revised Second Amendment that is considered ``deemed approved'' by
BIA, under applicable regulations. It is expected that a new Third
Amendment will soon be submitted to BIA's Western Regional Office
(``WRO''), seeking at least a partial 20-year extension of the maximum
lease term (a broad extension that provision having been removed from
the Revised Second Amendment, in order to expedite its approval).
As indicated in the August 5, 2013, interim response to Congressman
Schweikert, WRO has taken the position that the rent payable under the
lease should be increased during any broad extension period. At a
September 12, 2013, landowners meeting, the reasons for this position
were discussed, along with relevant regulations and options as to how
and when such increases might be effected. A final response was
provided (by copy of a November 4, 2013, letter responding to an
earlier, near-identical inquiry from Senator Flake), and a follow-up
meeting to discuss possible future amendments with the parties is
scheduled for December 11, 2013.
Question Submitted for the Record by The Honorable Markwayne Mullin
Question. In general, I want to know what BIA's position is on
tribes taking advantage of lucrative markets in other tribes' backyards
where they do not have an aboriginal footprint.
Would your agency's rules allow a tribe from say California to
acquire land for gaming in Oklahoma?
Answer. The Department follows all statutory and regulatory
requirements when making determinations for tribal applications to
acquire land in trust for gaming. Neither the IRA nor IGRA impose
aboriginal territory limitations on off-reservation gaming sites. The
Department's regulations at 25 CFR part 292 require consideration of
many factors before making a determination on an off-reservation gaming
application. Those factors include such things as the distance of the
proposed gaming site from the applicant tribe's government
headquarters, the existence of the applicant tribe's significant
historical connection to the proposed gaming site, if any, and the
possible adverse impacts on the applicant tribe and its members and
plans for addressing those impacts. See 25 CFR Sec. 292.17(f), (g) and
(i).
Questions Submitted for the Record by The Honorable Gwen Moore, a
Representative in Congress From the State of Wisconsin
preventing reservation shopping
Question. The Department of Interior adopted regulations on Gaming
on After Acquired Lands in 2008, 25 CFR part 292, which retain the
Secretary's broad discretion to approve the off-reservation or
Secretarial Determination exception. As you know, many Members of
Congress and others believe that ``reservation shopping'' is a big
problem for Indian gaming because it undermines the credibility of
Indian gaming as governmental gaming and it makes tribes look like they
are simply commercial casino developers. As I see it, there are two
main hallmarks of ``reservation shopping"--when a tribe seeks to go a
long distance from its homeland or existing Indian lands, and when a
tribe chooses a casino site for obviously commercial or market
considerations. There are two important protections against
``reservation shopping'' in IGRA and the part 292 regulations. The
first is to require that the applicant tribe has a significant historic
connection to the land in question. The second is to require that the
casino not detrimentally impact the surrounding community. On August
23, 2013, the Assistant Secretary issued a Secretarial Determination
for a casino on the Wisconsin-Illinois border, located 160 miles from
the Menominee Reservation in northern Wisconsin, even though the
Menominee Tribe already has a successful casino hotel on its
reservation and it has more tribal land than any other tribe in the
region. Now, I am sure that you believe this will be good for the
Menominee Tribe, but it appears to many that this decision will open
the floodgates for reservation shopping across the country. Doesn't
this decision prove to those in Congress who oppose reservation
shopping that we need legislation to crack down on these far flung
casino applications?
Answer. The IGRA specifies a two-part test in reviewing
applications to acquire off-reservation land in trust for gaming. This
Secretarial Determination, or two-part determination, permits a tribe
to conduct gaming on lands acquired in trust after October 17, 1988, if
the Secretary determines (1) that gaming on the land would be in the
best interest of the tribe and its members, and (2) not detrimental to
the surrounding community. Gaming may occur only if the Governor of the
State in which the land is located concurs with the Secretary's
determination.
In the 25 years since the enactment of IGRA, the Secretary has made
14 two-part determinations and Governors have exercised their veto
power to preclude gaming in 5 of those. The applications are rare and
considered on a case-by-case basis. Most of the decisions that were
approved by Governors were relatively close to the tribe's existing
reservation, with the exception of the Forest County Potawatomi
Community which was 210 miles from its reservation, and the Menominee,
which was 160 miles from its reservation. The Department's recent
Secretarial Determination for Menominee favorably referenced the Forest
County determination. Unlike the Forest County application, the
Menominee application analyzed information from a detailed
Environmental Impact Statement and a voluminous record. Because IGRA
gives the Governor authority to decline to concur with a positive two-
part determination, the Department does not believe additional
legislation is required.
significant historic connection
Question. As you know, most Indian tribes and national and regional
Indian organizations are concerned that the Secretary will approve
casinos for one tribe in the historic or aboriginal lands of another
tribe. I'm sure you will acknowledge that the concern of tribes over
the protection of their historic lands against encroachment by other
tribes is widely shared in Indian country. In your Secretarial
Determination on the Kenosha Casino, you state that an applicant tribe
is not required to establish a ``significant historic connection'' to
the land in order for the Secretary to conclude that a proposed casino
would be in the best interest of the tribe. However, isn't it also true
that Interior's Regulations require every applicant tribe to submit
evidence of their historic connection to the area, if they have any? In
the case of Kenosha, however, you chose not to decide whether the
Menominee Tribe had a significant historic connection as they claim in
their application. You chose to do this, I presume, because it is clear
that the Menominee Tribe does not have a significant historic
connection and the tribe did not submit evidence of actual occupation,
villages or burial sites or any treaty history over the Kenosha area as
your regulations require. Instead the tribe relied on oral history
which your prior decisions have clearly held is not adequate. Don't you
agree that the Potawatomi Nation does have a significant historic
connection to Kenosha and that Potawatomi established that fact in its
submission to the BIA with treaties, the decisions of the Indian Claims
Commission, and evidence of villages and burial sites within Kenosha
County? So, given the Potawatomi Nation's overwhelming evidence of a
significant historic connection to the land, wouldn't it have been more
appropriate for the Secretarial Determination to either clearly state
that Menominee has no significant historic connection to the land or to
apply the required definition of ``significant historic connection'' to
this evidence rather than simply side-step the issue? It looks to me
that the Secretary has decided to ignore the historic connection of
tribes to their land. Doesn't this mean ``reservation shopping'' is
allowed, if not encouraged?
Answer. In IGRA Congress did not require an analysis of a
significant historical connection. However, the Department's
regulations at 25 CFR part 292 incorporate such an analysis into
decisionmaking in certain cases. The discussion in the Menominee
Secretarial Determination that an applicant tribe is not required to
establish a ``significant historical connection'' for the two-part
determination clarifies the regulatory process, but is not an analysis
of the tribe's submission. In a two-part determination, evidence of a
significant historical connection is relevant but not determinative.
The Department does not encourage off-reservation gaming applications.
Indeed, they are difficult and time consuming, but the law gives the
Department the responsibility to consider them and make difficult
decisions.
The Potawatomi Nation has broad historical and contemporary
connections throughout the Midwest and in Kansas and Oklahoma. In this
case, the Department was not considering an application by any of the
bands of the Potawatomi Nation, but only of the Menominee Tribe. The
Menominee Tribe submitted evidence of a significant historical
connection which the Department examined. The evidence included
documents indicating that the Menominee Tribe was an original
inhabitant of the area around Kenosha. While the regulations state that
a significant historical connection is not required to make a
determination that the project would be in the best interest of the
tribe, the Department reviewed the tribal history, academic historical
research, maps, and other evidence. The decision specifically cites
historical documentation submitted by the Menominee Tribe which
includes: a written Overview of the Menominee History by the Menominee
Indian Tribe; The Mero Complex and the Menominee Tribe: Prospects for a
Territorial Ethnicity by David Overstreet, Maps of the Mero Complex and
the historic range of the Menominee and The Traditional Relationship of
the Menominee Indian Tribe of Wisconsin to the city of Kenosha and the
Southeastern Region of Menominee Country, by David R.M. Beck. The
Department's decision was also based on historical information in the
final Environmental Impact Statement.
ignoring evidence of detrimental impact
Question. I am concerned that the BIA does not give fair
consideration to the concerns of nearby Indian tribes and surrounding
communities in applying the requirements for a Secretarial
Determination. I am told that the BIA has never decided that there is a
detrimental impact on the surrounding community or a nearby Indian
tribe from any off reservation gaming application. Is that correct?
Isn't it reasonable for me to conclude therefore, that the BIA simply
does not support the provision of IGRA which requires the Secretary to
evaluate impact on the surrounding community, because you always
conclude there is no detrimental impact. I am sure you disagree, but
let me give you an example from Illinois. Over 25 separate letters from
Illinois State, local and Federal officials expressing concern over the
environmental, economic, and social impacts of the proposed Kenosha
Casino on the surrounding community within Illinois were submitted to
the BIA. Local Illinois officials held their own public hearing on the
Kenosha Casino, they have testified before this committee, and they
have expressed their concern to all levels of the BIA over the past 8
years. You can imagine the surprise of these Illinois officials when
your August 23, 2013 Secretarial Determination stated, at 45, fn. 322
``Lake County and Milwaukee County responded after the comment period
had run and were therefore not considered.'' In the Kenosha Secretarial
Determination, you simply chose to avoid the evidence of detrimental
impact in Illinois by applying a procedural device. The BIA apparently
claims it is not obligated to evaluate the obvious detrimental impact
on Illinois, despite the fact that the record is undisputed that there
is detrimental impact. Don't you understand, then, why many say that
the Assistant Secretary of Indian Affairs simply is not fairly applying
this provision of the law by ignoring detrimental impacts? This same
result occurred in the City and County of Milwaukee where local
officials and Congresswoman Moore have tried for many years to insure
that the detrimental impacts on the City and County of Milwaukee are
properly considered. Isn't it the case that the BIA simply uses
bureaucratic devices to avoid giving fair consideration to the
detrimental impact once it decides it should grant an application?
Answer. As noted in a previous response, the Department is required
by section 20 of IGRA to analyze whether a proposed project would be
detrimental to the surrounding community. The Department's regulations
implementing Section 20 at 25 CFR Part 292 identify the criteria the
Secretary must analyze in order to make such a determination. The
Department must follow the requirements in the law and these
regulations. The Department considered the views of the City and County
of Milwaukee in making its determination. As discussed in the
Secretarial Determination, both the City and County of Milwaukee are
located within 25 miles of the proposed gaming facility and, thus, the
Department was required to consult with them and consider their views.
The County and the City presented evidence that the proposed gaming
facility in Kenosha would compete with another gaming facility in
Milwaukee. Economic analysis and market analysis suggests that the
proposed gaming facility would lead to a competitive impact that might
have limited short term economic impacts in their respective
communities but market-based competition is not prohibited by the
Indian Gaming Regulatory Act. See Sokaogon Chippewa Community v.
Babbitt, 214 F.3d 941, 947 (7th Cir. 2000).
The determination considered the comments of the local communities
at pages 45 through 51 of the decision. Of the 180 comment letters sent
out, only Lake County and Milwaukee County failed to submit comments by
the deadline in the letter. The two-part determination considered the
concerns of Milwaukee County along with the comments of Milwaukee City.
On April 30, 2012, the Regional Director responded to the Milwaukee
County's letter dated March 28, 2012, requesting to participate in the
Consultation Notice process. In its response, the Regional Director
explained that his office sent two Consultation Notices to Milwaukee
County, and received signed returned receipt cards for both of the
Consultation Notices, and that, based on the record the comment time
period for Milwaukee County had expired. On June 18, 2012, Milwaukee
County provided comments. Because Milwaukee County alleged it had not
received any of the consultation letters, the Regional Director
included the comments in the record and shared the comments with the
Menominee Tribe which responded to the comments by letter dated June
26, 2012.
Lake County, Illinois, is located within 25 miles of the proposed
gaming facility, and the Department was required to consult with this
county government. The County failed to respond to the Department's
consultation letter in the time allotted by our regulations. Therefore
the Department did not consider the views of Lake County, Illinois, in
making its determination. The Department is bound by the timeframes
specified in the regulations and believes that fairness requires
treating commentators the same with regard to these important
procedural rules.
Detrimental impacts to local communities are addressed in the
Environmental Impact Statement, along with measures to mitigate those
impacts. Additionally, the local communities where the project is
located have entered into intergovernmental agreements with the
Menominee Tribe to further mitigate possible adverse impacts. To date,
we have found no detrimental impact to the surrounding community after
the mitigation measures required by the Environmental Impact Statement
are considered.
doi authorizes ``reservation shopping''
Question. So, on August 23, 2013, the Assistant Secretary issued a
Secretarial Determination for a casino on the Wisconsin-Illinois
border, located 160 miles from the Menominee Reservation in northern
Wisconsin, even though the Menominee Tribe already has a successful
casino hotel on its reservation and it has more tribal land than any
other tribe in the region. This approval was issued without analyzing
the comments submitted by the members of the surrounding community,
Milwaukee County or Lake County, Illinois, that will experience
extensive detrimental impacts if the Kenosha Casino is opened and
without finding that the Menominee have a significant historic
connection to the Kenosha land. Now, I am sure that you believe this
will be good for the Menominee Tribe, but how does ignoring the
requirements of IGRA and your own part 292 regulations not lead to
``reservation shopping'' throughout the United States? Doesn't this
prove to those in Congress who oppose reservation shopping that we need
legislation to crack down on these far flung casino applications?
Answer. As discussed in the responses to the previous questions,
the IGRA does not limit the locations where gaming facilities may be
located and, thus, the Department does not believe that off-reservation
land taken into trust is a violation of IGRA. In addition, State
Governors have authority under IGRA to decline to concur with the
Department's positive two-part determination. The previous gaming
acquisition for the Forest County Potawatomi Community provides
precedent in Wisconsin for the Menominee's application. The
Department's Secretarial Determination, which can be found at
www.indianaffairs.gov/cs/groups/public/documents/text/idc1-022944.pdf,
contains a lengthy, detailed discussion addressing many of the concerns
of the local communities.
______
Mr. Young. Thank you, Kevin. Madam.
Ms. Hanabusa. Thank you. It is so nice to know that this is
the Ronald Reagan, Don Young, and Mo Udall bill.
[Laughter.]
Ms. Hanabusa. With that----
Mr. Young. It was a gamble.
Ms. Hanabusa. It was a gamble. You are really up today.
Mr. Washburn, we have a process that takes place before
final regulations are issued. The process has, of course, many
requirements, including receiving and considering public
comments. The rule defining surrounding community imposes a 25-
mile radius for input from local governments and nearby Indian
tribes. The Department has addressed the comments and concerns
with the rule, but ultimately found that the rule is
reasonable, useful, consistent throughout the regulations, and
provide uniformity to all parties.
What I would like you to answer are two points. One is did
the Obama administration promulgate the 25-mile rule? And,
second, are proposals such as either increasing, decreasing,
doing away with the radius, desirable? And can a tribe that is
beyond the 25-mile radius petition for a consultation or being
part of the process?
Mr. Washburn. Thank you, Madam Ranking Member. No, these
rules were not promulgated by the Obama administration. These
rules were promulgated in May 20, 2008, by the George W. Bush
administration, when Secretary Kempthorne was the Secretary of
the Interior. And we have not changed them. We have looked at
them and continued to follow them.
And, yes, the second question is yes. A tribe that is
beyond the 25-mile limit can petition to be a cooperating
agency or to participate in the discussion about the off-
reservation gaming and be heard. And just to be fair, I tend to
give audience to any tribal leader that ever wants to meet with
me, so I, frankly, hear from tribes that are even beyond the
25-mile limit, and I don't turn them away.
Ms. Hanabusa. How about the 25-mile limit itself? I have
heard discussions of either expanding it, reducing it, or doing
away with it completely. Do you have an opinion about whether
25 miles is a good radius, or should it change?
Mr. Washburn. Thank you, Madam Ranking Member. You know,
any amount of miles would ultimately be arbitrary. And so we
have got to draw a limit somewhere. And so, I do know that
changing that would take--it always takes at least 2 years to
do any regulatory change. And given the fact that we are
worried about our schools and our dams and our forest fires and
other things, it is not something that we have chosen to spend
time on, amending our regulations.
Because, frankly, if we did 30 miles or we did 50 miles or
we did 10 miles, there would be people that had a problem with
that, too. So, ultimately, anything is arbitrary. But 25 miles
seems to work. It certainly gets a wide response from people
that are interested in the gaming project.
Ms. Hanabusa. One of the things that I found to be
interesting was what I call the Governor's veto power under
IGRA, or under the circumstances we are discussing here. And
also, am I correct in the statistic or the fact that, since
then, the Governor has concurred only eight times with any
application on the two-part determination under section 20? And
it seems like any kind of allegation about a tribe reservation
shopping should be curbed by that. So can you explain to me how
that works and what criteria, if any, a Governor is required to
apply when he or she determines to veto?
Mr. Washburn. Yes, Ranking Member Hanabusa. That is sort of
a political judgment by the Governor of the State, and the
Governor does have that ability to veto. And the Governor can
use the factors that they wish, to guide that political
determination. And it seems a sensible type of approach,
because the Governor obviously knows the community even better
than we do, sitting here in Washington. And so I think that is
an effective check on this power that Congress has given to the
Secretary.
And you are right, I guess the majority of the time, the
Governors have approved, but on many occasions they have
declined to approve. So it is a real check. We don't get a
rubber stamp from a Governor on an off-reservation land-into-
trust application.
Ms. Hanabusa. Do you know how many off-reservation gaming
applications have been approved since 1988?
Mr. Washburn. I believe it is 10, Ranking Member.
Ms. Hanabusa. Thank you. Mr. Chair, I yield back.
Mr. Young. Thank you, ma'am. Mr. LaMalfa.
Mr. LaMalfa. Thank you, Mr. Chairman. A couple, just to
start out with here. Thank you for coming here today. I am
curious in following up on the Ranking Member's thoughts with
the 25 miles or more.
You know, it seems to me kind of naive, with some of the
placement here, that a 25-mile limit, especially if we are
talking about a fairly flat terrain area, that people aren't
going to travel more than 25 miles for their gaming
entertainment. And so that the impact should have a wider net,
and I don't know how you draw the number, either. But it would
have to take into account sometimes people's--maybe an hour's
worth of driving would be a limit that you would think of, 50,
60 miles.
So, with some of the placement in northern California we
are talking about the BIA, Sacramento, Indian gaming, placing a
casino in an area where basically it is right in the path of
the customer base and other casinos, how can a study come back
and say that there would really be no impact?
And how could, I think that is, I believe that was EES. How
can they come up with that determination, that there really
would be no economic impact, when it is basically in line of a
customer base and other possible gaming facilities in that
path?
Mr. Washburn. Thank you, Congressman. You know, this is an
unusual area, where the government has a significant role in
sort of making decisions about how a market is going to work.
And the market for gaming, you know, is a distinct market.
Gaming is a type of entertainment that lots of people seek out.
And certainly, a new gaming operation may very well have
effects on existing gaming operations. And I suspect that they
may sometimes have an effect on gaming operations that are more
than 25 miles away, as you suggest.
I am not sure why the administration, the Bush
administration, ultimately settled on 25 miles. I know that
they considered 10 miles and they considered 50 miles as
possible alternatives, but it is what they ultimately selected
and it is sort of what we have been handed. And so, again----
Mr. LaMalfa. You talked about being a regulatory change and
taking 2 years. Now, you know, we see executive orders, at the
wave of the wand, things change overnight. Why couldn't we have
a quicker process? I know there are a lot of things to do. You
mentioned, you know, forestry issues, things like that. But, I
mean, why couldn't it be done in a short period of time,
especially since it appears not to be a just situation?
And, of course, you could take into account, too, maybe you
have different geographical factors, too. Maybe when you are
talking about a flat valley area you could cast a wider net.
And maybe if it is a mountainous area you would have some kind
of different criteria, where travel is not quite as conducive.
Why can't we shorten the window on relooking at that
regulation?
Mr. Washburn. Well, Congressman, keep in mind that even a
tribe that is outside the 25 miles nevertheless can petition to
have their voice heard to be consulted on that gaming
operation. So even if they are outside of 25 miles, they can
raise their hand and say, ``We think this is going to affect
us, and we would like to be heard, too.'' So, even the
regulation as it exists allows tribes that are outside the 25-
mile area to be heard.
As to doing things quickly, if we were inclined to change
it, the Administrative Procedures Act requires us to go through
notice-and-comment rulemaking. And, frankly, notice-and-comment
rulemaking is a good way to make decisions because it allows
people that are interested in the question to be heard. And we
have to follow the APA. And it just inevitably seems to take a
long time. We have----
Mr. LaMalfa. Well, you know, I appreciate they can raise
their hand and say, ``We would like to be consulted,'' but in
the case of Colusa in northern California, they were asked to
prove a detrimental effect to them. It wasn't just, ``Hey, we
would like to be heard;'' they actually had to provide their
own information and prove this in the process, and that doesn't
seem like it is in that spirit of being heard and being taken
into account. How would you address that?
Mr. Washburn. Well, I mean we trust them to have the best
judgment about whether it is going to harm them than some third
party that is not them. I mean I would think that they would be
the ones most interested, they are the ones that have the
incentive to show the detriment. And so they seem to be the
right people to ask to show that. In that case, you know, it
seems to make sense to put the burden of proof on the people
saying that it is true to go ahead and make the case. And we
would certainly listen if they did.
Mr. LaMalfa. Certainly, well a lot of times it is third
parties that are the ones that are trusted because of the self-
interest type of thing. So it would seem like that would come
from BIA and others within the organization to take that into
account.
Mr. Chairman, I will yield back. Thank you.
Mr. Young. Thank you. And we will have a second round, if
we wish to do so.
Mr. Washburn, who does these studies for you? The
Department doesn't do it.
Mr. Washburn. Generally not the Department. Generally our
interested parties submit studies to us. And sometimes they
submit economic studies, they submit other kind of studies,
historical studies. And they often come in from both the people
proposing the application and those who are opposed to it, as
well.
Mr. Young. Well, what I am leading up to, you don't have
the expertise or something to really look at this in a broad
picture, instead of someone that is hired? The guys hired on
both sides, they are like lawyers you hire.
Mr. Washburn. Right.
Mr. Young. So, you know, I excuse myself to the lawyers;
no, I don't.
[Laughter.]
Mr. Young. But reality is, how do you base your decision on
Mr. Mullin's presentation. I make a presentation, and you
really don't know anything about the subject, how do you do
that?
Mr. Washburn. Chairman, you are the one that gave us this
authority, so we use that wisdom that you assumed that we must
have----
Mr. Young. But you do not have.
[Laughter.]
Mr. Young. And so, what I am leading up to the committee,
there may be time and should be time to review this issue.
Because I am not blaming Mr. Washburn for being involved in
this at all. I am just saying that there is something wrong
here that wasn't meant: distance, economic impact, you know,
the whole gamut.
Twenty-five miles doesn't mean anything to me, but I am
deeply concerned about an existing casino in place that has
done its job, borrowed the money, set up the structure, knows
what has to be taken in, and then you have another casino 180
miles away, jumps over the mountains, already has their own,
over the mountains, and establishes or looks for lands in trust
to build a casino. That just doesn't make sense to me.
Anyway, Mr. Ruiz, you are up next.
Dr. Ruiz. Thank you, Mr. Chairman. I also want to thank
you, Assistant Secretary Washburn, for your service to our
country and your service to Indian Country. And I want to
commend Larry and Darren for the good work that you are doing
on behalf of the tribes throughout our country.
I also want to say thank you, Doctor, for always having an
open-door policy, and never turning away any tribe who wants
audience from you. And I believe that is very important, that
you continue to listen to every tribe that comes your way. And
I appreciate the serious consideration that you are making to
this very controversial issue of off-reservation gaming, and
listening to the issues that most people have against off-
reservation gaming.
I also want to recognize you guys' hard work. As Ranking
Member Hanabusa mentioned, those statistics, you guys are
actually turning out a lot of applications faced with less and
less resources on your backs.
My question for you is, can you explain the difference
between the on-reservation acquisition versus the more
controversial two-part determinants? Not only in the
definition, but also the process.
Mr. Washburn. Thank you, Doctor, Congressman Ruiz. Yes. Let
me explain the difference. Thank you for those compliments,
too. The staff here and my staff at the Office of Indian Gaming
will appreciate those compliments. They do work very hard, and
we do our best under difficult circumstances.
So, the difference between on-reservation land into trust
for gaming and off-reservation land into trust for gaming is
basically that tribes are considered to have a wide degree of
sovereignty on the reservations, on the lands that they already
possess, and within their reservations. And so, those are sort
of presumptively a place where the tribe can take land into
trust and start gaming on it. They aren't terribly
controversial, usually. No one seems to argue too much about
that.
Off-reservation, however, we go through this much more
involved process in which we must show that this, you know,
land-into-trust is in the best interest of the tribe and not
detrimental to the surrounding community. Plus, the Governor of
the State gets to veto that if they don't agree. So, there is,
you know, again, a much more involved process. We tend to take
much more land into trust within reservations than we do
outside of reservations. It is rather unusual for us to go
through this elaborate process to take land into trust off
reservations.
Dr. Ruiz. So my understanding is when it is contiguous
there seems to be a lot more local support and it is less
controversial, versus off-reservation, where it is more
controversial, and you have to go through a very detailed
process.
What is the average length of time that it takes to go with
a contiguous on-reservation versus the off-reservation? What
are we looking at here?
Mr. Washburn. Thank you, Congressman Ruiz. You know, I
don't have the exact figures before me. I will tell you that it
frequently takes many years for an off-reservation application
to go through the process. And contiguous, or on reservation,
you know, contiguous tends to be sort of right next to the
reservation, but not within the reservation boundaries. But
contiguous or on the reservation tends to go more quickly, like
you said, because they tend to just have far fewer objections,
far fewer people complaining about it because, you know, those
are the people who are accustomed to having the tribe exercise
sovereignty in that area.
So, I don't know the exact time, but it is much quicker for
contiguous, or on-reservation.
Dr. Ruiz. Any example of an on-reservation contiguous land
in trust that is different than the off-reservation that you
can think of right now?
Mr. Washburn. Well, you know, the process, even for
contiguous and on-reservation land into trust, it still has to
go through the environmental analysis, so NEPA, National
Environmental Policy Act. And that process just inevitably
takes months and months and months.
So, even those processes take in excess of a year, and
often 2 to 3 years, because sometimes issues come up. And then
we, for example, have to make sure that we do have a very good
survey of that land. Because, after all, we are taking that
land into trust, owned by the United States, you know, for the
tribe. And so we are very persnickety about the title questions
and about the survey questions.
And so, there is still a gauntlet, even for those lands.
And that frequently takes 2 to 3 to 4 years, even in that
context.
Dr. Ruiz. Well, I appreciate not only your answer, but the
word ``persnickety.'' Is that what you used?
[Laughter.]
Dr. Ruiz. I think I am going to have to use that one from
now on.
I also want to say, again, thank you for your service to
Indian Country, and I look forward to working with you to make
sure that these processes are shortened, with your staff, and
so that we can work with all the due diligence that we need to
make sure we are making the right decisions on these cases.
Mr. Washburn. Thank you, Congressman.
Dr. Ruiz. Thank you.
Mr. Young. I thank you gentlemen. Mr. Mullin.
Mr. Mullin. Thank you. And that is the first time I have
seen a doctor actually take time. Mostly they are just in and
out real quick. I don't get that.
[Laughter.]
Mr. Mullin. But I guess, you know, you are a politician
now, you have to take more time to talk. I am kidding.
Anyway, hey, as most of you guys know, I am typically
pretty passionate when I get up here and get to discuss Indian
Country, because of how close to it I come. And, Secretary
Washburn, you know you and I have not always seen eye to eye,
but I do appreciate your passion and your fight. I disagree
with you quite a bit. But then again, I am not doing your job.
And I had the opportunity, hindsight is always 20/20.
And right now we are talking about something that is
vitally important to Indian Country: gaming. It is what has
allowed us to invest back into our people, back into our lands.
We have been able to invest into the generations coming behind
us. Just yesterday, I had a long conversation with the Cherokee
Nation and the wonderful job they have done in investing into
their schools and seeing a Tahlequah Sequoyah go from a school
that you wouldn't want to go to when I was in high school to a
just state-of-the-art facility. And we have been able to do
that because of gaming.
But sometimes we have people that want more. And you get
stuck in the middle of it. And so, a question that I have for
you is when you are looking at the process, your agency is
looking at the process, looking at taking land into trust for
gaming purposes, specifically what type of input do you receive
from the county or local agencies when you are making that
consideration?
Mr. Washburn. Thank you, Congressman Mullin. And thank you
for the kind words. It is good to see a fellow Okie up there.
Mr. Mullin. I don't know if it was kind or not, but OK.
[Laughter.]
Mr. Washburn. Well, you know being Chickasaw, my tribe has
done, you know, great, has had real success in great measure,
due to gaming. Good leadership, but also gaming.
We look at a lot of different things when we are talking to
local communities. We look at the things they care about most.
So, you know, for example, there is one that is sort of on our
plate, where there is a local military base that the community
cares very much about, and we try to take those considerations,
you know, we try to consider carefully what they care about.
Ordinarily, in all of the cases, what we think about is
infrastructure. Is there infrastructure to manage this gaming
operation? Can the roads handle the traffic? We look at whether
the water treatment systems are adequate to handle the sewage,
and that sort of thing. I mean we go into great depths to
figure out whether this community can handle a major economic
venture that is going to be----
Mr. Mullin. Well, even with that, though, a lot of times
you see the tribes are willing to invest that themselves.
Mr. Washburn. They are. They----
Mr. Mullin. I mean Chickasaw Nation, and Choctaw, and
Cherokee, we have all done that. But do you give, then, the
opportunity to veto the land that we are looking to take into
trust? That is typically, that is Indian Country, but also on
our historical territories.
Mr. Washburn. I wouldn't call it quite a veto, but we
certainly have to consider the effects on the surrounding
community, and determine that it is not detrimental to the
surrounding community. And so, you know, often that is sort of
a weighing exercise. So it doesn't come out to be a veto.
Frequently, these projects have people who are hotly
opposed to it and very much in favor. And we try to figure out,
you know, what the right answer is. And it is not easy, because
sometimes both of those groups are screaming at us from both
sides.
Mr. Mullin. If I am understanding this correctly, though,
if it is on Indian land, it is our trust. That is the authority
that the Federal Government has given to us. Is that not
correct?
Mr. Washburn. That is right. If it is already on Indian
lands, that is correct. If it is on an Indian reservation. And,
you know----
Mr. Mullin. Well, Oklahoma doesn't have Indian
reservations.
Mr. Washburn. Well, in Oklahoma there is a special rule in
IGRA. Section 20 of IGRA has just a special rule in Oklahoma,
so the lands have to be within the former reservation
boundaries that existed in Oklahoma----
Mr. Mullin. Then why are we seeing in one case, in
particular, where we are seeing tribes jump out and go into
competition, basically, with another tribe that already has a
casino? I know that has already been touched, but if that is
the case, then why are we even allowing this to happen? And you
know what recent case I am talking about.
Mr. Washburn. Yes, Congressman. And you are not going to be
pleased, but the matter is in litigation. My lawyers have told
me that I can't say too much about those things.
Mr. Mullin. Then could you please do me a favor and talk to
your lawyers and let them get back to us? Because it is a big
concern of ours, because in this case I feel like if this is
able to happen, then what is going to keep a tribe from
California coming into Oklahoma?
And I have run out of time. So please get back to me on
that.
Mr. Chairman, I yield back.
Mr. Young. Thank you, sir. Mr. Cardenas.
Mr. Cardenas. Thank you very much, Mr. Chairman. And I am
never going to use the word ``persnickety.''
[Laughter.]
Mr. Cardenas. I was in a hearing once and I used the word
``flabbergasted,'' and to this day my kids don't let me live
that down. So good luck.
Mr. Young. You ought to hear some of the words I say.
[Laughter.]
Mr. Cardenas. I wouldn't let my kids listen to me say that.
[Laughter.]
Mr. Cardenas. Well, I would like to focus a bit, Mr.
Washburn, on what seems to have developed within the Department
when it comes to the interpretations of the latitude of the
Department on these decisions under the George W. Bush
presidency and now the Barack Obama presidency.
It appears that when it comes to commutable distance, that
was a strong term and strong standard within the George W. Bush
presidency. Yet it appears that, currently, under the current
administration, that component isn't necessarily so. What
caused that? How is that interpretation so different?
Mr. Washburn. Thank you, Congressman Cardenas. You know,
the commutable distance standard is inherently arbitrary, too,
because what is commutable to someone in California is not
necessarily to someone in Oklahoma, for example. And so,
frankly, it was a ambiguous and unclear standard.
It also presumes that the reason we have Indian gaming is
to create jobs for Indian people. And that is part of the
reason we have Indian gaming. But, frankly, again, as Ranking
Member Hanabusa indicated, you know, $28 billion is another
good reason to have Indian gaming. And that, you know, has
nothing to do with the jobs at the casino. So, tribes tend to
benefit from Indian gaming, even if it is not a commutable
distance.
That doesn't mean we should be putting casinos up long
distance from reservations. But the commutable distance just
isn't necessarily a defensible standard.
Mr. Cardenas. OK. Now, but when it comes to Indian gaming,
I think that, to me, the term that I would use, it is about
self-reliance. And without that kind of ability, most of the
tribal lands in this country, where the reservations have been
relegated to the most desolate, usually desert, usually
mountainous, not necessarily prone to being able to grow
saleable products, et cetera, et cetera, it is about self-
reliance.
And, unfortunately, people in Indian Country, reservations,
today are having to try to figure out how they create self-
reliance. You know, selling beads on a reservation, as far as I
know, has never really been something that an entire community
could rely on for self-reliance and sustainability. So, to me,
gaming, whether people like it or not, unfortunately for too
many tribes around this country, that has been something that
today seems to be the most viable opportunity for one community
to be able to sustain itself.
But one of the things that I would like to ask you, have we
had yet a situation where a tribe had petitioned to acquire
lands, ended up using it for gaming, and it had a detrimental
effect on another tribe's gaming facility?
Mr. Washburn. Well, it is possible that has happened. You
know, we do all of our work up front, and then we make a
decision. And then we don't end up having reasons to study it
afterwards to determine what was the outcome. You know, did we
guess right about detrimental impact?
Any time a new business opens up near another business, it
may have, you know, a detrimental impact on the first business.
You know, Wal-Mart is thinking about coming into Washington,
DC, and I think the Target stores are probably kind of upset
about that. And so, you know, that is inevitable. That doesn't
necessarily mean we should block Wal-Marts from coming into
Washington, DC, at least for that reason.
So, you know, I am sure that there are cases. I would guess
that there may very well be cases where there has been a
negative impact on existing businesses. But you know, as you
said, some tribes are very poor, and this is the only
opportunity they have. And just because another tribe is
already up and running, doesn't necessarily mean we should keep
the new tribe, the second tribe, from opening a casino in that
area.
Mr. Cardenas. Well, unfortunately, I think that the correct
way to put it is most tribes in this country are very poor, not
some. The vast, vast majority. And it is unfortunate that most
Americans think that all Native American Nations in this
country now each have a casino and they are all very well
developed and there is sustained, self-reliance for that
particular nation.
So, my time is up, and hopefully we have another
opportunity to delve into this issue. Thank you very much, Mr.
Chairman. I yield back.
Mr. Young. Thank you. Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman. I guess my question
is, and I came in late, I apologize if you have already covered
this. But when you have the not detrimental to the surrounding
community, and now we just had a discussion and response to my
colleague's question about negative impact on an existing
business, and you are saying in some cases that is not
detrimental, so I am trying to understand what the not
detrimental to the surrounding community means, in terms of
impact on existing businesses, particularly if it was another
tribe who had an established gaming facility nearby.
Mr. Washburn. Thank you, Ranking Member DeFazio. You know,
detrimental is sort of a balancing act. On balance, does the
casino, or the proposed gaming operation on balance, you know,
have a overall cumulative negative effect or a cumulative
positive effect. And for many communities, they are very much
in favor of the development, because it is going to bring jobs
to the community, it is going to bring construction to the
community, it is going to bring development to the community.
So, there will, in almost every community, there is a group
of people that are opposed, and there is a group of people in
favor. And so we have to kind of balance that out and figure
out what's the net. Is it net detrimental, or is it net
positive? And it is not a scientific analysis, it is the
analysis that Congress gave us when it used that language,
``detrimental impact.'' I blame Chairman Young for that.
[Laughter.]
Mr. DeFazio. Really?
[Laughter.]
Mr. DeFazio. Don? Do you have a--no, never--you were just
blamed for the vague determination of what is detrimental to a
surrounding community.
Mr. Young. Frank Ducheneaux did that. I will blame him.
[Laughter.]
Mr. DeFazio. OK. Reclaiming my time, then, so there is no,
like, specific regulatory guidance? I mean do you have
precedence you go back and look at? I mean, I am just trying to
get--I mean, because it--you know, this is your political--and
as the job--you know, people--you go from administration to
administration, I am just wondering. How much can this swing?
Mr. Washburn. Well, we certainly are prohibited by law from
behaving in an arbitrary and capricious fashion. So we have
to----
Mr. DeFazio. But does that mean you have to be consistent?
Mr. Washburn. Well, at least somewhat consistent, because--
--
Mr. DeFazio. Oh, somewhat. OK.
Mr. Washburn [continuing]. Too inconsistent would be
arbitrary. And, by the way, as to that analysis, the Governor,
of course, gets to make the final call, the Governor of the
State. So the Governor ultimately can say whether it is
detrimental or not, too, if the Governor chooses.
So, if the Governor disagrees, the Governor can give the
thumbs down, even though we have approved one of those two-part
determinations. So I am not the only political actor involved
in those decisions.
Mr. DeFazio. And if a Governor does that, what is the
recourse at that point?
Mr. Washburn. It is done. It is done. They don't----
Mr. DeFazio. That is not litigable?
Mr. Washburn. I don't believe, I don't think that the
Governors' actions have been litigated. I don't recall a case
where that has been the case, because it is pretty much purely
a political decision of the Governor. And so, I haven't seen
that, and I pay attention to this field a fair bit.
Mr. DeFazio. Right. Are there any, and, again, I apologize
for not being here earlier and thoroughly read all the
materials you provided. But, I mean, are there major pending
cases that might lead to further reinterpretation of the two-
part process?
Mr. Washburn. Well, I wouldn't say that we are looking to
do any reinterpretation of the process. The process has been,
you know, has been working since 1988. It doesn't work often. I
mean it doesn't happen often. But it, you know, it is
imperfect, it has some ambiguous terms, and we have tried to
define those in our regulations. But----
Mr. DeFazio. But you did have changes in--when you had the
commuting standard, that was sort of overruled or discarded
after some controversy, et cetera.
Mr. Washburn. Yes. We don't foresee making any major policy
guidance in that area. We have tried to look at our past
decisions and be consistent with what we have done in the past.
And, you know, I have had the opportunity to make one of these
decisions fairly recently. And we consider these things fairly
carefully.
So the most recent decision we issued is about 53 pages
long and it has got more than 360 footnotes citing how we
considered all the factors. And that is just the opinion
letter. There is also a record of decision that is 50 pages
plus several stacks of notebooks of supporting documents. So
these are very difficult exercises. And they are very carefully
considered.
I am not saying that we get it right every time, but we do
consider them very carefully. And that is a process that has
really grown since IGRA. We give more attention to these
nowadays. And over time it seems like we produce a lot more
paper and a lot more rigorous study than we did when we first
started doing this.
Mr. DeFazio. OK. Thank you, Mr. Chairman.
Mr. Young. I thank the gentleman. Kevin, recently, I
believe it was August 23, you approved an off-reservation Class
III casino in the city of Kenosha, Wisconsin, for a tribe more
than 160 miles from an existing reservation headquarters. It is
my understanding the secretarial determination found that the
proposed gaming facility would be in the best interest of the
tribe and its members, but not detrimental to the surrounding
community.
It appears that your approval of this project minimizes,
ignores the negative impacts of neighboring tribes, including
the Potawatomi, the City and County of Milwaukee, and Northern
Illinois. I have read reports where estimating an off-
reservation casino would cause a loss of up to 3,000 jobs in
Milwaukee, and reduce the revenues of other tribes.
How, again, did you personally or your agency, or was it
done by an independent study, approve this off-reservation
casino, when it definitely does have detrimental consequences?
Mr. Washburn. Well, Chairman, we considered carefully the
views of everybody that weighed in on that decision. And, you
know, again, that is the decision I was referring to, and I
misspoke, it is actually 56 pages long, I think, with 360
footnotes. And we very carefully went through the information
that was submitted to us by all parties.
It is a situation where everybody that was within the 25-
mile limit, or not everybody, but many people within the 25-
mile limit, were very, very much in favor of this casino and
the economic development that it would spawn.
Mr. Young. With all due respect, who was in favor? The
County of Milwaukee is against it----
Mr. Washburn. Well----
Mr. Young [continuing]. The city of Milwaukee was against
it, the tribes were against it. Who was in favor of it?
Mr. Washburn. Well, it wasn't located in Milwaukee, and it
wasn't located within the County of Milwaukee either. It was
located within the city of Kenosha. And that county and that
city were very much in favor of it.
And it was, you know, to be fair, I met with many people
from Milwaukee, even though they were not within the 25-mile
zone. I met the mayor from Milwaukee while considering this
decision. I met many members of the city council and, frankly,
many members of the State legislature. Several leaders in the
State legislature came to see me. And I listened to all of them
and thought through their arguments very carefully.
You know, ultimately, we haven't made a final decision on
that, because we haven't actually made the decision to take the
land into trust. But we have made the decision to ask Governor
Walker whether he would care to approve this, because we have
sent it to him for a decision because we do think that this
would be in the interest of the Menominee tribe, and not
detrimental to the surrounding community, as defined by our
regulation.
Mr. Young. Now, the Governor has to approve this? And a
Class III has to be approved by the Governor?
Mr. Washburn. That is right. Well, that is right. The tribe
has to have a Class III gaming compact, which I believe they
already have, because they have got another operation. But yes,
they have to have the Governor's approval for the two-part
determination.
Mr. Young. Again I go back to my interests here. When you
build a casino, you borrow the money, you have approved it
yourself, they go forth and invest. They take the money and
spend. And this is all right for the tribe.
But now you have a tribe 160 miles away that has their own
casino and jumps over to try to be in competition in one
casino. Now, if that is the case, why don't you let the tribe
that is in Milwaukee jump over and have a casino there? And
when it is applied for?
Mr. Washburn. Well, Chairman, the tribe in Milwaukee, it
was a very successful tribe. And the precedent of them was very
compelling, frankly. The Forest County Potawatomi Tribe had a
reservation that was more than 200 miles away from Milwaukee.
And when they got one of the very first off-reservation----
Mr. Young. Many years ago.
Mr. Washburn [continuing]. Gaming operations many years
ago, and it has been roughly 20 years, and they have had a
really successful run. And we determined, based on economic
analysis provided to us, that it wouldn't have very much impact
on them. And by the way, they were not within the 25-mile zone,
they were further----
Mr. Young. By the way, we are going to change the 25-mile
zone. Because I know the original intent was never 25 miles,
and I wrote this damn bill. And it was never meant, I know a
little bit about this business, and you have to have a certain
market. And my concern is if we keep doing this off-reservation
gambling, you keep approving them, eventually the States are
going to say, ``The hell with it. We will legalize gambling.''
And there are only so many dollars out there to be lost to
those slot machines. I lose most of them, by the way.
But the other thing, and I believe it is Oregon, we talked
about that, I believe, the Cow Creek Tribe in Oregon is facing
a difficult situation. I am concerned, if we are not careful,
it will become an epidemic across the country. The tribe faces
a threat from a neighboring tribe, which already operates a
casino on its own aboriginal lands, and is attempting to jump
over and open a second casino on non-aboriginal lands. The
second casino would cut into Cow Tribe's market and lead to the
loss of over 500 jobs.
Do you guys really look at this, or do you have someone who
is your main man that does this? Not you.
Mr. Washburn. Well, we have an Office of Indian Gaming that
does a lot, you know, that prepares this for us. But,
ultimately, you know, yes, I mean, these decisions get a lot of
attention from me. I spent, you know, a weekend, a couple of
weekends, working on this one. I didn't write it all myself,
but these are decisions that we take very seriously.
And, frankly, they are the kind of decisions that I am
going to be called over to Congress to answer for. So I take
them very seriously and give them a great deal of attention,
even while I am dealing with social services, and schools, and
police, and all the other things that we deal with.
Mr. Young. Would it be helpful, again, I still think the
committee is somewhat interested, would it be helpful to us to
review this IGRA law and see, maybe put the distance in it,
take this burden off your back and maybe rewrite the law so it
works a little better?
Mr. Washburn. You know, writing the law is your
responsibility and applying it is my responsibility.
Mr. Young. I mean I am asking you. Do you like what it is
now?
Mr. Washburn. We believe it is workable the way it is now.
With all the----
Mr. Young. It is workable? Or is it easy to be worked?
Mr. Washburn. That is a good question. We are not asking
you to amend IGRA, but we certainly respect your power to do
so. And we can work, we have been working with it since 1988.
So 25 years. And we have managed to make our peace with it and
we can apply it.
But I think these are inherently controversial decisions.
And so, whatever the mileage figure would be, it would be
controversial. And if you take it up, they will be yelling at
you a little bit, as well.
Mr. Young. We are paid the same amount, but probably you
are paid more, but I would say that maybe, let's put it this
way. Would your so-called legal group like to help us as we
rewrite a piece of legislation to clarify this issue? Because I
don't think we can continue the suspension of gambling casinos
by Native tribes.
Because, and by the way, I have a case in California, in
Colusa County. I think you are aware of it. Don't do that,
because here comes the guy out of Illinois, financing the whole
project, has a small tribe that is going to move into an
existing casino area. And who is going to benefit from it? Not
going to be the tribe. These are shyster investors.
And I am just saying, you know, there are only so many
ounces of blood in every turnip. And we can't continue this or
we will flood the market with gambling, and it will all go
broke. And that is, the tribes, because this is a revenue base,
it is working well. And I don't want us to keep putting the
burden on the poor camel to the point it falls down. I mean it
just won't carry it. And I am just saying let's step back a
while. I hope you understand, let's step back a while. Let's
review this.
Now you say the Governor, I don't always trust these
Governors. Very frankly, they may make revenue for themselves
or for the State. They shouldn't have the last say. Maybe we
ought to make it the State legislature. Maybe you ought to be
working with us on this.
Mr. LaMalfa, do you have another question?
Mr. LaMalfa. Yes, sir.
Mr. Young. Go ahead.
Mr. LaMalfa. Thank you, Mr. Chairman. Following back up
with the process here, the company AES, in the various off-
reservation projects that they have vetted and covered over the
years, our information has it they have never found any off-
reservation, one project that they deemed having any kind of
detrimental effect on other neighboring tribes, whether you are
talking 25 miles or whatever the number is. Our understanding
is every report ever made is they have not found detrimental
effects.
And so, I wondered what your experience is with that. Do
you agree that they have never found any, and instead of
recommending going forward that there wouldn't be any effects,
either, say environmentally, or certainly on surrounding
tribes?
Mr. Washburn. Congressman, I have, you know, I have been in
this position only about a year. So I haven't seen the vast run
of their work, of this particular economist's work. So I am not
capable of answering that question. But you know, we figure
that everybody has a self-interested reason for providing us
information. And that is the way the world works. And so, you
know, we bring a healthy skepticism to everything we read in
this area, and evaluate it as best we can. So, you know, that
is kind of the way it is.
You know, a lot of people think the government shouldn't be
in the business of making economic decisions, but we do the
best we can with the staff that we have. And, you know, I feel
like, for the most part, we do a good job. Again, we don't go
back after the fact and do investigations to figure out whether
we were right or wrong.
Mr. LaMalfa. I am not saying that a bad job is being done.
I just think maybe the criteria, the base line, needs to be
relooked at, and that in a case where a group is being
contracted to do the study that you are using as perhaps a big
portion of your information, but also is going to be the same
group that has the interest in building the project, you know,
because, again, we have information that shows that these are
the same folks that are contracted to build a project that then
are producing an EIS or the impact study that has a major
component of what you are using to base decisions on, whether
it is impact or not.
So, again, it really cries out for revamping, whether it is
that geographic zone of mileage, or a separation, you know,
something that has more third-party in the process, because in
other areas I certainly, with environmental things that, I wish
farmers and ranchers could produce their own studies and have
the environmental groups, or regulatory agencies use those----
Mr. Young. Will the gentleman yield?
Mr. LaMalfa. Yes, sir.
Mr. Young. The one company, and I believe, Wisconsin, you
used an 8-year-old EIS study when you issued that permit. I
don't know if you are aware of that. Eight years old. That is
kind of outdated. And yet you issued it and took the land in
trust.
Mr. Washburn. Well, Chairman, that is evidence of how long
these decisions take to get out. We consider them for many,
many years. But whenever, we always ask, we always ended up
having to--those do go stale. And they have to be redone after
a certain period of time. And we determined that one, there was
some additional work that had to be done to make sure that one
was not stale.
Mr. Young. I thank the gentleman. Go ahead, I am sorry. But
8 years seems like a long time.
Mr. LaMalfa. It certainly does. But again, coming back to
that, we have the same people producing documents you might be
using in the decision, they are also the ones that are
contracting for it. Does that really, I mean would that really
pass the smell test in a lot of other examples of regulatory
environment and government?
Mr. Washburn. Well, the question, really, is should the
taxpayers bear the cost of the environmental review, or should
the people that are proposing the project? And we believe that
cost should be borne by the people who are, you know, pushing
the project forward, rather than being borne by the taxpayers.
And so----
Mr. LaMalfa. Certainly, but independently or using their
hand-picked ones?
Mr. Washburn. Well, we give an independent review of those
things. And we have different processes that we use, depending
on the context. But we sometimes are involved in choosing. We
require them to provide us choices in certain circumstances----
Mr. LaMalfa. OK. Back on my own time here, but when you
have a group that has never found a detrimental effect for a
project it is interested in on other neighboring tribes or
environmental, then that would be a red flag that I would wish
you would, you know, consider more often in the process. So
thank you.
Mr. Washburn. Thank you, Congressman.
Mr. Young. We have a vote on, but we have some time. Madam
Chair, you would like--go ahead.
Dr. Ruiz. Thank you very much. Dr. Washburn, you mentioned
that you do a very thorough environmental economic impact to
the surrounding communities. My question is, do you also assess
the economic impact of the other tribes in the area? And that
is the first part.
Second is what is the mechanism for their input into this
process?
Mr. Washburn. Thank you, Congressman. Well, we consider the
views of other tribes if they make them known to us. And,
again, if they are within the 25-mile zone for a two-part
determination, we automatically consider their input. If they
aren't within the 25-mile area, then they have to petition for
their views to be considered. And sometimes tribes do petition,
and sometimes they don't.
I will tell you that as Assistant Secretary for Indian
Affairs, I don't turn down tribal leaders who come to my office
and ask for a meeting, you know, really, about anything. I
think it is my duty and my job, and I enjoy it, meeting with
tribal leaders. And so, you know, they tend to make their views
known to me, and they don't get ignored, they get heard.
And you know, we don't make very many of these decisions.
This is, you know, one of the very rare things that we do.
Dr. Ruiz. You know, as a physician, that has worked to
relieve disparities and improve health care access for a lot of
medically under-served communities, I work a lot with Federal
qualified health centers. And in order for a new Federal
qualified health center to enter a community, they need to get
letters of support from the surrounding FQHC's to bring it in
as a community and agreement. And this really allows them the
opportunity to have conversations within the other FQHC's to
talk about what kind of services they can collaborate on, et
cetera, to make sure that we create, we maximize the value for
everybody. Would that be a possibility?
Mr. Washburn. Thank you, Congressman. That is a beautiful
model. And it would be a vast improvement if tribes sort of
worked more cooperatively with one another about these matters,
for sure. And we love it when we see that happening.
We don't always see it happening. And even when we don't
see it happening, we still have to make decisions. And so, we
make positive decisions sometimes when there are people who
oppose. And we wish that we always had consensus. And we look
for consensus. Consensus is a very good thing in this area. In
fact, when we make these decisions and there is broad
consensus, nobody even hardly notices, it seems like. It is the
ones that have a lot of conflict around them, those are the
ones that get a lot of attention.
So, we would love to see more tribes working together on
these kinds of gaming operations.
Dr. Ruiz. Thank you very much. I yield my time.
Mr. Young. Madam.
Ms. Hanabusa. Thank you, Mr. Chair. Mr. Washburn, I just
have a couple of small follow-up questions. One was, you want
to come back?
Mr. Young. We have to, because there is another panel.
Ms. Hanabusa. Oh, I know that.
When a tribe goes off-reservation, do they have to have
some kind of relationship with the lands to which they are
going? Like they have cultural ties or some kind of a tie?
Mr. Washburn. Yes, Congressman, Ranking Member. That is an
important factor that we consider any time that a tribe wishes
to go off the reservation.
Ms. Hanabusa. So are you looking for some kind of
historical connection? What do you call it----
Mr. Washburn. Well, a historical or cultural connection to
the land. And it is an important factor. It is not the sole
factor, but it is a very important factor that we consider.
Ms. Hanabusa. And when you do, any kind of a request that
comes to you to go off-reservation also has to comply with
NEPA. I think you said that earlier, right?
Mr. Washburn. That is--yes, ma'am.
Ms. Hanabusa. Who is the final accepting agency, or the
person who makes a determination that the environmental impact
statement is sufficient and in compliance?
Mr. Washburn. That would be us. We have to review that NEPA
analysis very carefully. And if we don't think it is an
adequate analysis, we send it back. And we ultimately have to
be satisfied with that analysis. And that is sort of an
iterative process. We take a look at it and say, ``We don't
think you have done a good enough job in this section or that
section. We need more information.'' And so that tends to
happen. We don't take it just as written the first time it
comes in.
Ms. Hanabusa. Have you ever been challenged on the
acceptance of an EIS as sufficient, and someone say that you
hadn't considered or it was inadequate, and therefore it
doesn't then meet the criteria of what needs to happen before
you can go and make a determination of the two-part test?
Mr. Washburn. I believe we have, Madam Ranking Member. I
think that is a common subject in litigation. So it does come
up, and we have Federal courts looking over our shoulders.
Another reason we really feel it better be adequate, and we
better make sure it is adequate. Otherwise, we are vulnerable
to having our decision overturned.
Ms. Hanabusa. So, is one of the criteria that you look for
when you evaluate the sufficiency of the environmental impact
statement whether impact, the economic impact, has been
considered, as well as the social impact and cultural impacts,
or all the normal criteria? Are you looking for all of those
points to be addressed in the environmental impact statement?
Mr. Washburn. Yes, Madam Ranking Member. There are a number
of things that we have to consider. And I think it is fair to
say that, at least in general, those are the kinds of things
that do have to be considered. There is a fair bit of detail,
and it is a very elaborate, complex process. But those are the
kinds of considerations that we have to look into.
Ms. Hanabusa. Thank you. Mr. Chair, I yield.
Mr. Young. If the gentlelady will listen to this question,
now, Kevin, she asked a question about aboriginal connection.
The one in Oregon, there was no aboriginal connection with the
tribe that went there. That is a fact. That was not aboriginal
land. I mean because if there is an aboriginal connection, that
is important. But when they take land into trust that had no
aboriginal lineage to the one tribe that applied for it, you
failed. You can talk to your lawyers, that was not their land.
They never had any relation to it at all.
Mr. Washburn. Well, Chairman, it is one of the very serious
factors we consider. And I don't know the specific details of
the matter that you are referring to, and I suspect it may be
in litigation. But it is a factor that we take very seriously.
And it is not the only factor, so there may be extremely
compelling other factors that could outweigh that factor. But
it is one of the factors that we consider very carefully.
Mr. Young. I would suggest respectfully, Kevin, and you
know I have talked to you before about this, I would back off
until we look at what has happened. Because this outfit that is
doing your work, I don't know anything about them. It wasn't
just you. This has been going on for a period of time. And I
would suggest respectfully that there may be a little something
going on that shouldn't be going on.
I am a person that wants to have a casino, and I am from
Illinois. I like it because Chicago is involved, so I go find a
tribal member over here, and I have him apply over here in a
good market. And the same bunch that does the study, has been
doing all these studies, and the gentleman from California, no
one has ever said there would be a detrimental effect. That is
sort of interesting, to have someone say that. No detriment,
none, no case that we know of, that the same company, so the
next time we may have this company here, because you guys
aren't really doing this. You hired somebody to do it. You
review it. And most of the time you accept it.
So, I am just suggesting, respectfully, as the Assistant
Secretary, you should be full Secretary, not because you should
be a Secretary of the Interior. My job is you should be a
cabinet member. Not you, particularly, but the position. I
mean----
Mr. Washburn. Well, wait a minute, Mr. Chairman----
Mr. Young [continuing]. This would be good. Yes. But you
follow what I am saying? I don't want this abundance of
gambling casinos to occur in competition with other tribes.
Competition is good. You said you set the market. Well, OK. But
you have a trust, too. So if they fail, guess who is going to
pick the tab up? We are.
By the way, it has not been funded adequately; I hope you
tell the President of that. I mean the Park Service had an
increase of 28 percent and Fish and Wildlife 29 percent. You
had a little tiny bit in the Department of the Interior. Not
good. I want to take that money from them and give it to you
and see how much of a martyr you will be when you get offered
how many more billion dollars. Let's see how good you can
operate this show.
Anyway, does anybody have any other questions?
[No response.]
Mr. Young. I want to thank you, Kevin. And communicate with
us. Because I do think possibly there will be legislation down
the line to try to rectify it. I think it is an over-abundance
of those outside that are being financed by people I question
to have too many gambling casinos by Indian tribes. Maybe we
will set up a deal where everybody can share in the wealth.
They do this in California. They do it in Arizona. But other
places they don't do it. So that is something. I want to thank
you.
And the rest of the panel, please wait. We will be back
here in about, I would say, right about 4:00. So maybe a little
sooner. So be around. Thank you.
Mr. Washburn. Thank you, Chairman.
[Recess.]
Mr. Young. The committee will come to order. Again, I
apologize to the witnesses. This is the problem of this
Congress we serve in. There is little awareness of how we are
going to run it.
So anyway, at this time I would like to welcome Honorable
Todd Mielke; Ms. Hazel Longmire; and Mr. Alexander Skibine. OK,
and we will start with you, Todd. You are the first one up. I
think you know the rules, but I am pretty lenient. If you are
really doing something intelligent, I will give you some more
time.
[Laughter.]
Mr. Mielke. Thank you.
Mr. Young. So if I bang the gavel, don't feel offended. Go
ahead, sir.
Mr. Mielke. I will try to live up to that expectation.
Thank you.
STATEMENT OF TODD MIELKE, COUNTY COMMISSIONER, COUNTY OF
SPOKANE
Mr. Mielke. Good afternoon, Mr. Chairman and members of the
committee. For the record, my name is Todd Mielke. I am a
Spokane County Commissioner, and currently serve as the
President of the Washington State Association of Counties.
Today I am speaking on behalf of Spokane County, the city of
Spokane, and Greater Spokane, Incorporated, our region's
largest Chamber of Commerce. I want to discuss our experience
with the Bureau of Indian Affairs and off-reservation gaming.
Spokane County generally enjoys a constructive working
relationship with other governmental jurisdictions, including
local tribal governments. But that doesn't mean we always
agree. On the question of whether one of our local tribes
should be allowed to open an off-reservation casino, however,
the county is deeply frustrated.
It is our view that BIA's policy toward off-reservation
gaming has changed dramatically in a relatively short period of
time. It appears to have abandoned the principle that off-
reservation gaming is to be the rare exception. Section 20 was
included in IGRA to prevent the unfettered expansion of off-
reservation casinos.
The interpretation of IGRA has historically been to start
from the perspective that off-reservation gaming is prohibited.
In fact, the Department not only supported limiting the
expansion of gaming, it presented a plan to Congress to
restrict gaming to reservations. And the exceptions to the
gaming prohibition were to be narrowly interpreted to permit
landless and newly recognized tribes to have the opportunity to
have casinos in their historic territories, not to permit
tribes to expand beyond tribal lands, because other locations
were potentially more lucrative. And local jurisdictions were
given deference in helping determine what was best for their
community.
Today, due to our own experience, it appears that those
prior standards are in question. The Department is no longer an
objective arbitrator of whether any standards are being met.
The Department is clearly seen as a project proponent.
One of the two primary standards applied to any permit for
off-reservation gaming is whether there is detriment to the
surrounding community. We have spent hundreds of thousands of
dollars in data analysis, only to have the Department
apparently dismiss it. Jurisdictions representing 99 percent of
Spokane County's residents opposed this project, due to
detriments they perceive. The regional offices disregard of the
impacts on the surrounding community is not permitted under
IGRA, in our view.
The overwhelming regional opposition should have resulted
in a finding of detriment, and denial of the proposal. Yet the
Department has stated that public sentiment is not a legitimate
basis for denying an application.
This raises several significant questions. Who gets to
define ``detriment''? The local community in which the proposed
off-reservation casino is to be located, or the BIA? And what
happens when we believe that a proposed off-reservation casino
would have deep, unmitigatable negative impacts and the BIA
disagrees? Detriment has to mean something, and local
government officials need to play a role in defining what that
means for their jurisdiction.
If the new approach for BIA is that the default position is
to approve all applications for off-reservation gaming, there
will be consequences. This new approach will be a race where
tribes attempt to leap-frog to better locations for market
reasons, undermining the investments of other tribes, and the
impacts on the community at large. Off-reservation gaming will
no longer be the exception to the rule; it will be the rule.
I would like to provide some context. More than a decade
ago, the Spokane Tribe filed a request with BIA to have 145
acres of land within our county acquired in trust. The county
opposed the trust application because it did not want gaming on
the proposed site. The tribe assured the county and the public
that it did not plan to develop gaming on that site. So,
without headquarters review or an EIS, the BIA acquired the
land in trust. But in 2007, the tribe began to pursue a massive
gaming operation on the site, which would include a 300-room
hotel tower, a number of restaurants and bars, a convention
area, and a significant retail complex.
What is at stake is tremendously important: Fairchild Air
Force Base. Spokane County is home to the only Air Force tanker
base in the Western Continental U.S. Congress and the Air Force
have invested more than $200 million in capital improvements at
the base in the past decade. Fairchild is the largest single-
site employer in Spokane, with more than 5,000 employees, and
has an economic impact of approximately $1.5 billion, annually.
The tribe, however, has proposed to build its casino resort
\8/10\ of a mile from the base's only runway, and less than
1,000 feet directly beneath the tanker flight training path.
Basic common sense tells us that building a resort casino that
expects to see thousands of visitors each day will undermine
the base's ability to conduct effective real-life mission
training. It is difficult to imagine an activity less
consistent with the needs of a military base that trains tanker
pilots in day and night operations with a brightly lit casino
with thousands of visitors less than 1,000 feet below.
The Spokane Tribe is not a landless tribe, nor does it lack
for revenue from its business enterprises. It has one of the
largest reservations in the Northwest, with more than 165,000
acres of vast timber and natural resource holdings, in addition
to other casinos and a reported $54 million in annual revenue,
based on their tribal enterprises in 2011.
I want the Spokane Tribe to succeed. And in my experience,
they are highly effective at advocating for their interests.
But I can't, as a representative of over 485,000 residents in
Spokane County, support something I know will be detrimental to
their future.
In closing, Spokane County's view is that the process is
broken. If the Department can conclude siting a casino less
than 1,000 feet directly beneath military training operations,
and which is opposed by 99 percent of the residents of the
region, will not be detrimental to the surrounding community,
the detriment standard has no meaning. Thank you very much for
the opportunity to speak to you today.
[The prepared statement of Mr. Mielke follows:]
Prepared Statement of Todd Mielke, County Commissioner, County of
Spokane
My name is Todd Mielke. I am a Spokane County Commissioner and
currently serve as the President of the Washington State Association of
Counties. Today I am speaking on behalf of Spokane County, Washington
to discuss our experience with the Bureau of Indian Affairs and off-
reservation gaming.
Spokane County enjoys generally constructive working relationships
with other government jurisdictions, including local tribal
governments, though that doesn't mean we always agree. On the question
of whether the Spokane Tribe should be allowed to open an off-
reservation casino, however, the County is deeply frustrated.
The County meets the criteria of the Department of the Interior's
definition of an ``appropriate local official'' in the regulations it
uses to implement section 20 of the Indian Gaming Regulatory Act
(IGRA). As such, the County has provided written evidence of the clear
and unambiguous detriment that the Spokane Tribe's proposed off-
reservation casino would cause to Spokane County and the citizens we
represent.
And while the BIA accommodated our and other local governments'
efforts to submit evidence of the great harm that would be caused to
our community as a result of the Spokane Tribe's proposal, we are very
concerned that, at least up to this point, the BIA's process has not
given those concerns the weight they deserve in determining whether or
not to allow the Spokane Tribe to move forward. Why do I say this?
Because the County has been informed that BIA's Regional Director has
recommended that the Secretary issue a finding that the proposed casino
will not be detrimental to the surrounding community despite the
overwhelming evidence to the contrary.
This raises several very significant questions: who gets to define
detriment? The local community in which the proposed off-reservation
casino is to be located--or the BIA? And what happens when, as in our
case, we believe that a proposed off-reservation casino would have
deep, un-mitigatable negative impacts and the BIA disagrees? I would
submit that detriment has to mean something and that local government
officials need to play a role in defining what that means for their
jurisdiction.
I'd like to provide some context. More than a decade ago, the
Spokane Tribe filed a request with the Bureau of Indian Affairs to have
145 acres of Spokane County land acquired in trust. The County opposed
the trust acquisition because it did not want gaming on the proposed
site. The tribe, however, assured the County and the public that it did
not plan to develop a casino. So without headquarters review or an EIS,
the BIA acquired the land in trust. By 2007, however, the tribe began
to pursue a massive gaming operation on the site which would also
include a 300-room hotel tower, a number of restaurants and bars, a
convention/banquet area, and a significant retail complex.
The Spokane Tribe is not a landless tribe, nor does it lack for
revenue from its business enterprises. In fact, it has one of the
largest reservations in the Northwest, with more than 165,000 acres,
including vast timber and other natural resource holdings. In addition,
the tribe has two other casinos and reported $54 million in revenue for
their Tribal Enterprises in 2011. I want the Spokane Tribe to succeed,
and in my experience, they are highly effective at advocating for their
interests. But I can't, as a representative of the over 485,000
residents of Spokane County support something that I know will be so
detrimental to their future.
The opposition to the Tribe's proposal is extraordinary. In
addition to the County, jurisdictions representing the vast majority of
the area's residents including the nearby Cities of Spokane and Cheney
have written to oppose the Spokane Tribe's proposed off-reservation
casino because of the great harm it would cause their governments and
their citizens. Additionally, the BIA has received letters opposing the
tribe's development from U.S. Representative Cathy McMorris Rogers; the
current and former Secretaries of the State of Washington; numerous
State Senators and Representatives, and the Spokane Chamber of
Commerce, known as Greater Spokane Inc. Yet the Department has stated
that public sentiment is not a legitimate basis for denying an
application.
Only the city of Airway Heights, which represents less than 5,000--
or 1 percent--of the region's residents, supports the project. And only
Airway Heights will receive any mitigation for the impacts the project
would generate.
What's at stake is tremendously important--Fairchild Air Force
Base. Spokane County is home to the only Air Force tanker base in the
Western Continental United States. The base is responsible for
refueling missions throughout the world, but is particularly important
strategically for protecting the Nation's western borders. It is also
the economic driver of the region. Fairchild is the largest single site
employer in Spokane and has an economic impact of approximately $1.5
billion annually.
The tribe, however, has proposed to build its casino and hotel
tower \8/10\ of a mile from the Base's only runway, and less than a
1,000 feet directly beneath the tanker flight training path. Basic
common sense dictates that building a casino and hotel tower that
expect to see thousands of visitors each day will undermine the Base's
ability to conduct effective, real-life mission training. Indeed, it is
difficult to imagine an activity less consistent with the needs of a
military base that trains tanker pilots in day and night operations
than siting a brightly lit casino with thousands of visitors less than
a 1,000 feet beneath training approaches. The County's land use
regulations do not permit any concentrated development like what the
tribe is contemplating at the proposed site. Nor do the recently
adopted Joint Land Use Study regulations adopted by all the regional
jurisdictions in collaboration with the Department of Defense, except
the city of Airway Heights, which has deviated from all other
jurisdictions and within whose boundaries the casino-resort is proposed
to be located.
The overwhelming regional opposition due to detriment should have
resulted in a finding of detriment and a denial of the proposed gaming
facility. Yet, as noted earlier, the Regional Director appears to have
ignored this evidence and approved the project.
The Regional Office's disregard of the impacts on the surrounding
community is not permitted under IGRA. Section 20 was included in IGRA
to prevent the unfettered expansion of off-reservation casinos. The
interpretation of IGRA has historically been to start from the
perspective that off-reservation gaming is prohibited. In fact, the
Department not only supported limiting the expansion of gaming, it
presented a plan to Congress to restrict gaming to reservations. And
the exceptions to the gaming prohibition were to be narrowly
interpreted to permit landless and newly recognized tribes to have the
opportunity to have casinos in their historic territories--not to
permit tribes to expand beyond tribal lands because other locations
were potentially more lucrative. And local jurisdictions were given
deference in helping to determine what was best for their community.
Today, due to our own experience, it appears that those prior
standards are in question. We have spent hundreds of thousands of
dollars in data analysis only to have the Department apparently dismiss
it, though, the BIA has informed the County that it is not permitted to
see the Regional Director's decision.
In addition to how it determines community impacts, the Department
changed how it evaluates the impact on tribes. Today, the department
only measures whether the applicant tribe will be benefited and the
calculation it conducts is simple--does the proposed site give the
tribe greater access to a metropolitan area so that it can make more
money? There is no longer consideration of whether another tribe has
invested millions to develop a destination gaming resort on their
reservation or whether is will be disadvantaged by being further away
from metropolitan areas compared to their new competition. There is no
longer consideration of whether a tribe that has previously met the
standards for off-reservation gaming that the Department used to apply
will be negatively impacted by this new competition. The end result of
this new approach will be a race where tribes attempt to leap-frog to
better locations, undermining the investments of other tribes and the
impacts on the community at large. Off-reservation gaming will no
longer be the exception to the rule--it will be the rule.
In a State where governmental services are funded through the
collection of sales and property taxes generated in the community, the
BIA's actions have the effect of diverting limited tax dollars to a
non-taxpaying entity. The community is subsidizing the gaming operation
whether it supports the activity or not. The result is fewer tax
dollars available to pay for roads, criminal justice systems, local
schools, public transportation, and social services.
In closing, Spokane County's view is that the process is broken.
BIA's policy toward off-reservation gaming has changed dramatically in
a relatively short period of time. It appears to have abandoned the
principle that off-reservation gaming is to be the rare exception. The
Department is no longer an objective arbitrator of whether any
standards are being met. The Department is clearly a project proponent.
If the Department can conclude that a proposed off-reservation
casino that would be located directly beneath military training
operations and which is opposed by 99 percent of the region will not be
detrimental to the surrounding community, the detriment standard is now
meaningless.
______
Mr. Young. I want to thank you, Todd. This is why we are
having this hearing. There is no support for this. And I hope
Mr. Washburn understands that. And if it appears that he does
not, I guess we will have to step forward. Because nobody,
including Cathy McMorris, supports this program. And I don't
know where the Governor is. In fact, I don't even know who your
Governor is right now. But Spokane is against it, the Air Force
should be adamantly against it. I would not like to have that
hotel built that close and be in one of those penthouse rooms.
I wouldn't be in the penthouse, but somebody was there.
And so, thank you for your testimony. I appreciate it.
Mr. Mielke. Thank you.
Mr. Young. Ms. Hazel.
STATEMENT OF HAZEL LONGMIRE, VICE-CHAIRPERSON, COLUSA INDIAN
COMMUNITY COUNCIL
Ms. Longmire. Can you hear me now? Good afternoon, Mr.
Chairman and members of the committee. I am the Vice-
Chairperson of Colusa Indian Community Council in Colusa,
California. Our tribe deeply appreciates this opportunity to
share with you our experience with the way that the Department
of the Interior and its Bureau of Indian Affairs has made so-
called two-part determinations to take newly acquired lands
into trust for gaming.
I am submitting a separate written statement documenting
how, from our tribe's perspective, the Department of the
Interior has acted as an untrustworthy trustee, by closing its
eyes to the devastating impacts of its recent policies and
decisions on tribes that have played by the rules and gone
deeply into debt in the process.
Specifically, the Department now favors allowing tribes
that already have gaming-eligible trust lands to move to better
locations because their wealthy would-be casino developers
prefer to finance only the most profitable projects.
First, our tribe believes that the Department of the
Interior should accept land into Federal trust for tribes whose
land trusts were taken, not voluntary sold or lost through
termination. Or, if a tribe needs more land for housing,
cultural purposes, or even economic development. In most cases,
that sort of trust land acquisition is unlikely to have any
significant impact on other tribes, unless the newly acquired
land is within another tribe's traditional territory.
However, when it comes to acquiring new trust lands for
gaming, IGRA clearly requires that the Department and BIA make
an independent assessment of whether and how allowing each
tribe to leapfrog over another tribe or tribes just to get a
market advantage will impact those tribes being leapfrogged.
The only way that the Department and BIA can make an
independent assessment would be to consult directly with the
existing tribes, rather than relying solely on an arbitrary
definition of what constitutes nearby tribes.
The current process simply looks to the reports prepared by
consultants, bought and paid for by project developers. When
Enterprise Rancheria began its quest to put land into trust in
Yuba County to build a casino, the Interior considered any
tribe within a 50-mile radius to be nearby, and thus required
consultation. However, in 2008 the Department shrank the radius
within which tribes could be considered nearby to only 25
miles.
Our tribe is about 30 miles from the site of the proposed
New Enterprise casino, and that casino would be in the heart of
our primary market area, with far-better highway access. If
Interior had only looked a few miles beyond their arbitrary 25-
mile radius, they would have learned that Yuba County casino
would likely reduce our casino's revenues by as much as 77
percent, and our tribal government's discretionary revenues by
as much as 90 percent.
We repeatedly tried to bring these facts to the
Department's attention, but we were either ignored or rebuffed.
As recently as December 13, 2012, we wrote to Assistant
Secretary Washburn to ask that he reconsider the decision or,
in the alternative, defer accepting land into trust, pending
the outcome of the lawsuit we proceeded to file. Ignoring the
complexities of trying to unwind the Enterprise transaction if
the court were to rule in our favor, the Department proceeded
to full speed ahead.
Assistant Washburn has been quoted as saying that it is not
his job to say no to Indian tribes. But when saying yes to one
tribe is likely to devastate another tribe, we think that the
Assistant Secretary has an obligation to take that impact into
careful consideration, based on the Department's and the BIA's
independent inquiry, rather than unquestionably rubber-stamping
the result-driven conclusion of consultants, paid-for project
proponents.
We don't think that IGRA needs to be changed. We do think
that the way it is being implemented needs to be changed.
Otherwise, all that we and other tribes in our area have worked
so hard and long to accomplish will be lost so that a Chicago
casino developer can reap millions of dollars in profits from
selling land that it already owns at a price far above market
value, and developing a casino that will seriously cannibalize
the markets of other tribes that could not have seen it coming.
Thank you.
[The prepared statement of Ms. Longmire follows:]
Prepared Statement of Hazel Longmire, Vice Chairperson, Colusa Indian
Community Council, Cachil Dehe Band of Wintun Indians
My name is Hazel Longmire, and I am the Vice Chairperson the Cachil
Dehe Band of Wintun Indians of the Colusa Indian Community
(``Colusa''). We are located in rural Colusa County, California. Our
tribe deeply appreciates this opportunity to share with you our
experience with the way that the Department of the Interior (``DOI'')
and its Bureau of Indian Affairs (BIA) has made so-called two-part
determinations to take newly acquired land into trust for gaming
purposes.
Unfortunately, I speak about the process from firsthand experience.
On December 3, 2012, Assistant Secretary of the Interior--Indian
Affairs Washburn published a Federal Register notice that he had
approved acquisition of off-reservation lands for gaming purposes for
the benefit of the Enterprise Rancheria and the North Fork Rancheria in
the Sacramento Valley and the San Joaquin Valley, respectively. We
write today to oppose the way that DOI and BIA currently are
implementing ``two-part determinations'' for off-reservation gaming
acquisitions under 25 U.S.C. sec. 2719. We specifically oppose
acquisition of off-reservation gaming lands for the Enterprise
Rancheria because it threatens to destroy 30 years of hard work by our
tribe to lift itself from poverty just as we are succeeding in
diversifying our tribal economy.
Congress required consultation in two-part determinations under
IGRA so that DOI could not avoid consideration of the adverse impacts
of off-reservation gaming on nearby governments, including other Indian
tribes. Section 20 of IGRA, 25 U.S.C. Sec. 2719(b)(1)(A), requires that
the Department consult not only with the Indian tribe applying to
permit gaming on off-reservation land acquired after October 17, 1988,
but also with ``appropriate State and local officials, including
officials of other nearby Indian tribes,'' to evaluate the detriment to
the surrounding community of the proposed casino. 25 U.S.C.
Sec. 2719(b)(1)(A). In its 2011 Record of Decision (``2011 ROD'')
approving Enterprise's application for a two-part determination, then-
Assistant Secretary Echo Hawk wrote that ``[t]he Department also will
apply heavy scrutiny to tribal applications for off-reservation gaming
on lands acquired after October 17, 1988 to ensure that they do not
result in a detrimental impact to communities surrounding the proposed
gaming site.'' 2011 ROD at 61 (Please note that all Documents
referenced herein are available at the Web site, https://
sites.google.com/site/longmiretestimony/). He also made the categorical
statement that ``[t]he Department will not approve a tribal application
for off-reservation where a nearby Indian tribe demonstrates that it is
likely to suffer a detrimental impact as a result.'' Id. at 64.
Obviously, IGRA requires that DOI make an independent assessment of
whether and how allowing the applicant tribe will impact not just
existing tribes' casinos, but also the tribal governments and tribal
citizens that depend on revenue from those casinos. The only way that
the DOI and BIA could make an independent assessment would be to
consult directly with the tribes that may be affected, rather than
using an arbitrary definition of what constitutes ``nearby'' tribes
without regard to actual conditions, and the result-driven reports
prepared by consultants bought and paid for by gaming developers. In
BIA's own words, ``[w]ithout early consultation, the Bureau may develop
proposals based on an incomplete and anecdotal understanding of the
issues that surround a particular matter. As a result, Bureau proposals
often create severe unintended consequences for tribal governments.''
BIA Government-to-Government Consultation Policy at 3 (2000)?. BIA's
failure to consult with our tribe led to just such unintended
consequences when it approved Enterprise Rancheria's application to
conduct off-reservation gaming on a site located not only in the heart
of our casino's primary market area, but between our Reservation and
our other major sources of patrons.
Yuba County Entertainment, LLC (``YCE''), the sole member of which
is Forsythe Racing, Inc., an Illinois corp. wholly owned by Gerald
Forsythe of Chicago, Illinois, owns extensive properties just south of
Marysville, California, in unincorporated Yuba County. The land YCE
owns was approved by the voters of Yuba County as a racetrack complex
in 1998. Yuba County Board of Supervisors' Letter to BIA (2009). In
2001, however, YCE began planning to use a portion of the racetrack
land for a casino with Enterprise as the beneficiary of the land, if
not the recipient of the lion's share of the profits. 2002 Enterprise
Application at 164 (2001 Innovation Group Report). After a decade of
supposed analysis, DOI approved virtually the same casino as proposed
by YCE in 2002. Final Environmental Impact Statement, Enterprise
Rancheria Gaming Facility and Hotel Fee-To-Trust Acquisition (2009)
(``EIS''), available at http://enterpriseeis.com/documents/final_eis/
report.htm.
The Colusa Reservation is only 30 miles from the YCE parcel--closer
to it than Enterprise's own headquarters or reservation. During most of
the time that the Enterprise application was pending with DOI, the
definition of ``nearby Indian tribes'' with which the Department was
required to consult included all tribes within 50 miles. Checklist for
Gaming Acquisitions at 7 (2007); 73 Fed. Reg. 29354, 29357 (2008)
(discussing the 50-mile threshold in effect from 1997 through 2008). In
2008, DOI shrank the threshold for consultation with ``appropriate
State and local officials'' and ``nearby Indian tribes'' from 50 to 25
miles. The new rule explained the decision to use 25 miles rather than
10 or 50 as the threshold for consulting with non-tribal governments.
Id. DOI gave no notice or explanation for reducing the area within
which it would consider Indian tribes to be ``nearby'' a proposed
casino by a factor of 75 percent, however. Compare the final 25 CFR
part 292 rule, 73 Fed. Reg. at 29357, adopting the 25-mile threshold,
with the proposed rule including a 50-mile threshold, 65 Fed. Reg.
55471, 55473 (2000).
For the purpose of determining whether a tribe is in close
proximity to a gaming establishment, DOI exercises a double standard.
In evaluating ``36 miles from the tribe's existing headquarters in
Oroville, California'' to the YCE parcel, DOI found that the distance
was ``relatively short,'' permitting the tribe to ``regulate the
conduct of class III gaming and exercise governmental power of the
Site.'' Record of Decision; Secretarial Determination Pursuant to the
Indian Gaming Regulatory Act for the 40-acre Yuba County site in Yuba
County, California, for the Enterprise Rancheria (2011) (``2011 ROD'')
at 62; Record of Decision; Trust Acquisition of the 40-acre Yuba County
site in Yuba County, California, for the Enterprise Rancheria of Maidu
Indians of California (2012) (``2012 ROD''). Moreover, DOI found the
YCE parcel to be ``in relatively close proximity to the tribe's
existing community,'' which is located almost entirely in Oroville. Id.
at 41. Colusa, Mooretown, and Auburn's governments, lands, and people
are actually closer to the proposed resort than either Enterprise's
headquarters or its existing gaming-eligible reservation trust lands.
See e.g., Enterprise Lands in Context; Enterprise Lands in Context
Google Maps http://goo.gl/maps/LhUq7.
After verbal requests for consultation were ineffective, Colusa
formally requested consultation. Letter from Colusa Indian Community
Council to BIA (2009). The BIA refused our request, hiding behind the
new rule restricting ``nearby Indian tribes'' to those within 25 miles
of the proposed off-reservation casino. Letter from BIA to Colusa
Indian Community Council (2009). Instead of consulting with Colusa to
determine whether it would be adversely affected, BIA invited Colusa to
comment on the EIS along with other members of the public, essentially
requiring Colusa to prove that it would be adversely affected before
BIA would consult with it. Id. That violated both DOI's fiduciary
responsibility to affected Indian tribes, and IGRA, which requires DOI
to determine whether a proposed casino would adversely affect ``nearby
Indian tribes''. In the 2008 rule, DOI wrote that ``the purpose of
consulting with nearby Indian tribes is to determine whether a proposed
gaming establishment will have detrimental impacts on a nearby Indian
tribe that is part of the surrounding community.'' 73 Fed. Reg. at
29356. The refusal by BIA to consult turned the purpose of consultation
from a shield for tribes from adverse effects of Federal actions, to a
shield for those Federal actions from candid discussion of those
actions with the Departments' tribal trustees.
DOI had been on notice since at least Enterprise's 2002
application, however, that the proposed casino on YCE's land would
``cannibalize'' much of the business of other tribal casinos, including
the Colusa Casino, and thus deprive the tribal governments that owned
them of much-needed income to support services to their members. 2002
Enterprise Application at 164. Obviously, a Federal action that will
lead to cannibalization of the business upon which a tribal government
depends to support its membership is an adverse effect on its
``governmental functions, infrastructure, and services.'' As
demonstrated by the discussion of ``cannibalization'' in Appendix M to
the FEIS, and indeed in Enterprise's original application, a 25-mile
threshold is far too small to include all tribes affected by a new
casino, because tribes whose business specifically would be targeted by
YCE and Enterprise were generally farther than 25 miles away. EIS,
Appendix M at 6 (2006) available at http://enterpriseeis.com/documents/
final_eis/files/appendices/vol1/Appendix_M.pdf (``Appendix M''). Colusa
submitted comments on the application and the EIS, but BIA never did
consult with us. Moreover, the consultant responsible for preparing the
Enterprise FEIS knew about the likely impacts on our casino, because we
had used the same consultant in preparing a 2003 tribal EIS for a
proposed expansion of our facility.
The total population of rural Colusa County is about 25,000.
Because so few people live in Colusa County, most of our casino's
customers come from Yuba City, Marysville and North Sacramento. Many of
our employees also live in those same areas. In a rural area such as
ours, people think nothing of driving 30 or 40 miles, but if Enterprise
is allowed to leapfrog over us and open a casino on the YCE parcel near
Marysville, our casino would sustain devastating reductions in
revenues, with equally devastating impacts on our tribal government,
our members and neighbors in Colusa County.
Enterprise's EIS guessed that the proposed Enterprise Casino in
Yuba County would have a minor (between 3 percent and 7 percent) impact
on what it supposed to be the gross revenues of Colusa's casino. It did
not even try to guess at the impacts on the tribal government. The
Enterprise EIS based that guess on purely hypothetical assumptions,
without any actual data from the Colusa Casino concerning its revenues,
costs of doing business or actual market area. At no time did the
drafters of the EIS or BIA contact Colusa to determine what the actual
effects on the tribe or its casino would be. As the drafters wrote:
``much of the information contained in this report was received from
third parties which Gaming Market Advisors did not validate or
verify.'' Appendix M at 131.
Studies by nationally-renowned experts and based on empirical
facts, however, have found that the proposed Enterprise Casino which
will be located in the heart of the Colusa Casino's core market area,
will have far greater adverse impacts on our tribe and our casino. To
document those impacts, Colusa commissioned an independent study by
Alan Meister and Clyde Barrow, two of the country's leading experts on
the tribal gaming industry, and gave them access to actual data about
the Colusa Casino's revenues, market area and patrons. This study
projects an immediate decline in gross casino revenues of 39 percent
when the Enterprise Casino opens, and a 55 percent decline in gross
revenues when the Enterprise Casino reaches full operational capacity 2
years later. As a result, the Colusa Casino's EBITDA would decline by
65 percent when the Enterprise Casino opens, and by 77 percent when
that casino reaches full operational capacity 2 years later. Further,
the Colusa Casino's workforce would shrink by 35 percent in conjunction
with the opening of the Enterprise Casino, and by 50 percent after 2
years. Nathan Associates Inc. & Pyramid Associates, LLC, Economic
Impacts of the Proposed Enterprise Rancheria Casino on the Colusa
Indian Community and Colusa Casino Resort (2013) (``Meister &
Barrow'').
The impact on Colusa's tribal government and the vital programs and
services it provides to tribal members would be even more catastrophic,
because the tribal government derives 85 percent of its non-grant, non-
contract revenue from the Colusa Casino. Upon opening of the Enterprise
Casino, Colusa's tribal government is projected to experience a 77
percent decline in revenues available for discretionary expenditures,
and a 90 percent decline by 2 years later. Meister & Barrow. In short,
approving a compact for an Enterprise Casino in Yuba County would
virtually assure the impoverishment of the Colusa Indian Community, in
order to enrich the Chicago gaming developer backing Enterprise's move
from its existing gaming-eligible trust land base to a distant location
with which Enterprise never has had a historical connection.
Meister and Barrow demonstrated that hundreds of our gaming and
governmental employees will lose their jobs, Colusa County would lose
hundreds of thousands of much-needed dollars every year, and our tribal
citizens will lose many of the tribal programs and benefits that are
needed to overcome the legacy of generations of poverty and
deprivation. We are informed that a confidential study produced for
California's Governor confirms that the proposed Enterprise Casino
would have ten times more adverse impact on our casino than estimated
in the Enterprise EIS.
Federal agencies have a duty in general to be skeptical of the
claims of the beneficiaries and proponents of requested Federal
decisions, and DOI has a fiduciary responsibility to all tribes to
consider the adverse effects of its actions on them. Despite the
Department's promise to apply ``heavy scrutiny'' to off-reservation
applications, and that it would not approve off-reservation gaming that
was ``likely to [cause] a detrimental impact'' on another tribe,
however, it has relied upon the self-serving and unsupported claims of
the project proponent to approve a project that would be exceptionally
detrimental to surrounding tribes, while hiding behind an arbitrary 25-
mile line to avoid consulting with those very same tribes.
The primary tool for analyzing the impacts of taking a parcel into
trust for gaming purposes, like most major Federal actions, is the
National Environmental Policy Act (``NEPA''). NEPA requires that a
Federal agency take a ``hard look'' at the environmental impacts of its
actions. Those environmental impacts include socioeconomic impacts. In
addition, section 20 of IGRA and the regulations governing acquisition
of land in trust for Indian tribes, 25 CFR parts 151 and 292, require
analysis of the economic impacts. While NEPA regulations permit a
project proponent to fund the environmental impact statement (``EIS''),
they require that the Federal agency deciding whether to approve the
project exercise oversight and exercise its independent judgment over
preparation of the EIS. 40 CFR ' 1506.5. A Federal agency is required
to ``exercise a degree of skepticism in dealing with self-serving
statements from a prime beneficiary of the project.'' Simmons v. U.S.
Army Corps of Eng'rs, 120 F.3d 664, 666 (7th Cir.1997).
DOI did not exercise any skepticism with regard to the EIS paid for
by YCE. YCE paid for the lawyers and environmental consultants to draft
an application and a NEPA environmental assessment (``EA'') on behalf
of Enterprise, which only cursorily studied the environmental impacts
of a casino on YCE's land near Marysville, CA. In 2005, BIA decided to
require an EIS, which is longer than an EA. The same environmental
consultant that produced the EA added an illusory alternative of
constructing a casino on Enterprise's existing reservation to the EA as
part of converting it into an EIS, but did not consider as an
alternative putting into Federal trust for gaming a parcel of land in
Butte County that Enterprise owns and is zoned for a hotel. Also,
several of the studies underpinning the EIS were not updated from the
EA stage. As part of its contract, the environmental consultant
producing the EIS also had a contract to obtain the permits necessary
for construction of the casino once DOI had acquired the land in trust,
giving it a financial incentive to ensure that the casino was approved,
rather than act as a neutral analyst for DOI.
In order to ensure that its preferred alternative casino was
approved, the YCE-funded EIS ``contrive[d] a purpose so slender as to
define competing 'reasonable alternatives' out of consideration (and
even out of existence).'' Simmons v. U.S. Army Corps of Eng'rs, 120
F.3d 664, 669 (7th Cir.1997). The Council on Environmental Quality's
(``CEQ's'') regulations require that an EIS ``shall briefly specify the
underlying purpose and need to which the agency is responding in
proposing the alternatives including the proposed action.'' 40 CFR
Sec. 1502.13. ``[T]he statutory objectives of the project serve as a
guide by which to determine the reasonableness of objectives outlined
in an FEIS.'' Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d
853, 866 (9th Cir.2004). As admitted by DOI in both the 2011 and 2012
RODs, Congress in IGRA intended confine tribal casinos to pre-1988
Indian Lands with extremely limited exceptions. 25 U.S.C. Sec. 2719;
2011 ROD at 60.
Nonetheless, the Department approved an EIS that disregarded that
important Congressional policy, and aimed solely at revenue
maximization by a Class III casino, guaranteeing that only the largest
Las Vegas-style casino in the best location possible would fulfill that
purpose and need. EIS at 1-2 & 1-8. Thus, the two non-gaming
alternatives were rejected because they did not include Class III
gaming or produce enough revenue. The purpose and need was further
narrowed to require the presence of YCE as Enterprise's gaming
developer and manager (because it already owned the land that it would
sell to Enterprise at an inflated price). Id. at 1-9. The EIS
considered the alternative of a modest casino on Enterprise No. 1, but
found that while it would produce a profit, it would produce far less
than at the YCE site, and was thus rejected it would not produce as
much income--income derived from cannibalizing other tribal
governments' casino businesses. EIS at 2-39.
The report's authors, retained by YCE, speculated that it was
``possible . . . that YCE would decline to enter into the agreement due
to the changed circumstances and decreased potential revenues likely to
result from Alternative D,'' the on-reservation casino. EIS at 2-41.
Having been retained by YCE, the environmental consultant knew that the
``changed circumstances'' were that Enterprise would not need to
purchase YCE's land or employ it as its developer/manager.
Indicative of its inattention to detail, the Department repeatedly
misidentified the land owned by YCE that it proposed to take into trust
for Enterprise. The YCE-funded EIS, the 2011 letter to Governor Brown,
his 2012 concurrence in the acquisition of the YCE parcel, Assistant
Secretary Washburn's decision to take the land into trust, and the
Federal Register notice announcing that decision, among other documents
described the land as totaling 40 acres. E.g., 77 Fed. Reg. 71612
(2012). Many of the same documents, however, as well as the policy of
title insurance proposed to be issued to the United States, included
legal descriptions of a parcel of approximately 82.65 acres. Baker-
Williams Engineering Group Letter to George Forman (January 2, 2013).
DOI later issued a ``correction'' of the legal description and parcel
number to reduce the land taken into trust to 40 acres. 78 Fed. Reg.
114 (2013). DOI's own regulations require that it closely examine title
to proposed trust acquisition. 25 CFR part 151.13; 2002 Enterprise
Application at 9 (``The land description in the deed and title evidence
must be identical''). DOI guidance, which effectively has the force of
law, requires that the Office of Indian Gaming ``will review the
description to verify that the description accurately describes the
subject property, and that it is consistent throughout the
application.'' Fee-to-Trust Handbook at 65 (2011).
In addition to not adequately examining the land itself or the
impacts of acquiring it for Enterprise, the Department erred in finding
that Enterprise needed YCE's land. The Enterprise Rancheria originally
consisted of two 40-acre parcels in Butte County that were purchased in
1915. In 1964, tribal members agreed to sell one of the parcels of
land, Enterprise No. 2, to the State of California for inundation by
Lake Oroville. The other parcel, Enterprise No. 1, over which the
tribal government of the Enterprise Rancheria has jurisdiction, remains
in trust. Robert Edwards v. Pacific Regional Director, Bureau of Indian
Affairs, 45 IBIA 42 (2007). Having been in trust prior to October 17,
1988, Enterprise No. 1 constitutes ``Indian Lands'' that are eligible
for gaming under IGRA.
DOI's regulations require that the Department find that a tribe has
a need for land, not just the desire for it. 25 CFR part 151.10(b);
2012 ROD at 44. Nor could DOI find such a need. According to the EIS
funded by Enterprise's own gaming developer, a casino on its existing
reservation, Enterprise No. 1, could turn a profit from which the
tribe's several hundred members entitled to full benefits would
receive. E.g., EIS at 4.7-17 to 4.7-28; Appendix M at 130.
Nonetheless, the 2012 Record of Decision approving the application
to have the YCE parcel taken into trust found that Enterprise needed
more land. 2012 ROD at 44. Assistant Secretary Echo Hawk the year
before had found that development of Enterprise No. 1 would be
``exceedingly difficult'' and would ``result in minimal or no revenue
for the tribe.'' 2011 ROD at 47. The report on economic impacts,
however, found that an on-reservation casino would have total annual
revenues of nearly $20,000,000. Appendix M at 130; EIS at 2.47. While
that pales in comparison to an estimated total revenue at the YCE
parcel of $160,000,000, it is not ``minimal'' revenue. Moreover, the
ROD failed to consider the development potential of Enterprise-owned
fee land in Butte County, much closer to Enterprise's existing gaming-
eligible trust land base.
Although the costs of construction of an on-reservation casino were
estimated to be higher in proportion to total revenues--based solely on
YCE's figures and without explanation--the cost of debt and revenue
sharing with its developer and local communities--such as the
$5,000,000 annual payment in lieu of property taxes to the County of
Yuba--would not be present. Memorandum of Understanding between the
Estom Yumeka Maidu Tribe, Enterprise Rancheria and the County of Yuba
(December 17, 2002); Appendix M at 46. The estimated costs to
Enterprise of an off-reservation casino were $150,000,000 in 2006. Id.
11. For the sake of ``accuracy,'' however, GMA excluded from that
figure the cost of Enterprise purchasing the casino site from YCE at
the above-market price of $7,000,000 or the costs and 13 percent
interest Enterprise agreed to pay for the up to $85,000,000 projected
cost in 2002 (to be borrowed from YCE and other lenders to finance its
fee-to-trust application, purchase of YCE's land, pay for construction,
and a management fee of 30 percent of the net revenues of the off-
reservation casino). E.g., 2002 Enterprise Application at 16, 99 & 107.
Since Enterprise already beneficially owned its existing reservation,
there would be no cost to purchase land for an on-reservation casino.
Moreover, Enterprise already owns more than 80 acres of land in
fee-simple in Butte County, which is more than twice the size of
Enterprise No. 2, which it agreed to sell to California in 1964.
Enterprise Properties in Context; see also, http://goo.gl/maps/LhUq7.
Since the Enterprise tribal government reconstituted itself in 1994 it
has received millions of dollars in Federal funding to support
government programs, including funding to acquire land for tribal
housing. E.g., 62 Fed. Reg. 52348 (1997) (notice of award of $2.3
Million to Enterprise for Indian housing). It also has received
millions of dollars from the Revenue Sharing Trust Fund established
under California's 1999 Class III gaming compacts. Despite its claims
to be a Yuba County tribe, it has never purchased land in Yuba County.
North State Research & Consulting Services, Research Report (March 21,
2013) (listing Enterprise Rancheria properties in the public records of
Butte County); North State Research & Consulting Services, Research
Report (April 10, 2013) (finding no Enterprise Rancheria properties in
the public records of Yuba or Sutter Counties).
Notably, Enterprise's lands include a 63-acre parcel outside of
Oroville, 2009 Enterprise Application at 4, and a 16-acre parcel, which
already includes a hotel, between Enterprise No. 1 and the former
Enterprise No. 2. Research Report (March 21, 2013). It also owns the
office building in Oroville housing the tribal government's office, and
several residential properties in Oroville. Id. Enterprise has never
sought to have any of those properties it owns in Butte County taken
into trust by DOI. 2009 Enterprise Application at 4. The only trust
land it is interested in is the Yuba County property owned by its
casino backer, YCE.
Enterprise No. 1 may not be ideal for gaming, but scores of other
California Indian tribes find themselves in a similar or worse
situation with either land that could not support a casino or without
land at all. Such tribes, such as Colusa, have incurred heavy debt
burdens to finance casinos on their less-than-ideal lands and to
develop a customer base outside of their small, local communities. Some
of those tribes with remote reservations, such as Santa Ysabel, which
recently unsuccessfully attempted to declare bankruptcy, have come
close to failing, but only Enterprise has been allowed by DOI to make a
developer-backed foray into other tribes' traditional territories for
the sole purpose of gaining access to more lucrative markets,
deliberately cannibalizing the marginal markets of other tribes in the
process. If a developer's willingness to finance a casino and a tribe's
desire for greater profit is the standard by which to judge section 20
two-part determinations, there are scores of California tribes just as,
or more deserving than Enterprise of being allowed to move to more
lucrative locations; this would include some of the State's largest
tribes.
In both northern and southern California, there are numerous
tribes--large and small--with small, remote and/or rugged gaming-
eligible trust land bases. Those tribes include, but are not limited
to, the Covelo Indian Community (Mendocino County), the Quartz Valley
Rancheria (Siskiyou County), the Cold Springs Rancheria (Fresno
County), Grindstone Rancheria (Glenn County), Cortina Rancheria (Colusa
County), Ramona Reservation (Riverside County), Santa Rosa Reservation
(Riverside County), Manzanita Reservation (San Diego County), Los
Coyotes Reservation (San Diego County), Ewiiaapaayp Reservation (San
Diego County), Jamul Reservation (San Diego County), La Jolla
Reservation (San Diego County), Hoopa Valley Reservation (Humboldt
County), Yurok Reservation (Humboldt and Del Norte Counties), Lower
Lake Rancheria (Lake County), El Em (Sulphur Bank) Rancheria (Lake
County), Ft. Bidwell Reservation (Modoc County), Benton Paiute
Reservation (Inyo County), Inaja-Cosmit Reservation (San Diego County),
Bridgeport Indian Colony (Alpine County), Big Sandy Rancheria (Madera
County), Table Mountain Rancheria (Fresno County), Bear River Rancheria
(Humboldt County), Mooretown Rancheria (Butte County), Cahuilla
Reservation (Riverside County), Chemehuevi Reservation), Berry Creek
Rancheria (Butte County), and San Pasqual Reservation, among others. In
addition, a number of tribes that were unterminated under the Tillie
Hardwick decision still do not have trust lands, but are making efforts
to acquire such lands in the vicinity of their former lands (e.g.,
Chico Rancheria, Cloverdale Rancheria, Scotts Valley Rancheria).
In approving off-reservation gaming by Enterprise, DOI relied upon
the fiction that the YCE parcel is within the tribe's traditional
territory and that it was ``strongly supported'' by the local
community. 2011 ROD at 63-64. Although Enterprise, a Maidu tribe,
claims that Yuba and Sutter Counties are its aboriginal territory, that
claim is easily debunked by reviewing the authoritative treatises on
the subject of California Indian tribes. Marcos Guerrero, Affidavit
(December 24, 2012). It has no more claim to land in Yuba County than
its fellow Butte County Maidu tribes, Mooretown and Berry Creek
Rancherias, whose reservations are near Enterprise No. 1. See http://
goo.gl/maps/LhUq7. Enterprise tacitly admitted that fact in its
application for the two-part determination in which it noted that it
provides services in Yuba and Sutter Counties in cooperation with the
other two Maidu tribes in Butte County. 2009 Enterprise Application at
5. Despite the assertions of historic ties to Yuba County, only about
one-half dozen tribal members of any class lived in Yuba County in
2002-2009. Id. at 3; 2002 Enterprise Application at 3 (approximately 10
percent of its 500 members lived in Yuba and Sutter Counties).
The sole evidence for Enterprise's claims to aboriginal territory
in Yuba County is a single decision by the California Native American
Heritage Commission, which found Enterprise to be a most likely
descendant of specific remains found during excavation for a levee on
the Feather River. That finding was contested by other Feather River
Tribes. The fact that the Army Corps of Engineers is participating in
that project allowed Enterprise to claim that both the State and
Federal governments support its claims. 2012 ROD at 46. At some point,
the claim was vastly expanded from a portion of the bank of the Feather
River to include all of Yuba and Sutter Counties without any
explanation. See 2009 Application at 13; 2011 ROD at 46; But see,
Guerrero Affidavit.
Although backed by several local governments that entered into
potentially lucrative side agreements with Enterprise, the project was
rejected by the voters of Yuba County in a 2005 ballot initiative by a
clearer margin than many Presidential elections. Yuba County Board of
Supervisors' Letter to BIA (March 17, 2009). The voters had earlier
approved the use of the land for a racetrack, a very different and
periodic land use that would have been subject to local control and
taxation. Crucially, however, it would not have been as lucrative for
YCE. Notwithstanding popular opposition, DOI found strong local support
for the casino based on the actions of local elected officials,
especially the Yuba County Supervisors, who had acted prior to the
ballot initiative. 2011 ROD at 47.
In order to gain the support of DOI and the State of California,
Enterprise has relied upon ambiguity to make it appear that a Yuba
County casino will benefit a large number of impoverished local tribal
members. While their poverty is probably, and lamentably, real, the
direct benefits of a casino will not flow to that many tribal members.
When Enterprise first organized as a tribe in 1994, its General
Council--all voting members of the tribe--amounted to fewer than 20
people. Letter from Enterprise Rancheria to BIA (1994). Membership was
initially limited to the direct descendants of the occupants of
Enterprise Nos. 1 and 2, and thus necessarily originated in Butte
County. Enterprise adopted a constitution to admit a literal second
class of citizens: persons who are not lineally descended from the
original occupants of Enterprise Nos. 1 and 2, but who could
demonstrate Indian descent from anywhere in the Feather River drainage.
By calling them ``members,'' the tribe thus enables them to access
Federal programs and services available to Indians. However, this
second class of members cannot vote, cannot hold tribal office, and are
not eligible to receive any tribal benefits--such as per capita
distributions of casino revenues. Thus, the huge casino that Enterprise
proposes to build actually will benefit far fewer individuals than
Enterprise has claimed. Enterprise Constitution, Article III,
Membership.
Colusa does not oppose any other tribe receiving the benefits of
tribal government gaming. Our Tribe is a willing contributor to the
California Indian Gaming Special Distribution Fund and Revenue Sharing
Trust Fund, from which non-gaming tribes, such as the Enterprise and
North Fork Rancherias, receive $1.1 million per year in completely
unrestricted funds. If Enterprise were seeking to conduct Class III
gaming on or close to its existing gaming-eligible trust lands, we
would not oppose it. Similarly, we strongly support the Department of
the Interior (``DOI'') accepting land into Federal trust for tribes
whose original trust lands were taken--not voluntarily sold--or lost
through termination, or if a tribe needs more land for housing,
cultural purposes or even economic development if that development
would not impoverish our own tribe. In most cases, that sort of trust
land acquisition is unlikely to have any significant impact on other
tribes, unless the newly acquired land is within another tribe's
traditional territory.
Our opposition to DOI's off-reservation gaming acquisitions is not
based on a lack of sympathy for the history of other Indian tribes that
must continue to deal with the legacy of genocide, displacement and
failed attempts at forced assimilation that characterized so much of
United States and California's history. The fact is that every Indian
tribe--ours included--has to deal with that legacy every day. We oppose
acquisition of off-reservation land in trust for gaming purposes for
Enterprise because if historic mistreatment of Indian tribes and their
members justifies allowing Enterprise to leapfrog its fellow tribes to
build a casino closer to the nearest major market than neighboring
tribes, then that justification applies equally to every other tribe
that is not located near either a major highway and/or a large city.
That would include most tribes in the country--including our own tribe.
But that is not what Congress had in mind when it enacted the
Indian Gaming Regulatory Act (``IGRA'') in 1988. Nor is it what the
people of California voted for in 1998 when they passed Proposition 5
and again in 2000 when they passed Proposition 1a. Voters nationwide
and within California do not support ``reservation-shopping'' by
tribes. If Congress or the voters of the State of California believed
that would be the outcome, neither IGRA nor the California Propositions
that enabled tribal government gaming would have passed. Moreover, once
tribes become viewed by the public as nothing more than fronts for
casino developers, the public likely will cease to view tribes as
governments exercising authority over territory, with devastating
consequences for all tribes.
We oppose the DOI's current off-reservation gaming policy because
it threatens to destroy much of the progress that our tribe and others
have made. Our reservation is located in rural Colusa County. We
started in gaming with a modest high-stakes bingo hall 30 years ago,
and we slowly grew our modest casino as revenues and the market
permitted. Our casino generates most of the revenues that our tribe has
used to provide programs and services to our members that no other unit
of government had been providing--services such as medical care,
education, nutrition, public safety, environmental protection,
recreation and other services. We also have used--and pledged--casino
revenues to diversify our tribal economy.
As the result of our casino revenues and the economic development
it has supported, our tribe is now one of the largest employers in
Colusa County, and our tribe is an important contributor both to local
governments in Colusa County and to the economy of the area as a whole.
The development of our tribe's economy also has resulted in our tribe
becoming a respected agricultural business locally and potentially
globally. All of that stands to be lost due to a Federal agency's
failure to apply sufficient skepticism to the claims of a gaming
developer who stands to make tens of millions of dollars annually from
tribal gaming and hundreds of millions over the 7 years of his
development and management contracts with Enterprise.
We don't think IGRA needs to be changed. We do think that the DOI
and BIA need to change the way two-part determinations are being made.
Otherwise, all that we--and other tribes in our area--have worked so
hard and long to accomplish will be lost.
Thank you for the opportunity to share my Tribe's views with the
subcommittee.
______
Mr. Young. Thank you, Hazel. I have been reading your
written statement. It will be in the record. There are a lot of
good things in there. Some of it was a little legalese for me,
but it is pretty good. So, thank you.
Ms. Longmire. Thank you.
Mr. Young. Doctor.
STATEMENT OF ALEXANDER SKIBINE, PROFESSOR, UNIVERSITY OF UTAH
Mr. Skibine. Thank you, Mr. Chairman, members of the
subcommittee. Good afternoon, and thank you for allowing me to
testify today on this important matter.
I was deputy counsel here, for Indian Affairs, between 1980
and 1990. I was the deputy to Frank Ducheneaux. And I can
confirm, Mr. Chairman, that he is completely responsible for
any deficiency in the language as it currently exists in
section 20.
[Laughter.]
Mr. Skibine. Having said that, I also want to emphasize
that I agree with you, that no one wants to authorize another
Indian casino just to see a previous one go out of business. It
is something that we should be very careful about.
And, finally, I want to join Chairwoman Longmire in her
assessment that I do not think that IGRA should be amended, or
need to be amended.
Having blamed Frank for the language, in effect, it is my
position that the section has worked well, so far. Since 1988
there have been 14 denials and 15 approvals. Out of those 15
approvals, 5 were vetoed by the State Governor, and one, the
last one, in Menomonie, is still pending. So, basically, the
tribes are batting 50 percent.
Under IGRA, the Secretary can only find that gaming will be
beneficial to the tribe and not detrimental to the surrounding
community, after consultation with local officials, which
include officials from other Indian tribes. Perhaps the most
salient features contained in the section are that the Governor
of the State has to concur to the two-part determination. And,
more importantly, the Governor can disagree for any reason.
Concerning your questions to the Assistant Secretary, in
effect there has been a lot of litigation in State court
concerning the authority of the Governors to agree or disagree
under local State law. And, in effect, the legislature can
constrain his authority--the State legislature can, if they
want to.
Mr. Young. Doctor, are you saying that the Governor isn't
the final say in this? They can override him?
Mr. Skibine. The legislature can basically impose
requirements on the Governor. As a matter of fact, there is one
litigation where the legislature has to ratify the Governor's
concurrence.
Mr. Young. And--how many times has the legislature turned
the Governor down?
Mr. Skibine. I don't have that information.
Mr. Young. OK, we will get that.
Mr. Skibine. All right. In addition, there are many
additional safeguards that have been imposed by the executive
branch. The 2008 regulations required the tribes to present
evidence of significant historical connections to the land. In
addition, the distance of the land from the tribal headquarters
has to be taken into consideration. Finally, the tribe has to
show how the relationship between the tribe and the non-Indian
community will be benefited.
But before the land can actually be transferred into trust,
in effect, the tribe also has to go through the requirements of
Section 5 of the IRA. And, the regulations were implemented in
1995 and they contain 11 criteria that have to be evaluated:
among others, impact on the local tax roles; the potential
jurisdictional problems; and the regulation also provide that
greater scrutiny has to be given to the concerns of local
officials the further their lands are from the existing
reservation. So, under the IRA, in effect, distance is a factor
and an important factor.
Finally, each determination can be subject to exacting
judicial scrutiny. Under the APA the decision cannot be
arbitrary or capricious. Every relevant factor has to be
considered by the Secretary. Also, after the Carcieri case, in
order to be eligible under the IRA, the tribe has to be under
Federal jurisdiction as of 1934.
Finally, under the recent Patchak decision, the Quiet Title
Act no longer protects such trust acquisition from being
challenged by almost anyone with a stake in the outcome.
So, in conclusion, you know, I think that the standards
have worked well. Can it need some tweaking? Probably. It is
true that there is no definition of what is detrimental to
surrounding community. And it is also true that perhaps there
should be more emphasis on how the creation of a new Indian
casino will endanger existing casinos in the areas.
But I think that this should be done through regulations,
instead of legislation at this point. Because my experience is
that, any legislation has to pass the House and then go to the
Senate. And it seems that if you are going to amend IGRA, the
chances of this being just a tweaking, is remote. Once it gets
to the Senate, who knows what they will be able to do with this
legislation. Thank you, Mr. Chairman.
[The prepared statement of Mr. Skibine follows:]
Prepared Statement of Alexander Skibine,\1\ Professor, University of
Utah
---------------------------------------------------------------------------
\1\ S.J. Quinney Professor of Law, University of Utah S.J. Quinney
College of Law.
---------------------------------------------------------------------------
Mr. Chairman, members of the subcommittee, thank you for inviting
to testify on these important matters. My statement today is going to
focus on Executive decisions to authorize gaming on off-reservation
land acquired into trust after 1988. More precisely, my comments will
address those Executive decisions made pursuant to the two-part
determination set out in section (b)(1)(A) of the Indian Gaming
Regulatory Act of 1988, 25 U.S.C. 2719(b)(1)(A). These are the
decisions which require concurrence by a State Governor.
Under IGRA's section 20, gaming is prohibited on lands acquired by
the Secretary of the Interior after October 17, 1988, unless such lands
are located within or contiguous to the boundaries of an Indian
reservation as of that date. The law contains 4 exceptions to this
prohibition. Under the so-called ``two-part determination'' exception,
gaming is allowed on off reservation land if the Secretary determines,
after consultation with appropriate state and local officials,
including officials of nearby Indian tribes, that gaming at that
location would be in the best interest of the tribe and its members and
would not be detrimental to the surrounding community. In addition, the
Governor of the affected State has to concur with this determination.
There is almost no legislative history concerning the enactment of
section 20. The concept of a restriction on off reservation gaming
seemed to have first surfaced in a bill introduced by Congressman
Bereuter of Nebraska in 1985, (H.R. 3130, 99th Congress.) The idea
behind that bill was eventually incorporated by the Senate Select
Committee on Indian Affairs when it reported out of committee an
amended version of H.R. 1920, the gaming bill which had passed the
House of Representatives on April 21, 1986. Although H.R. 1920 never
passed the Senate, its main components, including the section which
restricted gaming on lands acquired outside Indian reservations were
incorporated in S. 555, the Indian gaming bill which eventually passed
the Congress and was signed by the President.\2\
---------------------------------------------------------------------------
\2\ For an in depth discussion of the legislative history of IGRA,
see Robert N. Clinton, Enactment of the Indian Gaming Regulatory Act of
1988: The Return of the Buffalo to Indian Country or Another Federal
Usurpation of Tribal Sovereignty, 42 Ariz. St. L. J. 17 (2010).
---------------------------------------------------------------------------
what the record shows
Since 1988, the Secretary has disapproved 14 two-part
determinations, 12 of these disapprovals were made in or after 2008,
including one in 2011.
Since 1988, the Secretary has approved 15 two-part determinations,
5 of which were approved in 2011 or thereafter. Of these 15 approvals,
5 were vetoed by State Governors, 1 has not been acted upon yet.
Of the five decisions made since 2011, four were approvals, one was
a disapproval.
Finally, it is my understanding that there are currently 10
applications involving two-part determinations still pending at the
Department.
One of the more controversial aspect of off reservation gaming is
that it may occur at a location far from a tribe's reservation. Of the
more recent approvals the record indicates the following:
--Kaw Nation (Oklahoma): 21 miles from former reservation, 41 miles
from tribal headquarters.
--Keweenaw Bay Indian Community (Michigan): 70 miles from
reservation and tribal headquarters. (Governor vetoed).
--Enterprise Rancheria (Ca.): 36 miles from the tribal
headquarters.
--North Fork Rancheria (Ca.): 36 miles from headquarters.
--Menominee Indian Tribe of Wisconsin: 160 miles from tribe's
reservation.
Of the one recent disapproval, the record indicates that the
proposed land was 293 miles from the Pueblo of Jemez (New Mexico).
The purpose of my testimony today is to show that overall, there
are more than enough safeguards currently in place to guarantee that
the Secretary's decisions to allow gaming on off reservation lands
acquired after 1988 will continue to be made rationally and fairly and
that the Secretary's discretion will not be abused. These safeguards
have been imposed by all three branches of the government.
A. Legislatively Imposed Requirements
IGRA contains several important requirements restricting off
reservation gaming. The most important one is the one requiring the
Governor of the State to concur with the Secretary's two part
determination. As mentioned above, that requirement has already
resulted in five vetoes by State Governors. A salient feature of that
requirement is that there does not seem to be any federally imposed
standards on the State Governors. This means that a State Governor may
refuse to concur with a Secretary's determination for just about any
reason.
Another important requirement is that the two-part determination
can only be made after consultation with State and local officials.
Furthermore, gaming on such newly acquired lands cannot be
``detrimental'' to the surrounding communities, although the act does
not further define what ``detrimental'' means in this context.
Another important IGRA restriction is that gaming under the act is
only allowed on Indian lands and the definition of Indian lands
indicates that for trust or restricted lands located off Indian
reservations, the Indian tribe has to be exercising ``governmental
power'' before such lands can be considered Indian lands under IGRA.
This requirement seemed to have played a crucial role in disapproving
the application of the Pueblo of Jemez.
Before taking land into trust, the Secretary also has to comply
with the requirements of NEPA. Among other things, this means that the
Secretary has to give adequate consideration to a reasonable range of
alternative sites for the proposed gaming establishments, and has to
take a ``hard look'' at the environmental impacts of the proposed
action.
B. Executive Branch's Safeguards: The 2008 and 1995 Regulations
In 2008, 20 years after enactment of IGRA, the Interior Department
published detailed regulations providing further guidance and direction
for the implementation of this section. Subpart C, sections 292.13 to
292.24 concerns the two-part determination exception. These regulations
contain additional factors a tribe has to meet in order for the land to
qualify under that exception.
For instance, in order to assist the Secretary in determining
whether the proposed gaming will be in the best interest of the tribe
and its members, the tribe must present ``evidence of significant
historical connections to the land.'' 292.17(i). The tribe must also
provide the ``distance of the land from the location where the tribe
maintains core governmental functions'' (g). In addition, the tribal
application must describe the ``projected benefits to the relationship
between the tribe and non-Indian communities.'' (e). In reality, this
last criteria has resulted in no land acquisition being transferred
into trust without the support of the surrounding community.\3\
---------------------------------------------------------------------------
\3\ Although there seemed to have been one pre-2008 approval
(Siletz Tribe of Oregon in 1992) that did not have the support of the
local community, the State Governor quickly vetoed the two-part
determination by refusing to concur with the Secretary's decision.
---------------------------------------------------------------------------
In addition to comply with the requirements of IGRA for gaming
purposes, before land can actually be taken into trust, a tribe also
has to also comply with the requirements of the Indian Reorganization
Act of 1934 (IRA). Although the IRA does not contain much of a
standard, authorizing the Secretary in his discretion to acquire land
within or without existing Indian reservations for the purpose of
providing land for Indians, the Secretary adopted new regulations in
1995 which for the first time made a distinction between on and off
reservation land acquisition and further restricted the discretion
previously enjoyed by the Secretary under the act.\4\
---------------------------------------------------------------------------
\4\ For a comprehensive treatment of the fee to trust process, see
Frank Pommersheim, Land into Trust: An Inquiry Into Law, Policy, and
History, 49 Idaho L. Rev. 519 (2013).
---------------------------------------------------------------------------
The 1995 regulations contain 11 criteria for taking land into
trust. Seven are applicable to all tribal land acquisitions and an
additional four are applicable only for off reservation acquisitions.
Some of the criteria are hard to reconcile with the trust doctrine and
the original purpose of the IRA which was to stop the allotment process
and allow Indians to re-acquire some of the land base that had been
lost as a result of allotment.\5\ For instance under criteria (e) the
Secretary has to consider the impact the acquisition will have on the
tax rolls of the State and its political subdivisions. Under criteria
(f), the Secretary has to consider the jurisdictional problems and
potential land use conflicts which may arise from the proposed land
acquisition. Finally, for off reservation acquisitions, under criteria
(b) the secretary has to give greater scrutiny to the tribe's
justification of anticipated benefits and to the concerns raised by
state and local officials, the further the lands are from the
reservation. These criteria were fatal to at least one proposed land
acquisition even though the tribe involved (St. Regis Mohawk) had
already successfully navigated all the requirements of IGRA's two-part
determination.
---------------------------------------------------------------------------
\5\ It has been estimated that Indian tribes had control of about
138 million acres at the close of the treaty period in 1871. It has
been estimated that by 1934, the tribal land base had shrunk to 48
million acres, a 90 million acres loss. See Readjustment of Indian
Affairs: Hearings on H.R. 7902, House Committee on Indian Affairs, 73d
Cong.2d Sess. 16 (1934).
---------------------------------------------------------------------------
To tribal advocates, the three criteria just mentioned above are
hard to justify especially when one consider how comparatively easy it
is to take land out of trust status. As recently noted by Professor
Frank Pommersheim, there is currently still more Indian land going out
of trust than land being put into trust throughout Indian country.\6\
---------------------------------------------------------------------------
\6\ See Pommersheim supra, at note 4.
---------------------------------------------------------------------------
C. Judicially Imposed Requirements
Any overreaching by the Department of the Interior can be
adequately controlled by the Federal courts. The recent litigation
involving North Fork Rancheria of Mono Indians provides a good example
of how thorough judicial review can be under the Administrative
Procedure Act (APA).\7\ Set forth below is a roadmap the Department has
to successfully navigate in order to get the proposed land into trust:
---------------------------------------------------------------------------
\7\ Stand Up for California v. North Fork Rancheria, 919 F.Supp.2d
51 (2013).
---------------------------------------------------------------------------
First, under the APA any agency decision can be set aside if it is
arbitrary and capricious, an abuse of discretion, or otherwise not in
accordance with law. Under that standard, the court has to make sure
that the agency has ``examined the relevant data and articulated a
satisfactory explanation for its action including a rational connection
between the facts found and the choice made.'' \8\ In other words, the
agency action has to be the product of reasoned decisionmaking. The
agency has to consider every important aspect of the problem, and
cannot ``offer an explanation for its decision that runs counter to the
evidence, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.'' \9\
---------------------------------------------------------------------------
\8\ Motor Vehicle v. State Farm, 463 U.S. 29, 43 (1983).
\9\ Id., at 43, 52.
---------------------------------------------------------------------------
Second, under Carcieri v. Salazar, 555 U.S. 279 (2009), the
Secretary can only obtain land into trust under the 1934 Indian
Reorganization Act for federally recognized Indian tribes that were
``under Federal jurisdiction'' in 1934. According to the BIA's own
statement ``whether a tribe was under Federal jurisdiction in 1934
requires a fact-intensive analysis of the history of interactions
between that tribe and the United States.''
Third, the courts will scrutinize whether the Secretary adequately
considered the impacts of the proposed gaming on the surrounding
community. In the North Fork decision for instance, the court went into
a detailed examination of the following: 1. Problem gambling, 2. Crime,
3. Environmental and economic impacts, 4. Effects on other local Indian
tribes.
Finally, under the recent Patchak Supreme Court decision,\10\ the
Quiet Title Act (QTA) no longer prevents almost anyone impacted by the
decision to challenge a fee to trust transfer to an Indian tribe even
after the transfer of trust title to the United States has already
taken place.
---------------------------------------------------------------------------
\10\ Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v.
Patchak, 132 S. Ct. 2199 (2012).
---------------------------------------------------------------------------
conclusion
It seems that there are plenty of existing obstacles an Indian
tribe has to surmount before it can actually acquire off reservation
land for gaming purposes. Regulations implementing both IGRA and the
IRA contain many requirements obligating the Secretary to take into
account the concerns of both the non-Indian community and other Indian
tribes, as well as the distance of the lands to be acquired from the
existing reservation or tribal headquarters. Although this distance
factor is not included in either the language of the IRA or IGRA, I am
not opposed to it being ``a'' factor. However for the following
reasons, I do not think it should be the determinative factor.
First, it cannot be forgotten that many Indian tribes were removed
from their traditional territories.\11\ Furthermore, tribal economic
development was never considered during the removal era. Quite the
opposite: tribes were removed to far-away places to facilitate non-
Indian economic activities.
---------------------------------------------------------------------------
\11\ The 2005 Edition of Cohen's Handbook of Federal Indian law
noted that ``by 1850, the majority of Indian tribes had been removed
from the Eastern States. (at p. 54)
---------------------------------------------------------------------------
Second, it has to be understood that when it comes to economic
development, Indian tribes are not just acting as businesses trying to
make a quick buck. They are in the process of raising governmental
revenues because they lack the tax base on their existing
reservations.\12\ To a large degree, the U.S. Supreme Court is
responsible for this state of affairs as it has severely curtail the
tribes' power to tax non-members,\13\ while at the same time allowing
the States more and more taxing power within the reservations.\14\
---------------------------------------------------------------------------
\12\ See Matthew L.M. Fletcher, In Pursuit of economic Development
as a Substitute for Reservation Tax Revenue, 80 N.D. L. Rev. 759
(2004).
\13\ See Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001).
\14\ See Cotton Petroleum v. New Mexico, 490 U.S. 163 (1989).
---------------------------------------------------------------------------
Third, it cannot be ignored that these off reservation land
acquisitions benefit much more than just the gaming Indian tribe. In
many of these off reservation acquisitions, tribes have committed to
make significant financial contributions to the budgets of local
governments. In addition, in all of these gaming operations, most of
the casino workforce consists of non-tribal members. Furthermore, these
gaming establishments have and will continue to make very positive
contributions to the local economy.
Finally, the era when Indians were supposed to be confined to
reservations is long gone, and the idea that tribal economic
development should solely be a reservation based activity is no longer
in fashion.\15\ As a matter of fact, the latest census reveals that far
more Indians reside outside Indian reservations than within them. The
whole concept of sovereignty as being solely geographically or
territorially based has been significantly eroded and has evolved to a
more malleable concept recognizing the interrelationship between
various sovereign actors.\16\ It is this interrelationship between
tribes and the surrounding local governments and communities that is
being promoted and developed in these off reservation land
acquisitions.
---------------------------------------------------------------------------
\15\ See Alex Tallchief Skibine, Tribal Sovereign Interests Beyond
the Reservation Borders, 12 Lewis & Clark L. Rev. 1003 (2008).
\16\ See for instance, John Alan Cohan, Sovereignty in a Postmodern
World, 18 Fla. J. Int'l L. 907 (2006), Helen Stacy, Relational
Sovereignty, 55 Stan. L. Rev. 2029 (2003), Neil MacCormick, Beyond the
Sovereign State, 56 Mod. L. Rev. 1 (1993), Allan R. Stein, Frontiers of
Jurisdiction: From Isolation to Connectedness, 2001 U. Chi. Legal F.
373 (2001).
---------------------------------------------------------------------------
______
Mr. Young. Doctor, I agree with you on the Senate part.
[Laughter.]
Mr. Young. LaMalfa.
Mr. LaMalfa. Thank you, Mr. Chairman, for allowing me to
move ahead a bit to get to the Floor. I appreciate that.
You know, in the area I represent in northern California
there is, within about a 150-mile radius, there are already 7
gaming tribe sites in that area, 4 of which are especially
approximate to Colusa nearby. So, asking Ms. Longmire, we have
heard different numbers on what the impact would be of an
additional off-reservation site there. And I think the other
parties involved cite, did you say a number between 3 and 7
percent, and then your number was what, what figure upon your
operation?
Ms. Longmire. Our operation would have been affected at
least by 77 percent. Well, if the casino Enterprise would open
up, immediate decline in casino gross revenues would have been
39 percent. And 55 percent decline in gross revenues when
Enterprise casino reaches full operation capacity in 2 years.
As a result, the Colusa's EBITDA would decline by 65 percent
when the Enterprise casino opens, and by 75 percent when that
casino reaches full operational capacities 2 years later.
Mr. LaMalfa. So you hadn't counted upon this type of off-
reservation operation coming near you, obviously, when you
built your infrastructure the size the way you did. And you are
making your business plan of what would you sustain in this
area, what kind of income and traffic would you expect to your
casino, you didn't have that anticipated, there would now be a
new competition outside of this--the----
Ms. Longmire. No, we didn't.
Mr. LaMalfa [continuing]. Present rules.
Ms. Longmire. We did not. But the other casinos around us,
even though there are some to the northeast of us, which is
about 30--maybe a little over 35 miles, there is one north of
us 45 minutes away, and then there is one south of us, probably
maybe another 45 minutes----
Mr. LaMalfa. And even farther north about 80 miles or so,
too.
Ms. Longmire. Right.
Mr. LaMalfa. So--yes. But none of those went the off-
reservation route.
Ms. Longmire. No. And we have no problem with that.
Mr. LaMalfa. Yes.
Ms. Longmire. And--but this, I think our biggest worry was
that the land was actually put into trust. We thought that
would never happen, because it is not their traditional
territory. When that happened, we were really worried that we
would lose, our tribe would actually be gone. It would.
Mr. LaMalfa. OK, thank you. Mr. Chairman, I wanted to
propose that I think the representatives of BIA are not here
any more today. But maybe, if I could ask your support, and
Ranking Member, as well, to invite Mr. Washburn and BIA members
to this area of California to view firsthand the proximity and
the effects upon this.
Because, again, the 25-mile rule doesn't seem to be very
legitimate in this type of territory. This is flat geography,
pretty much. And it is nothing to think of 25 miles. And in the
process, here, you have two very disparate studies on what the
impact is going to be. And if we are wrong on this, then it is
going to be very detrimental to at least one tribe, and maybe
four or more in an approximate area.
Mr. Young. We will, I will, with you, and I hope the
Ranking--we just ask them to visit your area, as long as you
host it. My back history, I used to date a girl from Colusa
before they had casinos. And she threw me out. That is one
reason I am in Alaska.
[Laughter.]
Mr. Young. But I know the area very well. But, no, we would
be more than glad to do it.
That is what I said about this 25-mile area. I don't
understand it. I mean, again, the market can only bear so much.
And when you invest in something with the understanding that
this is not going to happen again, and then someone jumps into
an area that really doesn't have any right to it, that is why I
told Washburn this. So, hopefully he will see the wisdom of
being a little more realistic, and we will get into that later
with the doctor here, but----
Mr. LaMalfa. OK. I would appreciate working with you on a
letter on that.
Mr. Young. Yes.
Mr. LaMalfa. And, you know, even auto dealers have
territories.
Mr. Young. That is right.
Mr. LaMalfa. And that makes business sense for them.
Mr. Young. Right. So do drug dealers, but that is beside
the point.
[Laughter.]
Mr. LaMalfa. Well, we will make sure you are safe in
Colusa, if you decide to come. Thank you, Mr. Chairman.
Mr. Young. Madam.
Mr. LaMalfa. Thank you, Ranking Member.
Mr. Young. You have my permission to introduce anybody you
want to.
Ms. Hanabusa. Thank you, Mr. Chair. First of all, I would
like to do a shout-out to Mr. Sosa, who decided to stay after
seeing me. He is the 2013 Hawaii High School Principal of the
Year. He has come in all the way from Honolulu Kaiser High
School.
[Applause.]
Ms. Hanabusa. Thank you for staying. Thank you, Mr. Chair.
My questions are for you, Professor. And the reason I am so
curious is because what we are hearing so much about is a
process that is not taking into account community input and
implications of the economic implications, and so forth.
But in actuality, in your testimony, you have listed a
battery of steps that can really slow this process down,
beginning with the National Environmental Protection Act,
beginning with an Administrative Procedures Act challenge, and,
of course, recently the Patchak is the way I refer to that
Supreme Court decision, which almost makes it really just an
open field for people to go and challenge any kind of an
administrative decision that is made.
So, given these three steps, which I believe are challenges
that--one, definitely NEPA can be made prior to a decision,
when you believe it is inadequate, and if they have accepted
it, and the other two. Can you just quickly go through that
process? And, from your experience, say how that can just give
people another bite, or maybe two more bites of the apple.
Mr. Skibine. The process under the APA?
Ms. Hanabusa. Yes.
Mr. Skibine. Well, basically, anybody can challenge this,
and the courts are going to give, what we call a hard-look
review to everything that was done by the agency in order to
support its decision.
So, that means that they have to look at every factor, the
relevant factor, they have to address all the concerns. And
they have to find, in effect, what amounts to substantial
evidence in order to support their decision. And as a result,
you know, it is a very involved process and this is why Kevin
Washburn mentioned that his last decision was 53 pages. I have
read through that decision, and it is extremely thorough.
And also, in my testimony, my written testimony, I
mentioned the North Fork case. That was appealed to a district
court. And you can see in there, this is another 53-page
decision by the district court, where the judge basically went
through every one of the steps to figure out that this was not
arbitrary and capricious.
Ms. Hanabusa. And in addition to that, with the Patchak
decision by the United States Supreme Court recently, what it
does do is it gives almost anyone the opportunity to challenge
a decision of taking lands into trust, as well, correct?
Mr. Skibine. That is right. That is right.
Ms. Hanabusa. And----
Mr. Skibine. And as a matter of fact, there is a case still
pending, that may actually be your case, where the district
court issued a decision and it is in litigation.
Ms. Hanabusa. And when you say it is your case, are you
talking to Hazel?
Mr. Skibine. To Hazel Longmire. I think it is her tribe.
Ms. Hanabusa. Oh, yes.
Mr. Skibine. There is one case where, in effect, the court
mentioned the Patchak decision. It is the Cachil Dehe Band of
Wintun Indians of the Colusa Indian Community v. Salazar. It
was decided this January 3, 2013. And basically saying that,
you know, people, after Patchak, have the right to challenge
this. And then there is a statute of limitation that is 5 or 6
years.
Ms. Hanabusa. And so, that gives them the right to
challenge under the Administrative Procedures Act----
Mr. Skibine. That is right.
Ms. Hanabusa [continuing]. As well, correct?
Mr. Skibine. Yes.
Ms. Hanabusa. And have you personally experienced any
challenges under the National Environmental Protection Act for
decisions on the two-step process and whether or not the
Assistant Secretary has really looked at all the necessary
criteria under NEPA, and doing the evaluation?
Mr. Skibine. No, I have not personally experienced this.
But, you know, I teach administrative law, and I can tell you
that NEPA review in a lot of non-Indian cases is extensive,
concerning what has to be taken into consideration under the
environmental laws.
Ms. Hanabusa. But do you feel that these avenues have not
been explored as much in the context of the two-step process?
Mr. Skibine. No, I think they have been. I think they have
been by this administration.
Ms. Hanabusa. How about by people who believe they are
aggrieved by the decision?
Mr. Skibine. Well, you know, basically let me put it this
way. There has never been gaming on off-reservation land that
was not endorsed by the local community. There has been one
decision, I think in 1992, involving Siletz Tribe of Oregon,
where they made a positive two-part determination and the
Governor of Oregon quickly vetoed that.
Ms. Hanabusa. So, are you saying that the examples that we
have seen of approvals have usually come, or have come, with
the consensus of the communities, as well?
Mr. Skibine. Yes, except in this one case.
Ms. Hanabusa. Except in that one case.
Mr. Skibine. And that one case, the Governor vetoed it.
Ms. Hanabusa. And the Governor vetoed, which is his right
under the two-step----
Mr. Skibine. That is right. Now, having said that, you
know, when the local community, obviously, as we found out, may
not be unified. And so that is a standard. This is why I think
that if they decide to tweak the rules, I think we should keep
standards for the Secretary to evaluate, instead of imposing
hard and fast rules.
Ms. Hanabusa. So you are saying don't amend the statute,
but maybe look at the Secretary amending his rules.
Mr. Skibine. Well, I think that is the proper way----
Ms. Hanabusa. Or she, amending her rules now. It is a
woman.
Mr. Skibine. Yes, absolutely. And by the way, this was the
first time that I looked at the Act as being the Udall-Young-
Reagan bill. Because when it was passed, I think that Senator
Inouye thought it was mostly his bill.
[Laughter.]
Ms. Hanabusa. On that note, I yield back.
Mr. Young. Doctor, for your information, all the good work
the House--it is sort of like the Marine Corps and the Army. We
did all the work, the Marine Corps had better press corps. And
we passed the Magnuson-Stevens Act, the work was done in the
House, we passed this, and all the Senators take credit for it.
Keep that--when you become a Senator, just keep us poor people
in mind, will you?
Ms. Hanabusa. This will always be the Young bill.
Mr. Young. There you go.
[Laughter.]
Mr. Young. Mr. Todd, does anybody support this deal in your
area?
Mr. Mielke. We have one, within Spokane County, we have one
community, a small city named Airway Heights, in which the
proposed project is going to be sited, and is the only
jurisdiction to receive mitigation under the agreement. They
are on record as doing it. Other than that, I would tell you
that we have a former Governor, we have numerous legislators in
both the House and the Senate, we have U.S. Congresswoman,
Cathy McMorris Rodgers, two former secretaries, the current and
the former Secretary of State in the State of Washington, all
in opposition, as well as the city of Spokane, Spokane County,
city of Cheney, and the list goes on.
Mr. Young. Do you have a casino in your area?
Mr. Mielke. We do. We have, and I think this goes to the
point that many of the committee members made in the discussion
with panel one, we have another tribe known as the Coeur
d'Alene Tribe, that is about a half-hour drive, maybe a little
bit more, from the metropolitan area of Spokane. They have
spent millions developing a destination resort on reservation
land, and they have done a very nice job. The Spokane Tribe
that is the applicant also has two casinos, approximately a 30-
to 45-minute drive from the metropolitan area, as well.
Mr. Young. So you have three casinos?
Mr. Mielke. We have three tribal casinos on-reservation
within a 30- to 45-minute drive. And again, the Coeur d'Alene
model is one that they have reinvested every penny that they
have made back into this to make their destination resort. This
application would place an off-reservation casino near the
metropolitan area.
Now, there is one more that I want to make sure that I do
mention. We do have one other tribe that was granted an
exemption. And I earlier said that the Spokane Tribe has one of
the largest reservations in the Northwest. The one tribe that
was granted an exemption has one of the smallest reservations
in the Northwest, with less than 4,000 acres, 60 percent of it
is below the flood plain with no identified source of potable
water to support any commercial activity. That is the one
exception that was granted in our area.
So, as we begin to take a look at this, what we are looking
at is for the tribes that have invested millions on destination
resorts on their reservation, what is the impact of a half-hour
drive to a metropolitan area with close to a half-a-million
people? I think it is significant.
Mr. Young. And that goes back to the doctor, you say
``tweaking.'' Do you have any suggestions you would like to put
in writing about tweaking? Because I am always interested in
tweaking. And I happen to agree with you in regulations. I
don't agree with Dr. Washburn. I do believe if we got together,
this committee and the Secretary, we could tweak this within 90
days. I believe that could be done. Because you and I know how
regulations work. I hate them. Because at the 60 or 90 day
comment period, they are written, nobody can really object to
them, and they become law.
Now, I am going to ask you, and you don't have to answer
now, but if you have ideas that can make this thing work
better, because I happen to agree with you. I would like not to
have legislation, although I will pursue legislation, because I
do think there has been, not because of Dr. Washburn, I think
over the years there are people with very large sums of money
that see a way of taking advantage of certain tribes. And they
see how to take advantage. Three or four get a lot of money,
and nobody else gets anything. Yet they can have a detrimental
effect on an existing tribal operation. That is something I
think that we should be well aware of.
So, I am going to ask you to send me a tweak. Not a
twitter, because I don't do that stuff, you know. Give me some
ideas how you can do it.
Mr. Skibine. All right, thank you. Yes, I will.
Mr. Young. OK, good. And Hazel, in your area, the casino
they are proposing would be in Yuba County or in Colusa County?
Ms. Longmire. Yuba County.
Mr. Young. Oh, down below the--Marysville, in that area?
Now, that interferes with the Auburn casino, does it?
Ms. Longmire. Yes, it is. The territory that they are
building on actually belongs to United Auburn, which is, you
know, at Thunder Valley there.
Mr. Young. Now, United Auburn, though, has a casino of
their own, right?
Ms. Longmire. Yes, they do.
Mr. Young. And they don't support them building another
casino, do they?
Ms. Longmire. No, they don't.
Mr. Young. OK. So how did they get to this Auburn land from
a group from Oroville?
Ms. Longmire. The Enterprise casino actually is from
Oroville. Supposedly their land was sold, or it was bought way
back when, when Governor Brown, Jerry Brown's father, was in
office. And the Oroville Dam was being built. And that was
where their land was. But there were two Enterprises, I and II.
And as in some communities, you know, there is a division
of families there. So one said, ``No, you are not going to live
here,'' and the other ones, you know--but they are still all
tribal members. When Enterprise II went about on their own and
still had their land, you know, side-by-side with Enterprise I,
and have houses there, have land into trust there, and wanted
to build a casino. But they didn't want to build on their own
land.
Mr. Young. So they could build in Oroville?
Ms. Longmire. They could if they wanted to, yes.
Mr. Young. Which is about 75 miles from Colusa.
Ms. Longmire. Yes.
Mr. Young. Yes, OK. And about 75 miles from the Auburn
casino.
Ms. Longmire. Yes, sir.
Mr. Young. And that would be a better location, but it
isn't near the bigger market.
Ms. Longmire. That is right, sir.
Mr. Young. So this is all about money and--is there a tribe
from Oroville? Is it a----
Ms. Longmire. There are two other tribes that are up there,
sir, Mooretown and Feather River--Feather Falls, rather. And
there are small casinos, but they are no more than maybe a
half-hour away from each other, and they work very well, you
know, in balance with each other.
Mr. Young. So they already have a casino.
Ms. Longmire. Yes, they do.
Mr. Young. OK, all right.
Ms. Longmire. And they put their monies back into their
business and other businesses. So----
Mr. Young. OK.
Ms. Longmire. You know, just as well as we have. So, you
know, we put all our monies back into our education and our
clinic and our dialysis and, you know, our government, our
school, and our houses. That is where our money is put into.
Mr. Young. OK. Madam.
Ms. Hanabusa. Hazel, I was just reading your complaint that
was filed I think in December----
Ms. Longmire. Yes.
Ms. Hanabusa [continuing]. Of 2012. And I just wanted to
tell the professor that he is correct about the fact that your
first claim for relief is actually a NEPA violation. And it
seems to be that what you are saying is that what the Secretary
failed to do was to consider alternatives, which is, of course,
as we all know, a major criteria in looking at evaluations of--
--
Ms. Longmire. Yes.
Ms. Hanabusa [continuing]. The EIS process. And your second
claim for relief is a violation of IGRA itself.
Ms. Longmire. Yes.
Ms. Hanabusa. And you are seeking in this an injunctive
action. Can you tell me, subsequent to its filing, what has, I
think December 14 is when you filed this case. What has
happened, in terms of the procedures? I assume it is some
rejudgment or, you know, something quick that is processing
this?
Ms. Longmire. All we have been doing since then is, well,
we have been trying to meet with the Governor, with his aide,
to no avail on that, well, I would say within the past 2 years
we have been trying to meet.
And I think we finally met with--earlier this year--with
the Governor's aide. And that was after we did our own impact
study, or rather, we had Alan Meister and Clyde Barrow do an
impact study for us, which the Governor asked us to do. And we
did that. And----
Ms. Hanabusa. I assume, from what you are saying, that your
Governor has not indicated that he will veto or he will
exercise his right to say that he does not agree with this two-
part----
Ms. Longmire. We have not heard since this study. We have
not heard from him.
Ms. Hanabusa. But you realize that if he were to take that
position, this would not happen, correct? Under the two-part
test.
Ms. Longmire. We are hoping, yes.
Ms. Hanabusa. Thank you. Thank you, Mr. Chair.
Mr. Young. I want to mention, Hazel, about the Oroville
group. If my father had better foresight, I wouldn't be sitting
here, because we were sheep ranchers in the area that they are
claiming in Oroville was really the tailings of the mining that
went on in Oroville. They offered 10,000 acres for a dollar an
acre. He said, ``What do I want it for? There is nothing but
rock.'' And he was right. But little did he know they were
going to build the Oroville Dam. And they took all that rock
and built the dam.
Ms. Longmire. That is right.
Mr. Young. I would have been one rich mother. I will tell
you that right now.
[Laughter.]
Ms. Hanabusa. And you wouldn't have to move to Alaska.
Mr. Young. No, I would have moved to Alaska, anyway. I was
going to Alaska.
I want to thank the panel. And if you have any suggestions,
anything to offer to the doctor, how we can tweak this thing, I
think Dr. Washburn wants to do this. He is following the law,
he is under a lot of pressure. I am not happy with some of them
he has issued yet, but he is doing what he has to do. And I
think, if I heard him correctly, he wouldn't mind a little
tweaking himself. He says it takes 2 years. It takes about 90
days, if we set our minds to it.
And if we can't do it correctly, we will do it by
legislation, because I don't want this proliferation of casinos
because eventually, I think the States, Madam Chair, see, I am
making you chairman already, the States will say, ``Why--if the
Indians can do it, we can do it,'' and they will legalize the
whole thing, and the whole thing goes down the tube. And I just
don't want that to happen.
I want to thank the committee, I mean the witnesses. And I
appreciate you. And we will continue working with--feel free to
communicate with us. Any questions we will ask you in writing--
if we have any other questions. So, God bless you and thank
you.
Ms. Longmire. Thank you.
Mr. Young. This meeting is adjourned.
[Whereupon, at 4:45 p.m., the subcommittee was adjourned.]
[Additional Material Submitted for the Record]
Prepared Statement of the California State Association of Counties
This testimony is submitted on behalf of the California State
Association of Counties (CSAC). Founded in 1895, CSAC is the unified
voice on behalf of all 58 of California's counties. The primary purpose
of the association is to represent county government before the
California Legislature, administrative agencies, and the Federal
Government.
CSAC places a strong emphasis on educating the public about the
value and need for county programs and services. Additionally, the
association and its members are pleased to remain actively involved in
pursuing Federal laws and regulations that provide the framework for
constructive government-to-government relationships between counties
and tribes.
It must be stated at the outset that CSAC reaffirms its absolute
respect for the authority granted to federally recognized tribes. We
also reaffirm our support for the right of Indian tribes to self-
governance and recognize the need for tribes to preserve their tribal
heritage and to pursue economic self-reliance.
At the same time, CSAC believes that existing Federal laws and
regulations fail to address the off-reservation impacts of tribal land
development, including casinos, and particularly in those instances
when local land use and health and safety regulations are not being
fully observed by tribes in their commercial endeavors. As we all know,
commercial projects on reservation land can attract large volumes of
visitors and lead to myriad impacts on the surrounding community.
The intent of this testimony is to provide a perspective from
California's counties regarding the need for Congress to address what
we believe are major, long-standing deficiencies in the current land-
into-trust process as it relates to both gaming and non-gaming land
acquisitions. In our view, the current fee-to-trust process, as
authorized under the Indian Reorganization Act of 1934 (IRA) and
governed by the Department of the Interior's part 151 regulations,
lacks adequate standards and has led to unnecessary conflict and
distrust of the Federal decisionmaking system for trust lands.
the role of counties
There are two key reasons why the subject matter at hand is of
heightened importance for California counties. First, counties are
legally responsible to provide a broad scope of vital services for all
members of their communities. Second, throughout the State of
California and the Nation, tribal gaming has rapidly expanded, creating
economic, social, environmental, health, safety, and other impacts. The
facts clearly show that the mitigation and costs of such impacts
increasingly fall upon county government.
Every Californian, including all tribal members, depend upon county
government for a broad range of critical services, from public safety
and transportation, to waste management and disaster relief. California
counties are responsible for nearly 700 programs, including, but not
limited to, the following: local law enforcement, public health, fire
protection, family support, probation, jails, child and adult
protective services, roads and bridges, and flood control. Notably,
most of these services are provided to residents both outside and
inside of city limits.
Unlike the exercise of land use control, programs such as public
health, welfare, and jail services are provided--and often mandated--
regardless of whether a recipient resides within a city or in the
unincorporated area of the county. These vital public services are
delivered to California residents through their 58 counties. It is no
exaggeration to say that county government is essential to the quality
of life for over 37 million Californians. In addition, because county
governments have very little authority to independently raise taxes and
increase revenues, the ability to adequately mitigate tribal commercial
endeavors is critical, or all county services could be put at risk.
Counties have a legal responsibility to properly provide for and
protect the health, safety, and general welfare of the members of their
communities. However, California counties' efforts in this regard have
been significantly impacted by the rapid expansion of Indian gaming.
Although certain tribes and counties have reached local agreements for
the mitigation of off-reservation impacts on services that counties are
required to provide, many others have not. In the absence of local
agreements, counties must bear the full cost and burden of addressing
the off-reservation impacts associated with commercial gaming
enterprises.
Because of counties' integral role in the daily lives of it
citizens, and in consideration of the impacts to communities created by
ever-expanding tribal business ventures, counties should be viewed as
indispensible to any discussion involving the Bureau of Indian Affairs'
(BIA) land-into-trust process. To follow is a description of what CSAC
regards as the long-standing defects in the trust acquisition process,
as well as a series of recommendations for how the process should be
fixed.
the deficiencies of the current land-into-trust process
The fundamental problem with the trust acquisition process is that
Congress has not set standards under which any delegated trust land
authority would be applied by BIA. The relevant section of Federal law,
section 5 of the IRA, reads as follows. ``The Secretary of the Interior
is hereby authorized in his discretion, to acquire [by various means]
any interest in lands, water rights, or surface rights to lands, within
or without reservations . . . for the purpose of providing land to
Indians.'' 25 U.S.C. Sec. 465.
The aforementioned general and undefined congressional guidance, as
implemented by the Department of the Interior in its part 151
regulations, has resulted in a trust land process that fails to
meaningfully include legitimate interests, provide adequate
transparency to the public, or demonstrate fundamental balance in trust
land decisions. The unsatisfactory process has created significant
controversy, serious conflicts between tribes and States, counties and
local governments--including litigation costly to all parties--and
broad distrust of the fairness of the system.
One of CSAC's central concerns with the current trust acquisition
process is the severely limited role that state and local governments
play. The implications of losing jurisdiction over local lands are very
significant, including the loss of tax base, loss of planning and
zoning authority, and the loss of environmental and other regulatory
power. Yet, State, county and local governments are afforded limited,
and often late, notice of a pending trust land application, and, under
the current regulations, are asked to provide comments on two narrow
issues only: (1) potential jurisdictional conflicts; and, (2) loss of
tax revenues.
Moreover, the notice that local governments receive typically does
not include the actual fee-to-trust application and often does not
indicate how the applicant tribe intends to use the land. Further, in
some cases, tribes have proposed a trust acquisition without
identifying a use for the land; in other cases, tribes have identified
a non-intensive, mundane use, only to change the use to heavy economic
development, such as gaming or energy projects, soon after the land is
acquired in trust.
Local governments also are often forced to resort to Freedom of
Information Act (FOIA) requests to ascertain if a petition for an
Indian lands determination--a key step in the process for a parcel of
land to qualify for gaming--has been filed in their jurisdiction.
Because many tribal land acquisitions ultimately will be used for
economic development purposes--including gaming activities--there are
often significant unmitigated impacts to the surrounding community,
including environmental and economic impacts. Unfortunately, current
law does not provide any incentive for tribes and affected local
governments to enter into agreements for the mitigation of off-
reservation impacts.
While the Department of the Interior understands the increased
impacts and conflicts inherent in recent trust land decisions, it has
not crafted regulations that strike a reasonable balance between tribes
seeking new trust lands and the States and local governments
experiencing unacceptable impacts. Indeed, the current notification
process embodied in the part 151 regulations is, in practice,
insufficient and falls far short of providing local governments with
the level of detail needed to adequately respond to proposed trust land
acquisitions. Accordingly, a legislative effort is needed to meet the
fundamental interests of both tribes and local governments.
carcieri v. salazar--a historic opportunity
On February 24, 2009, the U.S. Supreme Court issued its landmark
decision on Indian trust lands in Carcieri v. Salazar. The Court held
that the Secretary of the Interior lacks authority to take land into
trust on behalf of Indian tribes that were not under the jurisdiction
of the Federal Government upon enactment of the IRA in 1934.
Because the Carcieri decision has definitively confirmed the
Secretary's lack of authority to take land into trust for post-1934
tribes, Congress has the opportunity not just to address the issue of
the Secretary's authority under the current failed fee-to-trust system,
but to reassert its primary authority for these decisions by setting
specific standards for taking land into trust that address the main
shortcomings of the trust land process.
In the wake of this significant court decision, varied proposals
for reversing the Carcieri decision have been generated, some proposing
administrative action and others favoring a congressional approach.
Today's hearing, like several hearings before it, is a recognition of
the significance of the Carcieri decision and the need to consider
legislative action.
We believe that the responsibility to address the implications of
Carcieri clearly rests with Congress and that a decision to do so in
isolation of the larger problems of the fee-to-trust system would
represent an historic missed opportunity. Indeed, a legislative
resolution that hastily returns the trust land system to its status
before Carcieri will be regarded as unsatisfactory to counties, local
governments, and the people we serve. Rather than a ``fix,'' such a
result would only perpetuate a broken system, where the non-tribal
entities most affected by the trust acquisition process are without a
meaningful role. Ultimately, this would undermine the respectful
government-to-government relationship that is necessary for both tribes
and neighboring governments to fully develop, thrive, and serve the
people dependent upon them for their well being.
Our primary recommendation to the subcommittee and to Congress is
this: Do not advance a congressional response to Carcieri that allows
the Secretary of the Interior to return to the flawed fee-to-trust
process. Rather, carefully examine, with input from tribal, State and
local governments, what reforms are necessary to ``fix'' the fee-to-
trust process and refine the definition of Indian lands under the
Indian Gaming Regulatory Act (IGRA). Concurrently, the Secretary of the
Interior should determine the impacts of the Carcieri decision,
including the specific tribes affected and the nature and urgency of
their need, so that a more focused and effective legislative remedy can
be undertaken.
The Carcieri decision presents Congress with an opportunity to
carefully exercise its constitutional authority for fee-to-trust
acquisitions and to define the respective roles of Congress and the
executive branch in trust land decisions. Additionally, it affords
Congress with the opportunity to establish clear and specific
congressional standards and processes to guide trust land decisions in
the future. A clear definition of roles is acutely needed regardless of
whether trust and recognition decisions are ultimately made by
Congress, as provided in the Constitution, or the executive branch
under a congressional grant of authority.
It should be noted that Congress has the power to not provide new
standard-less authority to the executive branch for trust land
decisions and instead retain its own authority to make these decisions
on a case-by-case basis as it has done in the past, although
decreasingly in recent years. Whether or not Congress chooses to retain
its authority or to delegate it in some way, it owes it to tribes and
to States, counties, local governments and communities, to provide
clear direction to the Secretary of the Interior to make trust land
decisions according to specific congressional standards and to
eliminate much of the conflict inherent in such decisions under present
practice.
Looking ahead, we respectfully urge members of this subcommittee to
consider both sides of the problem in any legislation seeking to
address the trust land process post-Carcieri, namely: (1) the absence
of authority to acquire trust lands, which affects post-1934 tribes,
and (2) the lack of meaningful standards and a fair and open process,
which affects States, local governments, businesses and non-tribal
communities. As Congress considers the trust land issue, it should
undertake reform that is in the interests of all affected parties.
Some of the more important new standards should be as follows:
Notice and Transparency
(1) Require Full Disclosure from the Tribes on Trust Land
Applications and Other Indian Land Decisions, and Fair Notice and
Transparency from the BIA. The part 151 regulations are not specific
and do not require sufficient information about tribal plans to use the
land proposed for trust status. As a result, it is very difficult for
affected parties (local and State governments, and the public) to
determine the nature of the tribal proposal, evaluate the impacts, and
provide meaningful comments.
BIA should be directed to require tribes to provide reasonably
detailed information to State and affected local governments, as well
as the public, about the proposed uses of the land early on, not unlike
the public information required for planning, zoning and permitting on
the local level. This assumes even greater importance since local
planning, zoning and permitting are being preempted by the trust land
decision; accordingly, information about intended uses is reasonable
and fair to require.
Legislative and regulatory changes need to be made to ensure that
affected governments receive timely notice of fee-to-trust applications
and petitions for Indian land determinations in their jurisdiction and
have adequate time to provide meaningful input. Indian lands
determinations, a critical step for a tribe to take land into trust for
gaming purposes, is conducted in secret without notice to affected
counties or any real opportunity for input. As previously indicated,
counties are often forced to file a FOIA request to even determine if
an application was filed and the basis for the petition.
Notice for trust and other land actions for tribes that go to
counties and other governments is not only very limited in coverage,
the opportunity to comment is minimal; this must change. A new paradigm
is needed where counties are considered meaningful and constructive
stakeholders in Indian land-related determinations. For too long,
counties have been excluded from providing input in critical Department
of Interior decisions and policy formation that directly affects their
communities. This remains true today as evidenced by new policies being
announced by the administration without input from local government
organizations.
The corollary is that consultation with counties and local
governments must be substantive, include all affected communities, and
provide an opportunity for public comment. Under part 151, BIA does not
invite comment by third parties even though they may experience major
negative impacts, although it will accept and review such comments. BIA
accepts comments only from the affected State and the local government
with legal jurisdiction over the land and, from those parties, only on
the narrow question of tax revenue loss, government services currently
provided to the subject parcels, and zoning conflicts. As a result,
under current BIA practice, trust acquisition requests are reviewed
under a very one-sided and incomplete record that does not provide real
consultation or an adequate representation of the consequences of the
decision. Broad notice of trust applications should be required with at
least 90 days to respond.
(2) The BIA Should Define ``Tribal Need'' and Require Specific
Information about Need from the Tribes. The BIA regulations provide
inadequate guidance as to what constitutes legitimate tribal need for a
trust land acquisition. There are no standards other than the
stipulation that the land is necessary to facilitate tribal self-
determination, economic development or Indian housing. These standards
can be met by virtually any trust land request, regardless of how
successful the tribe is or how much land it already owns. As a result,
there are numerous examples of BIA taking additional land into trust
for economically and governmentally self-sufficient tribes already
having wealth and large land bases.
Congress should consider developing standards requiring
justification of the need and purpose for acquisition of additional
trust lands so that the acquisition process does not continue to be a
``blank check'' for removing land from State and local jurisdiction/
Notably, CSAC supports a lower threshold for acquisition of trust land
that will be used only for non-gaming or non-intensive economic
purposes, including governmental uses and housing projects.
(3) Applications Should Require Specific Representations of
Intended Uses. Changes in use should not be permitted without further
reviews, including environmental impacts, and application of relevant
procedures and limitations. Such further review should have the same
notice, comment, and consultation as the initial application. The law
also should be changed to explicitly authorize restrictions and
conditions to be placed on land going into trust that further the
interests of both affected tribes and other affected governments.
(4) Tribes that Reach Local Intergovernmental Agreements to Address
Jurisdiction and Environmental Impacts Should Have a Streamlined
Process. The legal framework should encourage tribes to reach
intergovernmental agreements to address off-reservation project impacts
by reducing the threshold for demonstrating need when such agreements
are in place. Tribes, States, and counties need a process that is less
costly and more efficient. The virtually unfettered discretion
contained in the current process, due to the lack of clear standards,
almost inevitably creates conflict and burdens the system. A process
that encourages cooperation and communication provides a basis to
expedite decisions and reduce costs and frustration for all involved.
It should be noted that an approach that encourages
intergovernmental agreements between a tribe and local government
affected by fee-to-trust applications is required and working well
under recent California State gaming compacts. Not only does such an
approach offer the opportunity to streamline the application process,
it can also help to ensure the success of the tribal project within the
local community. The establishment of a trust land system that
incentivizes intergovernmental agreements between tribes and local
governments is at the heart of CSAC's fee-to-trust reform
recommendations and should be a top priority for Congress.
(5) Establish Clear Objective Standards for Agency Exercise of
Discretion in Making Fee-to-Trust Decisions. The lack of meaningful
standards or any objective criteria in fee-to-trust decisions made by
the BIA have been long criticized by the U.S. Government Accountability
Office and local governments. For example, BIA requests only minimal
information about the impacts of such acquisitions on local communities
and trust land decisions are not governed by a requirement to balance
the benefit to the tribe against the impact to the local community. As
a result, there are well-known and significant impacts of trust land
decisions on communities and States, with consequent controversy and
delay and distrust of the process.
Furthermore, the BIA has the specific mission to serve Indians and
tribes and is granted broad discretion to decide in favor of tribes. In
order to reasonably balance the interests of tribes and local
governments, the executive branch should be given clear direction from
Congress regarding considerations of need and mitigation of impacts to
approve a trust land acquisition. However any delegation of authority
is resolved, Congress must specifically direct clear and balanced
standards that ensure that trust land requests cannot be approved where
the negative impacts to other parties outweigh the benefit to the
tribe.
The attached fee-to-trust legislative reform proposal developed by
CSAC seeks to address the inequities and flaws in the current trust
land system. The centerpiece of the reform package is a proposal that
would provide an incentive for tribes and local governments to enter
into judicially enforceable mitigation agreements. Additionally, the
proposal would remedy the aforementioned defects in the fee-to-trust
process related to inadequate notification and consultation
requirements, as well as address other significant shortcomings in the
trust land system.
pending legislation
As stated above, congressional action must address the critical
repairs needed in the fee-to-trust process. Unfortunately, legislation
currently pending in the House (H.R. 279 and H.R. 666) fails to set
clear standards for taking land into trust, to properly balance the
roles and interests of tribes, State, local and Federal Governments in
these decisions, and to clearly address the apparent usurpation of
authority by the executive branch over Congress' constitutional
authority over tribal recognition.
H.R. 279, in particular, serves to expand the undelegated power of
the Department of the Interior by expanding the definition of an Indian
tribe under the IRA to any community the Secretary ``acknowledges to
exist as an Indian Tribe [emphasis added].'' In doing so, the effect of
the bill is to facilitate off-reservation activities by tribes and
perpetuate the inconsistent standards that have been used to create
tribal entities. Such a ``solution'' causes controversy and conflict
rather than an open process which, particularly in States such as
California, is needed to address the varied circumstances of local
governments and tribes.
igra
While the IRA provides the Secretary of the Interior with the
authority to take land into trust for the benefit of Indian tribes,
IGRA provides the framework for tribes to conduct gaming on trust land.
Under IGRA, casino-style gaming is authorized on lands located within
or contiguous to the boundaries of a tribe's reservation as it existed
on October 17, 1988 (the date of IGRA's enactment). Although the act
prohibits gaming on land taken into trust or restricted status for a
tribe after the aforementioned date, Congress authorized several
notable exceptions to the prohibition. Pursuant to section 20 of IGRA,
gaming is allowed under the following circumstances:
The land is part of the initial reservation of an Indian
tribe acknowledged by the Secretary under the Federal
acknowledgment process;
The restoration of land for a tribe that is restored to
Federal recognition;
If, after consultation with the Indian tribe, other nearby
tribes, and appropriate State and local officials, the
Secretary determines that a gaming establishment on newly
acquired lands would be in the best interest of the Indian
tribe and its members and would not be detrimental to the
surrounding community and the Governor concurs in the
Secretary's determination;
The land is taken into trust for a tribe as part of a land
claim settlement.
The passage of IGRA has substantially increased both tribal and
non-tribal investor interest in having lands acquired in trust so that
economic development projects, otherwise prohibited under State law,
could be built. The opportunities under IGRA were also a factor in
causing many tribal groups that were not recognized as tribes in 1934
to seek Federal recognition and trust land in the past 20 years.
Further, tribes have more aggressively sought lands that are of
substantially greater value to State and local governments, even when
distant from the tribe's existing reservation, because such locations
are far more marketable for various economic purposes. The result has
been increasing conflict between tribes and State and local
governments.
In California in 2011, 2012 and 2013 alone, there were
approximately 40 applications from tribes to take land into trust
consisting of approximately 9,450 acres of land. California's unique
cultural history and geography, and the fact that there are over 100
federally recognized tribes in the State, contributes to the fact that
no two land-into-trust applications are alike.
It should be noted that some tribes are seeking to have land
located far from their aboriginal location deemed ``restored land''
under IGRA; if successful--and if Congress were to restore the
Secretary's trust land acquisition authority for post-1934 tribes--this
would allow the land to be eligible for gaming even without the support
of the Governor or local communities, as would be otherwise required.
Restored tribes are an exception for gaming that circumvents the
intended two-part determination process that empowers a state to manage
the location and growth of gaming.
CSAC's policy with respect to gaming on restored lands is one that
reflects the importance of local government and individual tribal
government relationships and the uniqueness of each local situation.
Indeed, there are a number of examples of California counties working
cooperatively with tribes on a government-to-government basis on issues
of common concern to both parties, not just gaming-related issues.
Based on this cooperation, tribes and counties have forged mutually
beneficial agreements that address the impacts of tribal development
projects.
At the same time, there are examples of tribal governments that
have not complied with the requirements of IGRA or California's Tribal-
State Gaming Compacts. In these instances, conflict has ensued and the
county has been left to address the impacts associated with the tribe's
development.
As provided for in CSAC's fee-to-trust reform proposal, the
overriding principle supported by the association is that when tribes
are permitted to engage in gaming activities under Federal legislation,
judicially enforceable agreements between counties and tribal
governments must be required. Such agreements should fully mitigate
local impacts from a tribal government's business activities and fully
identify the governmental services to be provided by the county to that
tribe.
potential changes to the federal acknowledgment process
Earlier this year, the Department of the Interior released a
discussion draft of potential changes to the Department's part 83
process for acknowledging certain Indian groups as federally recognized
tribes. The intent of the proposed draft is for BIA to solicit comments
identifying potential changes to the Federal acknowledgment process to
improve the integrity of the Bureau's decisions to recognize particular
groups as Indian tribes.
The Federal acknowledgment process is the Department's regulatory
procedure by which petitioning groups that meet the regulatory criteria
are ``acknowledged'' as federally recognized Indian tribes with a
government-to-government relationship with the United States. Once an
Indian tribe receives formal recognition, the tribe and its members are
eligible for certain benefits, as well as subject to certain
protections. It also means that the tribe may be eligible to conduct
gaming operations under IGRA.
CSAC is interested in the topic of Federal acknowledgment because
there are potentially hundreds of Indian groups in California that may
desire recognition from the Federal Government and which may desire to
have land removed from State and local jurisdiction through the fee-to-
trust process, particularly for gaming purposes, upon or in connection
with acknowledgment. The association takes great interest in any
decisionmaking process that may lead to the removal of land from State
and local jurisdiction, for reasons previously discussed in this
testimony.
CSAC understands that the current acknowledgment process has been
criticized as expensive, burdensome, opaque, and inflexible. We
believe, however, that modifications to the current process, if any, to
address these criticisms, must not compromise the integrity of BIA's
decisions to recognize a group as an Indian tribe--a political entity
with a distinct ``government-to-government relationship with the United
States'' and that has been in continuous existence as a political
entity and social community since the time of first contact with non-
Indians.
Acknowledgement confers significant political and economic benefits
to the recognized tribe and creates a powerful government-to-government
relationship stretching into perpetuity. Because counties interact with
federally recognized tribes on important matters ranging from child
welfare to economic development to prevention of environmental and
cultural degradation, CSAC is particularly interested in the accuracy
of acknowledgement decisions. Moreover, county governments often
already have a relationship with an unrecognized tribe or group, and
can contribute directly to the Bureau's investigation.
We believe that the acknowledgment process would be greatly
improved if the Bureau were required to affirmatively seek input from
local governments concerning petitions for acknowledgments at the
earliest opportunity. Moreover, CSAC believes that acknowledgment must
be objective, based on verifiable evidence received from all interested
parties, and made according to uniformly applied and rigorous criteria.
In short, such an important decision should be made with deliberate
care.
Unfortunately, the Department's proposed draft changes would
diminish the rights of local governments to participate in the
acknowledgment process. First, while the current part 83 regulations
provide for limited and constructive participation of Informed and
Interested Parties, the draft would eliminate the opportunity of such
parties, including local governments, to appeal a final acknowledgment
determination. The ability to file an administrative appeal with the
Interior Board of Indian Appeals provides a check on improper decisions
by BIA and should be maintained as part of the process.
Additionally, CSAC has significant concerns with the following
proposed changes: the unfair page limit on interested party
submissions; the one-way requirement that interested parties must
submit their evidence and argument to petitioners, but not vice versa;
the ability for petitioners to cease active review whenever they want,
despite the cost and disruption caused to interested parties; the
elimination of the requirement for an interested party to file a notice
of intent, which serves as early notice to local governments; the
denial of technical assistance to interested parties, even though it is
provided to petitioners; and, providing petitioners, but not interested
parties, the right to submit evidence at a hearing. The aforementioned
changes are all one-sided in favor of petitioners, and they go too far.
Because of the impact that IGRA has had on acknowledgement,
restoration and reaffirmation, CSAC recommends that, in addition to
removing the problematic proposals discussed above, BIA should include
the following steps in the ``conversation of the draft discussion.''
Solicit input from and convene consultation meetings with
local governments, including counties in particular,
concerning acknowledgment petitions at the earliest
opportunity. Counties have government-to-government
relationships with tribes affecting a variety of important
interests from child welfare, to gaming, to environmental
protection and mitigation of off-reservation impacts
created by on-reservation development, including gaming in
particular. As a result, counties are uniquely positioned
to contribute important evidence to the acknowledgment
process. Additionally, counties should be consulted prior
to the Bureau authorizing re-petition by a previously
denied petitioner.
Facilitate and encourage constructive public participation
in the review process. Several consultation hearings should
be scheduled in California where there are more tribes than
any other State petitioning for Federal recognition or
seeking reaffirmation.
Additionally, since newly acknowledged tribes are a clear
and indisputable exception under section 20 of IGRA,
although a separate process, a stringent and transparent
fee-to-trust process with significant input from all
stakeholders must be considered regarding ``initial''
reservation lands. Of course, BIA acquired trust land is
not currently available to newly acknowledged tribes as a
result of the Carcieri decision, and this fact should be
acknowledged by BIA.
In sum, California counties are uniquely interested in the
acknowledgement process not only because of the sheer number of current
and potential petitions, but also due to the potential for tribal
recognition to lead to the removal of land from State and local
jurisdiction. Additionally, due to their government-to-government
relations with tribes that span a host of matters important to all
levels of government, California counties have significant interest in
which groups are granted Federal recognition status. Finally,
California counties have important information to contribute to the
acknowledgement process that should be considered when acknowledgement
decisions are made. Accordingly, the Bureau should be required to fully
engage and solicit information from counties concerning acknowledgement
petitions, or authorization for re-petitions.
conclusion
We ask members of the subcommittee and Congress as a whole to
thoughtfully consider the recommendations that we have submitted as
part of this testimony. In particular, as the subcommittee considers
options for addressing the implications of Carcieri, we urge you to
incorporate the aforementioned fee-to-trust reforms as part of any
legislative proposal that may emerge. Indeed, Congress must take the
lead in any legal repair for inequities caused by the Supreme Court's
action, but absolutely should not do so without addressing these
critically important and long-overdue reforms.
CSAC's proposals are common-sense modifications that, if enacted,
will eliminate some of the most controversial and problematic elements
of the current trust land acquisition process. The result would help
States, local governments, and non-tribal stakeholders. These reforms
also would assist trust land applicants by guiding their requests
toward a collaborative process and, in doing so, reduce the delay and
controversy that now routinely accompany acquisition requests.
We also urge Members to reject any ``one-size-fits-all'' solution
to these issues. In our view, IGRA itself has often represented such an
approach, and as a result has caused many problems throughout the
Nation where the sheer number of tribal entities and the great
disparity among them requires a thoughtful case-by-case analysis of
each tribal land acquisition decision.
Thank you for considering these views.
comprehensive fee-to-trust reform proposal
Section 5 of the Indian Reorganization Act, 25 U.S.C. Sec. 465
The Secretary of the Interior is authorized, in his discretion, to
acquire, through purchase, relinquishment, gift, exchange, or
assignment, any interest in lands, water rights, or surface rights to
lands, within or without existing reservations, including trust or
otherwise restricted allotments, whether the allottee be living or
deceased, for the purpose of providing land for Indians.
For the acquisition of such lands, interests in lands, water rights,
and surface rights, and for expenses incident to such acquisition,
there is authorized to be appropriated, out of any funds in the
Treasury not otherwise appropriated, a sum not to exceed $2,000,000 in
any one fiscal year: Provided, that no part of such funds shall be used
to acquire additional land outside of the exterior boundaries of Navajo
Indian Reservation for the Navajo Indians in Arizona, nor in New
Mexico, in the event that legislation to define the exterior boundaries
of the Navajo Indian Reservation in New Mexico, and for other purposes,
or similar legislation, becomes law.
The unexpended balances of any appropriations made pursuant to this
section shall remain available until expended.
Title to any lands or rights acquired pursuant to this act or the act
of July 28, 1955 (69 Stat. 392), as amended (25 U.S.C. 608 et seq.)
shall be taken in the name of the United States in trust for the Indian
tribe or individual Indian for which the land is acquired, and such
lands or rights shall be exempt from State and local taxation.
The Secretary may acquire land in trust pursuant to this section where
the applicant has identified a specific use of the land and:
(a) the Indian tribe or individual Indian applicant has executed
enforceable agreements with each jurisdictional local government
addressing the impacts of the proposed trust acquisition; or
(b) in the absence of the agreements identified in subsection (a):
(1) the Indian tribe or individual Indian demonstrates, and
the Secretary determines, that:
(A) the land will be used for non-economic purposes,
including for religious, cultural, tribal housing, or
governmental facilities, and the applicant lacks
sufficient trust land for that purpose; or
(B) the land will be used for economic or gaming
purposes and the applicant has not achieved economic
self-sufficiency and lacks sufficient trust land for
that purpose;
and
(2) the Secretary determines, after consulting with
appropriate State and local officials, that the acquisition
would not be detrimental to the surrounding community and that
all significant jurisdictional conflicts and impacts, including
increased costs of services, lost revenues, and environmental
impacts, have been mitigated to the extent practicable.
(c) notice and a copy of any application, partial or complete, to have
land acquired in trust shall be provided by the Secretary to the State
and affected local government units within twenty (20) days of receipt
of the application, or of any supplement to it. The Secretary shall
provide affected local governmental units at least ninety (90) days to
submit comments from receipt of notice and a copy of the complete
application to have land acquired in trust.
(d) a material change in use of existing tribal trust land that
significantly increases impacts, including gaming or gaming-related
uses, shall require approval of the Secretary under this section, and
satisfy the requirements of the National Environmental Policy Act, 42
U.S.C. Sec. 4321 et seq., and, if applicable, the Indian Gaming
Regulatory Act, 25 U.S.C. Sec. 2701 et seq.;
(1) the Secretary shall notify the State and affected local
government units within twenty (20) days of any change in use
in trust land initiated by an applicant under this subsection.
(2) as soon as practicable following any change in use in
trust land initiated prior to review and approval under this
section, the Secretary shall take steps to stop the new use,
including suit in Federal court, upon application by an
affected local government;
(3) any person may file an action under 5 U.S.C. Sec. 701 et
seq. to compel the Secretary to enjoin any change in use in
trust land initiated prior to review and approval under this
section.
(e) notwithstanding any other provisions of law, the Secretary is
authorized to include restrictions on use in the deed transferred to
the United States to hold land in trust for the benefit of the Indian
tribe or individual Indian and shall consider restricting use in cases
involving significant jurisdictional and land use conflicts upon
application of governments having jurisdiction over the land;
(f) any agreement executed pursuant to subsection (a) of this section
shall be deemed approved by the Secretary and enforceable according to
the terms of the agreement upon acquisition in trust of land by the
Secretary;
(g) the Secretary shall promulgate regulations implementing these
amendments within 365 days of enactment.
______
Prepared Statement of the Confederated Salish and Kootenai Tribes
(CSKT), Flathead Indian Reservation, Montana
introduction
On Wednesday, May 29, 2013, the Department of the Interior (DOI)
published a notice in the Federal Register proposing a rule to revise
section 151.12 of the regulations codified at 25 CFR part 151, which
govern the acquisition of land in trust for tribes and individual
Indians. The proposed rule is intended to address changes in the
applicability of the Quiet Title Act (QTA) as interpreted by the
Supreme Court in Match-E-Be-Nash She-Wish Band of Potawatomi Indians v.
Patchak, 132 S. Ct. 2199 (2012).
The CSKT support the DOI's efforts to promulgate regulations which
begin to address the uncertainty and damaging impacts created by the
Patchak decision. The CSKT believe the rules should be further revised
and strengthened
We thank the DOI for its continued work on behalf of Indian tribes
and for the opportunity to comment. We strongly encourage continued
revision of the fee-to-trust regulations for the benefit of all Indian
Nations following the completion of this rulemaking process. We urge
bold regulatory changes and streamlining of the fee-to-trust process
for (1) on-reservation acquisitions and (2) off-reservation
acquisitions. We also urge an examination of the contributing factors
that have resulted in a fee-to-trust backlog in front of the Interior
Board of Indian Appeals (IBIA).
background
The Department's regulations at 25 CFR part 151 implement the
Secretary's authority to acquire land in trust for tribes and
individual Indians found in 25 U.S.C. Sec. 465 (the Indian
Reorganization Act), as well as in other land acquisition statutes.
In 1996, the Department revised its part 151 regulations to include
section 151.12(b), which created a 30-day waiting period following
publication in the Federal Register or newspaper of general circulation
of a final agency trust acquisition determination, before the
Department would actually acquire trust title to the land. The 30-day
waiting period was added in response to court rulings holding that the
Quiet Title Act (QTA) barred judicial review of the Department's trust
acquisition decisions once title was acquired by the Secretary.
On June 18, 2012, the Supreme Court issued its decision in Match-E-
Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak, 132 S.Ct. 2199
(2012).
The Patchak decision holds that the QTA does not bar challenges to
trust acquisition decisions under the Administrative Procedure Act
(APA) after the United States has acquired trust title to the property,
unless the plaintiff asserts an ownership interest in the property.
Given this change in the law, the 30-day waiting period in section
151.12(b) is no longer necessary, since persons wishing to challenge
trust acquisitions may do so at any time within a 6-year statute of
limitations provided in the APA.
The Department's proposed rule removes the 30-day waiting period
and revises section 151.12 to clarify the Departmental process for
trust acquisitions, is primarily based on whether the decision is
issued by the Assistant Secretary--Indian Affairs (AS-IA) (a final
agency determination) or by a Bureau of Indian Affairs (BIA) official
in which case the decision is not a final agency action and is subject
to administrative appeal.
The rule also provides additional notice requirements for decisions
issued by BIA officials, in an effort to ensure that all interested
parties, known and unknown, are notified of the decision and their
administrative appeal rights.
CSKT Comments on the Proposed Regulations
The Patchak decision changed the law applicable to land acquired in
trust for Tribes and individual Indians. In response, the Department's
proposed rule published on May 29, 2013, was to clarify when a 30-day
waiting period was applicable, rather than to clarify and redefine what
a mandatory trust acquisition is and what decisions are subject to
appeal.
In our opinion, the BIA should be developing regulations that make
all on-reservation fee- to-trust decisions a mandatory trust
acquisition.
In addition to making the 30-day waiting period in section
151.12(b) unnecessary, the Patchak decision introduced a huge amount of
uncertainty into the fee-to-trust process, subjecting tribes and
individual Indians to the threat of potential litigation for 6 years
from the time of the trust acquisition.
The uncertainty created by the Patchak decision is causing
uncertainty for tribes' ability to develop land that they have acquired
in trust. How can you obtain financing for a project on newly converted
trust property if a potential appeal on the trust action can occur 6
years down the road? If local lenders were aware of this potential
occurrence, tribes and individuals would likely never receive mortgage
or financing assistance on newly converted trust property.
For the CSKT, each acquired fee parcel put in trust costs the
tribal government an average of $5,000 per parcel of (non-Federal)
tribal dollars. Since 2009, the CSKT have put an estimated 174 parcels
into Trust status. Fee to trust actions have been tracked and reported
annually by the DOI since 2009. Twenty seven States are engaged in fee-
to-trust work, and the CSKT lead the Nation in the number of fee-to-
trust transactions completed.
For the CSKT, 172 approved fee-to-trust actions have been on-
reservation acquisitions. Two fee-to-trust acquisitions have been
``off-reservation'' trust acquisitions, for a total of 174 fee to trust
acquisitions.
In addition to the 174 approved acquisitions, since 2009, the CSKT
have worked to afford protection to longstanding historic religious and
cultural sites of great importance to the Salish and Kootenai people
(the Medicine Tree and Kootenai Falls sites). Those two off reservation
applications have been appealed to the IBIA in the last 120 days.
Ninety-eight percent of all fee-to-trust decisions are made at the
local level and the majority of all fee-to-trust acquisitions are not
for gaming purposes. Ninety nine percent of all fee-to-trust actions
are non-gaming related according to a DOI fee-to-trust report issued on
August 29, 2013. However the controversy surrounding off-reservation
acquisitions for gaming so dominates this issue that rulemaking in this
area is such that the tail is clearly wagging the dog.
Most fee-to-trust acquisitions are for agricultural,
infrastructure, housing and economic development reasons. Therefore,
while clarifying notice provisions, the DOI should modify the proposed
regulatory change further and clarify that on-reservation fee-to-trust
decisions will be treated as mandatory trust acquisitions (effective
upon decision).
Gaming-related fee-to-trust acquisitions take longer than any other
acquisitions, typically require extensive NEPA compliance, and in many
cases are subject to political review as the Governor of the State must
concur with the decision. This process theoretically subjects tribes'
economic efforts to the review and concurrence by a State official even
when the proposed gaming facility is in the middle of the reservation
on land that in all likelihood was illegally converted from trust-to-
fee to start with.
It is time for the DOI to take a firm stand in support of tribes'
authority to put land into trust within the reservation boundaries.
The best way to address the problems created by the Patchak
decision would be for Congress to pass Patchak-fix legislation. For
this reason, in addition to promulgating this limited administrative
fix, the Department must continue to push for and strongly support a
legislative fix to address the majority of the problems created by the
Patchak decision.
With respect to trust acquisition decisions made by BIA officials
(e.g., Regional Directors, Superintendents, or the BIA Director), which
are not final for the Department, the proposed rule makes clear that
the requirement for exhaustion of administrative remedies is applicable
only to these decisions. Why not treat all on-reservation fee-to-trust
acquisitions as mandatory trust acquisitions?
The CSKT maintain that the DOI should recommend regulatory changes
that make sense and which are cost effective. Why subject the majority
of BIA fee-to-trust decisions to an exhaustive, expensive
administrative review and possible appeal? This does not make sense for
various reasons including the stated goal of the DOI to reduce the
backlog of fee to trust land applications.
In addition, the proposed rule adds a requirement that the BIA must
provide actual notice (by mail or personal delivery) of the BIA
official's decision to take the land in trust and the right to file an
administrative appeal under 25 CFR part 2 to all known interested
parties (parties who have made themselves known, in writing, to the
deciding official) and to State and local governments with jurisdiction
over the land. Proposed section 151.12(d)(2)(ii).
The CSKT believe that any appeal filed must include (1) a mandatory
appeal bond; and (2) the appellant must be a person whose own direct
economic interest is adversely affected by the action and or decision.
It is time for the BIA and IBIA to support an expedited process that
eliminates frivolous appeals.
The CSKT urge the Department to place a time limit on the IBIA
review. For example, if after 150 days the IBIA fails to make a
decision, then the Assistant Secretary will take the recommendation of
the Regional BIA Director and make the decision final. Some tribes have
waited years for an IBIA review and decision. These indefinite appeals
cost time and money and prevent the tribes from exercising authority
over tribal-owned land.
While a process already exists in 25 CFR part 2 that allows the
Assistant Secretary to pull an appeal from the IBIA and issue a
decision that is final for the Department, see 25 CFR Sec. 2.20, there
are some significant limitations to this process.
Revise this portion of the regulations to mandate that the
Assistant Secretary takes jurisdiction over the matter, and makes a
decision. If the Assistant Secretary issues the decision, it is final
for the Department. Perhaps all non-gaming fee-to-trust decisions
should be exempt from IBIA review.
The Department should consider generally revising the regulations
to bring them up to date, because many of the provisions are outdated.
We urge the Department to revise outdated regulations so that it can
more efficiently and effectively handle all pending fee-to-trust
applications and thereby reduce the existing backlog.
A summary of our recommendations in table form is as follows:
----------------------------------------------------------------------------------------------------------------
25 CFR Section 151.10 25 CFR Section 151.11 25 CFR Section 151.12 IBIA Issues
----------------------------------------------------------------------------------------------------------------
Description: On-reservation fee-to- Off-reservation fee-to- Clarifies Dept.
trust acquisitions. trust acquisitions. process and a 30 day
waiting period.
----------------------------------------------------------------------------------------------------------------
CSKT Recommend: Redefine and treat all Should be treated as The Tribes believe Place a time limit on
on-reservation discretionary that any appeal IBIA review and
acquisitions as acquisitions but filed must include decision--i.e. 150
mandatory expand definitions to (1) a mandatory days.
acquisitions with no include acquisitions appeal bond and the Adequately fund and
appeal. for cultural and (2) appellant must staff the office.
historic reasons that be a person whose Establish a goal to
are within the Tribes own direct economic eliminate the
aboriginal area. interest is backlog of pending
Concentrate on Tribal adversely affected fee-to-trust
reasons and benefits by the action and/or decisions.
rather than perceived decision.
State and local
government impact.
----------------------------------------------------------------------------------------------------------------
In summary, much work remains to be done on the DOI BIA regulations
governing fee-to-trust acquisitions. The process should place the
concerns of the Indian community at a higher level than the concerns of
the non-Indian public. Look at our situation as but one example. Our
aboriginal lands constituted over 20 million acres of western Montana.
When we signed our Treaty in 1855 we reserved just over 1.3 million
acres for our exclusive use. Less than 50 years later the Allotment
Acts were passed and so much land was taken from us--in direct
violation of the language of our Treaty--that we became the minority
land holder on our own Reservation. By purchasing back reservation
lands whenever they came up for sale over the course of the last half-
century a majority of the lands on our Reservation are in now in trust.
The DOI should facilitate this process, not make it overly burdensome.
Please revise the regulations to distinguish between on and off-
reservation trust acquisitions.
Every Federal process has a timeframe for action. Bring the IBIA to
the reality of today, impose deadlines and adequately fund and staff
the function. Tribes should not have to wait for years for decisions
regarding property they purchase and own--trust landowners deserve
better.
We urge you to amend the proposed rule to make all on-reservation
acquisitions mandatory decisions. Retain discretion for off-reservation
acquisitions but add cultural resources for the potential reasons that
a tribe may acquire off-reservation lands within their aboriginal area.
______
Letter Submitted for the Record by William Iyall, Chairman
Cowlitz Indian Tribe,
Longview, WA 98632-8594,
October 3, 2013.
Hon. Don Young, Chairman,
House Subcommittee on Indian and Alaska Native Affairs,
1324 Longworth House Office Building,
Washington, DC 20515
Hon. Colleen Hanabusa, Ranking Member,
House Subcommittee on Indian and Alaska Native Affairs,
1324 Longworth House Office Building,
Washington, DC 20515
Re: Cowlitz Indian Tribe Comments for Subcommittee Oversight Hearing on
Executive Branch Standards for Land-in-Trust Decisions for
Gaming Purposes
Dear Chairman Young & Ranking Member Hanabusa:
On behalf of the Cowlitz Indian Tribe (``Cowlitz Tribe'' or
``Tribe''), I submit these comments on your subcommittee's September
19, 2013 oversight hearing on off-reservation acquisitions of land into
trust for gaming. The Cowlitz Tribe respectfully requests that these
comments be included in the record of the hearing.
During the hearing, there was discussion regarding whether section
20 of the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. Sec. 2719, and
implementing regulations in 25 CFR part 292 should be amended to curb
what some characterized as the unchecked proliferation of off-
reservation Indian casinos. The Cowlitz Tribe stands with the vast
majority of Indian tribes in opposing any amendment to section 20 of
IGRA, and agrees with the Obama administration that it is unnecessary
to revisit the part 292 regulations promulgated in 2008. The reasons
are simple: the unchecked proliferation of off-reservation Indian
gaming is a myth, and the Obama administration, as well as the Bush
administration that preceded it, already has made it exceedingly
difficult for Indian tribes to acquire off-reservation land in trust
for gaming through policy implementation and through the criteria laid
out in the part 292 regulations.
The September 19 oversight hearing focused on a specific exception
to the prohibition on gaming on lands acquired in trust after October
17, 1988: the so-called ``two-part determination'' exception contained
in section 20(b)(1)(A) of IGRA, 25 U.S.C. Sec. 2719(b)(1)(A). But we
believe that any proposed legislation to amend section 20 of IGRA is
unlikely to be limited only to that exception, and instead may seek to
make unnecessary changes to some of the other section 20 exceptions, in
particular the remedial exceptions for restored lands and initial
reservation. As we explain below, there are important policy reasons
underlying these remedial exceptions to the prohibition on gaming in
section 20 of IGRA which counsel against their further restriction or
amendment.
IGRA was enacted in 1988 ``to provide a statutory basis for the
operation of gaming by Indian tribes as a means of promoting tribal
economic development, self-sufficiency, and strong tribal
governments.'' The problem was that not all tribes held tribal lands in
1988 and, in fact, not all tribes even enjoyed Federal recognition in
1988. For that reason, Congress included the restored lands and initial
reservation exceptions in section 20, to assist such disadvantaged
tribes by providing that, when they finally obtained recognition and
land, their land would be treated as if it effectively had been in
trust since before October 17, 1988. In other words, Congress provided
a mechanism by which newly recognized or restored tribes would be on a
more level playing field with the tribes that were fortunate enough to
have been recognized and have a land base on the date of IGRA's
enactment. Congress knew that preventing newly recognized and restored
tribes from accessing the economic development opportunities made
available by IGRA would do an incredible injustice to those tribes.
Similarly, IGRA allows a tribe which receives replacement lands as part
of a land claim settlement to use the replacement lands for gaming in
order to ensure that the settlement land has the same gaming
eligibility status as the lost pre-1988 land it is replacing.
The purpose and intent of IGRA's restored lands and initial
reservation provisions are informed by the opinions of the Federal
courts that have considered these exceptions. In 2003, in a case
involving a California tribe, the D.C. Circuit (in an opinion joined in
by now Chief Justice Roberts) explained that the restored lands and
initial reservation exceptions ``serve purposes of their own, ensuring
that tribes lacking reservations when IGRA was enacted are not
disadvantaged relative to more established ones.'' City of Roseville v.
Norton, 348 F.3d 1020, 1030 (D.C. Cir. 2003). In 2002, in an opinion
involving a Michigan tribe that was later affirmed by the Sixth
Circuit, the District Court said nearly the same thing, saying that the
term ``restoration may be read in numerous ways to place belatedly
restored tribes in a comparable position to earlier recognized tribes
while simultaneously limiting after-acquired property in some
fashion.'' Grand Traverse Band of Ottawa and Chippewa Indians v. U.S.
Attorney for the Western District of Michigan, 198 F. Supp. 2d, 920,
935 (W.D. Mich. 2002), aff'd 369 F.3d 960 (6th Cir. 2004) (referring to
the factual circumstances, location, and temporal connection
requirements that courts have imposed). The restored lands provision
``compensates the Tribe not only for what it lost by the act of
termination, but also for opportunities lost in the interim.'' City of
Roseville, at 1029.
From a public policy standpoint, the need for special assistance
for newly acknowledged and restored tribes is clear. Newly recognized
and restored tribes have had to function without a land base and/or
without formal Federal recognition for very long periods of time.
Almost by definition, these tribes--tribes like the Cowlitz Tribe--have
been more disadvantaged and have suffered greater hardships than those
which have had trust lands and access to Federal assistance for many
years. The remedial exceptions in IGRA section 20 address these
disadvantages.
Nevertheless, the remedial exceptions have not been frequently used
over the history of IGRA, and the Bush administration adopted
implementing regulations in 2008 (25 CFR part 292) that impose even
further restrictions on the application of these exceptions. For
example, satisfying the regulatory requirements for the initial
reservation exception in 25 CFR Sec. 292.6 is a rigorous task that
requires thousands of pages of documentation. To qualify for this
exception, a tribe must meet the following criteria: (i) it must be
federally recognized through the Bureau of Indian Affairs' (BIA)
administrative acknowledgment process; (ii) it cannot have a gaming
facility on newly acquired lands under the restored land exception in
IGRA section 20; (iii) its land must be taken into trust and proclaimed
a reservation and must be the first proclaimed reservation following
acknowledgment; (iv) if the tribe does not already have a proclaimed
reservation, the tribe must demonstrate the land is located within the
State where the tribe is now located, as evidenced by the tribe's
governmental presence and tribal population, and within an area where
the tribe has significant historical connections and one or more of the
following modern connections to the land: (1) the land is near where a
significant number of tribal members reside; or (2) the land is within
a 25-mile radius of the tribe's headquarters or other tribal
governmental facilities that have existed at that location for at least
2 years at the time of the application to have the land taken into
trust.
The Cowlitz Tribe is intimately familiar with these rigorous
requirements. The Tribe was federally acknowledged on January 4, 2002
through the BIA administrative acknowledgment process. The Tribe
emerged from the acknowledgment process with no reservation land base
but the Tribe immediately submitted a fee-to-trust application for
approximately 152 acres of land in Clark County, Washington. The Tribe
has fought for the last 11 years to obtain these reservation lands and
engage in economic development on them. In 2010 and again in 2013, the
Department of the Interior determined that the land should be acquired
in trust and that it satisfied the ``initial reservation'' exception
found in section 20 of IGRA. 25 U.S.C. Sec. 2719(b)(1)(B)(ii).
Unfortunately, litigation to overturn the Department's decision has
further postponed the Cowlitz Tribe's efforts to achieve tribal self-
determination and economic development for its members. Given the
Cowlitz Tribe's experience, the notion that there is unchecked
proliferation of off-reservation Indian gaming, or that there is a need
to make more stringent the criteria for newly recognized tribes to
acquire land in trust for gaming, simply bears no relation to reality.
For the foregoing reasons, the Cowlitz Tribe urges the subcommittee
to refrain from introducing legislation to amend section 20 of IGRA or
to insist on even more onerous regulatory requirements for trust land
acquisitions for gaming--these are likely to make it all but impossible
for disadvantaged tribes to ever reach a level playing field with
tribes lucky enough to have functional land bases when IGRA was
enacted. On behalf of the Cowlitz Tribe, I thank you for the
opportunity to share our views with the subcommittee on this important
matter.
Sincerely,
William Iyall, Chairman,
Cowlitz Indian Tribe.
______
Prepared Statement of Dragonslayer, Inc. and Michels Development, LLC
Dragonslayer, Inc. and Michels Development, LLC (together, the
Cardrooms) hereby submit this testimony for inclusion in the record of
the September 19, 2013 House Committee on Natural Resources Hearing on
``Executive Branch standards for land-in-trust decisions for gaming
purposes.''
The Cardrooms submit this testimony regarding concerns over the
objectivity and sufficiency of compliance with the National
Environmental Policy Act (NEPA) review conducted by the Bureau of
Indian Affairs through its consultant, Analytical Environmental
Services (AES). The Cardrooms have first-hand experience on this issue
through the NEPA process for the Cowlitz Tribe's trust land acquisition
for a casino and our review and understanding of NEPA documents for
other tribal trust land acquisitions. This problem has been very
evident in the effort of the Cowlitz Tribe to acquire land in trust and
obtain an initial reservation for a 152-acre parcel adjacent to I-5
near La Center, Washington where we maintain our businesses. The
proposed casino is opposed not only by us, but also by Clark County,
Washington, the city of Vancouver, Washington, local citizen groups,
landowners, and other tribes. The land at issue was owned at the time
of the initial request in 2002 by a powerful tribal member who would
benefit from the development of the site by his tribe. He is now in a
business relationship with two other Indian tribes, one from
Connecticut and one from California, to develop the casino once the
land is placed in trust. The Cardrooms are currently in litigation
against that development, along with the parties noted above. The
litigation raises many issues that go to the heart of Federal Indian
policy under the Indian Gaming Regulatory Act (IGRA), including the
question about whether a post-1934 tribe like the Cowlitz qualifies for
trust land under Carcieri Supreme Court decision, Carcieri v. Salazar,
555 U.S. 379 (2009).
One of the legal issues in our litigation concerns the objectivity
and sufficiency of the environmental impact statement (EIS) prepared
for the Bureau of Indian Affairs (BIA) by AES. After litigating BIA's
failure to release documents held by AES in its role as the NEPA
contractor for BIA, we obtained records via a Freedom of Information
Act request that reveal that the Cowlitz Tribe exercised virtually day-
to-day control over the EIS. BIA played virtually no role. We raised
this concern in a letter to BIA on December 17, 2010, included as
Exhibit 1 to this testimony. BIA looked the other way despite the
problem of improper influence raised in our letter. This experience
raises strong concerns over BIA's failure to oversee NEPA compliance
and the ability of tribes to have a strong and improper role in
deciding the contents of an EIS. This is very evident in the Cowlitz
decision, where the EIS failed to consider alternative sites within the
Tribe's historic land base north of the La Center, Washington site that
is owned by the gaming financial backers.
We have identified another common problem with gaming EISs--in this
case those prepared by AES for various tribes--of avoiding any true
consideration of alternatives beyond the site preferred by the tribe.
For example, in the Cowlitz FEIS, AES considered the Tribe's preferred
site, one offsite alternative located near a school and hospital, and
rejected 11 offsite alternatives, including those within the Tribe's
own land base area as determined by the Indian Claims Commission where
it maintains housing and government facilities.
Other EISs prepared by AES for BIA reveal the same pattern of
constraining the decisionmaker by limiting alternatives. In fact,
several recent EISs prepared by this consultant show the same pattern
used for the Cowlitz proposal--the Tribe's preferred site and plan is
used as the proposed action, with alternative scenarios for development
of that site, no or only one ``strawman'' offsite alternative, which
typically is undesirable for clear reasons, and other promising offsite
alternatives ``eliminated from further consideration'' based on a
cursory description. See, e.g., Enterprise Rancheria FEIS (considers
only the Tribe's preferred location, and one alternative that cannot be
developed, three other reasonable sites rejected); Graton Rancheria
FEIS February 2009 (Tribe's preferred site, one offsite alternative, 12
offsite alternatives eliminated); Ione Band FEIS February 2009 (Tribe's
preferred site, no offsite alternatives, one offsite alternative
eliminated), Spokane Tribe FEIS 2012 (only three alternatives
considered for development at the preferred locations, five offsite
alternatives all on land already owned by the Tribe rejected from
further consideration). As these examples illustrate, NEPA review for
Indian casinos, at least as prepared by AES, appear to follow a pattern
of leaving BIA with no choice other than to select the Tribe's
preferred location. Coupled with BIA's lack of supervision and the
extensive and improper role granted to tribes to decide the content of
EISs, BIA's trust land process for casinos is seriously flawed.
We believe that the solution to many disputes over IGRA casinos
lies in selecting alternative sites that have consensus support. An EIS
should facilitate the identification of such alternatives, not rule
them out for the goal of supporting the tribes' or a casino backer's
preferred result. BIA should ensure that its EIS documents meet this
NEPA requirement, and not simply allow consultants paid by casino
proponents to make such decisions after extensive communication by the
very parties who benefit financially from selection of the proposed
location. It is time for serious reform of NEPA compliance for gaming-
related trust land requests.
We respectfully request that this committee investigate BIA's NEPA
compliance for casino development projects. Thank you for considering
our point-of-view.
______
Letter Submitted for the Record by Glenda Nelson, Tribal Chair
Enterprise Rancheria
Estom Yumeka Maidu Tribe,
Oroville, CA 95966,
October 2, 2013.
Subcommittee on Indian and Alaska Native Affairs
Re: Oversight Hearing on ``Executive Branch standards for Land-in-Trust
Decisions for Gaming Purposes'' September 19, 2013 at 2:00 p.m.
Dear Chairman Young, Ranking Member Hanabusa, and Members of the
Subcommittee:
My name is Glenda Nelson, and I write on behalf of our 900 tribal
citizens as Chairwoman of the Estom Yumeka Maidu Tribe of the
Enterprise Rancheria (``Enterprise'' or ``Tribe''). In September 2011,
Assistant Secretary-Indian Affairs Larry Echo Hawk issued a favorable
two-part determination for 40 acres of land that we had requested to be
taken in trust for gaming purposes in Yuba County, California. In
August 2012, California Governor Brown concurred in the two-part
determination. Shortly after the Department of the Interior (``DOI'')
issued its final decision to take the land in trust in November 2012,
the Cachil Dehe Band of Wintun Indians of the Colusa Indian Community
(``Colusa'') challenged the Secretary's decision in Federal court. The
Federal judge assigned to the case subsequently denied the request for
a temporary restraining order, and the 40 acres were placed in trust
for the Tribe in May 2013.
Colusa recently provided the subcommittee with oral and written
testimony expressing its concerns with DOI's implementation of the
Secretarial two-part determination process. We feel a response to the
testimony is necessary to address several of the unsupported and false
claims made by Colusa, to provide a better understanding of the unique
circumstances that led to DOI's decision, and to explain why we believe
the process is working as intended.
DOI's decision to take land in trust for our Tribe followed an
exhaustive and comprehensive process that lasted over a decade. That
process allowed project opponents--including Colusa and a few other
tribes that object to our project for competitive reasons--multiple
opportunities to weigh in and voice their concerns. Colusa, however,
failed to take advantage of the opportunities to comment, did not
respond to the BIA's request to submit comments, and remained largely
silent throughout the DOI's administrative process that led to the
decision which Colusa now so vehemently opposes. For instance, we
cannot identify a single comment made by Colusa on the draft or final
environmental impact statement (``EIS'') even though Colusa now claims
that the socio-economic analysis was deficient and that the widely
respected environmental contractor used by the Bureau of Indian Affairs
(``BIA'') to assist in the EIS preparation, which Colusa and dozens of
tribes have also relied upon for their expertise, was somehow biased.
Obviously, DOI cannot be expected to address alleged deficiencies in
the EIS analysis without comments, particularly given that Colusa
controls the proprietary information required to determine whether the
competitive impacts analysis in the EIS could have been improved.
Similarly, while Colusa's testimony suggests that it was excluded
from the two-part consultation process by regulations that do not
define a ``nearby tribe'' broadly enough, the facts show otherwise.
Colusa never responded to the attached letter from the BIA in July 2009
providing Colusa information related to our trust application and two-
part request and inviting Colusa to ``submit comments and/or documents
that establish that your governmental functions, infrastructure or
services will be directly, immediately and significantly impacted by
the proposed gaming establishment.'' Colusa never provided the DOI with
the economic impacts analysis that Colusa cites in its testimony. That
is not surprising: the analysis was prepared in 2013, well after DOI
had made its two-part determination in September 2011. Nor is there any
indication in Colusa's testimony that Colusa commented on the proposed
25-mile designation for ``nearby tribes'' during any of the extensive
tribal consultations or comment periods offered over several years as
part of the rulemaking for the 25 CFR part 292 regulations issued in
2008 (even though our project was publicly announced in 2002). Instead,
Colusa ignored the extensive consultation that occurred to develop the
regulation and simply cites to the 50-mile radius set forth in the
DOI's guidelines issued in 2000, without consultation, and then asks
the subcommittee to compare that with the 25-mile radius established in
rulemaking by the Bush administration after multiple consultations with
tribes. Regardless, the fact of the matter is that Colusa, despite any
distance radius, was invited by the BIA to submit comments on our
project and it declined to do so.
Colusa's testimony is replete with judgments about what Enterprise
should or should not have done to engage in gaming. The testimony is
particularly hurtful given that our Tribe reached out several times to
Colusa very early on in this process to discuss these issues on a
government-to-government basis, but Colusa declined to meet with our
Tribal Council. Colusa's testimony is also disappointing because
Enterprise has long enjoyed good relations with Colusa, is impressed by
Colusa's efforts to use gaming as a means to first jumpstart and then
diversify its tribal economy, and respects the sovereign rights of each
and every tribe. We simply want the opportunity to exercise the same
rights that Colusa has enjoyed for the past 30 years. We consider it
our responsibility to promote self-sufficiency for the current and next
generation of our tribal citizens by properly exercising our rights
under Federal law.
Like other California tribes, Enterprise was rendered landless in
the 1850s after the Senate failed to ratify the 1851 treaties and
enacted legislation requiring the settlement of all land claims within
2 years. In an effort to remedy the circumstances of the surviving
bands of homeless Indians, in 1915 and 1916 Federal agents purchased
two 40-acre rancherias for our Tribe with funds appropriated by
Congress. The rancherias were located near the town of Enterprise in
the foothills above Oroville in Butte County, California. In 1964,
Congress authorized the sale of one of the two rancherias to the State
of California for construction of the Oroville Dam. That rancheria now
lies under the waters of Lake Oroville. While the other 40-acre
rancheria escaped a similar fate, it is simply too remote, steep,
culturally sensitive, and difficult to access to serve as anything more
than the site for a few residences. Representatives of DOI and the
Governor's Office who visited the rancheria prior to their respective
decisions have concluded as much.
Certainly if Enterprise had been blessed with a viable land base to
establish even a modest gaming facility, we would not have spent the
last decade seeking to acquire new trust land and qualifying it for
gaming under section 20 of IGRA. Because my father refused the
overtures by Federal agents to terminate our land and rights as
Indians, our Tribe was never terminated. Consequently, Enterprise could
not rely upon the more streamlined, less scrutinized restored lands
exception that three neighboring tribes have used to qualify their new
trust lands--located 11, 15, and 25 miles respectively from those
tribes' former rancherias--for gaming. Instead, our only option was to
acquire land and have it taken in trust and deemed eligible for gaming
under the seldom-used and more stringent two-part process fraught with
the practical and political uncertainties of a discretionary
Secretarial determination, a lengthy environmental review, and a
Governor's concurrence.
Fortunately, in 2002, we were able to identify an appropriate site
for development of a gaming facility. Contrary to Colusa's claims, the
40-acre site is located within our historical area in the Feather River
drainage basin, about 32-miles from our tribal offices, and about 5
miles from the Tribal health clinic that we operate-with two other
Maidu tribes in Yuba City. As you know, Colusa testified and
acknowledged that our project site, is not located in Colusa's
ancestral lands. Further, the site is ideally suited for the
development of a gaming facility in that it is located near an 18,000-
seat amphitheater in an area zoned by Yuba County voters for sports and
entertainment.
We were also fortunate to find a developer willing to risk his own
capital to fund this 10 plus year effort. Although Colusa argues that
the developer will be the primary beneficiary of our gaming facility,
this is expressly prohibited under IGRA. We fully are aware that in the
first few years of operation, the most tangible benefit for our tribal
members will be the creation of jobs and training opportunities. Over
time, however, we expect that the facility will generate sufficient
revenues to allow us to greatly expand our tribal governmental programs
and services. In addition, our gaming facility will provide significant
benefits to one of the most economically disadvantaged regions in the
Nation. [n addition to providing jobs and economic activity, we have
entered into various agreements to mitigate project impacts on the
local community. Fortunately, our tribal-State compact commits a
portion of our gaming revenues for payment of those local agreements,
with the remainder going for payments to non-gaming and limited-gaming
tribes throughout California.
We are extremely proud of being only the third tribe in California
and only the sixth or seventh in the Nation to have a project approved
under the section 20 two-part process. While Colusa argues that our
two-part determination will result in a flood of requests by other
poorly situated tribes in California or by gaming tribes simply seeking
a better location, the evidence strongly suggests otherwise. Most of
the decisions made by DOI over the past few years have been made on
requests submitted a decade ago when developers were willing to invest
in tribal gaming projects, and DOI has denied as many projects as it
has approved. Further, issuance of the section 20 regulations under 25
CFR part 292 and DOI policy guidance has resulted in not only more, but
clearer and more stringent standards, particularly in respect to
distance and historical ties. Few non-gaming tribes in California can
identify an economically viable location and still satisfy these
standards. For these and other reasons, no tribe in California has
submitted a two-part request for a number of years. The process simply
takes too long, is too expensive, and is too fraught with political
uncertainty to attract the investment necessary to pursue the process.
Thank you for your consideration.
Sincerely,
Glenda Nelson,
Tribal Chair.
United States Department of the Interior
BUREAU OF INDIAN AFFAIRS
Pacific Regional Office
2800 Cottage Way
Sacramento, California 995825
Wayne R. Mitchum, Sr., Chairman,
Colusa Indian Community Council,
Cachil Dehe Band of Wintu Indians,
3730 Highway 45,
Colusa, California 95932.
Dear Mr. Mitchum:
We are in receipt of your letter dated June 23, 2009 regarding the
Enterprise Rancheria's request to have 40.00 acres of real property in
Yuba County accepted into trust.
In your letter, you stated your opposition to the Enterprise
Rancheria gaming application in Yuba County and would like to be
consulted with as a nearby tribe. You also requested a copy of the fee-
to-trust application and the two-part determination application for the
Enterprise Rancheria. Enclosed is a CD with the scanned copy of the
fee-to-trust application, the two-part determination request and
supplemental documents.
Although pursuant to 25 CFR part 292, you do not qualify as a
nearby tribe for purposes of consultation under this part, you may
submit comments and/or documents that establish that your governmental
functions, infrastructure or services will be directly, immediately and
significantly impacted by the proposed gaming establishment.
For further assistance on this project, please contact Arvada
Wolfin.
Sincerely,
Amy L. Dutschke
Acting Regional Director.
______
Letter Submitted for the Record by Keith Bosman, Mayor
City of Kenosha,
Kenosha, WI 53140,
October 3, 2013.
Office of Congressman Don Young,
2314 Rayburn House Office Building,
Washington, DC 20515
Re: Menominee Kenosha Project
Dear Mr. Young:
Recently the Sub-Committee on Indian and Alaskan Affairs held a
hearing to review the criteria used by the Bureau of Indian Affairs in
its acquisition of trust lands for Indian Tribes. At the hearing there
was discussion of the recent decision by the Assistant Secretary for
Indian Affairs regarding the acquisition of trust lands for the
Menominee Indian Tribe of Wisconsin.
As Mayor of the city of Kenosha where the lands to be acquired on
behalf of the Menominee Indian Tribe are located, I can assure you of
the overwhelming support of the local community for acquisition of
these lands on behalf of Menominee. Both the City and County of Kenosha
have passed resolutions in favor of the acquisition on behalf of
Menominee. Both City and County citizens have approved of the
acquisition on behalf of Menominee through referenda. The City and
County have entered into a comprehensive Intergovernmental Agreement
with the Menominee Indian Tribe regarding the acquisition.
I would note that the Federal process of approval of the Menominee
acquisition has taken over 9 years and has been extremely thorough.
After careful analysis of information provided by many sources,
including those arguing against the acquisition, the Department arrived
at a very well supported conclusion that the acquisition is in the best
interest of the Menominee Tribe, and not detrimental to the local
community. It is a decision in which I concur.
I appreciate the opportunity to provide my views on this issue and
request that this letter be included as testimony for the September
19,2013 subcommittee hearing.
Sincerely,
Keith Bosman,
Mayor.
______
Prepared Statement of the Towns of Ledyard, North Stonington and
Preston, Connecticut
The Towns of Ledyard, North Stonington, and Preston, Connecticut
(Towns) hereby submit this testimony for inclusion in the record of the
September 19, 2013 House Committee on Natural Resources Hearing on
``Executive Branch standards for land-in-trust decisions for gaming
purposes.''
Our Towns are uniquely situated to provide testimony on the issues
associated with Indian gaming, including trust land, off-reservation
casinos and gaming-related facilities, taxation of non-tribal personal
property on reservation lands, and tribal acknowledgment that is
propelled primarily by the interest in casino development under the
Indian Gaming Regulatory Act (IGRA). Our experience comes from decades
of serving as the last community for the reservation and casino of the
Mashantucket Pequot Tribe (MPT), from many years of participation as
interested parties in the tribal acknowledgment procedures for the
Eastern Pequot and Paucatuck Eastern Pequot petitioner groups, and from
recent litigation with the MPT over its claim that non-tribal slot
machine vendors who lease gaming equipment for use at the Foxwoods
resort are exempt from slots and local personal property tax.
Mashantucket Pequot Tribe v. Town of Ledyard, 722 F.3d 457 (2d Cir.
2013). In all of these matters, our Towns have successfully defended
our local residents from the inappropriate application of Federal law.
Our litigation against the Department of the Interior beginning in 1995
to challenge off-reservation trust land expansion resulted in the
withdrawal of the MPT application in 2002 and the successful and
cooperative use of that land under local land use laws. In 2005, the
Department of the Interior properly denied the Eastern Pequot and
Paucatuck Eastern petitions. And recently, the Second Circuit ruled 3-0
that non-Indian slot machine companies must pay personal property tax
like any other business that maintains such property on reservation
lands. Id. The MPT has sought rehearing on this decision. Mashantucket
Pequot Tribe v. Town of Ledyard, No. 12-1727 (filed Aug. 21, 2013).
Based on this experience, we are deeply troubled by recent policy
initiatives from the Department of the Interior. These actions appear
to be poised to re-open long-settled matters, stir up new conflicts and
controversies, and create new rules or policies that lack balance and
objectivity.
One such action is the shortsighted proposal by BIA to rescind the
30-day wait period following any trust land decision. Land
Acquisitions: Appeals of Land Acquisition Decisions, 78 Fed. Reg.
32,214 (May 29, 2013) (to be codified at 25 CFR part 151). BIA
promulgated the rule for this wait period in 1996, in part in response
to our MPT trust land litigation. It provides an important waiting
period before the transfer of title that guarantees for local
governments and other parties the fair opportunity to seek a consensus
outcome with the tribes involved or, if necessary, to pursue its day in
court.
At the same time BIA is pursuing their proposal, it announced an
intention to withdraw the so-called self-stay policy, under which BIA
has for nearly 20 years informally agreed to not transfer title to
trust land that is subject to litigation. The policy has had a positive
effect for all parties by avoiding the need for preliminary injunction
litigation, encouraging negotiation, and reducing conflict. Our Towns
have explained these issues in written comments, set forth in
Attachment 1.
We also are concerned by actions by BIA intended to do an end-run
around the U.S. Supreme Court decision in Carcieri v. Salazar, 555 U.S.
379 (2009). Again, this ruling had its origin in our 1995 MPT
litigation, where the complaint raised the argument that post-1934
tribes are not eligible for trust land under section 5 of the Indian
Reorganization Act (IRA). It is clear from actions by BIA in other
contest that an effort is being made to devise legal arguments under
section 5 that undermine the law of the land as set forth by the
Supreme Court.
A third troubling procedure in law ruling the current
administration is to approve off-reservation tribal land for gaming
purposes. Such action used to be the exception to the rule and allowed
only when local governments agreed with such actions and were covered
by intergovernmental agreements. Now, it appears that virtually every
off-reservation trust land agreement for gaming purposes is approved,
regardless of the conflict or controversy.
Finally, in what may be the most egregious development yet, the
Assistant Secretary for Indian Affairs, Kevin Washburn, has proposed
sweeping changes to the tribal acknowledgment rules that would very
significantly lower the test for petitioners to gain Federal tribal
status and limit the rights of third parties to participate, as we did
in the Eastern Pequot and Paucatuck Eastern Pequot petitions. This
proposal is so extreme it would virtually automatically reverse the
negative findings in those and other Connecticut petitions. The
proposal calls into question the serious question of whether Congress
has even conferred such power on the Secretary. Our comments on the
acknowledgment proposal are set forth in Attachment 2.
Thank you for considering this testimony. We urge the committee to
take such action as is necessary to restore balance and fairness to the
administration of these laws and policies.
______
Prepared Statement of the City of Medford, Oregon
The city of Medford, Oregon appreciates the committee's effort to
review the standards the executive branch is applying to gambling-
related trust decisions. The acquisition of land in trust for casino
development has tremendous impacts on the host community beyond the
loss of taxing and regulatory authority. Casino development
fundamentally alters communities, bringing traffic, noise, crime, and
other adverse impacts, even with careful coordination and mitigation.
Given the significance of trust decisions, the Department of the
Interior should strictly apply the regulatory standards that govern
such decisions. There are heightened concerns when the trust
application is combined with a gambling eligibility decision.
Unfortunately, the Department appears inclined to approve any
application it receives, without regard to regulations, the standards
the Department has previously applied, or the impacts its approval will
have on affected communities or the Indian tribes the Department
purports to serve. Not only does the Department appear willing to
approve applications without careful scrutiny, the Department is
working at the same time to change its trust regulations to reduce
notice and opportunities to participate and to loosen tribal
acknowledgment criteria, which will further the proliferation of
casinos.
Something must change with respect to how these proposals are
evaluated. Applications by tribes that already have casinos, in
particular, should be scrutinized much more carefully and the
Department should put a far greater emphasis of the views of the
surrounding community. Second, third and even fourth casinos should be
permitted rarely, if at all, and only when there is unanimous support
for the development.
The Oregon Situation
The City recognizes that each State must decide for itself how it
will address the expansion of tribal casino gambling within its
borders. In Oregon, the State long ago adopted a policy of ``one casino
per tribe.'' Oregon thus believes there must be clear limits on the
Department's ability to expand casino gambling within Oregon's borders
and has worked to ensure that casino gambling does not proliferate in
the State.
This policy has worked for Oregon and Oregon tribes for two
reasons. First, Governor Kitzhaber has supported each of the State's
nine federally recognized tribes' pursuit of Class III casino gambling
by giving the tribes wide latitude on the types of gambling permitted
and the proposed size of the casinos. But recognizing that unfettered
expansion of casino gambling would be harmful for the State and Oregon
tribes, Governor Kitzhaber limited its expansion by negotiating
compacts that are site-specific and circumscribing the circumstances
under which a tribe may negotiate another Class III casino.
The second reason for the policy's success is because the
Department--at least with respect to Oregon tribes-has largely complied
with the Indian Gaming Regulatory Act's (IGRA) prohibition on gambling
on newly acquired lands in section 20 of the act, 25 U.S.C.
Sec. 2719(a). In the past, the Department has permitted gambling under
an exception to section 20's prohibition on gambling on newly acquired
land only when the applicant tribe did not already have a casino and
could show a strong historical and modern connection to the area. When
a tribe could not meet these requirements, the tribe pursued a new
casino pursuant to the two-part determination process in IGRA, 25
U.S.C. Sec. 2719(b)(1)(A).
The Oregon tribes have adhered to that policy for years, which has
resulted in a relatively stable gambling market and strong
intergovernmental relationships that have developed in a climate of
trust. In Oregon, tribal investments in gambling casinos are not
routinely jeopardized by efforts made by other tribes to leap-frog over
existing facilities to more favorable locations. In other words, Oregon
tribes have not faced the type of undercutting that tribes in
California, Oklahoma, Washington and Wisconsin apparently face, as was
discussed during the September 19 Oversight Hearing.
The witnesses at the Oversight Hearing made clear how devastating
some of the off-reservation proposals will be and the reasons that the
Department should have denied the requests. In fact, much of the
testimony focused on how the Department has been administering the two-
part determination test and the apparently lack of standards for
issuing a ``no detriment'' finding. Under the two-part determination,
gambling is permissible on newly acquired land only if the Secretary
determines that (I) gambling will be beneficial to the tribe and (2)
not detrimental to the surrounding community and the Governor of the
affected State concurs in that determination. The witnesses expressed
concerns regarding how the Secretary was making the ``no detriment''
determination, because in many cases, it appears that the impacts on
the surrounding community would be extraordinarily detrimental.
The Medford Application Exemplifies the Misuse of the Exceptions to
Section 20
How the Department is making the ``no detriment'' determination is
not the problem in Oregon (at this time). Rather, the issue Medford
faces is getting the Department to apply the two-part determination
test in the first place.
In passing IGRA, Congress attempted to balance the needs of tribes
to engage in economic development with the concerns of State and local
government regarding unregulated gambling expansion within their
borders. The Department of the Interior and the Department of Justice
were similarly concerned with the expansion of gambling off-reservation
and how States and tribes would be affected.
To address those concerns, Congress created exceptions to put
landless or newly-acknowledged tribes on ``equal footing'' with tribes
that already had trust or reservation land when Congress passed IGRA.
Under the ``equal footing'' exceptions, gambling is permissible if the
land qualifies as land: (1) obtained as part of a land claim
settlement; (2) designated an initial reservation of a tribe
acknowledged by the government; or (3) as the ``restored lands'' of a
restored tribe.
For cases when an exception did not apply, Congress included the
two-part determination process as an alternative route. The two-part
determination process is supposed to balance legitimate local concerns
with the applicant tribe's goals of promoting tribal economic
development and tribal self-sufficiency. Recognizing that in such
situations the applicant tribe would be straying from its historic
lands or adding to an existing land base, Congress gave States and
local governments a more significant role than in ``equal footing''
cases. Thus, if a tribe wants to develop a casino off-reservation, it
must work with the affected local governments, the community,
neighboring tribes and the State to gain their support before an off-
reservation casino can be approved.
There are certainly times where one of the three ``equal footing''
exceptions should apply. The Medford proposal, however, is not one of
those cases. This past year, the Coquille Indian Tribe announced that
it wants to turn a bowling alley in Medford into a Class II casino. The
Coquille Tribe already has a Class III casino--the Mill Casino--which
is located on Highway 101 in North Bend, overlooking Coos Bay. The Mill
Casino offers over 700 slot machines and Vegas-style table games,
including black jack, roulette and craps, and opened for business on
May 15, 1995. The tribe expanded the casino just 5 years ago when it
opened the Hotel Tower, which added 92 rooms including 6 suites, an
executive suite, pool and hot tubs, a fitness center, 5 new meeting
rooms and a full-service banquet kitchen. The tribe also has a 6,512-
acre reservation located in southern Coos County, mostly in and to the
southeast of the Coos Bay-North Bend urban area and manages
approximately 5,400 acres of forest in Coos County, Oregon. The tribe
maintains its governmental offices, its health clinic, its housing
authority and its member services in North Bend.
The city was very surprised to hear that the Coquille Tribe had
purchased land in Medford for another casino. Not only was its proposal
against the State's ``one casino per tribe'' policy, the tribe has no
historical connection to Medford. In fact, Medford is a 170 miles from
North Bend--a 3 hour drive. Medford is actually the historic territory
of the Rogue River Indians. The Coquille Tribe's historic territory is
not even in adjacent territory. Land immediately to the northwest of
Medford is the historic territory of the Umpqua (Cow Creek Band) and
land to the west was Chasta, Sco-ton, and Grave Creek territory. The
Medford site is far-flung land, does not qualify for an exception, and
should be processed under the two-part determination process.
The Department has, for years, applied a test to impose limits on
the application of the restored lands exception-one which would
preclude the Coquille Tribe's request for a restored lands finding for
Medford. That test looks at the factual circumstances of the
acquisition, the location of the acquisition, and the temporal
relationship of the acquisition to the tribal restoration. In practice,
land will not qualify as restored lands unless the tribe has
significant historical and modern connections to the site and the tribe
has prioritized the acquisition of the land, as demonstrated by long-
standing efforts to obtain the land beginning soon after restoration.
The Medford site does not meet this test. The tribe' presence in
Medford is negligible, at best, and falls far short of the significant
historic and modern connections the law requires. For more than 17
years, the tribe has operated a casino in North Bend and has thousands
of acres of land located in the vicinity for its reservation. Its
governmental services are all located near North Bend, as are its
economic ventures. Medford is a 3-hour drive away from all of the
tribe's existing development, activities and government. In fact, the
North Bend site itself qualified as ``restored lands'' almost two
decades ago. The tribe has shown no interest in Medford until this past
year when it assessed Medford as a potentially lucrative site for a
casino.
There is no basis for allowing the tribe to qualify for the
``restored lands'' exception twice, 170 miles from home, when it
already has a casino. The Coquille Tribe's argument is based on a
misreading of the regulations, which were never intended to apply in
the fashion that the Coquille Tribe argues and which a judge for the
Eighth Circuit has expressly rejected. The exceptions are not supposed
to provide a loophole to enable a tribe to avoid the two-part
determination process. The Coquille Tribe is seeking special advantage,
not ``equal footing,'' and the Department should not permit it.
The Application, If Approved, Will Have Enormous Impacts on Oregon and
Nationally
This application has generated tremendous controversy and has
impacted our relationship with the tribes that are part of our
community. The tribes in whose historic lands this casino would be
built are deeply distressed by the Coquille Tribe's proposal. The City
has met with the Cow Creek Band of Umpqua Tribe of Indians, the Shasta
Indians, descendants of the Rogue River Indians, and others to discuss
the Coquille Tribe's application and proposed casino, and all believe
that it is simply unacceptable to allow a tribe with no historic
connection to Medford to have land acquired in trust in the city and
declared eligible for gambling as ``restored lands.''
The Coquille Tribe knows that, given the Governor's ``one casino
per tribe'' policy, the chances of obtaining a gubernatorial
concurrence through the two-part determination process are very slim.
Rather than abide by the State's policy, or attempt to work with the
State to address concerns, the tribe has asked the Department to cut
Medford and the State out of the process. The Coquille Tribe's
attempted use of the ``restored lands'' exception would not only expand
the application of that exception well beyond anything that Congress
intended or that the Department have ever previously granted, it would
also strip the State, the affected jurisdictional governments, and
nearby tribes of critical procedural protections, including the
gubernatorial concurrence requirement, that is required if the
Department were to apply the legally required two-part determination
process. Thus, the city is concerned not just that the Department is
making ``no detriment'' determinations against the overwhelming
opposition of the surrounding communities and affected tribes, but that
it is helping tribes avoid the process altogether.
The question that remains is whether the Office of Indian Gaming
will grant the tribe's request. The city has reached out to the
Department to discuss its concerns, but the Department has not
responded to the city's repeated requests for a meeting. Mr. Washburn
testified before the committee that he has never refused a meeting
request from a tribe, but he apparently will not even respond to such
requests if made by a local government.
If the Office of Indian Gaming approves the tribe's request, the
Department will create a loophole for other, similarly situated tribes
and deprive Medford of the procedural protections Congress granted it.
The effect of the Department allowing the Coquille Tribe to go forward
under the exception should not be underestimated. While the Coquille
Tribe has characterized its application as ``only'' for a Class II
casino, the critical question is whether the land is eligible for
gambling. And if it is eligible for gambling, the next step will be to
negotiate with the State for a Class III casino, with the threat of
suit if the State does not oblige.
Moreover, Oregon tribes are also likely to begin to seek additional
land for at least Class II gambling, with an eye down the road to
expand to Class III. In fact, Medford has already been informed that if
the Coquille Tribe's application is approved, the Cow Creek Band will
have to file its own request because a Medford casino will jeopardize
the investment the Cow Creek Band has made in its reservation lands by
undercutting its casino. The State will face more applications, in and
around the metropolitan areas and along the I-5 corridor. What is now a
relatively stable gambling environment will be irreparably altered by
this single request of the Coquille Tribe to evade the two-part
determination process, if the Department permits this abuse.
The city of Medford requests that the committee look closely at the
Department's treatment of gambling-related requests. It should focus
not only on how the Department is applying the two-part determination
test, but also at how it evaluates the applicability of an ``equal
footing'' exception. It will do little good to tighten the two-part
process only to have the Department loosen the standards that apply to
the exceptions, as the Coquille Tribe has requested. The Department
should be prohibited from determining that land acquired in trust
qualifies for gambling under one of the three exceptions if that tribe
already has trust land and is operating a casino. To permit the
exceptions to be used in the manner the Coquille Tribe advocates, or in
any similar manner when a tribe already has land and casino
development, is an impermissible expansion of the ``equal footing''
exceptions.
Moreover, the City believes that the Department should not be
permitted to issue a ``no detriment'' finding and acquire land for
gambling purposes over the opposition of the surrounding community.
Gambling development has proven to be a boon for some tribes, but there
comes a time when gambling expansion must be measured against the
impacts on the communities and neighboring tribes, and those impacts
must be realistically considered. Permitting tribes to build ever more
casinos, without regard to the views of the host community and the
neighboring tribes is a race to the bottom. The ultimate loser will be
the tribes the Department is supposed to help.
The city thanks the committee for its work and hopes that its
oversight of this issue will help protect States, communities like the
city of Medford, and the tribes that have made investments with the
expectation that Department of the Interior will apply gambling
standards reasonably and fairly.
______
Letter Submitted for the Record by Craig Corn, Tribal Chairman
Menominee Indian Tribe of Wisconsin,
Chairman's Office,
Keshena, WI 54135-0910
October 3, 2013.
Office of Congressman Don Young,
2314 Rayburn House Office Building,
Washington, DC 20515
Re: Menominee Indian Tribe of Wisconsin--written testimony, House
Committee on Natural Resources: Subcommittee on Indian and
Alaska Native Affairs, Oversight Hearing: Executive Branch
Standards for Land-in-Trust Decisions for Gaming Purposes.
Dear Chairman Young:
As Chairman of the Menominee Tribe of Wisconsin, I am writing to
correct some misunderstandings that were evident in statements made in
the September 19, 2013 hearing conducted by the Subcommittee on Indian
and Alaskan Native Affairs regarding the Department of the Interior's
determination that acquiring land for the Menominee Indian Tribe in
Kenosha, Wisconsin would be in the best interest of the tribe, and not
detrimental to the local community. I would like to take this
opportunity to provide some pertinent facts to the subcommittee so that
these misunderstandings can be corrected.
1. The land to be acquired for the Menominee Indian Tribe in
Kenosha, Wisconsin is not near any other Tribe's reservation. The
closest trust lands to the site belong to the Forest County Potawatomi
Community. Those trust lands, however, were acquired by the United
States under the exact same provisions of law that apply to the
Menominee acquisition. The Forest County Potawatomi Community's
reservation is over 200 miles from the land to be acquired on behalf of
the Menominee Indian Tribe.
2. The concerns and comments of both the Forest County Potawatomi
and the city of Milwaukee were provided to the Bureau of Indian Affairs
and taken into consideration by them in making their decision. This is
not a situation where the Bureau of Indian Affairs ignored comments
from those opposing the project. Rather, after taking those comments
into consideration and carefully analyzing all the facts, it was
determined that any impacts to the city of Milwaukee or the Forest
County Potawatomi would be minor and short term.
3. The Forest County Potawatomi Community has approximately 1,400
members. Its off-reservation casino in Milwaukee, Wisconsin, according
to press accounts, presently generates approximately $370 million in
revenue annually. The largest negative impact to that revenue stream
caused by the acquisition of trust lands for Menominee in Kenosha,
Wisconsin projected by any credible study is 20 percent. Therefore,
even under the worst case scenario, the Milwaukee casino would still
generate approximately $300 million in revenue annually after the
Kenosha casino began to operate. This equates to approximately
$215,000.00 annually per Forest County Potawatomi Tribal member.
4. The Department of the Interior is not a rubber stamp for off-
reservation acquisitions of land. The Menominee Indian Tribe can
testify to this with great authority. The Tribe filed its application
in 2004 and received approval in 2013. The hurdles tribes must overcome
to obtain approval from the Department under the current regulations
are extremely high. In 25 years since enactment of IGRA, only 8
tribes--including the Forest County Potawatomi Tribe--have been
authorized to conduct off-reservation gaming under the 2-part
determination procedure.
5. The acquisition on behalf of the Menominee Indian Tribe enjoys
the overwhelming support of the local community as demonstrated by
resolutions of support from the City and County where the lands are
located, and favorable referenda by the citizens of the city and county
where the lands are located. The project will create over 3,000 jobs
and contribute significantly to the local economy. The tribe entered
into an intergovernmental agreement with the city and county to
mitigate any possible impacts and to provide for services to the
planned facility.
6. The situation of the Menominee Tribe is truly unique. As
discussed in detail in Interior's decision, the tribe has significant
unmet needs due in large part to the lingering impacts of the tribe's
termination in the 1950s. The gaming project will help the tribe meet
those needs. Menominee County (which is coterminous with the
reservation and 90 percent of its population are tribal members) is the
poorest county in Wisconsin, with the highest unemployment and worst
health indicator.
The Menominee Tribe would appreciate the subcommittee's
consideration of these facts, and asks that this letter be entered into
the record of the subcommittee's hearing of September 19, 2013.
Sincerely,
Craig Corn,
Tribal Chairman.
______
Letter Submitted for the Record by Vincent Duro, Vice Chairman
San Manuel Band of Mission Indians,
Highland, CA 92346
September 18, 2013.
The Honorable Don Young,
Chairman,
House Indian and Alaska Native Affairs Subcommittee,
1324 Longworth House Office Building,
Washington, DC 20515
The Honorable Colleen Hanabusa,
Ranking Democrat,
House Indian and Alaska Native Affairs Subcommittee,
1324 Longworth House Office Building,
Washington, DC 20515
Re: Oversight Hearing: ``Executive Branch Standards for Land-in-Trust
Decisions for Gaming Purposes.''
Dear Chairman Young and Ranking Member Hanabusa:
On behalf of the San Manuel Band of Mission Indians, a federally
recognized Indian tribe based in southern California, I respectfully
offer this testimony concerning the issue of off reservation land
acquisitions for gaming.
For centuries, indigenous Serrano people occupied the San
Bernardino and San Gabriel Mountains and their southern foothills, the
Mojave Desert near Apple Valley to areas north of Barstow, and
territories as far east as Twentynine Palms and Yucca Valley. The
tribe, whose people are the Yuhaviatam, or ``People of the Pines,'' is
one of several clans of the greater Serrano Indian Nation. Today, the
San Manuel Indian Reservation is located in a much smaller area along
the steep foothills of the San Bernardino Mountains, consisting of
approximately 950 acres over which the San Manuel tribal government
exercises governmental jurisdiction.
In 1986, San Manuel first established gaming on our reservation as
a tool for generating revenues for our tribe. Tribal government gaming
has proven to be a useful tool for tribes to enhance our governance
capabilities and become more self-sufficient with viable economic
development efforts. Gaming has provided resources for tribes to more
effectively protect their sovereign rights where they have come under
increasing threat. It has provided tribes with the opportunity to focus
on revitalizing tribal languages and cultures where poverty made
survival the first obligation for many Indians. It has given tribes
opportunities to reacquire lands that were sold or taken from them in
more desperate days and make them a part of tribal territory once
again.
Without a doubt, reacquiring aboriginal lands for many tribal
communities is essential to efforts to rebuild themselves. There is
much work to be done for most tribal communities to ensure that their
homelands are protected and sustainable into the future. However, the
efforts to acquire lands--especially those located far from existing
reservations--bring added scrutiny to land acquisition and make such
reacquisition efforts more difficult. Reacquiring land to build new
schools, health centers or homes for tribal members today receives a
higher level of suspicion largely because of fears that the land will
be used for gaming projects.
Casino deal land acquisitions are not a new idea but one that has
been refined, in a number of cases, by clever casino developers. The
new pattern is non-Indian casino developers matching tribes with
economically depressed, non-Indian communities in efforts to pull
together a casino deal. Oftentimes, the tribe's existing reservation
and the non-Indian community are miles and miles apart. With such
deals, there can be hidden costs to non-Indian communities seeking
short-term economic relief who are ill equipped to adequately assess
the entities and individuals they are partnering with. This is a hard
lesson learned by some Indian tribes.
There is now such a casino deal in the works within San Manuel's
aboriginal territories in the California city of Barstow. The Barstow
deal would allow the Los Coyotes Band of Cahuilla and Cupeno Indians
based in San Diego County to build a casino more than 160 road miles
from its reservation, within Serrano historical territory. San Manuel
has cultural resources in the Barstow area that we continue to monitor
and take care of when necessary. These proposed casino deals and ones
similar to them have the added effect of creating enormous tension
between tribes who have claims to these lands as their aboriginal
homelands as well.
Unlike some tribes, we believe that market protection is not a
sound basis for Federal decisionmaking on land acquisition for gaming.
Land is the anchor of our existence as sovereigns. Gaming is just one
activity that stems from that sovereign existence.
We were pleased when the Department of the Interior acknowledged
that tribes seeking land off reservation should have ``significant
historical ties'' to the land for the Department to approve a proposed
Secretarial, or two-part, determination. However, this policy position
regarding connections to lands has changed from one administration to
another, and has created great uncertainty particularly for the tribal
nations.
President George W. Bush concluded that lands must be within a
commutable distance from the existing reservation to the proposed site
for the lands to be considered for a positive determination under the
Two-Part exception. President Barack Obama has issued several positive
determinations that have cited significant historical connection to the
land as factors, but appears to have largely dismissed commutable
distance as a point for consideration,
The San Manuel Band of Mission Indians has maintained that
historical ties to the land under the Two-Part IGRA exception should be
a requirement. This policy, if consistently applied, would establish a
clear standard that demonstrates respect for traditional notions of
tribal land areas. Any Departmental decisions, or decisions by the
Congress to address this issue, should continue the sound policy of
respecting aboriginal or historical ties to land,
We urge the subcommittee to support efforts of Indian tribes to
protect their aboriginal lands from encroachment by tribes who cannot
demonstrate significant historical connections to the lands being
sought for gaming and other purposes,
Sincerely,
Vincent Duro,
Vice Chairman.
______
Prepared Statement of Spokane County, Washington
executive summary
Spokane County (``the County'') strongly opposes concentrated
development of any sort at the Airway Heights site, where the Spokane
Tribe (``the Tribe'') would like to develop an off-reservation casino-
resort. The Tribe's 145-acre parcel is an exceptionally poor location
to build an entertainment venue intended to attract thousands of
visitors. Every hour, day and night, military aircraft fly less than
1,000 feet overhead the proposed casino-resort site as they approach
the Fairchild Air Force Base's (``FAFB's'') single runway, located \8/
10\ of a mile away. FAFB's military maneuvers and training operations,
which include touch and go approaches, acrobatics, recovery operations,
and other activities, are a critical component of our national
security. FAFB is responsible for a variety of missions, the most
prominent of which is its refueling mission, which relies on the
massive KC135-Stratotankers. The wake turbulence produced by the KC135
is so disruptive that it can cause loss of aircraft control or
catastrophic structural failure, so much so that small aircraft
operating within 1,000 feet below are directed to stay at least 5 miles
behind. Ex. 1 (FAFB Mid-Air Collision Avoidance Brochure). The site is
not an appropriate place to build a casino, a hotel, a convention
center, a mall, or any other type of development that brings large
numbers of people potentially into harm's way and virtually ensures
conflicts with FAFB' s activities down the road.
The County has a number of obligations to its citizens. Those
obligations include, first and foremost, protecting the public health
and safety. Those obligations also include providing important public
services, including transportation planning, road development,
controlled urban growth, environmental preservation, considered
economic development, recreational opportunities, and other services.
The Tribe's proposed project will impair the County's ability to meet
its obligations and will jeopardize the County's interests as a whole,
detrimentally impacting the region.
It is the County's considered judgment that concentrated
development located 0.8 miles from the FAFB 's runway, immediately
below the landing pattern, presents immediate health hazards and
creates the potential for a catastrophic event that the County is not
equipped to handle. Without question, employees of the casino-resort,
suppliers and visitors alike will experience repeated vibration, fumes,
and noise disturbances. In addition, the FAFB's operations will be
affected by the lighting a 24-hour casino-resort will require,
undermining base operations and creating risks to pilots. While crashes
are rare, they do occur and have occurred at FAFB. The risk of a
catastrophic crash at the casino-resort development is far greater at
its current location than in locations not immediately within FAFB's
landing pattern. The risk of a disaster alone is great enough to
warrant denial of the proposed location. The County would never permit
such concentrated development at the proposed location, by any
applicant.
A critical priority for the County is to protect the continued
viability of FAFB itself. In fact, the State requires the County to do
so. Ex. 2 (citing RCW 37.70.547 of Washington's Growth Management Act,
which requires towns, cities, and counties to discourage development of
incompatible land uses adjacent to public use airports through adoption
of comprehensive plan policies and development regulations). The County
sought to have FAFB located in the region, and business leaders
contributed land for the purpose of winning the Base for Spokane. FAFB
has been a strong and valued member of the community, one that the
region invited and needs to protect. The economic benefits of FAFB
cannot be overstated. Closure of FAFB would cause up to 12,085 job
losses, a decline in population of 27,244, and an estimated loss of
over $1.29 billion in total economic output to the County. The area
tribes would be affected too, with anticipated combined losses to the
tribal casinos estimated at $10,850,000. Because of its importance and
pursuant to State law, the County has sought to prevent any activities
that would encroach on the FAFB's operations, which include ``any human
activities or decisions that impair or may potentially impair the
current or future operational capability of an installation complex or
may have an adverse effect on nearby communities.'' Developing a high-
density casino-resort, including a 145-foot tower, 0.51 miles from
FAFB, constitutes encroachment. Tens of thousands of people would
congregate at the casino resort. The facility would generate
significant lighting and traffic impacts that interfere with FAFB's
operations. These impacts have not been mitigated. For example, even
with proposed mitigation such as downward cast lighting, glare impacts
will be significant due to reflection, particularly during periods of
snow cover. The County will take whatever steps necessary to protect
the FAFB's current and future operational capability.
The Tribe has not contacted the County in its official capacity to
discuss the possibility of an agreement or methods to mitigate the
impact of its proposed casino-resort. The Bureau of Indian Affairs
(``BIA'') predicated the 2003 acquisition of the site in trust for the
Tribe--over the objections of the County--on the commitment of the
Tribe to work with the County to address jurisdictional conflicts and
other concerns. The BIA stated its expectation that the Tribe would
work with the County going forward and that concerns would be
adequately addressed. The Tribe has not lived up to that expectation,
and the Secretary should not excuse it from doing so. None of the
impacts on the County-which stands to see its costs increased by
several million dollars a year to maintain its current level of
services to the community (assuming no impacts to FAFB)--have been
mitigated. Thus, the County and the community it represents will be
negatively impacted by development of the proposed casino.
The overwhelming opposition to the proposed project from almost
every local government, State representative, community leader, and
tribe in the region are further evidence of the detrimental impacts
that this project will have on the community. Only two entities support
the project: the Tribe itself and Airway Heights, whose approximately
6,138 residents (which includes a 2,500-strong prison population)
expect to receive a minimum payment of $600,000 per year. The remaining
475,600 area residents are opposed, as demonstrated by the opposition
by their representative leaders, and would receive no mitigation at
all.
In light of thus reasoned opposition, the Tribe's request should be
immediately denied. Respectfully, the Secretary has no basis for
overriding the nearly unanimous views of the surrounding community
regarding the detrimental impacts the casino-resort would have on the
surrounding community. On issues of local land use and development, the
local governments clearly know best what projects will detrimentally
impact their communities. The Secretary does not have six decades of
experience working with FAFB, does not know more than local leaders
about the Spokane economy, and does not have sufficient experience with
County operations to dismiss County objections. If the Secretary does
overrule the community's views and approve the casino-resort, that
action would be arbitrary and capricious. Further, if the Secretary is
contemplating another outcome, the current environmental impact
statement (``EIS'') is an insufficient basis for decisionmaking. The
purpose and need statement is impermissibly narrow, and, as a
consequence, the ``heart'' of the document--the NEPA alternatives
analysis--inadequate. Nor does the EIS properly evaluate the impacts
the proposed project would have on the County, FAPB, or public health
and safety. Moreover, since the EIS was completed, circumstances have
changed. For example, the County rescinded the only agreement that
provided any mitigation in order to free itself from a neutrality
provision that prevented the County from expressing its views on the
proposed casino resort, and because the mitigation proved to be
inadequate once details of the proposal became clear. Additionally,
after completion of Department of Defense-funded land use studies,
local land-use regulations applicable to the casino-resort site have
changed. This and other new information must be addressed in a
supplemental EIS.
Additional review will only further underscore the detrimental
effects the Tribe's proposal would have on the community. As set forth
in the County's comments, there is no basis for allowing gaming on the
Airway Heights site. The proposed project is fundamentally inconsistent
with the training activities that take place directly overhead and near
the proposed site and will have impacts that have not been mitigated.
Although the County supports the Tribe's efforts to promote its self-
governance capability, the Tribe's current proposal jeopardizes the
economic' strength and stability of the very community on which the
success of its proposal depends. A casino-resort at the Airway Heights
site is not good for the County, FAPB, or the area tribes. The Tribe's
request must be denied.
______
Letter Submitted for the Record by Rudy J. Peone, Chairman
Spokane Tribe of Indians,
Spokane Tribal Business Council,
Wellpinit, WA 99040
September 18, 2013.
The Honorable Don Young, Chairman,
Subcommittee on Indian and Alaska Native Affairs,
1324 Longworth House Office Building,
Washington, DC 20515
The Honorable Colleen Hanabusa, Ranking Democrat,
Subcommittee on Indian and Alaska Native Affairs,
1324 Longworth House Office Building,
Washington, DC 20515
Re: Spokane Tribe's Comments on Executive Branch Standards for Land-
in-Trust Decisions for Gaming Purposes
Dear Chairman Young and Ranking Member Hanabusa:
I write to provide the Spokane Tribe of Indians' views on the issue
of off reservation acquisitions of land into trust for gaming.
The Spokane people have inhabited northeastern Washington State
since time immemorial. Our territory consisted of over 3 million acres
of land that we protected and governed. Within this territory, we lived
along the Spokane River in three bands known as the Upper, Middle, and
Lower Spokane Indians. We fished the Spokane and Columbia Rivers and
used the grand Spokane Falls as the principal permanent village of the
Lower Spokane. In January of 1881, President Rutherford B. Hayes by
Executive order established the Spokane Indian Reservation as the
smaller home of the Spokane Indians. Today, the Spokane Tribe continues
to govern its 157,000 acre Spokane Reservation that is based in
Wellpinit, Washington, and is located about 50 miles from the city of
Spokane that bears our name.
By the mid 1990s, the Spokane Tribe maintained two gaming
operations on our reservation. Within a few short years, we were
realizing the goal of tribal government gaming: that we would live with
greater self-sufficiency. We were employing and educating our people,
and we were able to provide better health care, education, and housing
opportunities.
In 1999, the Department of the Interior issued a decision that
devastated the Spokane Tribe's on-reservation economy. The Kalispel
Tribe of Indians applied to have lands taken into trust and have those
lands deemed eligible for gaming under the Indian Gaming Regulatory
Act's Secretarial, or Two-Part, Determination, in the heart of our
tribe's ancestral territory and between the Spokane Reservation and the
city of Spokane, far removed from Kalispel's ancestral lands. In 1996,
we informed Department of the Interior officials that Kalispel gaming
in Airway Heights would devastate Spokane's distant, on-reservation
gaming facilities. To our dismay, the Department did not heed our
concerns and our worst fears have come true.
Since the Kalispel Tribe opened its Northern Quest Casino in 2000,
Spokane Tribe gaming revenue plummeted to a low of less than $20,000 in
2009. In 2009, employment on the Spokane Reservation declined by 13.6
percent raising the unemployment rate on the Reservation to 47 percent,
up from 34 percent in 2008. In addition, 45.3 percent of those who are
employed have such low earnings that they fall beneath the Federal
poverty level. According to the 2000 Census, nearly one-quarter of
families residing on the Reservation were living in poverty, compared
with 11.7 percent in Stevens County and 7.6 percent in the State of
Washington.
In direct response to the devastating impact of the Department's
decision, in 2006 the Spokane Tribe submitted its application to have
land already held in trust for the tribe deemed eligible for gaming
under the Two-Part Determination. This land, located in the city of
Airway Heights, between the Spokane Reservation and the city of
Spokane, would bring economic relief to the Spokane Tribe and
competitive parity with the Kalispel Tribe. Gaming revenues will enable
the Spokane Tribe to provide basic governmental services that today
eludes a membership suffering from dismal unemployment and high poverty
rates. Beyond essential services such as health care, gaming revenues
will enable the tribe to fund cultural preservation and language
programs while addressing critical, on-Reservation natural resource
issues. The project will create substantial employment opportunities
for tribal members. The increase in tribal governmental capacity will
create additional professional tribal governmental job opportunities
for the membership. The project will also benefit the surrounding
community, including the creation of nearly 5,000 jobs in a community
marred by double-digit unemployment rates.
Sadly, Kalispel actively opposes the Spokane Tribe achieving this
determination from the Department of the Interior. Kalispel leaders
continue to argue that the Department of the Interior should protect
the Kalispel Tribe's gaming market from competition from the Spokane
Tribe. The Spokane Tribe's observations of the executive branch's
consideration of fee to trust gaming applications are informed by the
tribe's experiences with the devastating effects of reservation
shopping and as a tribe with a gaming application currently under
Department review.
the 2008 regulations provide clarity, transparency and stakeholder
input in departmental review of tribal gaming applications.
The tribe stands with the vast majority of Indian country in
supporting the Department's implementation of regulations governing
determinations on gaming related fee to trust applications, which the
Department promulgated in 2008 after formal agency rulemaking (``2008
Regulations''). The 2008 Regulations recognize important limitations on
approval of tribal gaming applications and require transparent
decisionmaking upon consideration of public comments, including NEPA
compliance and a separate consultation process for State and local
governments. To its credit, this administration has responded to Indian
country's request to address a backlog of tribal gaming applications
through careful application of the 2008 Regulations.
In March 2006, the Department initiated formal rulemaking for
regulations to govern land into trust gaming decisions. As a general
matter, IGRA prohibits gaming activities conducted on Indian lands that
are taken into trust after the date of IGRA's passage (October 17,
1988). 25 U.S.C. Sec. 2719. The limited exceptions to this prohibition
are listed in 25 U.S.C. Sec. 2719 and include the ``contiguous lands''
exception, the ``restored lands'' exception, the ``settlement of a land
claim'' exception, the ``initial reservation'' exception, and the ``two
part determination' exception. The Secretary provided a draft of the
proposed regulations to all federally recognized tribes and sought
comment both by letter and at four public hearings across the country.
The Department received 74 letters, presentations, and policy papers
providing extensive tribal comments on these draft regulations even
before they were published for public comment several months later.
Interior began the formal notice and comment period on the new
``part 292'' regulations on October 5, 2006. The tribal comments reveal
overwhelming opposition to any tribe attempting to game within the
exclusive ancestral lands of another tribe. See, e.g. Comments to 25
CFR part 292 Draft Regulations, 73 Fed. Reg. 98, 29354 (May 20, 2008),
passim. After all, any tribe concerned about devastating impacts to its
on-reservation gaming operations from such approvals need only look to
Spokane's circumstances. A year and a half later, Interior promulgated
its Final Rule, codifying its interpretation of 25 U.S.C. Sec. 2719.
The regulations implement this section of the Indian Gaming Regulatory
Act (``IGRA'') by articulating the standards that Interior will follow
in interpreting the various exceptions to IGRA's general prohibition on
gaming on lands acquired after October 17, 1988.
On July 18, 2010, then Interior Secretary Salazar issued a
directive recommending a thorough review of the 2008 Regulations,
including yet another round of consultations. During this second round
of consultation, tribes overwhelmingly expressed support for the
regulations and strongly encouraged the administration to go about the
difficult business of rendering decisions on pending tribal gaming
applications, many of which had been under review for several years. To
its credit, this administration has not shirked from applying the 2008
Regulations to make decisions on several tribal gaming applications.
Some applications have been approved while others have been denied.
Some await gubernatorial concurrence--the ultimate check on Secretarial
two-part determinations. In each case, the Department issued lengthy
decisions pursuant to clearly articulated requirements and upon
consideration of voluminous records including comments from the public,
local units of government, State and Federal agencies and Indian
tribes.
The 2008 Regulations are noteworthy both substantively and
procedurally. Substantively, and consistent with the overwhelming
number of tribal comments, the 2008 Regulations require an applicant
tribe to demonstrate a ``significant historical connection'' to the
proposed gaming site. The 2008 Regulations define the term
``significant historical connection'' as one in which ``the land is
located within the boundaries of the tribe's last reservation under a
ratified or unratified treaty, or a tribe can demonstrate by historical
documentation the existence of the tribe's villages, burial grounds,
occupancy or subsistence use in the vicinity of the land. 25 CFR
Sec. 292.2. The 2008 Regulations require an applicant tribe to
demonstrate a significant historical connection to qualify for the
restored lands exception, the initial reservation exception. While IGRA
does not require an applicant tribe to demonstrate a significant
historical connection to the land to receive a positive two-part
determination, the 2008 Regulations nevertheless require the Secretary
to weigh the existence of a historical connection between an applicant
tribe and its proposed gaming site as a significant factor in
determining whether gaming on the proposed site would be in the best
interest of the tribe and its citizens. See, Northfork ILD, p. 11.
Significantly, since 2008, the Department has denied at least two
applications because the applicant tribe has failed to demonstrate a
significant historical connection requirement to the proposed gaming
site. See, e.g. Guidiville ILD, Sept. 11, 2011 ; Scott's Valley ILD,
May 25, 2012.
Demonstration of a significant historical connection profoundly
affects the application process. For instance, in support of its
current two-part application, the Spokane Tribe demonstrated that the
project site lies at the heart of Spokane's federally adjudicated
exclusive territory, only a few miles from principal permanent villages
and key fishing sites. The tribe demonstrated that the project site
lies squarely within an important dry land camas harvest area, in close
proximity to permanent villages and thus a logical starting point for
the critical springtime harvest. The Spokane documented its engagement
with the U.S. Army in September 1858 at the Battle of Four Lakes,
within a few miles of the project site. The Spokane documented that the
subsequent Battle of Spokane Plains raged across the project site. The
tribe was able to point to a wealth of archaeology that documents the
presence of nearby permanent villages, burial sites and fishing
stations. In sum, the significant historical connections requirement
set forth in the 2008 regulations provides a much-needed geographic
anchor to tribal gaming applications and enjoys strong support in
Indian country.
The 2008 Regulations also impose significant procedural
requirements on Departmental review of tribal gaming applications.
Tribal gaming applications are now subject to a full-blown
Environmental Impact Statement under the National Environmental Policy
Act. Preparation of an Environmental Impact Statement ensures
transparency in the decisionmaking process and provides significant
opportunity for public, agency and local governmental comment on
anticipated impacts and required mitigation. For instance, public input
on the Environmental Impact Statement prepared for Spokane's
Application spanned from August 27, 2009 through May 1, 2013. Seven
cooperating agencies including Spokane County, the city of Airway
Heights and the U.S. Air Force provided comments on the project. In
all, the BlA considered and responded to over 300 comment letters.
In addition to the NEPA process, the 2008 Regulations require the
BIA to notify all local units of government within a 25-mile radius of
a project site to request comments on the following areas:
1. Information regarding environmental impacts on the surrounding
community and plans for mitigating adverse impacts;
2. Anticipated impacts on the social structure, infrastructure,
services, housing, community character, and land use patterns
of the surrounding community;
3. Anticipated impact on the economic development, income, and
employment of the surrounding community;
4. Anticipated costs of impacts to the surrounding community and
identification of sources of revenue to mitigate them;
5. Anticipated costs, if any, to the surrounding community of
treatment programs for compulsive gambling attributable to the
proposed gaming establishment; and
6. Any other information that may assist the Secretary in determining
whether the proposed gaming establishment would or would not be
detrimental to the surrounding community.
The Spokane Tribe has worked diligently with the local governments
in the area, and we have reached inter-governmental agreements with all
of them. Beginning in 2007, the Spokane Tribe reached out to the city
of Airway Heights and Spokane County to discuss mitigation of impacts
associated with our project. Discussions over the years produced a tri-
lateral, Intergovernmental Agreement in 2010 between the tribe, the
city and the county regarding development on the proposed site. That
agreement remains in effect today. However, after initially committing
to remain neutral on the project, the composition of the County Board
of Commissioners changed, and the currently comprised Board now opposes
our project. The current Board recently chose to back out of an
agreement with the city of Airway Heights that would have provided
additional compensation to the county once gaming occurs on the site.
Notably, the city remains contractually bound to the tribe to allocate
a portion of the tribe's annual mitigation payment to the county. The
tribe is confused by the county's recent arguments concerning lost tax
revenues, since the county lost its taxing authority over the site when
it was placed into Federal trust in 2001. At full build out, however,
the project will generate millions in indirect local, county and State
tax revenues as employees and vendors recycle gaming dollars through
the local economy.
The County has provided input at every step of the tribe's project
and in fact chose to participate as a Cooperating Agency in the NEPA
process. Contrary to Commissioner Mielke's testimony, the
administrative record documents the BIA's careful consideration of the
County's comments and reflects changes to the project made in response
to some, but not all, of the county's comments. Furthermore,
Commissioner Mielke is wrong to suggest that the tribe promised it
would not game on the site when it was taken into trust in 2001.
Instead, the administrative record in support of the tribe's initial
fee to trust determination demonstrates that the tribe expressly sought
the property for economic development and would not rule out the
possibility of gaming.
The tribe takes exception to Commissioner Mielke's portrayal of our
project as a potential encroachment on Fairchild Air Force Base
(``FAFB''). As a Cooperating Agency, the Air Force has been closely
involved in the development of mitigation measures for the project. The
law presumes that cooperating agencies can speak for themselves
concerning impacts upon their jurisdictions and necessary mitigation
measures. With valuable input from the FAA, FAFB and the Air Force,
numerous mitigation measures have been incorporated into the project,
including building height restrictions, prevention of hazardous
wildlife attractants, building material requirements for noise
attenuation, lighting mitigation such as glare reduction, and
commitments from the tribe's government to acknowledge and to not
complain of impacts arising from existing or future FAFB flight
operations. Notably, throughout the extensive NEPA and separate
consultation process, neither the Air Force nor FAFB have identified
the project as an ``encroachment'' on base operations.
Finally, the extensive administrative record belies Commissioner
Mielke 's suggestion that only 1 percent of the region's population
supports the tribe's project. Instead, the project enjoys broad support
from local elected officials, labor leaders and local governments,
including the city of Airway Heights, which is the local jurisdiction
that will be most impacted by our project.
We respectfully submit that the committee should beware of certain
local governments who seek an effective veto over tribal gaming
applications by requiring the Department to uncritically defer to their
claims of detrimental impacts. IGRA does not provide local governments
with such a veto.\1\
---------------------------------------------------------------------------
\1\ The Secretarial Determination is unique among the exceptions in
that the governor of the State in which the proposed gaming site is
located has an effective veto over final approval. 25 U.S.C.
Sec. 2719(b)(I)(A); 25 CFR 292.22, 292.23. Thus, a favorable
Secretarial determination, while critical, is not the final step in the
approval process: the governor of the State in which the gaming is to
occur must also concur in the Secretary's Determination.
---------------------------------------------------------------------------
Instead, IGRA requires the Department to balance state and tribal
interests in tribal gaming activities. With respect to tribal
interests, Congress expressly prohibited gaming on lands acquired in
trust after October 18, 1988. Pursuant to IGRA and the 2008
Regulations, the Department applies heavy scrutiny to all tribal
applications for off-reservation gaming on lands acquired after October
18, 1988 to ensure that they do not result in a detrimental impact to
communities surrounding the proposed gaming site. In so doing, the
Department seeks to avoid upsetting the intent of Congress in enacting
IGRA, which balances the economic development interest of Indian tribes
with the interests of States in protecting local communities from
detrimental impacts. Enterprise ILD, p. 28-29; North Fork ILD, p. 46-
47.
Ironically, tribes that received off reservation gaming approvals
in the early days of IGRA (approvals that would not have survived the
added scrutiny of the 2008 Regulations) are among the strongest
opponents of certain pending tribal gaming applications. These tribes
are afforded a full opportunity to express their opposition. For
instance, Kalispel has committed tremendous economic, political and
legal resources to oppose Spokane's application at every opportunity.
The crux of Kalispel's opposition to the Spokane's application is
simple--after a 14 year gaming monopoly in Spokane's territory, they do
not wish to compete with the resident tribe. The inequities inherent in
Kalispel's request to maintain its gaming monopoly manifest in the
level of ``hardship'' Kalispel would suffer if Spokane were allowed to
open. Even if Kalispel's worst case scenario regarding projected
reduction in profits is correct, the Kalispel Tribe would still have 14
times more revenue available per tribal member for the provision of
tribal government services and programs than are currently available to
the Spokane Tribe.
Despite Kalispel's considerable opposition, the Spokane Tribe is
confident that the Department will not act as a guarantor of Kalispel's
gaming monopoly. In interpreting the 2008 Regulations, the Department
has determined that ``IGRA does not guarantee that tribes operating
existing facilities will continue to conduct gaming free from both
tribal and non-tribal competition.'' Enterprise ILD, p. 32, citing
Sokaogon Chippewa Community v. Babbit, 214 F.3d 941 (7th Cir. 2000).
That sound policy resonates in Spokane's case, in which a foreign tribe
with no historic ties to the area seeks to preclude the resident tribe
from fairly competing in a gaming market capable of sustaining both
tribes. In any event, the 2008 Regulations have provided Kalispel ample
opportunity to load the record with comments backed by studies from
various consultants. Regardless of the merits of the decision on
Spokane's application, Kalispel cannot fairly complain that it was
denied the opportunity to have its comments considered by the
Department.
The 2008 Regulations mark a sea change in Departmental review of
off reservation gaming applications. Each post-2008 determination
reflects the Department's careful review of all substantive comments
submitted by the public, local governments, and State and Federal
agencies. Each post-2008 Determination is the product of a transparent
decisionmaking process that includes the benefit of an exhaustive NEPA
analysis and consultation with local units of government. The current
leadership within the Department is continuing this administration's
commitment to process a backlog of difficult and nearly always
controversial tribal gaming applications.
Respectfully,
Rudy J. Peone
Chairman, Spokane Tribal Council.
______
Prepared Statement of the Tohono O'odham Nation, Office of the Chairman
and Vice Chairman
Following is the written testimony of the Tohono O'odham Nation
(``Nation'') relating to the subcommittee's recent hearing titled
``Executive Branch standards for land-in-trust decisions for gaming
purposes.'' The Nation respectfully requests that this testimony be
included in the record of the hearing.
On September 17, 2 days before the hearing, the House passed H.R.
1410. Entitled ``The Keep the Promise Act of 2013'', H.R. 1410 in fact
reneges on the promises the United States made to the Nation in the
Gila Bend Indian Reservation Lands Replacement Act (Pub. L. 99-503),
Federal legislation which settled the Nation's land and water claims
against the United States in 1986. Despite the fact that H.R. 1410
already had been voted on by the full House, both Chairman Young and
Ranking Member Hanabusa took the opportunity once again to malign the
Nation and its efforts to implement the settlement benefits that the
United States promised to the Nation in the 1986 Federal settlement
statute. Chairman Young remarked that: ``[t]he passage of a House bill
this week to block an off-reservation casino in Phoenix is a sign of
popular support for taking the off-reservation gaming rubber stamp away
from the administration, and letting Congress make decisions regarding
gaming.'' Yet the Federal courts repeatedly have ruled that the
Nation's effort to acquire certain land in trust and use it for gaming-
related economic development is entirely consistent with Congress'
existing direction in both the Nation's settlement statute and IGRA.
Unfortunately, Ranking Member Hanabusa also ignored the Federal court
decisions specific to the Nation's efforts, stating that: ``[i]f
enacted into law, H.R. 1410 would prevent any Arizona tribe from
circumventing existing Federal authorities to conduct gaming off-
reservations. I view that legislation an example of the safety valve
Congress can provide when tribes seeks to engage in so-called
reservation shopping .'' It is deeply distressing that our Federal
trustee continues to ignore the plain language of existing Federal law
and the clear rulings of the Federal courts. The position taken by the
committee on H.R. 1410 is in fact a total abdication of the United
States' obligations to the Nation under its 1986 settlement act, and is
reminiscent of the 1950s Termination Era.
This year marks the 25th anniversary of IGRA. In July, the National
Indian Gaming Commission reported that in 2012 Indian gaming generated
$27.9 billion. This economic development has been instrumental in
affording tribes the opportunity to fund tribal government services,
including healthcare, law enforcement, education, and cultural
activities; it also has had a profound positive impact on surrounding
communities, creating thousands of jobs for non-Indians. This economic
development engine--which is not dependent on federally appropriated
dollars--is particularly crucial during these difficult economic times.
Accordingly, during a 2011 hearing before the Senate Committee on
Indian Affairs, Chairman Stevens of the National Indian Gaming
Association cautioned against amendments to IGRA: ``[f]or hundreds of
tribal governments there is simply too much at stake to open the Indian
Gaming Regulatory Act up to amendments on the floor of either the House
or Senate. Tribes have consistently opposed subjecting IGRA to
amendments for the past 23 years.'' \1\
---------------------------------------------------------------------------
\1\ U.S. Senate, Committee on Indian Affairs, The Future of
Internet Gaming: What's at Stake for Tribes? 112th Cong., 1st Sess. S.
Hrg. 112-490 (Nov. 17, 2011).
---------------------------------------------------------------------------
The September 19th oversight hearing focused on the so-called
``two-part determination'' exception contained in section 20(b)(1)(A)
of IGRA, 25 U.S.C. Sec. 2719(b)(1)(A). The Nation is concerned,
however, that any proposed amendments to IGRA would extend to some of
the other exceptions; in particular, IGRA's remedial exceptions in
section 20(b)(1)(B). These include the settlement of a land claim
exception (under which the Nation seeks to game and which H.R. 1410
would frustrate), the initial reservation exception, and the restored
lands exception. 25 U.S.C. Sec. 2719(b)(1)(B)(i)-(iii). Congress
provided these limited remedial exceptions in IGRA in recognition of
the historical wrongs experienced by those tribes that qualify for the
exceptions, so that these disadvantaged tribes also could access the
benefits of Indian gaming. The Department of the Interior has hardly
implemented these statutory exceptions with a ``rubber stamp''--the
exceptions have been utilized only a very few times since IGRA's
enactment, and currently they are rigorously applied according to
Departmental regulations adopted by the Bush administration that
further limit their application and scope. There is no question but
that amendments to these exceptions in IGRA would disproportionately
impact the most vulnerable tribal nations with the least resources, and
would be contrary to the United States' trust responsibility to those
tribes.
For these reasons, the Tohono O'odham Nation stands together with
the administration, the National Indian Gaming Association, and many
other tribal governments in opposing amendments to the Indian Gaming
Regulatory Act. Any such effort would be ill-advised and detrimental to
the economic well-being of tribal nations, States, and the surrounding
communities who benefit from Indian gaming under its current legal and
regulatory structure. The Nation urges the committee to be true to the
original intent of the remedial exceptions, to recognize the historical
injustices that the exceptions are intended to address, and refrain
from imposing even more draconian limitations than already were put
into place by the previous administration. Otherwise, the adverse
effects of the committee's actions will disproportionally impact the
most disadvantaged and vulnerable tribal nations.
The Tohono O'odham Nation thanks the subcommittee for this
opportunity to share its views on this very important matter.
______
List of Documents Submitted for the Record Retained in the Committee's
Official Files
Cow Creek Band of Umpqua Tribe's Exhibit Book re Opposition
to Coquille Indian Tribe's Proposed Medford Casino (within that
book are the following submissions):
Opposition letter from Oregon House of
Representatives
Opposition letter from Oregon Governor
Opposition letter from Oregon General Counsel
Opposition letter from Jackson County, Oregon
Resolution and Opposition letter from City of
Medford
Report from EcoNorthwest re Application of Lottery
Impact Methodology on the Case of a Casino in
Medford
Southwest Oregon Tribal Political Areas
Historical Background: Report of Stephen Dow
Beckham