[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
H.R. 1239 AND H.R. 2742
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
October 17, 2001
__________
Serial No. 107-69
__________
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana James P. McGovern, Massachusetts
Greg Walden, Oregon Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho Hilda L. Solis, California
Thomas G. Tancredo, Colorado Brad Carson, Oklahoma
J.D. Hayworth, Arizona Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Allen D. Freemyer, Chief of Staff
Lisa Pittman, Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeff Petrich, Democrat Chief Counsel
C O N T E N T S
----------
Page
Hearing held on October 17, 2001................................. 1
Statement of Members:
Carson, Hon. Brad, a Representative in Congress from the
State of Oklahoma.......................................... 1
Prepared statement on H.R. 2742.......................... 4
Kildee, Hon. Dale E., a Representative in Congress from the
State of Michigan.......................................... 6
Filner, Hon. Bob, a Representative in Congress from the State
of California.............................................. 9
Prepared statement on H.R. 1239.......................... 11
Hayworth, J.D., a Representative in Congress from the State
of Arizona................................................. 5
Prepared statement on H.R. 1239 and H.R. 2742............ 6
Hunter, Hon. Duncan, a Representative in Congress from the
State of California........................................ 7
Istook, Hon. Ernest J., a Representative in Congress from the
State of Oklahoma.......................................... 29
Statement of Witnesses:
Anoatubby, Hon. Bill, Governor, Chickasaw Nation, Oklahoma,
and Chairman, Native American Cultural and Educational
Authority.................................................. 27
Prepared statement on H.R. 2742.......................... 28
Garcia, Hon. Michael, Vice-Chairman, Ewiiaapaayp (Cuyapaipe)
Band of Kumeyaay Indians................................... 34
Prepared statement on H.R. 1239.......................... 36
Responses to questions submitted for the record.......... 59
Goff, Ralph, Board Chairman, Southern Indian Health Council,
Inc........................................................ 55
Prepared statement on H.R. 1239.......................... 56
Responses to questions submitted for the record.......... 67
Haney, Hon. Enoch Kelly, Chairman of Appropriations, Oklahoma
State Senate............................................... 22
Prepared statement on H.R. 2742.......................... 23
Humphreys, Hon. Kirk, Mayor, Oklahoma City, Oklahoma......... 20
Prepared statement on H.R. 2742.......................... 21
Liu, Michael, Assistant Secretary for Public and Indian
Housing, U.S. Department of Housing and Urban Development.. 30
Prepared statement on H.R. 1239.......................... 31
McCaleb, Neal A., Assistant Secretary for Indian Affairs,
U.S. Department of the Interior, prepared statement on H.R.
2742....................................................... 19
Smith, Wayne, Deputy Assistant Secretary for Indian Affairs,
U.S. Department of the Interior............................ 33
Prepared statement on H.R. 1239.......................... 33
TeSam, Steven, Chairman, Viejas Band of Kumeyaay Indians..... 51
Prepared statement on H.R. 1239.......................... 53
Responses to questions submitted for the record.......... 63
Thompson, Tommy, Executive Director, Native American Cultural
and Educational Authority of Oklahoma...................... 24
Prepared statement on H.R. 2742.......................... 25
Additional Materials Supplied:
Keating, Hon. Frank, Governor of Oklahoma, statement
submitted for the record................................... 59
LEGISLATIVE HEARING ON H.R. 1239, TO ESTABLISH A MORATORIUM ON APPROVAL
BY THE SECRETARY OF THE INTERIOR ON THE RELINQUISHMENT OF A LEASE OF
CERTAIN TRIBAL LANDS IN CALIFORNIA; AND H.R. 2742, TO AUTHORIZE THE
CONSTRUCTION OF A NATIVE AMERICAN CULTURAL CENTER AND MUSEUM IN
OKLAHOMA CITY, OKLAHOMA.
----------
Wednesday, October 17, 2001
U.S. House of Representatives
Committee on Resources
Washington, DC
----------
The Committee met, pursuant to other business, at 10:24
a.m., in Room 1324, Longworth House Office Building, Hon. James
V. Hansen (Chairman of the Committee) presiding.
The Chairman. We are now ready to start our hearing. I
welcome our colleagues, both from California, as I notice
there. Mr. Duncan and Mr. Filner, appreciate you coming up and
being part of this hearing today.
We are on somewhat of a tight schedule. Mr. Carson, maybe
you would stay right here and we will take you where you are.
Is that okay? And Mr. J.D. Hayworth is supposed to take this
Chair, and in the absence of Mr. Hayworth--you may have to.
I do appreciate you being here, and we will start with the
member of our Committee, Mr. Carson, for his opening comments.
STATEMENT OF HON. BRAD CARSON, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OKLAHOMA
Mr. Carson. Thank you, Mr. Chairman, and thank you for
agreeing to hold this hearing on the Native American Cultural
Center for Oklahoma City, Oklahoma, which is different than my
colleagues are going to testify about as well. We are fortunate
to have today several distinguished members from the community
of Oklahoma City: the mayor of Oklahoma City, Kirk Humphreys;
State Senator Kelly Haney, from Seminole, Oklahoma; and many
other people involved in this project as well.
I would also like to thank Ranking Member Rahall and the
entire Committee on Resources staff for their leadership and
their hard work in bringing this hearing to fruition.
As an enrolled member of the Cherokee Tribe and
representing the most Native American district in the country,
H.R. 2742, about which I am commenting, and the Native American
Cultural Center and Museum which is planned for Oklahoma City
carry especially great significance for me.
The area encompassed by the boundaries of the State of
Oklahoma, often referred to as ``Native America,'' has had a
special relationship with Indian Nations since long before it
became a State in 1907. Beginning in the 1820's, the Five
Civilized Tribes from the southeastern United States were
relocated to Indian Territory over numerous routes, the most
famous being the Cherokee ``Trail of Tears.'' Forced off their
ancestral lands by State and Federal Governments, the tribes
suffered great hardships during these rigorous trips West. This
forced march of Eastern tribes to the West under the Indian
Removal Act of 1830 is the best-known movement of American
Indians to what is now Oklahoma.
Thirty-nine tribes are recognized by my State, including
both tribes forced to Oklahoma and tribes native to the Plains.
These tribes collectively and individually have played an
invaluable role in the evolution of the State of Oklahoma. The
culture and history of Oklahoma are inseparable from that of
the 39 recognized tribes. Nevertheless, before the creation of
the Native American Cultural and Educational Authority of
Oklahoma, there has been little statewide effort to recognize
the contributions and sacrifices made by the tribes and no
Federal effort in Oklahoma.
In 1994, the Oklahoma Legislature, acting under the
enlightened leadership of Senator Haney, created the Native
American Cultural and Educational Authority to promote the
history of Native Americans for the mutual benefit of the State
of Oklahoma and its Indian and non-Indian citizens. By that
legislation, the Authority was authorized and empowered to
construct and operate a cultural center and museum on a chosen
site in Oklahoma. Since 1994, various entities, including the
Authority, the State Legislature, the Office of the Governor,
Native American groups, and a stellar design team have worked
together and developed an impressive and extensive plan for the
creation of the Native American Cultural Center and Museum in
Oklahoma City which three cities in Oklahoma initially bid for.
The approximately 300-acre site, donated by Oklahoma City,
where the center will be located, as I mentioned, will have a
Great Promontory, a Court of Nations, a Court of the Wind, a
Hall of the People, Permanent and Temporary Galleries, a ``Who
We Are'' Theater, a Multi-Purpose Theater, a Demonstration
Gallery, Family Center, Study Center, Discovery Center, a Lodge
Hotel and Conference Center, a Visitor Center, as well as
Dancing Grounds. As an affiliate of the Smithsonian
Institution, the museum will be able to rotate exhibits with
the Native American Smithsonian Museum being built in
Washington, enriching both of the museums' collections and
presentation.
Some of the main goals tied to the creation of the Native
American Cultural Center and Museum are: to link the past,
present, and future of Indian Nations and present them to the
visitor in a way that he or she can experience and understand
fully; to preserve and promote the living cultures of Native
Americans; and to strive for economic self-sufficiency and to
engender the principles of environmental sustainability.
This massive endeavor, representing and promoting all 39
tribes in Oklahoma, is truly awe-inspiring and worthy of
Federal financial and technical support. The design team
includes Ralph Appelbaum, whose achievements include the United
States Holocaust Museum, and Bill Fain, who helped design the
TransAmerica building in San Francisco. Bob Schaffer, another
member of the design team from Johnson Fain Partners, is in the
audience today. This world-class team--and I ask anyone to look
at the design, and you will truly be astounded. That team has
enjoyed the support of the entire delegation from Oklahoma as
well as our Governor, Frank Keating.
H.R. 2742 would authorize the appropriation of $33 ml over
a period of 4 fiscal years beginning in 2003. However,
appropriation of Federal dollars is contingent upon private,
city, and State sources accounting for 66 percent of the total
cost. Thus, the center is neither wholly dependent upon Federal
funds nor given access to Federal funds until a local
commitment has been adequately demonstrated. Nevertheless,
Federal funds are necessary and are reasonable.
Given the Federal Government's significant role, indeed
responsibility, in relocating many of the 39 tribes now a part
of Oklahoma, it seems more than appropriate for the Federal
Government to award grants to the Native American Cultural and
Educational Authority for the development of this museum
committed to preserving the history and culture of these
tribes.
Furthermore, a precedent has been set for the Federal
funding of State museums, not to mention today when we just did
that for the State of Utah. Other examples include the
Steamtown Railroad Museum in Pennsylvania which was
appropriated $80 million in Federal funds.
In conclusion, as you will see from the testimony of Mayor
Humphreys, Senator Kelly Haney, Governor Bill Anoatubby of the
Chickasaw Nation, and Tommy Thompson of the Native American
Authority, such a museum is not only necessary for the
preservation of Indian cultures, but it carries deep
significance in the State of Oklahoma.
I appreciate this opportunity to make some comments. Mr.
Chairman, I know you represent a district with many Native
Americans as well, indeed, the one in which I was born when my
father worked for the Navajo Tribe. And I think, as Felix Cohen
said in his ``Authoritative Guide to Indian Law,'' how we treat
Native Americans is really the canary in the mine shaft that
says how strong our democracy will be.
It is a great move today to finally celebrate and promote
what for so long in this country we have denigrated and
destroyed. I would ask for this Committee's support in doing
that.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Carson follows:]
Statement of Hon. Brad Carson, a Representative in Congress from the
State of Oklahoma
I would like to begin by expressing my sincere appreciation to
Chairman Hansen, Ranking Member Rahall, and the entire Committee on
Resources staff for their leadership and hard work in bringing this
hearing to fruition. As an enrolled member of the Cherokee Tribe and
representing the most Native American district in the country, H.R.
2742 and the Native American Cultural Center and Museum, planned for
Oklahoma City, Oklahoma, carry great significance for me.
The area encompassed by the boundaries of the State of Oklahoma,
often referred to as ``Native America,'' has had a special relationship
with Indian Nations since long before it became a State in 1907.
Beginning in the 1820s, the Five Civilized Tribes from the southeastern
United States were relocated to Indian Territory over numerous routes,
the most famous being the Cherokee ``Trail of Tears.'' Forced off their
ancestral lands by state and federal governments, the tribes suffered
great hardships during the rigorous trips west. This forced march of
Eastern tribes to the West under the Indian Removal Act of 1830 is the
best-known movement of American Indians to what is now Oklahoma.
Thirty-nine tribes are recognized by the state, including both tribes
forced to Oklahoma and tribes native to the Plains. These tribes
collectively and individually have played an invaluable role in the
evolution of the State of Oklahoma. The culture and history of Oklahoma
are inseparable from that of the 39 tribes. Nevertheless, before the
creation of the Native American Cultural and Educational Authority of
Oklahoma, there has been little statewide effort to recognize the
contributions and sacrifices made by the tribes and no federal effort
in Oklahoma.
In 1994, the Oklahoma Legislature created the Native American
Cultural and Educational Authority to promote the history of Native
Americans for the mutual benefit of the State of Oklahoma and its
Indian and non-Indian citizens. By that legislation, the Authority was
authorized and empowered to construct and operate a cultural center and
museum on a chosen site in Oklahoma. Since 1994, various entities,
including the Authority, the State Legislature, the Office of the
Governor, Native American groups, and a stellar design team have worked
together and developed an impressive and extensive plan for the
creation of the Native American Cultural Center and Museum in Oklahoma
City which three cities in Oklahoma initially bid for.
The approximately 300 acre site, donated by the Oklahoma City,
where the Center will be located, will have a Great Promontory, a Court
of Nations, a Court of the Wind, a Hall of the People, Permanent and
Temporary Galleries, a ``Who We Are'' Theater, a Multi-Purpose Theater,
a Demonstration Gallery, Family Center, Study Center, Discovery Center,
a Lodge Hotel and Conference Center, a Visitor Center, and Dancing
Grounds. As a Smithsonian affiliate, the museum will be able to rotate
exhibits with the Native American Smithsonian Museum being built in
Washington, enriching both of the museums' collections.
Some of the main goals tied to the creation of the Native American
Cultural Center and Museum are as follows:
1. LTo link the past, present and future of Indian Nations and
present them to the Visitor in a way that he or she can experience and
understand fully.
2. LTo preserve and promote the living cultures of Native
Americans, in language and history, dance, arts, cultural values and
spirituality.
3. LAnd to strive for economic self-sufficiency and to engender the
principles of environmental sustainability.
This massive endeavor, representing and promoting all 39 tribes in
Oklahoma, is truly awe inspiring and worthy of federal financial and
technical support. The design team includes Ralph Appelbaum, whose
achievements include the United States Holocaust Museum, and Bill Fain,
who helped design the TransAmerica building in San Francisco. Bob
Schaffer, another member of the design team from Johnson Fain Partners,
is in the audience today. This world class team has enjoyed the support
of Governor Keating of Oklahoma, Senators Nickles, Inhofe, and
Campbell, the Oklahoma State Legislature, and Representatives Watkins,
Watts, Largent and Istook of the Oklahoma Delegation, to name a few.
H.R. 2742 would authorize the appropriation of $33 million dollars
over a period of four Fiscal Years beginning in 2003. However,
appropriation of federal dollars is contingent upon private, city and
state sources accounting for 66% of the total cost. Thus, the Center is
neither wholly dependent upon federal funds nor given access to federal
funds until a local commitment has been adequately demonstrated.
Nevertheless, federal funds are necessary and are reasonable. Given the
federal government's significant role in relocating many of the 39
tribes now a part of Oklahoma, it seems more than appropriate for the
federal government to award grants to the Native American Cultural and
Educational Authority for the development of this museum committed to
preserving the history and culture of these tribes. Furthermore, a
precedent has been set for the federal funding of state museums. To
name a few examples, from 1986 to 1994, the Steamtown Railroad Museum
in Pennsylvania was appropriated $80 million in federal funds. From
1996 to 1997, the Hispanic Cultural Center in New Mexico was
appropriated $16 million. And, under the Omnibus Indian Advancement Act
of the 106th Congress, appropriations amounting to over $18 million
dollars were authorized for the Wakpa Sica Reconciliation Place in Fort
Pierre South Dakota.
In conclusion, as you will see from the testimony of Mayor
Humphreys, Senator Kelly Haney, Governor Anoatubby of the Chickasaw
Nation, and Tommy Thompson of the Native American Authority such a
museum is not only necessary for the preservation of Indian cultures,
but it carries deep significance in the State of Oklahoma.
Thank you again Mr. Chairman and Mr. Rahall. I truly appreciate the
opportunity to testify before this Committee on this subject.
______
STATEMENT OF HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ARIZONA
Mr. Hayworth. [Presiding.] I thank the gentleman from
Oklahoma for his explanation of the proposed legislation and
look forward to hearing from the panel, and I appreciate the
fact that for purposes of full disclosure, he pointed out that
he was born in what is now the 6th Congressional District of
Arizona, I believe in Winslow, if I am not mistaken.
I appreciate the fact that so many of our colleagues have
joined us on this first panel. If I could offer an opening
statement, then I will turn to my friend, the ranking member,
from Michigan.
As we have this first full Committee hearing on Native
American issues and as co-Chair of the Native American Caucus
along with my friend from Michigan, it has been true that over
the years we have kept active on Native American issues on a
bipartisan basis. Once again, it is my honor and opportunity to
rejoin the Resources Committee and have a great responsibility
to effect Indian policy through this legislative process.
As has been pointed out already from the gentleman born in
Arizona, now representing Oklahoma, Native American issues are
important to Arizona, Oklahoma, Michigan, and the 47 other
States, and I am honored to once again have a critical role in
assuring that the proposed legislation and the other issues are
heard before this Committee.
As the Chairman of the full Committee may have pointed out
earlier, we are going to be hearing testimony on two bills.
H.R. 1239, to establish a moratorium on approval by the
Secretary of Interior of a relinquishment of a lease of certain
tribal lands in California, introduced by our friend
Congressman Duncan Hunter. Congressman Hunter introduced H.R.
1239 to provide a time period during which all groups and
individuals impacted by the changes to the location of the
health clinic might fully understand the ramifications of the
relinquishment/lease agreement that will lead to the changes.
At issue is land taken into trust by one tribe for the purpose
of location a health clinic that provides service to seven
southern San Diego Indian tribes and the surrounding non-Indian
community. The tribe now desires to change the use of the land
from a health care facility to a gaming facility while
providing continued and improved health care. By changing the
use of the land, the health clinic and those is serves will be
impacted. This hearing is designed to provide information to
all the affected parties.
The second piece of legislation, H.R. 2742, wonderfully
explained by the gentleman from Oklahoma in his opening
statement, talks about establishing a Native American Cultural
Center and Museum in Oklahoma City, and so we appreciate his
efforts there.
I would turn at this juncture--oh, one final note before
turning to the ranking member for his statement. I would ask
unanimous consent that Congressman Hunter, once he finishes his
them, and Congressman Knollenberg of Michigan be allowed to
join members of the Committee on the dais and participate in
the hearing. Is there objection? Hearing none, it is so
ordered, as we continue apace.
Now we turn to our good friend from Michigan, the ranking
minority member.
[The prepared statement of Mr. Hayworth follows:]
Statement of the Hon. J.D. Hayworth, a Representative in Congress from
the State of Arizona
Good morning. Welcome to the first Full Committee hearing on Native
American issues. As Co-Chair of the Native American Caucus I have kept
active in Native American issues. Now, once again as a Member of the
Resources Committee, I have the opportunity to effect Indian policy
through the legislative process. Native American issues are very
important to my constituents as well as to me and I am pleased that I
have a critical role in assuring that they are heard before this
Committee.
We will be hearing testimony on two bills this morning. The first
bill, H.R. 1239, To establish a moratorium on approval by the Secretary
of the Interior of relinquishment of a lease of certain tribal lands in
California, was introduced by Congressman Duncan Hunter. Congressman
Hunter introduced H.R. 1239 to provide a time period during which all
groups and individuals impacted by the changes to the location of the
health clinic might fully understand the ramifications of the
relinquishment/lease agreement that will lead to these changes. At
issue is land taken into trust by one tribe for the purpose of locating
a health clinic that provides service to seven southern San Diego
Indian tribes and the surrounding non-Indian community. The tribe now
desires to change the use of the land from a health care facility to a
gaming facility while providing continued and improved health care. By
changing the use of the land, the health clinic and those it serves
will be impacted. This hearing is designed to provide information to
all affected parties.
The second bill, H.R. 2742, To authorize the construction of a
Native American Cultural Center and Museum in Oklahoma City, Oklahoma,
was introduced by a member of this Committee, Congressman Brad Carson.
H.R. 2742 directs the Secretary of the Interior to offer to award
financial assistance grants and technical assistance to the Native
American Cultural and Educational Authority of Oklahoma for the
development of the Native American Cultural Center and Museum in
Oklahoma City, Oklahoma. The total amount of funding shall not exceed
$33,000,000 We look forward to learning more about this project from
today's witnesses. I now yield to the Ranking Democrat for an opening
statement.
______
STATEMENT OF HON. DALE E. KILDEE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MICHIGAN
Mr. Kildee. I thank the Chairman and also the co-Chair of
the Native American Caucus, along with myself. I look forward
to hearing the testimony on 1239, and I will have some
questions of the witnesses. And I would like to go on record
reporting 2742 as introduced by our friend from Oklahoma. This
has the support of the Native American Caucus in the Congress,
which consists of 105 members. It has the support of Governor
Keating of Oklahoma, Senators Nickles, Inhofe, Campbell, the
Oklahoma State Legislature, Representatives Watkins, Watts,
Largent, Istook, and the Oklahoma delegation. I think you have
done a very good job in putting this all together and I support
you on that.
I look forward to the testimony of our other colleagues.
Mr. Hayworth. And I think the ranking member and, of
course, other members, as is our practice, can submit their
opening statements for the record.
Now we turn to a dynamic duo from the State of California.
We thank them for their patience to testify here on panel one,
and we will first hear from our friend, Congressman Duncan
Hunter. Congressman Hunter?
STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Hunter. Thanks for allowing us to appear before you. I
know you have got a number of people that want to talk on this
issue, and let me try to summarize my remarks. I don't have a
prepared statement, but I want to kind of paint a picture for
you with respect to this issue and perhaps take a few minutes
on the dais with you.
If I could ask Tom to give to you my letter of 1985, June
13th of 1985, I think it lays this issue out fairly
effectively. It gives you a good background.
Back in 1985, the seven tribes in my congressional district
were part of what is known as the Southern Indian Health
Council, and at that point we had very temporary facilities for
the Health Council. And they came to me and informed me that
they needed to have a permanent Indian Health Council clinic
that was centrally located and convenient to all tribes, and
also that it would be available to folks that lived in Alpine,
California, a small community on Highway 8 heading directly
toward your district, Mr. Chairman, about 15 miles out of what
is known at Greater San Diego.
After we were looking around for a piece of land--and, in
fact, in this letter, as you can see, it says--and this is a
letter to the Acting Assistant Secretary of the Interior for
Indian Operations, BIA, of 1985. It basically laid out what I
have just told you, that we have a number of reservations and
the Indian Health Council does not feel that it has adequate
facilities. And, therefore, we had been searching and had found
an 8.5-acre or 8.6-acre tract in Alpine.
I want you to kind of visualize this, if the members could
kind of think about this. The tribes lay around the eastern
portion of San Diego County, some of them 20, 30, 40, 50 miles
from Greater San Diego. The Cuyapaipe Tribe in whose name we
bought this 8.6-acre piece of land, is about 40 miles from the
town of Alpine itself. So their reservation is about 40 miles
from the area where we bought the 8.6-acre piece of land. And
the other reservations are, some of them, a few mile away, some
of them many miles away.
But we bought this piece of land specifically for putting
the Indian Health Council, Southern Indian Health Council
clinic at that location and constructing it. And as I stated--
and I am looking at the fourth paragraph of this letter in
1985--I wholeheartedly endorse the SIHC's proposal to acquire
this 8.6-acre tract upon which they intend to construct a new
medical center to serve all seven reservations within the 45th
Congressional District, San Diego County.
Since time is pressing, I believe it is essential that we
move at once to initiate the site acquisition process. Toward
this end, I strongly urge you to take whatever action is
necessary to expedite placing this 8.6-acre tract in trust by
the Department of the Interior for the Cuyapaipe Reservation so
that the construction of a new health center can begin in a
timely manner.
Last paragraph: It is also important to note here that the
Cuyapaipe Reservation and the SIHC, the Health Council, has
successfully secured a $446,000 grant from the Federal
Department of Housing and Urban Development, HUD, to be used
for the new medical center.
So we bought this piece of land specifically for a medical
center to be used for the benefit of all seven tribes. And HUD
money was obtained, at least according to this letter, before
the purchase of the property itself.
It is a little bit for us--and let me just say all parties
here I think are to be commended for the way they have pursued
this issue. The Cuyapaipe have done this. They have pursued
this in a businesslike manner with integrity. So have the other
tribes, including those who oppose placing a casino on this
particular piece of land.
Well, time marched on, Mr. Chairman, and as we all know,
casino operations became in vogue in California, as they did in
other places. And the Cuyapaipe at one point--and they are
going to explain their case, I think very effectively--were
approached about taking the health clinic and converting that
piece of land, that 8.6 acres that is 40 miles from their
traditional reservation into a casino on the outskirts of
Alpine, California, and moving the health clinic or maybe
moving it to another piece of property or moving it to the back
of the property, but continuing to maintain a health clinic at
some location. In fact, they have described, I think, a very
attractive health clinic package if they were allowed to place
a casino on this location.
Well, you have got seven members in this Indian Health
Council, and two of the members, Barona and Viejas, objected to
relinquishing the 25-year lease that the Health Council took
from the Cuyapaipe who had the pink slip on this land. The
Cuyapaipe then applied to the Health Council to allow the lease
to be relinquished, and in a majority vote, with two of the
members--that is, Viejas and Barona--voting no, but my last
information is in a majority vote the Health Council agreed to
relinquish this piece of land.
Now, here are the issues from my perspective. One is that
it is still unclear as to exactly what role the community
development block grants played in the acquisition of the
health clinic property. Were they used to purchase the
property? That was the initial response from the administration
a couple of years ago when we first looked at this issue.
Later, the Cuyapaipe brought in evidence that tended to rebut
that, that actually one of the members of the tribe had come up
with some cash and that was the down payment.
The other aspect of the utilization of the community
development block grant money was that it was used as
collateral for the acquisition of the 8.6 acres. Certainly it
was definitely used to construct, obviously, the health clinic.
So an issue of whether or not taxpayer dollars were used in
direct purchase or as collateral for this property is I think
at issue and something we could explore today.
But the second aspect is this: We are now, I think, pretty
familiar with the autonomy that is accorded reservations
throughout this country that allow them to undertake operations
that would not be allowed if they were private citizens using
private property. And that autonomy, I think, is something that
used to be respected, and we have respected it in California,
and you know that we now have gaming operations in a number of
reservations in California.
On the other hand, the idea of extending that philosophy to
allow a tribe which is located 50 miles away from an urban area
to purchase a small piece of property within the urban area at
a location that will avail itself of greater traffic and
greater utilization and place that property in trust--and,
obviously, at the time nobody intended to build a casino on the
property. I think that is very clear. The intent was to have it
in an urban area because that was the ideal place to have a
health clinic, not 50 miles out from the urban area. So to go
50 miles from the reservation and purchase a small piece of
property for purposes of having a health clinic and then
convert that into a casino operation at a later date I think to
some degree moves beyond the idea and the principle of
reservations being able to have autonomy and do with trust land
what they want to do, even though it in some cases would
conflict, if it was private land, with the local laws and State
laws.
So it is a somewhat unusual case, Mr. Chairman. That is a
brief illustration of the issues and the background, and we
look forward to answering any questions that you folks might
have, and also listening to the tribal members who are going to
testify soon.
Thanks.
Mr. Hayworth. I thank my colleague from California.
Now we turn to his neighbor, who joins him there as a
witness, our friend Bob Filner, also of California.
STATEMENT OF HON. BOB FILNER, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF CALIFORNIA
Mr. Filner. I thank the Chairman. We recently went through
redistricting in California, and I was moved all the way to the
Arizona border. But I didn't know I had been moved all the way
to Oklahoma. I am sure Mr. Carson would like additional
Democratic help, but--
Mr. Hayworth. Wishful thinking on the part of the gentleman
from Oklahoma.
Mr. Carson. Most of my constituents moved out there about
50 years ago, Bob.
[Laughter.]
Mr. Filner. That is why I am a Member of Congress. Thank
you.
I am here to support Duncan Hunter's bill, H.R. 1239, and
our colleagues from San Diego County, Duke Cunningham and
Darrell Issa. And you know, Mr. Chairman, if Hunter and Filner
agree, there probably should not be any opposition.
Mr. Hayworth. There could even be peace in our time.
Mr. Filner. I think Mr. Hunter explained the controversy
amongst the group of Indian tribes in San Diego County as to
the disposition of this health clinic. Last year, in fact, an
identical bill passed the House unanimously with the support of
both the Republican and Democratic sides of this Committee, and
I hope you will take similar action this year.
Mr. Hunter testified to the importance of the health clinic
in question, and everybody agrees to that importance. I would
urge this Committee to focus on making sure that any changes
that affect the health clinic be the subject of consensus
amongst the tribes and in the interest of all people, Indian
and non-Indian, who depend on this facility.
This is not a gaming issue. I don't believe you will hear
testimony from anyone today who doesn't support the sovereign
rights of tribes to conduct gaming operations on tribal lands
if they so desire. Most gaming questions involve balancing the
rights of the tribes with the rights of States or the Federal
Government. This issue focuses on the rights, responsibilities,
and obligations tribes have with respect to each other. The
land in question was taken into trust at the request of seven
tribes, with the support of seven tribes, and for the benefit
of seven tribes. It would never have been taken into trust for
the benefit of any one tribe, particularly for the purpose of a
gaming facility.
But I would emphasize that H.R. 1239 is not about
prohibiting or restricting gaming on the site. Its purpose is
to foster discussion and hopefully consensus amongst the tribes
before the clinic can be used for any other purpose--whether it
is gaming or a shopping mall or a parking lot.
I submit, as have others, that the Bureau of Indian Affairs
erred back in the mid-1980's when it decided to take a parcel
into trust for seven tribes but only title it to one, and the
Jamul and Manzanita Tribes showed considerable foresight when
they opposed that. Of course, the error is easy to understand,
as the decision was made in the days before Indian gaming took
hold on any large scale. It is hard to blame the BIA for
failing to foresee a day when one tribe might seek to use the
parcel for any use other than a health clinic.
However, my California colleagues and I have written to BIA
urging them not to approve the lease relinquishment as long as
controversy continues to surround it, and with representatives
from BIA in the room, let me re-emphasize that point. As I
said, it is easy to understand the failure to foresee potential
problems back in 1985. However, it will be far harder to
understand if that agency now takes precipitous action to
exacerbate those problems.
H.R. 1239 is an effort to partially correct the
administrative error by requiring consensus amongst the tribes
before the property use can be changed. This does not give all
seven tribes equal title to the parcel, but it does give all
seven tribes equal say over how that parcel will be used, if it
is to be used for anything other than the original purpose.
It is my understanding that this Committee will hear
testimony to the effect that the change in land use will
actually provide better care for the users of the clinic than
today. If this is the intent of the Cuyapaipe tribe, that is
good news, and you ought to consider that. However, I would
urge the Committee to make sure that any promises of improved
health care be specific and enforceable and that the resources
for improved health care are assured regardless of the fate of
any casino.
I am aware that some information is available in the
proposed lease between Cuyapaipe and the Southern Indian Health
Council, but my concern is that the other tribes have no
recourse should the conditions in that lease not be met. As I
understand the issue, if the BIA approves the lease
relinquishment, only one thing is certain: A casino will go up
on a site that was designed for a health clinic. To the extent
that the Committee can put additional commitments from the
Cuyapaipe Tribe, the Health Council and the investor into a
record, this Committee will have served our constituents.
However, even if every promise from supporters of the
casino is true, and even if they were enforceable, I would
still have concerns about the propriety of allowing the change
in land use in the absence of consensus amongst the tribes as a
matter of principle. Another benefit that may come from this
hearing is that the give and take between the two tribes at the
center of this controversy might be the first step toward
achieving that consensus.
Mr. Chairman, I thank the Committee for your attention.
These matters are critical to our county. I know that this
Committee has many issues to consider, and thank you for
focusing on this one. Hopefully, with your oversight and
intervention, we can take this controversial matter and make it
one of consensus and reach a resolution that all will agree to.
I thank the Chair.
[The prepared statement of Mr. Filner follows:]
Statement of the Hon. Bob Filner, a Representative in Congress from the
State of California
Mr. Chairman and Members of the Committee, I would like to thank
you for this opportunity to testify on the subject of H.R. 1239, which
I cosponsored along with my California colleagues, Duncan Hunter, Duke
Cunningham and Darrell Issa. As you know, this legislation seeks to
address a controversy among a group of Indian tribes in San Diego
County, as to the disposition of an Indian health clinic. Last year, an
identical bill passed the House unanimously with the support of both
the Republican and the Democratic sides of this committee. I hope the
committee will take similar action this year.
Mr. Hunter testified as to the importance of the health clinic in
question for people in San Diego County, and I would add my unqualified
agreement. I would urge this committee to focus on making sure that any
changes that affect the health clinic be the subject of consensus among
the tribes, and in the interest of all people, Indian and non-Indian,
who depend on the facility.
Let me state my strong opinion that this is not a gaming issue I
don't believe you'll hear testimony from anyone today who doesn't
support the sovereign rights of tribes to conduct gaming operations on
tribal lands if they decide to do so. Most gaming questions involve
balancing the rights of tribes with the rights of states or the federal
government. This issue focuses on the rights, responsibilities, and
obligations tribes have with respect to each other. The land in
question was taken into trust at the request of seven tribes, with the
support of seven tribes, and for the benefit of seven tribes. It would
never have been taken into trust for the benefit of any one tribe,
particularly for the purpose of a gaming facility.
But I would emphasize that H.R. 1239 is not about prohibiting or
restricting gaming on the site it's purpose is to foster discussion,
and hopefully consensus among the tribes before the clinic site can be
used for any other purpose whether gaming, a shopping mall or a parking
lot.
I submit, as have others, that the Bureau of Indian Affairs (BIA)
erred back in the mid-1980's when it decided to take a parcel into
trust for seven tribes and only title it to one, and the Jamul and
Manzanita Tribes showed considerable foresight when they opposed this.
Of course, the error is easy to understand, as the decision was made in
the days before Indian gaming took hold on any large scale. It is hard
to blame the BIA for failing to foresee a day when a tribe might seek
to use the parcel for any use other than as a health clinic.
However, my California colleagues and I have written to BIA urging
them not to approve the lease relinquishment as long as controversy
continues to surround it, and with representatives from BIA in the
room, let me re-emphasize that point. As I said, it is easy to
understand BIA's failure to foresee potential problems from the
perspective of 1985; however it will be far harder to understand if
that agency now takes precipitous action to exacerbate those problems.
H.R. 1239 is an effort to partially correct that administrative
error by requiring consensus among the tribes before the use of the
property can change this does not give all seven tribes equal title to
the parcel, but it gives all seven tribes equal say over how that
parcel will be used, if it is to be used for anything other than its
original purpose.
It is my understanding that the committee is likely to hear
testimony to the effect that the change in land use will actually
provide better care for the users of the clinic than they have access
to today. If this is the intent of the Cuyapaaipe tribe, that is good
news, and news that deserves to be considered. However, I would urge
this committee to make sure that promises of improved health care are
specific and enforceable, and that the resources for this improved
health care are assured regardless of the fate of the casino. I am
aware that some information is available in the proposed lease between
Cuyapaaipe and the Southern Indian Health Council (SIHC), but my
concern is that the other tribes have no recourse should the conditions
in that lease not be met. As I understand the issue, if the BIA
approves the lease relinquishment, only one thing is certain: A casino
will go up on a site that was designed for a health clinic. To the
extent that the committee can put additional commitments from the
Cuyapaaipe tribe, the SIHC and the investor into a record, the
committee will have served my constituents well.
However, even if every promise from supporters of the casino is
true, and even if they each were enforceable, I would still have
concerns about the propriety of allowing the change in land use in the
absence of consensus among the tribes, mainly as a matter of principle.
Another benefit that may come from this hearing is that the give-and-
take between the two tribes at the center of this controversy might be
the first step toward achieving that consensus, and making the
legislation unnecessary.
Mr. Chairman, I thank the committee for its attention to these
matters at this critical juncture. I know that this committee has many
issues to consider, and I appreciate your focusing on one of importance
to my constituents. Hopefully, with your oversight and intervention, we
can take a matter of controversy and turn it into a matter of
consensus, and reach a resolution satisfactory to all involved.
Once again, thank you for the opportunity to testify.
______
Mr. Hayworth. Congressman Filner, we thank you for your
testimony, likewise Congressman Hunter, and, again, for
purposes of full disclosure, the nickname ``Zonies'' is often
applied to Arizonans who come to San Diego County during the
summer months. So we have more than a casual concern about what
transpires in your respective districts.
Mr. Hunter. We welcome you.
Mr. Hayworth. Thank you very much.
Mr. Filner. But go home afterward.
Mr. Hunter. No, don't go home. We want lots of Zonies.
Mr. Hayworth. Well, already mixed messages start from the
panelists.
Mr. Hunter. Come to my district.
Mr. Hayworth. Okay. Congressman Hunter, I thank you for
providing the correspondence here. Just one note. In 1985--and,
of course, you came here, you are a venerable member of this
institution, I believe, having been elected in 1980. But fill
me in on legislative history.
As I look at the State, in 1985, that obviously occurred
before the Indian Gaming Regulatory Act was passed by the
Congress of the United States.
Mr. Hunter. Yes, and, Mr. Chairman, that is why I provided
this letter, because the letter, I think, clearly shows the
intent of all parties. The tribes all came to me, all seven
tribes, and said we desperately need a permanent health clinic
for the Southern Indian Health Council, and that is why we need
to buy the property. And that was clearly why we got the
community development block grant money, and we had that really
in hand before we purchased the property.
And let me just say, all parties come here, I think, with
good will, and certainly the situation changed, and nobody
anticipated that we would have gaming and we would have these
issues before us. But it is very clear that this piece of
property was acquired specifically for a health clinic. It is
in an urban area. And the reservation that got the pink slip to
this property--and I think it is reasonable that one of them
held title. That was easier than having all seven tribes hold
title. They were all working together in a friendly manner, and
so the seven members understood they would get a lease. And I
think it is $1 a year that they leased it from the Cuyapaipe.
So the idea that one tribe would hold title was something
that was done for convenience, and certainly without
anticipation that at some point the one tribe that held the
pink slip would say now we want to use it for gaming and we are
going to move the health clinic back or off.
And so it is clear that that was the purpose, Mr. Chairman,
and I think that is probably the most compelling reasons not to
allow this casino to be constructed on this small piece of
land. It is not a part of the traditional reservation. It is in
the urban area 50 miles away. And two of the members of the
Health Council--that is, Barona and Viejas--who I think will
testify before you, who had an interest in this, who helped put
this thing together, opposed this. And I think even if they
didn't oppose it, I think that you have a strong question of
policy here. And the question of policy--and we are going to
see this more and more. You are going to see tribes that have
5-acre pieces, 6-acre pieces, and other small pieces, what I
call to some degree promoter gaming operations that will be
identified that are in strategic locations. And in some cases,
they will be separated from the reservation by some distance.
In this case, this place is separated from the traditional
reservation by almost 50 miles. And I think that we have an
interest in preserving the autonomy that attaches to the
traditional reservation. Indeed, I have sponsored legislation
in the past that has added contiguous land that was owned by
the Forest Service and BLM to almost all the reservations in
San Diego County. We have turned over some 5,000 acres that
bordered them because it was more convenient for them to
administer the land than for other Federal agencies.
But to go 50 miles away to an urban area, have a
strategically located corner, and place that land in trust and
then convert a health clinic to a casino I think goes beyond
the intent of the law that accords now this autonomy that
allows gaming to take place on reservations. So I think you
have a philosophical question here.
Mr. Hayworth. And, of course, Congressman Hunter, changing
conditions, changing laws necessitate the presence of us being
here today.
Just a couple of things, tomato/tomato, Ewiiaapaayp/
Cuyapaipe, I am getting different pronunciations here.
Mr. Hunter. Cuyapaipe.
Mr. Hayworth. Okay. I will go with your pronunciation.
Mr. Hunter. I am going to wait until they come up and let
them--
Mr. Hayworth. Well, let me ask you, does that band, in
fact, have a gaming compact with the State of California?
Mr. Hunter. No, to my knowledge, no.
Mr. Hayworth. Okay.
Mr. Hunter. And I will let them testify.
Mr. Hayworth. Okay. One thing about the Cuyapaipe, has the
band agreed to build new health facilities to replace the
existing ones?
Mr. Hunter. Yes. They came in and laid down a very
attractive package which would--initially we were going to--
they were going to move, have a health clinic in the back of
the property. But I think the new proposal is to have--and I
will let them explain that, but to have a health clinic on a
piece of adjoining property or adjacent property and, in fact,
to expand health care services.
And, incidentally, right now about 60 percent of the folks
that use the health clinic are non-members, so the health
clinic itself performs a vital function in East County San
Diego.
Mr. Hayworth. Further amplifying that, has the Cuyapaipe
band agreed to build and open those new facilities before the
existing ones are closed down?
Mr. Hunter. I think that they will. I mean, I think that
is--that is my memory of the briefing that they brought in and
laid down several months ago, that they--I think the
Cuyapaipe--and I will certainly let them speak for themselves.
I think that they are anxious to accommodate the community and
the Indian Health Council, the other six tribes, with just
about anything that is requested, as long as they are allowed
to build a casino.
Mr. Hayworth. I really thank my colleague from California,
and I appreciate his remarks saying that people are trying to
deal with this issue with the best of intentions. And I am even
encouraged to see Brother Filner here alongside Mr. Hunter, as
I mentioned earlier, to see the bipartisanship. It is
indicative of what happens on this Committee, and that is why I
turn to the ranking member now from Michigan from any questions
he might have.
Mr. Kildee. Thank you, Mr. Chairman. I appreciate the time
you have yielded to me.
Let me ask the sponsor of the bill, Mr. Duncan--we have
served together in this Congress for many, many years. I think
I came a few years before you, but you have been here a long,
long time also, and we have worked together on many issues. Why
should Congress inject itself into the matters of seven
sovereign tribes and the affairs of a California nonprofit
corporation? The California nonprofit corporation has seven
entities, votes in that. Why should we inject ourselves into
their decision? Why should Congress do that?
I have been involved in Indian matters now, Duncan, as a
legislator, as a lawmaker, for 37 years. And I think we set a
bad precedent when we--especially when the BIA has a procedure
to address these matters, for Congress to inject itself into
matters involving several Indian tribes, when they have the
ability to work it out themselves, why should Congress inject
itself?
Mr. Hunter. Yes, I would say to my colleague--and I
certainly respect him, and you are right, we were here a long
time before Mr. Filner came here from Oklahoma.
For this reason, Dale: It is very clear that when I was
approached by the tribes to secure this land for a health
clinic, no one intended nor did I intend that this would become
a casino. And so in this case, we did something with an
intent--kind of an unusual thing because this--we placed this
land in trust for a tribe which is located many, many miles
away. We basically gave them a small reservation in a
community. And the reason we did that was specifically because
it was a central location for all the people to come for health
care, not for gaming but for health care.
And so if I had been approached in 1985 by somebody who
said we have a proposition, Congressman Hunter, we want you to
help us get 8 acres in Alpine, California, in the town at a
strategic location so we can open a casino, my answer would
have been no. But the question was: We have a compelling need
for health care. As you noted, I use the word ``urgent'' in
here, and I was strongly convinced of that case. And because of
that, we went and not only got the property, but we got
taxpayer money, community development block grant money to
develop this health clinic.
So, once again, I am an advocate for and do support very
strongly the autonomy that we have attached to the traditional
reservation boundaries, and even when that is something that
may involve uses of that property that the local government may
not like, obviously, like gaming operations. But when you do
something that is an extraordinary thing, that is, go 50 miles
from the reservation and buy a piece of land specifically to
give people health treatment, and then the health clinic land
is turned into a casino, I think that is an extraordinary
event. And so I think that is, Dale, what merits our review.
It was our actions that initiated this acquisition. That is
why I did it. I certainly didn't initiate my actions predicated
on building a casino here. But now that is what is requested.
So I think those extraordinary circumstances merit some
pretty close scrutiny.
Mr. Kildee. Well, many years ago, probably about the time
you arrived in Congress, I had a bill passed which reaffirmed
the sovereignty of a tribe in Michigan, Lac Vieux Desert, and
they have land, and at that time that was prior to the Indian
Gaming Act. And I have been fairly conservative on gaming
itself. As a matter of fact, I voted not to change the Michigan
Constitution to permit any gaming in Michigan, not even put it
on the ballot. So I have been rather conservative on gaming.
But when Lac Vieux Desert had their sovereignty reaffirmed
by the Federal Government, they are the ones to determine how
they use their sovereignty; otherwise, it is not sovereignty.
I think that we have to--we should be very reluctant to
inject ourselves into the matters of sovereignty of one tribe
or a combination of tribes. So Lac Vieux Desert had their
sovereignty reaffirmed. It is a retained sovereignty, as John
Marshall has told us, and they chose using their sovereignty to
take gaming. That was their sovereign decision. And I think
that this Resources Committee particularly, which has guidance
and direction over Indian affairs, should be most reluctant,
have only the most compelling reasons to interfere with how a
tribe uses its sovereignty.
Mr. Hunter. Just one rejoinder here, Dale, and that is
this: As I told you, I worked back in the 1980's to take 5,000
acres of land that was owned by BLM and the Forest Service that
adjoined reservations and transfer that to the reservations,
thereby increasing their tribal boundaries.
I would agree with you totally with respect to that
property. That property was put in trust within the traditional
reservation land area and was additional land that they got.
And there were no strings attached. We didn't say we want to
turn this land over so that they can use it for agriculture or
use it for industry. That was intended to expand the tribal
area within which all the rights of the autonomy that attend
these reservations would attach.
But this 8.5 or 8.6 acres of land was put in very
specifically for the health clinic, and the reason it was
located downtown was so the people that could get health care
would be able to come into this urban area, and it was
centrally located only for that reason. So I would agree with
you totally with respect to the 5,000 acres that we put into
the reservations throughout San Diego County, which was
intended to have all the rights of sovereignty.
But I think my letter makes it very clear that this
location and this purpose was solely for health care, and I
think you would agree with that if you read the letter.
Mr. Kildee. The trust deed itself does not contain any
restrictions on the tribe to whom this land was given.
Mr. Hunter. Well, certainly not. I mean, nobody
contemplated in those days anything but--we had already had a
community development block grant that was approved for the
purpose of building the health clinic. So I don't think anybody
thought there was any reason to say this can't be used for a
glue factory or it can't be used for gaming. It was very clear,
though, from this correspondence that we--and I will tell you
my own experience. I was approached by the tribes who said we
urgently need a central health care clinic, and that is what I
did. And if I had thought that there was any reason or any
chance of having a casino there, I can just tell you personally
obviously I would have consulted all the local folks, I would
have been very concerned. I wouldn't have pursued this.
Mr. Kildee. Just one final thing, if I may, Mr. Chairman.
Mr. Filner. Mr. Kildee, may I add something to the
question, if I may, Mr. Chairman? Just very briefly. Mr.
Kildee, you asked for a Federal nexus and, of course, the land
is in trust by Federal action. CDBG funds were used to build
the clinic.
I, like you, am a strong advocate of sovereignty, although
I have, like you, personal philosophical problems with gaming.
But the land was titled to one or convenience purposes out of
the seven that were involved in the issue. And that is the
basis of the problem here, that it was titled to one, whereas
seven were involved. And what Mr. Hunter's bill is trying to do
is say, no, all seven have to agree on any change in the use,
as I understand it.
So the Federal Government's action led to this. That is why
the Federal Government's action has to be resolved here.
Mr. Kildee. I would just repeat, I think, again, we would
all agree that we should be most reluctant to interfere with
how a sovereign Indian nation uses it sovereignty, most
reluctant.
One other question just quickly. Will there be any
interruption of health care or would health care be improved
under the plan which they have projected?
Mr. Hunter. To give the Cuyapaipe their due, they laid out
a very attractive package for constructing a new clinic and, of
course, whether or not that would occur, in fact, remains to be
seen, but that is what they do propose. They propose to provide
uninterrupted service, and I think they will testify to that.
And, Mr. Kildee and Mr. Chairman and other members,
everyone comes here, I think, in good faith. All the tribes
involved had no idea back in 1985 what was going to happen. But
I think there is a compelling reason because of the very
focused, very limited nature of this acquisition for us to be
involved in this. And I want to thank everybody. I have got to
go Chair a conference, an Armed Services meeting, but I want to
thank you for all the time you have given us, and I want to
thank all of our tribes for coming out to make their case.
Mr. Hayworth. I thank the gentleman from California and the
ranking member for his questions.
The bells have rung. There is a vote in progress. So what I
would suggest is we thank panel one, unless anyone has any
pressing questions for this first panel. Seeing none, we will
thank you, gentlemen, for your attendance as colleagues and
offering your input.
We will adjourn to vote, or recess to vote, I should say,
and please come back as quickly as possible because we want to
hear from panel two on the pending legislation.
So, with that, we stand in recess until we can get back.
[Recess.]
Mr. Hayworth. The Committee is back in session. I thank
everyone who is here on what is turning out to be a day where
we have to make some schedule shifts.
The Chair would advise those waiting to testify, it is the
intent of the Chair to reverse order of the panel, to bring up
panel three in what is noncontroversial legislation, to have
them briefly extol the virtues of the legislation, and then we
will return to panel two.
It is the intent of the Chair, even as I introduce panel
three now, to be mindful of that fact. All your testimony will
be submitted for the record. If you could synopsize what it is
you have to say so that we could perhaps finish this
collectively--and no disrespect is intended. But if we could
collectively get this done in 5 minutes' time, I would be
greatly appreciative. We understand that for all members there
will be some action on the floor coming in fairly short order,
so I would like to bring back panel two very quickly.
Panel three, the Honorable Wayne Smith, the Deputy
Assistant Secretary for Indian Affairs, Department of the
Interior; the Honorable Kirk Humphreys, the Mayor of Oklahoma
City; from the Oklahoma State Senate, Senator Kelly Haney;
Executive Director Tommy Thompson of the Native American
Cultural and Educational Authority of Oklahoma; and the
Honorable Bill Anoatubby, who is the Governor of the Chickasaw
Nation.
We welcome you all. Secretary Smith, I understand you have
written testimony from our good friend, Neal McCaleb, and we
would ask you to synopsize that. Again, that total testimony
will be submitted for the record.
STATEMENT OF WAYNE SMITH, DEPUTY ASSISTANT SECRETARY FOR INDIAN
AFFAIRS, UNITED STATES DEPARTMENT OF THE INTERIOR
Mr. Smith. I bring greetings first from Assistant Secretary
McCaleb, who, as you well know, is an Oklahoma native. He
couldn't be here this morning because we made a deal, and all
the bills that we oppose I get to testify on and the ones that
we support he gets to testify on, which doesn't work out very
well for me, but that is why I am here this morning.
First, good morning, Mr. Chairman and members of the
Committee that are here. I will try to cut through the prepared
statement as fast as I can in respect for your admonishment.
First, I would like to tell you that we are here in support
of the objective of this project. It is an excellent example of
what can be accomplished when the State, tribal, and local
governments work together on a project to work toward economic
and educational benefit of all parties concerned.
However, we believe that the use of limited Department
appropriations to fund grant programs for the design,
construction, and operation of projects of this type at non-
Federal locations is inappropriate. This is especially true
today when Federal budgetary resources are being redirected to
America's war on terrorism and to protect Americans at home.
Furthermore, any funds appropriated for this Cultural Center
and Museum would not be available to reduce the Department's
long list of deferred maintenance and construction projects for
repairing Indian schools and preserving heritage and
stewardship assets. Given the Department's large backlog of
deferred maintenance and construction projects, we have
established clear priorities for our very limited resources.
H.R. 2742 authorizes the Secretary of the Interior, subject
to the availability of appropriations, to award a grant to the
NACEA, an agency of the State of Oklahoma, to pay for a Federal
share of the cost of the final design, construction,
furnishing, and equipping of the Native American Cultural
Center and Museum that will be located directly in the
southeast corner of I-35 and I-40 in Oklahoma City and will
encompass 298 acres. The Federal share of the cost for this
project is 34 percent, and a total of about $34 million is
authorized to be appropriated for use as grants.
We urge the Native American Cultural Center and Museum to
apply for existing Federal museum preservation and collection
management programs since it is an agency of the State of
Oklahoma. A list of those programs are provided in my written
testimony.
Thank you.
[The prepared statement of Mr. McCaleb follows:]
Statement of Neal A. McCaleb, Assistant Secretary, Indian Affairs, U.S.
Department of the Interior on H.R. 2742
Good morning, Mr. Chairman and Members of the Committee. Thank you
for the opportunity to present the views of the Administration on H.R.
2742, a bill to authorize funding for the construction of a Native
American Cultural Center and Museum in Oklahoma City, Oklahoma, a
museum designated to display the heritage and culture of Indian tribes.
As an Oklahoman, I can honestly say that this is a project that I
have enthusiastically supported for several years. I believe this is an
excellent example of what can be accomplished when the State, Tribal
and local governments work together on a project to work toward the
economic and educational benefit of all parties concerned. I believe,
as do others, that this is a project worthy of support. The Cultural
Center and Museum will serve as a place of learning and as a home for
collections that showcase many features of the history of America's
past to showcase the significant contributions that American Indians
have provided to this nation.
The Administration appreciates the interest of the Native American
Cultural and Educational Authority (NACEA) seeking to construct such a
cultural center and museum devoted to providing a state-of-the-art
facility and providing the highest level of care to the objects
contained in its collection. However, the Administration believes the
use of limited Department appropriations to fund grant programs for the
design, construction, and operation of projects of this type at non-
Federal locations is inappropriate. This is especially true now that
Federal budgetary resources are being redirected to America's war on
terrorism and to protect Americans at home. Furthermore, any funds
appropriated for this Cultural Center and Museum would not be available
to reduce the Department's long list of deferred maintenance and
construction projects for repairing Indian schools and preserving
heritage and stewardship assets. Given the Department's large backlog
of facility rehabilitation and replacement projects, we have
established clear priorities for our limited resources. These priority
needs cannot be addressed if large portions of our construction funds
are diverted to non-Federal facilities.
H.R. 2742 authorizes the Secretary of the Interior, subject to the
availability of appropriations, to award a grant to the NACEA, an
agency of the State of Oklahoma to pay for a Federal share of the cost
of the final design, construction, furnishing and equipping of the
Native American Cultural Center and Museum that will be located
directly at the southeast corner of I-35 and I-40 in Oklahoma City, and
will encompass 298 acres. The Federal share of the cost for this
project is 34 percent and a total of $33 million is authorized to be
appropriated for use as grants, with the condition that the NACEA, or
Oklahoma State or local government agencies, provide commitments of at
least 66 percent of the cost of the activities.
The Administration urges the Native American Cultural Center and
Museum to apply for existing Federal museum preservation and collection
management programs since it is an agency of the State of Oklahoma. The
following list of programs provide a variety of Federal funding:
National Endowment for the Humanities (NEH)
Challenge Grants: Challenge grants help institutions and
organizations secure long-term support for, and improvements in, their
humanities programs and resources. In special circumstances challenge
grants can also help with limited direct costs, such as the purchase of
capital equipment, construction and renovation, and even debt
retirement. Because of the matching require-ments, these NEH awards
also strengthen the humanities by encouraging non-Federal sources of
support.
Preservation Assistance Grants: These grants can help museums
enhance their capacity to preserve their humanities collections.
Applicants may request support for general preserva-tion assessments or
consultations with preservation professionals to develop a specific
plan for addressing an identified problem. Awards will also be made to
purchase basic preservation supplies, equipment, and storage furniture.
Institute for Museum and Library Services (IMLS)
General Operating Support: The IMLS General Operating Support
program encourages the best in museum service. Museums use these funds
to strengthen collections care and raise funds from other sources. The
two-year award provides unrestricted funds for ongoing institutional
activities.
Conservation Project Support: Grants are available for five broad
types of con-servation activities, including collections treatment and
environmental improvements.
National Science Foundation:
The Biological Research Collections (BRC) program provides support
for collection improvement, for collection computerization, and for
research to develop better techniques of curation and collection
management. Physical improvements typically involve rehousing a
collection, replacing inadequate equipment, providing new tools for
continued growth, or incorporating one or more collections donated by
another institution or individual. Allowable costs generally include
the purchase and installation of new storage systems, the purchase of
curatorial materials, as well as new curatorial and technical
assistance specifically designed to effect the proposed improvements
for the duration of the proposed project.
National Park Service
Save America's Treasures: Grants are available for preservation
and/or conserva-tion work on nationally significant intellectual and
cultural artifacts and nationally significant historic structures and
sites. Intellectual and cultural artifacts include artifacts,
collections, documents, monuments and works of art. Historic structures
and sites include historic districts, sites, buildings, structures and
ob-jects. Grants are awarded through a competitive process. Each grant
requires a dollar-for-dollar non-Federal match.
Once again, I would like to thank you for the opportunity to
testify on what I believe is an important recognition of American
Indians within the State of Oklahoma. I am advised that the Department
can provide any technical assistance, in coordination with the Oklahoma
State Historic Preservation Office, to determine ways to protect these
cultural resources once they are acquired. I am pleased to answer any
questions you may have.
______
Mr. Hayworth. I thank you very much, Assistant Secretary
Smith.
Mayor Humphreys, welcome, and we are sorry for the
abbreviation of your statement, but, again, your entire
statement will be included in the record.
STATEMENT OF HON. KIRK HUMPHREYS, MAYOR, OKLAHOMA CITY,
OKLAHOMA
Mr. Humphreys. Thank you, Mr. Chairman. I am Kirk
Humphreys, Mayor of Oklahoma City. My ancestors come from both
the Choctaw and Cherokee tribes.
Oklahoma City is the midst of a massive urban
revitalization, highlighted by the MAPS projects, which is a
$390 million investment in ourselves. Over the last 5 years, we
have built three dams on our river, a new downtown baseball
stadium, fully rebuilt our concert hall, a one-mile canal
through the Bricktown area just across the Cultural Center
site, a new downtown sports arena, a new library learning
center, and full rehabilitation of our convention center.
My reason for mentioning the MAPS project is to emphasize
that the new Native American Cultural Center will be integrated
into a viable urban revitalization effort, and this will be the
capstone of this rejuvenation effort. Here, Native American
heritage will be defined and displayed for our children, for
the citizens of Oklahoma, and citizens from across the Nation,
indeed, people from around the world. The center will seek to
engage the visitors in exploring and understanding the rich
heritage of our Native American citizens and that impact on our
culture.
Thank you for hearing us today.
[The prepared statement of Mr. Humphreys follows:]
Statement of Kirk Humphreys, Mayor, Oklahoma City, Oklahoma
My name is Kirk Humphreys and I am the Mayor of Oklahoma City.
The purpose of my testimony today is to express the strong
commitment of Oklahoma City to the development and construction of the
Native American Cultural Center and Museum which is to be located on
the 300-acre site on the North Canadian River near downtown Oklahoma
City.
Oklahoma City competed with other jurisdictions within Oklahoma to
become the designated site for this new Center. Our proposal included:
LProvision of $5 million from the City
LProvision of the 300-acre tract of land for the site.
This site is located at the intersection of I-35 and I-40, which is
considered to be the Crossroads of America. The land abuts the renewed
North Canadian River with its three dams and navigable water pools.
Oklahoma City is a uniquely appropriate location for the placement
of the Native American Cultural Center and Museum. The City has
invested over $390 million in a Metropolitan Area Program (MAPS) over
the past five years to build three dams on the river, a new baseball
stadium, a fully rebuilt concert hall, a one-mile canal through the
Bricktown area which is just across the river from the Cultural Center
site, a new 18-thousand seat arena, a new library learning center and a
full rehabilitation of the Myriad Convention Center. The new Cultural
Center & Museum will be integrated into this viable revitalization
effort as a jewel centerpiece, a location to enhance our tourism
industry and economic development as well as a major forum for all
people Native, non-Native, city, state and national to celebrate our
Native American heritage and learn of the history, diversity and
richness of the culture.
The time to tell the story of the tribes and their history in
Oklahoma is long overdue. We are at a time and have an honorable
opportunity to present this story in a manner of integrity and pride.
The Center's education and public programming will be centered on this
mission, creating a mechanism by which Native people can tell their
story.
Education, public programs and visitor services are key to the
long-term success of the Center: active public exploration of,
participation in and dialog by and between Native Americans and non-
Natives are foundations of the Center's concept. It is through programs
that the Center will develop and sustain relationships with visitors,
constituents and stakeholders, and create experiences that will attract
audiences to Oklahoma and serve worldwide audiences through the
Internet and publications. The interpretive content and means of
expression in exhibitions or through the programs, activities,
landscape and the building interconnect to form the visitor experience.
Visitors will learn about the diversity of Native American nations and
their stories of adversity, courage and endurance. Educational and
public programs targeted to a variety of audiences will enhance this
exhibition program. Curriculum-based school programs, teacher resource
materials, teacher training programs, school outreach and a co-op and
internship program will all serve to strengthen the Native American
Cultural Center & Museum as an extremely valuable local, national and
state resource that discusses Native American cultures and arts like no
other place. An active schedule of programs for youth, children and
adults will enrich and deepen the Cultural Center and Museum
experience.
Of great importance for the Center and the Native American people
who will shape it are the arts and performance programs: studio space
for artists to create and teach in, artists-in-residence, and a
scholarship program will all make it the venue for an explosion of
ideas, colors and creativity that will establish the Center as the
epicenter of Oklahoma Indian artist production. Dance and theater are
an integral part of this artistic outpouring. The Center will host
intertribal powwows and social dances, and feature traditional and
contemporary music and theater production.
Oklahoma City is increasingly becoming a major focal point for
Oklahoma and Native American cultural expression and cultural
education. Oklahoma City is home to the annual Red Earth Festival,
which is considered to be one of the top Native American art festivals
in the world. It also sponsors a week-long arts festival in the
downtown area. In addition, we are constructing a new $40 million art
museum. These ongoing activities and promotion of the arts and culture
will serve to complement the existence and operation of the Cultural
Center.
It is fitting that this project be developed now as a partnership
between the City, state and federal government, and our tribes.
Oklahoma is home to the largest number of tribal governments of any
other state by far. We are home to 39 tribes today, most of whom were
moved to Oklahoma by the federal government before statehood. At the
State Centennial Celebration in 2007, the opening of the Museum and
Cultural Center will send a clear message of Oklahoma's celebration of
it's Native American culture and will provide a true opportunity for
the citizens of our state, country and the world to better understand
and appreciate this valuable heritage. I urge the passage of HR 2742 as
soon as possible so that we can move the bill to the Senate.
______
Mr. Hayworth. Thank you, Mr. Mayor. Brevity is the soul of
wit.
Senator Haney, welcome, and thank you, sir, for joining us
today.
STATEMENT OF HON. ENOCH KELLY HANEY, SENATOR, OKLAHOMA STATE
SENATE
Mr. Haney. Thank you, Mr. Chairman. I am honored to provide
testimony to this Committee in regards to House Resolution
2742. I want to extend my personal appreciation and the State
of Oklahoma to Congressman Carson, who has introduced the bill,
and for the Oklahoma delegation both in the Senate and the
House who are supporting this bill, and also to Congressman
Kildee, who has represented the Native American Caucus in your
distinguished body. We appreciate the support you have given to
us.
The vision for such a place as the Native American Cultural
Center is at least a 40-year dream for me. In talking with the
elders who, I guess, gave me the commission for this years ago,
and through many efforts, in 1994 the Oklahoma Legislature
created the Native American Cultural and Educational Authority
by statute, and with that, appropriations did come for funding
of the staff, and eventually we had put some dollars into the
project.
This project, although it started with the legislature, is
now a product of Oklahoma. It is, as you stated earlier, Mr.
Chairman, a bipartisan effort of all Oklahomans to see that
this program comes to fruition.
I think one of the things that intrigues me about coming to
this body is that when you look at the Oklahoma tribal
entities, there were five indigenous tribes to Oklahoma. Today
there are 39 federally recognized tribes in Oklahoma. And the
reason most of us are there is not by choice but rather by
force as a result of the Indian Removal Act of 1830. We are
there because of that reason, but in spite of that, Native
people have become contributing members to society in Oklahoma.
We feel like it is time to tell the story of the removal, that
tragic part of our history in this country, and we think we can
do it with great integrity. We want to tell that story and to
rewrite history to some degree through the words of the Native
American people themselves.
I remember growing up as a child, I spoke two languages,
the Seminole language and the English language. I was very weak
on the English language. But having grown up in that kind of
society, today I may be one of the last of my people to speak
the language as we do. And it would be a tragedy to see that
part of our history, a wonderful part of our history that is a
tapestry that makes America what it is, the wonderful colors
that it is that makes it work for all people.
With that, we hope that this Cultural Center can be a place
where we can nourish the traditions and the practices of Native
people because there is a correlation between the really good
theological and philosophies that exist in Native culture,
along with our own philosophies as a government in this great
country.
For that reason, we come to you to ask for your help
because the Oklahoma story is a compelling story. It is one
that tells of all of the tribes that come from every part of
this great country and that was placed in the place called
Oklahoma. It is time to tell that story. It is past time to the
story. And the State of Oklahoma and Oklahoma City, together we
have contributed over $30 million of land and actual dollars to
the project to date. We have a world-class design group that is
working with us to develop this concept, and we are very
pleased--you will get a copy of the books, as I understand--to
show you the quality of work that we are looking for. We are
looking for a world-class Native American Cultural Center in
Oklahoma, second to none in the world.
With that, Mr. Chairman, I certainly appreciate your
allowing us to come before you. Finally, I think a very
important part of this request is that 2 years ago we met with
the National Congress of American Indians. They with
resolutions supported the Concept of the Native American
Cultural Center in Oklahoma. Last year we met with that same
group and received the endorsement of the National Congress of
American Indians in terms of the funding. And we only have
approached the BIA as a funding mechanism to get funds to us,
so hopefully we will be able to work with your and your
Committee will see your way to help us in this great effort.
We are in this effort together in Oklahoma, and we ask for
your help. I appreciate the opportunity to visit with you.
Thank you, sir.
[The prepared statement of Mr. Haney follows:]
Statement of Hon. Enoch Kelly Haney, Oklahoma State Senator and
Chairman of Appropriations
I am honored to be here today to provide testimony to this
Committee relating to House Resolution 2742, authorizing the
construction of a Native American Cultural Center & Museum in Oklahoma
City, Oklahoma.
The vision for such a special place began several years ago when,
in 1994, the Oklahoma Legislature created the Native American Cultural
& Educational Authority to build and operate the Native American
Cultural Center & Museum. However, this vision took on a life of its
own many years ago. There has been a longtime, profound expression of
needs, hopes and expectations of Oklahomans, Native and non-Native
people alike regarding the existence and operation of a Native American
Cultural Center & Museum in Oklahoma, a central place to unify and
connect our Tribal governments as well as place to tell a story a story
of many tribes from many places. Oklahoma is now home to these diverse
and distinct peoples.
There is a great need to develop a Center to tell the story of the
tribes in Oklahoma, to perpetuate Native American art, to nurture
cultural concepts and practices, and, in general, to educate people on
the Native culture across the Nation. The added benefit is a stronger
economic base for Oklahoma because of increased tourism activity. There
is no doubt that such a place is needed. This concept has been
discussed and dreamed about for many years by many who feel that such a
center should be located in Oklahoma, because of its central location
in the United States. Oklahoma is also home to 39 tribal governments
and is home to many more Native people who are members of tribes
outside of the State or tribes whose history is tied to Oklahoma, as it
was once known as Indian Territory.
Historically, Oklahoma was home to five indigenous tribes. The rest
of the tribes are in Oklahoma because of the Indian Removal Act of
1830. Our Federal Government played a significant role in this unique
history. We are all at a time of healing and it is time to tell a
story. The Oklahoma story is a compelling one. It tells of many tribes
from many diverse cultures, backgrounds, and regions. It is, in itself,
a testimony of devastation, struggle, courage, survival and victory.
The vision of telling such a story is now being carried through by
the people who have become a part of the project. This group of people
not only consists of the Staff and Board of Directors of the Native
American Cultural & Educational Authority; but, it also consists of the
people of Oklahoma, the Oklahoma Indian community and tribal
governments, as well as the collective voice of tribal governments
nationwide. To date, we have received support through formal
Resolutions from our National Congress of American Indians for the
construction, development, and legislation of the Native American
Cultural Center & Museum. In addition, we have received similar
Resolutions of support from entities such as the All Indian Pueblo
Council of New Mexico among others. The support of the Oklahoma State
Legislature is obvious by its passage of legislation creating the
Native American Cultural & Educational Authority and providing funds to
begin its development.
Oklahoma is the proper forum to tell this story that has affected
our Nation as a whole. Since 1994, the Native American Cultural &
Educational Authority has made tremendous progress in telling a story
in a way that is truthful and good. The Center is under design and
development by a world-class twelve-member design team, including
Johnson Fain Partners, Hargreaves Associates, Ralph Appelbaum
Associates, LORD Cultural Resources, Harrison Price Company, Hornbeek
Larsson Architects, Rick Carter and others.
There is a strong consensus among all those consulted in this
effort that the Native American Cultural Center and Museum should be a
place that ``rewrites'' the stories of the past and present in the
words of American Indians, and becomes a forum for the shaping of the
future. This Center should be a place where all people across the
Nation can explore the history of adversity, injustice and survival
experience by the tribes. It will be a place where stereotypes can be
broken and myths expelled, a place where all people gather to witness a
celebration of survival.
The final story can tell of the possibility of hope and prosperity
when people of good will come together to build a sense of family in
one nation.
I thank you for this opportunity to provide this testimony and
express my great appreciation for your consideration of House
Resolution 2742. I invite you to join us in meeting this vision to an
incredible reality for all people. Thank you.
______
Mr. Hayworth. Senator Haney, we thank you very much for
your testimony and welcome you to Washington and appreciate
your remarks.
Executive Director Thompson?
STATEMENT OF TOMMY THOMPSON, EXECUTIVE DIRECTOR, NATIVE
AMERICAN CULTURAL AND EDUCATIONAL AUTHORITY OF OKLAHOMA
Mr. Thompson. Thank you very much. It is a pleasure being
able to speak before this Committee today. I am Tommy Thompson,
and I am serving as the executive director for the Native
American Cultural and Educational Authority, a State agency. I
am also a proud member of the Chickasaw Nation. I want to
emphasize or mention that Congressman Carson did mention that
we have applied for a Smithsonian affiliation and a partnership
with the Oklahoma Historical Society. And with this mechanism,
this will allow us to be able to have access to over 1 million
exhibits out of the Smithsonian, as well as having access to
the Oklahoma Historical Society's Indian Art and Artifacts
Collection, which is one of the finest in the world.
At the same token, as Congressman Carson mentioned, we went
through a selection process on site selection with the city of
Oklahoma City being selected for this site. They have offered
approximately 300 acres of ground, as Congressman Carson has
mentioned, and also, in addition, have offered us $5 million in
a CDBG grant for the construction of this program.
We have just completed Phase II of our project, which
included the program brief, master plan, and final building
concept, spearheaded by Johnson Fain Partners out of Los
Angeles and the Appelbaum Group out of New York. We feel like
it is one of the finest design teams assembled to date.
Also, there is a tremendous environmental healing process
going on with the site. In a partnership with the city of
Oklahoma City, the State, and Federal agencies, the site at one
point occupied over 60 oil wells in that particular site, and
there is a tremendous process of healing this process, of
cleaning it up environmentally to make it a safe, sound site
for the museum.
Phase III will include the story line, the exhibitory, and
the design of the Cultural Center, and we are beginning to
start that process in the near future. Visitors will learn
about the diversity of Native American Nations and their
stories of adversity, courage, and endurance.
This will be a destination attraction. The Native American
Cultural Center and Museum will welcome all visitors to explore
the history, culture, traditions, and experiences of Native
Americans. And we will work collectively with the tribes and
institutions to preserve Native American heritage.
On the fundraising feasibility, we have just completed a
fundraising study. Our fundraising goal is currently being
established by the Authority to raise finances in the private
and public sectors. We have created a 501(c)(3) for that
mechanism, and it will be underway shortly. These funds will
assist in the construction and ultimately the maintenance of
the site. Also, future commercial facilities are planned to
assist in the ongoing maintenance of the project. And being a
State project, future State appropriations are also expected to
assist in the ongoing maintenance of the project.
We are also continuing with a partnership with the city of
Oklahoma City working on several grants through the T-21
funding processes as well as the establishment and preservation
of the wetlands there.
Lastly, it is going to have a tremendous economic impact on
the city of Oklahoma City. We expect to draw 650,000 visitors
to the area with 2 percent growth per year. So we will be
providing quality jobs and have a tremendous economic impact on
it.
Thank you very much.
[The prepared statement of Mr. Thompson follows:]
Statement of Tommy Thompson, Executive Director, Native American
Cultural and Educational Authority
Smithsonian Affiliation/Oklahoma Historical Society Partnership
The Native American Cultural Center and Museum has applied in a
joint application with the Oklahoma Historical Society to become a
Smithsonian Affiliate. With this affiliation, this opportunity will
offer the Cultural Center a chance to be in a position to have access
to over one million Native American exhibits from the Smithsonian. This
will give the Native American Cultural Center and Museum the chance to
become the ``Smithsonian of the Midwest.'' In addition, this
partnership will allow the NACEA to have access to the Oklahoma
Historical Society's Indian Art and Artifact Collections, known to be
one of the finest in the world. Building these institutional ties and
cooperation will help determine what will be possible in presenting the
story as well as in what programs and activities will be available.
The Center will preserve and promote the living cultures of Native
Americans, in the history, dance, arts, and education of historical
ways. The Center will have a unique role in the development of
partnerships with Tribes and other cultural institutions in preserving
cultural aspects such as language.
Market Analysis/Financial Analysis Context
Phase I Site Selection
In accordance with State of Oklahoma regulations governing
procurement, the Native American Cultural and Educational Authority
issued a Request for Proposal (RFP) seeking applications for possible
site locations for the Cultural Center and Museum. Responses from Ponca
City, OK, Edmond, OK and Oklahoma City, OK. The City of Tulsa was also
considered, but chose not to participate in the selection process. The
Authority appointed a selection committee to review the proposals.
After careful consideration, the City of Oklahoma City was selected.
Its generous offer of approximately 300 acres in fee simple and a $5
million Community Development Block Grant (CDGB) was the deciding
factor in the selection process.
Phase II Program Brief, Master Plan, Final Building Concept,
Environmental Healing Process of Site
The conceptual design of the site, which consists of the Program
Brief with building concepts and the Master Plan, was recently
completed. We are working in partnership with local environmental firms
and the City of Oklahoma City to restore the land to a safe and
beautiful site for the museum.
There is a tremendous environmental cleanup process that has been
taking place over the past 1 + years to ``heal'' the site from previous
oil and gas production These state and federal individual groups
involved with the healing process include the Environmental Protection
Agency, the U S. Coast Guard, the Oklahoma Corporation Commission, the
Oklahoma Department of Environmental Quality, and the Oklahoma Energy
Resources Board.
Phase III Story Line, Exhibitory and Design of Cultural Center and
Museum
This Phase will commence in the near future and will include the
actual design work of the Cultural Center and Museum, including the
exhibitry expressing the compelling story behind the 39 tribes'
histories and survival in Indian Territory now known as Oklahoma.
Story Line, Exhibitory Phase
Visitors will learn about the diversity of Native American Nations
and their stories of adversity, courage and endurance. A wealth of
unique and personalized encounters by Oklahoma Native Americans will be
characteristic of a visit to the Center, beginning with the multi-
sensory presentation in the ``Who We Are'' theater and carrying through
to the strongly narrative long-term exhibits, the exciting and engaging
``Family Discovery Gallery,'' the vital and vibrant changing and
community exhibits, and the contemplative and reflective outdoor
exhibits.
As a destination attraction, the Native American Cultural Center
and Museum will welcome all visitors to explore the history, culture,
traditions and experiences of Native Americans. Our public education
and performance programs, permanent and changing exhibitions, and
events focus first on the Tribal Nations of Oklahoma, but are inclusive
of all native peoples throughout the Americas. By creating
opportunities for established and emerging artists, the Cultural Center
preserves traditional fine arts and crafts, song, dance and encourages
the exploration of contemporary cultural expression. We are a resource
for the study of and a forum for the discussion of the Native American
social, cultural, and justice issues past, present and future by
providing access to information sources and dissemination of ideas
through symposia, research projects and publications.
We will work collectively with the tribes and institutions to
preserve Native American heritage. We collaborate with tribes and
governments, as well as educational, cultural and community
organizations at the local, state, national and international level to
promote a deeper understanding among all people of the diverse Native
American cultures.
Construction Phase
The second part to Phase III will be the actual design of the
Cultural Center and Museum with projected landscaping, infrastructure
and site work. The projected costs include the total construction cost
initial phase, total consulting costs which include the design and
project management, and the total project costs which include the
``soft costs'' composed of the surveys, legal, title fees, permits,
etc. Total costs of the project are estimated to be near the $100
million mark. $60 million is estimated for the costs of the buildings,
$30 million is estimated for the landscaping and site work, and $10
million is estimated for the ``soft costs.''
Fundraising Feasibility Study
Phillips & Associates, of Los Angeles, CA conducted a fundraising
feasibility study for the proposed Cultural Center and Museum, and
fundraising goals are being planned by the Authority to solicit public
and private funds from Corporate and private foundations and
individuals who are known nationally to contribute to projects like the
Cultural Center and Museum.
Partnership with the City of Oklahoma City
The City of Oklahoma City and the Native American Cultural and
Educational Authority are currently engaged in a partnership to apply
for T-21 Funds through the Oklahoma Department of Transportation for
landscaping improvement of the site; the Transportation Enhancement
Program application for surface transportation system for the project;
and an EPA fiscal year 2002 Grant for research and studies pertaining
to the protection of wetlands. In addition, the City of Oklahoma City
maintains its continued and valuable commitment to the restoration and
development of the river and the site overall.
Economic Development Impact
Research by the project consulting team has indicated that the
project will attract 650,000 new visitors to Oklahoma. They estimate
that this number will grow approximately 2% per year.
The development of this project should make a very positive
economic development impact for Oklahoma City and the State of Oklahoma
by providing new quality jobs and services. The project will be a
``world class project'' with dignity.
______
Mr. Hayworth. I thank you very much, Director Thompson. As
we hear the bells are ringing, it is reminiscent of school. So
we will have to depart in fairly short order. But even as I
introduce Governor Anoatubby from the Chickasaw Nation, I want
to welcome to the dais and ask unanimous consent for our
friend, Congressman Istook, who joins us here.
We will hear from the Governor first, and then prior to
running over for the vote, a brief statement from our friend,
Mr. Istook.
Governor Anoatubby, welcome.
STATEMENT OF BILL ANOATUBBY, GOVERNOR, CHICKASAW NATION,
OKLAHOMA
Mr. Anoatubby. It is good to be here, Mr. Chairman, and
thank you for this hearing and thank you for the support of
members of the Committee. We are very pleased that Mr. Carson
has shown his support and introduced the bill. We are very
pleased that Mr. Kildee has shown his support.
We would ask obviously for the support of this Committee
for this bill. It is a grand project. It is one that, as has
been pointed out, is a project that is a joint project, a
community one, one which is not only that of the State but of
the city and of the tribes. And I come here today to speak to
you on behalf of supporting this bill, but I wanted to let you
know also that the tribes in Oklahoma are also supportive.
There was an effort on part of the Cultural Center staff to
educate and seek the support of the tribes in the State of
Oklahoma, and to my knowledge, there is not a single tribe that
is opposed.
As with any project like this, there will be those that
say, yes, yes, let's go for it and then those who say, yes, if,
yes, we can if certain things are done. And we intend to cater
to the tribes of Oklahoma.
Representing the Chickasaw Nation, I know how our people
feel. We are in great support, and we ask for the support of
this Committee for this bill and this funding.
[The prepared statement of Mr. Anoatubby follows:]
Statement of Bill Anoatubby, Governor, Chickasaw Nation and Chairman,
Native American Cultural and Educational Authority
It is a pleasure to provide testimony to this Committee relating to
House Resolution 2742, authorizing the construction of a Native
American Cultural Center and Museum in Oklahoma City, Oklahoma.
Before I begin my comments, please allow me this opportunity to
extend sincere appreciation for being allowed to have input into this
Committee's work. The task of the Committee is not an easy one, but it
is indeed an important one.
Preservation of cultures is a task which is incumbent upon all of
us. As the United States of America is a true melting pot of cultures
and peoples from all over the earth, preserving those various cultures
provides us with a glimpse of where we have been, and details the
possibilities and potential goals for where we are going as a united
people.
The Oklahoma Native American Cultural Center and Museum will
provide an opportunity to showcase the cultures of the 39 Native
American tribes which call Oklahoma ``home.'' Operating in an
international, national, state and local context of cultural centers
and museums, the center and museum will provide exposure to the unique
cultures and histories of the forebears of this great land. That
exposure will be provided to people from all walks of life, from all
over the planet.
Throughout the United States there is a growth in Native American
cultural institutions, as Native Americans and their governments
reclaim their own histories and cultural patrimony. In 1990, when
Congress adopted the Native American Graves Protection and Repatriation
Act, directing federal institutions to return objects of cultural
patrimony to tribes, a great breath of enthusiasm and hope was breathed
into the efforts of the tribes to gather, protect and preserve their
various, unique cultures and identities.
Since 1990, museums across the country have been working with
tribes to return collections or to negotiate agreements for the care,
handling and display of collections which present the various tribal
histories. More and more, tribes are taking ownership of what has been
taken from them, and are creating their own institutions to tell their
special stories. Within Oklahoma alone, there are more than 20
institutions and organizations responsible for presenting to the public
the histories and cultures of select tribal peoples, preserving objects
of cultural patrimony or carrying out research. Yet, magnanimous as
those effort might be, they lack cohesion in presenting the overall
picture.
The state government, through its tourism campaigns, calls
Oklahoma, ``Native America.'' The history of the state is inextricably
woven into the recent histories of the 39 tribes in Oklahoma. Each of
those tribes has contributed not only to the overall development of
Oklahoma, but to America as well. Because most of the tribes which are
now located in Oklahoma were removed here by the federal government,
the story must be told of how the Indian people acclimated themselves
to their new home. The story must be told of how, out of many, one was
born.
The Native American Cultural Center and Museum will serve as a
satellite institution. It will complement and connect other
institutions through programming and tribal-initiated cultural tourism
activities. It will tell the story from the perspective of the tribes
and through the eyes of those peoples, exposing all visitors to a
history which has never, not ever, been gathered into one, central
location.
I ask the Committee to also note that the Native American Cultural
and Educational Authority is in joint application with the Oklahoma
Historical Society State Museum of History to become a Smithsonian
Affiliate. This realization would present an outstanding opportunity
for the Cultural Center to become a ``Smithsonian of the Midwest.''
Through this partnership, the Cultural Center would be able to borrow
collections from and draw upon the considerable professional and
museological resources of both institutions. The Cultural Center will
have a unique role in this evolving context of cultural institutions,
primarily as a partner and collaborator with the tribes and other
cultural institutions in preserving and nurturing cultural aspects such
as language, telling the stories to a broad audience and protecting
cultural patrimony.
The tribes are very much in support of this effort. We endorse the
proposal for the Oklahoma Native American Cultural Center and Museum,
and urge the members of this Committee to also endorse making this
concept a reality.
Thank you very much for allowing me the opportunity to provide
these comments. I wish you every success in the tasks which lie before
you. Your consideration of House Resolution 2742 will be appreciated,
not only by Native America and the great state of Oklahoma, but by all
who will visit this magnificent facility. Thank you.
______
Mr. Hayworth. Governor, we thank you for that succinct
testimony.
Let me turn briefly to the gentleman from Oklahoma who
joins us on the dais.
STATEMENT OF HON. ERNEST J. ISTOOK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OKLAHOMA
Mr. Istook. Thank you, Mr. Chairman. I appreciate the
courtesy of being allowed to speak, and I want to thank
Congressman Carson for his efforts on this legislation.
I think what is probably clear from the array of people
representing the multiplicity of interests, the bipartisan
support on this, this is something that enjoys wide support
because it has involved so much careful planning. There have
been many things that people wanted to have adjusted before the
consensus came together, but I think that consensus has come
together. When you can have the city, the State, the community,
the tribes, the Federal Government all participating to
preserve the enormous heritage and role of the American Indians
in this country, to preserve Native American history and
culture, I think that it would be great for this Committee to
reflect that consensus with its approving action and, of
course, go forward with that approval on the floor.
I want to commend again everyone that has put such patient
effort into this, Mr. Chairman, because what you see here
represents many years of efforts, years that preceded my coming
to this Congress, for example, and that patience I think needs
to be rewarded, especially when the mechanism that is set up
assures that that partnership will be continued.
We have the thresholds that are involved with Federal
funding that I think is a lot better protection for the
taxpayers' money than we see in many of the things that are
presented to us in Congress.
So I thank you for the opportunity to be heard, Mr.
Chairman, and I certainly urge favorable consideration of the
legislation.
Mr. Hayworth. Thank you very much, Congressman Istook.
I see my friend from Oklahoma, Mr. Carson, would like to
say a couple of words here.
Mr. Carson. Could I ask unanimous consent to submit for the
record a brochure detailing what the Native American Cultural
Center will look like? It has the benefit of having a portrait
of some Indian leaders from Senator Haney, who is a nationally
renowned Indian artist himself.
Mr. Hayworth. Without objection, we welcome the artwork of
the good senator from the Oklahoma State Senate.
[The brochure, ``Native American Cultural Center - Oklahoma
City,'' has been retained in the Committee's official files.]
Mr. Hayworth. Thank you for the testimony. As the bells
prepare to ring again, the Chairman would make this point: The
Chair is fully cognizant of the fact that many people have
traveled a great distance, and even though there are other
meetings that will take place at the noon hour or shortly
thereafter, the Chair is constrained to indicate that we will
return for panel two. And while it may be an abbreviated form,
we will take the testimony.
The Chair would also point out that it is his intent to
allow the Committee to submit written questions to both of the
panels. The record will remain open for 10 days, even as we
have to move through in somewhat of a truncated fashion today.
We thank panel three. Panel two, hang on. We will return after
votes.
The Committee stands in recess until the completion of
votes on the floor when we will reconvene.
[Recess.]
Mr. Cannon. If the second panel would take their seats, we
will get--oh, I am sorry, Mr. Chairman.
Mr. Hayworth. Somebody has been sitting in my chair.
[Laughter.]
Mr. Cannon. This chair is way too big for me.
Mr. Hayworth. Oh, golly. Well, if the gentleman from Utah
means that in terms of big shoes to fill, we appreciate that a
great deal.
The Committee is back in session. Panel two includes the
Honorable Wayne Smith, from whom we heard earlier, the Deputy
Assistant Secretary for Indian Affairs; the Honorable Michael
Liu, the Assistant Secretary for Public and Indian Housing from
HUD. I know that he has to run to a luncheon engagement, so we
will probably call on him first in the interest of time. The
Honorable Michael Garcia, Vice Chairman of the Cuyapaipe or
Ewiiaapaayp--which--okay, thank you, Michael. I appreciate
that. I guess Congressman Duncan Hunter helped me out with
that. Steve TeSam, Chairman of the Viejas Indian Reservation;
and Ralph Goff, the Board Chairman of the Southern Indian
Health Council, Inc.
Again, the Chair would remind everyone we will allow the
Committee members to submit written questions to the panels,
and the record will remain open for 10 days. Given the time
constraints which we follow, let's begin with Assistant
Secretary Liu. Welcome, sir, and we appreciate you making
accommodations in your schedule.
STATEMENT OF MICHAEL LIU, ASSISTANT SECRETARY FOR PUBLIC AND
INDIAN HOUSING, UNITED STATES DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
Mr. Liu. Thank you very much, Mr. Chairman. In the interest
of time, I will just move to those comments that begin with the
title ``Specific Comments on H.R. 1239.''
House Resolution 1239, the bill that is the subject of this
hearing, would establish a moratorium on the ability of the
Secretary of the Interior to approve the relinquishment of a
lease on 8.78 acres of trust land in San Diego County unless
all seven tribes or bands involved in this dispute approve the
relinquishment by tribal resolution.
What was HUD's role in all this? Beginning in 1985 and
ending in 1993, the Department approved the award of a series
of four Indian CDBG grants, totaling $1,139,002, to assist in
the construction and expansion of the Southern Indian Health
Council's Alpine, California, clinic. The funds were used for
some of the construction costs for the facility, to later
expand the clinic to include space for medical and dental
services, and to further expand it by providing administrative
offices. The last of the four grants was awarded in 1993 and
closed out on March 21, 1996.
Under HUD's Indian CDBG regulations, a grantee may not
change the use of real property assisted in whole or in part
with Indian CDBG funds prior to or within 5 years after the
closeout of the grant, unless certain conditions are met.
The regulatory conditions include: notifying affected
citizens of the proposed new use and offering them an
opportunity to comment on the proposed change; and reimbursing
the Indian CDBG program in the amount of the current fair
market value of the property, less any value attributable to
the non-Indian CDBG funds used for the acquisition of, and
improvements to, the property.
All regulatory conditions on the use of the Alpine health
clinic expired on March 20, 2001, 5 years after the last grant
was closed out.
I would like to point out that these Indian CDBG
regulations on oversight and closeout procedures are identical
to the regulations used in the Entitlement and Small Cities
Community Development Block Grant programs, which are under the
jurisdiction of my colleague Roy Bernardi, HUD's Assistant
Secretary for Community Planning and Development.
This concludes my statement, and I would be happy, of
course, to answer any questions. Thank you, sir.
[The prepared statement of Mr. Liu follows:]
Statement of Michael Liu, Assistant Secretary for Public and Indian
Housing, U.S. Department Of Housing and Urban Development
Introduction
Mr. Chairman and Members of the Committee: Good morning, my name is
Michael Liu, and I am HUD's Assistant Secretary for Public and Indian
Housing. I am responsible for the management, operation and oversight
of HUD's public housing program, which aids the nation's 3,300-plus
public housing agencies in providing housing and housing-related
assistance to low-income families. In addition, my jurisdiction
encompasses virtually all of HUD's Native American programs. These
programs serve federally-recognized Indian tribes and their tribally
designated housing entities by providing grants and loan guarantees
designed to support affordable housing activities and viable community
and economic development in Native American communities, including
Indian reservations, Alaska Native Villages, and other traditional
Indian areas.
Overview of the Indian Community Development Block Grant Program
Among my responsibilities is the Community Development Block Grant
Program for Indian Tribes and Alaska Native Villages, usually referred
to as the Indian Community Development Block Grant program, or Indian
C-D-B-G. This program, authorized by the Housing and Community
Development Act of 1974, as amended, provides eligible recipients with
direct grants to develop viable Indian and Alaska Native communities,
including decent housing, a suitable living environment, and economic
opportunities, primarily for low- and moderate-income persons.
Eligible applicants for assistance include any Indian tribe, band,
group, or nation (including Alaska Indians, Aleuts, and Eskimos) or
Alaska Native Village, which has established a relationship with the
Federal government as defined in our program regulations. In certain
instances, tribal organizations may be eligible to apply.
The Indian CDBG program can provide funding for recipients in the
following categories:
Housing--Housing rehabilitation, land acquisition to support new
housing construction, and, under limited circumstances, new housing.
Community Facilities--Infrastructure construction, such as roads,
water and sewer facilities; and single or multi-purpose community
buildings.
Economic Development--A wide variety of commercial, industrial and
agricultural projects, which may be recipient-owned and operated, or
which may be owned and/or operated by a third party.
The program is administered directly by the six Area Offices of
Native American Programs, with policy development and oversight
provided, under my direction, by the ONAP National Office. Each Area
ONAP is responsible for a geographic jurisdiction that includes from 26
to over 200 eligible applicants.
The program regulations provide for two categories of grants,
Imminent Threat and Single Purpose. Single Purpose grants are awarded
on a competitive basis, pursuant to the terms published in the annual
HUD Super NOFA (Notice of Funding Availability). Each Area ONAP
receives a proportional share of all annual Indian CDBG grant funds
available; it rates, ranks and awards grants to the eligible recipients
within its jurisdiction.
The Department may set aside in the NOFA a percentage of each
year's allocation for the noncompetitive, first come-first served,
funding of grants to eliminate or lessen problems which pose an
imminent threat to public health or safety.
Area ONAPs assist grantees throughout the grant period, which can
be up to several years. Successive grants are often awarded.
Specific Comments on H.R. 1239
H.R. 1239, the bill that is the subject of this hearing, would
establish a moratorium on the ability of the Secretary of the Interior
to approve the relinquishment of a lease on 8.78 acres of trust land in
San Diego County, California unless all seven tribes or bands involved
in this dispute approve the relinquishment by tribal resolution.
What was HUD's role? Beginning in 1985 and ending in 1993, the
Department approved the award of a series of four Indian CDBG grants,
totaling $1,139,002, to assist in the construction and expansion of the
Southern Indian Health Council's Alpine, California clinic. The funds
were used for some of the construction costs for the facility, to later
expand the clinic to include space for medical and dental services, and
to further expand it by providing administrative offices. The last of
the four grants was awarded in 1993 and closed out on March 21, 1996.
Under HUD's Indian CDBG regulations at 24 CFR 1003.504, a grantee
may not change the use of real property assisted in whole or in part
with Indian CDBG funds prior to or within five years after the close-
out of a grant, unless certain conditions are met.
The regulatory conditions include:
-- Lnotifying affected citizens of the proposed new use and
offering them an opportunity to comment on the proposed change; and
-- Lreimbursing the Indian CDBG program in the amount of the
current fair market value of the property, less any value attributable
to the non-Indian CDBG funds used for the acquisition of, and
improvements to, the property.
However, all regulatory conditions on the use of the Alpine health
clinic expired on March 20, 2001, five years after the last grant was
closed out.
I would like to point out that these Indian CDBG regulations on
oversight and closeout procedures are identical to the regulations used
in the Entitlement and Small Cities Community Development Block Grant
programs, which are under the jurisdiction of my colleague Roy
Bernardi, HUD's Assistant Secretary for Community Planning and
Development.
Conclusion
This concludes my prepared statement. I would be happy to answer
any questions you might have. Thank you again for providing me with the
opportunity to testify before the Committee.
______
Mr. Hayworth. Thank you very much, Mr. Secretary.
Let me turn to Secretary Smith.
STATEMENT OF WAYNE SMITH, DEPUTY ASSISTANT SECRETARY FOR INDIAN
AFFAIRS, UNITED STATES DEPARTMENT OF THE INTERIOR
Mr. Smith. I will remember your admonishment about being
brief and quick. Up front, the Department opposes this
legislative solution. We believe that by having a Secretary
obtain enacted tribal resolutions from each of the seven Indian
tribes who comprise the nonprofit corporation infringes upon
the internal workings of a legitimate corporation under
California State law as well as the authority of the tribes who
are members of the corporation. Clearly, we would want to
confirm that any request for the relinquishment--that is a
tough one, you are right--by the Health Council and/or the
Cuyapaipe accurately reflects the desires of the parties to the
lease and that the decision was reached in accordance with the
council's bylaws.
Federal legislation should not attempt to interfere with
those requirements which govern the corporation's actions under
State law. Let me assure you, though, that we take our mandate
to make leasing decisions that are in the best interest of the
tribe very seriously, and we would do in making any lease
decision affecting all the tribes involved in this issue.
Thank you.
[The prepared statement of Mr. Smith follows:]
Statement of Wayne Smith, Deputy Assistant Secretary, Indian Affairs,
U.S. Department of the Interior on H.R. 1239
Mr. Chairman and Members of the Committee, thank you for the
opportunity to provide the Department's view on H.R. 1239, a bill to
establish a moratorium on approval by the Secretary of the Interior of
relinquishment of a lease of certain tribal lands in California.
The Department opposes this legislative solution as it purports to
provide the Secretary with authority to interfere with the operations
of a not-for-profit corporation organized under state law, pursuant to
the choice of the tribal members of the corporation.
Background:
In 1981, the Cuyapaipe (pronounced ``Kwee-ah-pie) Indian Tribe of
San Diego County, California, along with seven other tribes (Barona
Band, Campo Band, Jamul Band, LaPosta Band, Manzanita Band, Sycuan Band
and Viejas Band) formed the Southern Indian Health Council, Inc.
(``Council'' or ``SIHC''), a not-for-profit corporation (C1127659 filed
on 10/18/1982), to serve the basic medical needs to tribal members. The
corporation was formed under the laws of the State of California. A
clinic was originally located on the Sycuan Reservation but relocated
to the Barona Reservation in 1984, and subsequently relocated to land
acquired by the Cuyapaipe Tribe 1986. The Sycuan Band has since
withdrawn from the Council.
In 1986, the Cuyapaipe Tribe acquired title, in trust, to a parcel
of land comprised of 8.6 acres located along Interstate 8 in the County
of San Diego in the State of California. The purchase of the land was
made with private funds and the acquisition was approved by the
Secretary on April 1, 1986.
The Department of Housing and Urban Development had awarded four
Indian Community Development Block Grants (ICDBG) from 1985 to 1993 to
the Southern Indian Health Council for construction and expansion of a
health care facility. Statements have been made that a portion of the
ICDBG grant funds were used to purchase the 8.6 acres. However, a
letter dated December 12, 2000, from the Deputy Assistant Secretary for
Native American Programs for HUD states that funds for the purchase of
the land did not come from the ICDBG program.
In February 1997, the Secretary approved a 25-year lease with an
option for one additional 25-year period between the Cuyapaipe Band and
the Council for the purpose of constructing and operating a health care
facility.
In October 1997, the Cuyapaipe acquired an additional 1.42 acres of
land in trust. The land is contiguous to the previously acquired 8.6
acres. The purpose of the acquisition was to establish a ``Pinto Home
for Girls, a drug abuse facility'' and the acquisition was approved by
the Secretary on October 29, 1997.
In October 1997, the Secretary approved a 25-year lease with an
option for one additional 25-year period between the Cuyapaipe Band and
the Council for the newly acquired 1.42 acres of land.
In December 2000, the Cuyapaipe Tribe and Council submitted
documents to the Bureau of Indian Affairs for a partial relinquishment
of the leased premises lease.
Proposed Legislation:
The legislation proposes that the Secretary obtain enacted tribal
resolutions from each of the seven Indian tribes who comprise the SIHC
prior to taking any action to approve a relinquishment of the lease.
The Department believes that the imposition of such a requirement
infringes upon the internal workings of a legitimate corporation
organized under state corporations law, as well as the choices made by
the Tribes that are members of the SIHC. As previously noted, the SIHC
is a not-for-profit corporation comprised of seven tribal members,
which elected to organize the corporation under California law. Every
corporation has articles of incorporation and by-laws that govern how
the corporation is run and how internal disputes are settled, which
must be in accordance with the law of the jurisdiction where the
corporation is organized. Accordingly, as long as any request for
relinquishment of the lease complies with the SIHC's by-laws and
relevant California State law, its action is legal and is the
legitimate action of the corporation.
Although the Department would want to confirm that any request for
relinquishment by SIHC and/or the Cuyapaipe accurately reflect the
desires of the parties to the lease, and that the decision was reached
in accordance with SIHC's by-laws. Federal legislation should not
attempt to interfere with those requirements, which govern the
corporation's actions under state law, pursuant to the choice of the
tribal members of the SIHC.
Let me assure this committee, however, that the Department of the
Interior and the Bureau of Indian Affairs would not take a request for
relinquishment of this lease lightly. We would examine the request
closely, as we do every leasing decision, in accordance with the
authority granted to the Secretary by Congress and the United States'
trust responsibility to the Cuyapaipe and the tribal members of the
SIHC. Our mandate is to make leasing decisions that are in the best
interest of a tribe. We take that mandate very seriously and would do
so in making any lease decision affecting the Cuyapaipe and the seven
member Tribes of the SIHC in this case, as well.
______
Mr. Hayworth. Thank you very much, Mr. Secretary.
Let's turn to Vice Chairman Garcia.
STATEMENT OF MICHAEL GARCIA, VICE CHAIRMAN, EWIIAAPAAYP
(CUYAPAIPE) BAND OF KUMEYAAY INDIANS
Mr. Garcia. Thank you, Mr. Chairman. Members of the
Committee, my name is Michael Garcia. I am the Vice Chairman of
my tribe, the Cuyapaipe Band of Kumeyaay Indians, a federally
recognized tribal government in San Diego County. On behalf of
my tribe, I would like to thank the Department of HUD and the
Department of Interior for their comments and their testimony
today.
I also serve as my tribe's representative on the seven-
member board of directors that governs the Southern Indian
Health Council, a nonprofit organization chartered under
California State law. I am glad for the opportunity to testify
on H.R. 1239 to set the record straight on matters of vital
importance to my tribe. Simply put, this bill poses a serious
threat to our tribal sovereignty.
Let me summarize my statement as follows: My tribe believes
this bill is misguided and should be abandoned for several
reasons.
First, the bill would override fundamental principles of
tribal sovereignty by destroying legal agreements my tribe has
reached with our tenant, SIHC, Incorporated. The bill would
override a majority vote rule that SIHC adopted for itself
pursuant to State law over a decade ago. The bill's retroactive
unanimous consent rule would vest any one of our seven member
tribes with unilateral veto decisions over decisions already
made. How can it be fair for the Congress to step in and give
one tribe this kind of veto power?
Second, this bill would override SIHC Board decisions made
last year in the open by local people about local matters and
by a majority vote of the directors under SIHC rules of
procedure consistent with California law. Should Congress be in
the business of overturning local decisions lawfully made?
Third, this bill would keep my tribe from spending $11.5
million to construct and equip a much needed new health clinic
facility. The bill would also deny Indians and non-Indians
served by SIHC the benefit of expanded health facilities and
services. In addition, my tribe will also contribute an
estimated $100 million in supplemental funding over the
following 15 years. Can anyone point to any other tribe that
will have to spend as much as $11.5 million up front on
governmental services before they construct a gaming facility?
Fourth, this bill is premised on a series of falsehoods.
Here are the facts. Cuyapaipe is the sole beneficial owner of
the Alpine trust land. The land was purchased with non-Federal
funds. Cuyapaipe is bound by legally enforceable agreements
with SIHC to construct bigger and state-of-the-art clinics to
replace SIHC's scattered clinic buildings. Our contractual
obligations guarantee that clinic and gaming facility
construction will not disrupt ongoing health services in any
way. Only after the new replacement clinics are operating will
the old clinic buildings be removed and gaming-related
construction begin.
As mentioned before by the HUD representative, all HUD
compliance requirements have been satisfied. Irresponsible
allegations of unlawful activities are reckless and totally
unfounded. We have extensive local community support for the
project. Given the disparity between Viejas band's preposterous
allegations in its testimony, I question whether the leadership
has even read the lease amendment agreements.
Fifth, this bill deeply offends us. It would cause--it
would strip my Cuyapaipe Tribe from our right to start gaming
in our land. Cuyapaipe waited to pursue any gaming until after
the voters of California voted twice overwhelmingly to permit
Class III gaming by all tribes until after we had a Tribal-
State Compact under IGRA. Other tribes did not wait. Are we to
take a lesson from this bill that Cuyapaipe should have begun
gaming when it was unlawful.
Sixth, the further delay called for by H.R. 1239 will kill
this project. My project and SIHC have been talking about this
for 5 years. The talk has turned into protracted and intense
negotiations throughout 1999 and 2000 in which all seven SIHC
board members actively participated. This resulted in the
agreement, the approval of which has been pending at the
Department of Interior since December 26th of 2000.
I think everybody's favorite words in all these testimonies
is: In conclusion, my tribe has committed substantial revenues
at unprecedented levels for health care, education, and other
needs identified for our local communities. Millions of these
dollars will be spent in advance of any gaming activity. We
have obtained the agreement of our tenant to vacate part of our
pre-IGRA trust land. The BIA as trustee should applaud and
approve this and allow us to dramatically improve health care
services and become economically self-sufficient. Likewise,
Congress should reject all calls to interfere in this process.
In particular, Congress should reject H.R. 1239 because it is
premised on falsehoods. It would carry out a misguided,
inequitable, and unsound policy that violates the Department's
trust responsibility to Cuyapaipe, and it runs roughshod over
our tribal sovereignty.
Thank you for this opportunity to testify, and I appreciate
the attention this Committee has given to this issue,
especially during this time of national crisis.
[The prepared statement of Mr. Garcia follows:]
Statement of the Honorable Michael Garcia, Vice-chairman, Ewiiaapaayp
(Cuyapaipe) Band of Kumeyaay Indians and Alternate Director, Southern
Indian Health Council, Inc.
Introduction.
Good morning, Mr. Chairman and members of the Committee. My name is
Michael Garcia. I reside in San Diego County, California. I appear
today as the elected Vice-Chairman of my Tribe, the Ewiiaapaayp Band of
Kumeyaay Indians, also known as the Cuyapaipe Band of Mission Indians,
a federally-recognized tribal government. I also serve as my Tribe's
alternate Director on the seven-member Board governing the Southern
Indian Health Council, Inc., commonly known as SIHC, Inc., a non-
profit, public benefit corporation chartered by the State of
California. Each of seven member tribes appoints a representative to
the SIHC, Inc. Board of Directors. I appreciate the opportunity to
testify on H.R.1239 and related matters that are vital to my Tribe and
to our Tribal Sovereignty.
Summary Statement.
I am here to explain why my Tribe believes H.R. 1239 is misguided
and should be abandoned. Our reasons can be summarized as follows:
First, the bill would over-ride fundamental principles of Tribal
Sovereignty by voiding legal agreements my Tribe has reached with SIHC,
Inc., our tenant. The bill would dictate that certain tribes cannot set
our own rules for how we make decisions in organizations we govern. The
bill plainly tells my Tribe we cannot carry out internal matters of
self-government without Federal interference.
Second, the bill would overturn a year-old decision by SIHC, Inc.
that was made (a) in the open, (b) by local people, (c) about a local
matter, and (d) by a majority vote under rules of procedure adopted by
SIHC, Inc. consistent with California law.
Third, as a practical matter, the bill would remove all possibility
that my Tribe can use very substantial non-Federal funds to develop and
expand critically-needed health facilities and services in our
community. The bill would destroy a development project that will bring
both construction and operation jobs and economic activity to our
community. The bill is an affront to our right, founded in basic
doctrines of Tribal Sovereignty and federal law, to conduct lawful
gaming on our own trust land.
Fourth, a few detractors have spread misinformation about the
Cuyapaipe project that we have repeatedly been forced to correct, as we
do again in this testimony below. Cuyapaipe is the sole beneficial
owner of the Alpine clinic trust land. The land was purchased with non-
Federal funds. HUD funds supported the construction of the old clinic
facilities. With non-Federal funds, Cuyapaipe will construct two or
three new, bigger, and state-of-the-art clinics to replace these aging,
scattered clinic buildings. Contractual obligations guarantee that the
construction will not disrupt ongoing health services in any way. Only
after the new replacement clinics are open and operating will the old
scattered clinic buildings be removed and gaming-related construction
begin. All HUD compliance requiremnts have been satisfied.
What are the Local Decisions Which H.R. 1239 Seeks to Over-ride?
My Tribe, the landlord, signed an agreement with our tenant, SIHC,
Inc., 1 to amend their lease so as to reduce the amount of
Cuyapaipe trust land which SIHC, Inc. now uses in Alpine from from 8.6
acres to about 2.5 acres. 2 In simple terms, my Tribe's
Agreements with SIHC, Inc. involve an exchange. We get some of our land
back from our tenant earlier than scheduled, and in exchange, SIHC,
Inc. gets two or three new, state-of-the-art health clinic facilities
to replace their aging and scattered buildings. My Tribe's contractual
obligation is to provide approximately $11.5 million to build the new
replacement clinic facilities for SIHC, Inc. as well as an additional
15-year stream of Cuyapaipe contributions estimated to total $100
million for further facility and operational support of SIHC, Inc. plus
additional revenue sharing over a total of 36 years.
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\1\ SIHC, Inc. is a California non-profit corporation governed by
its own rules and by-laws as are all similar corporations in
California. The seven Directors of SIHC, Inc. represent seven area
Indian Bands (Barona, Campo, Cuyapaipe, Jamul, La Posta, Manzanita and
Viejas). Today, the SIHC, Inc. Alpine clinic encompasses some 26,500
sq. ft. spread among three primary buildings and some modular units,
all tiered into the hillside north of Willows Road. Over the past year
this clinic has received more than 61,000 patient visits with roughly
50% of those patients being non-Indian fee-for-service patients.
\2\ This is practical since we would be consolidating a number of
buildings and temporary facilities now scattered across a steep
hillside into one new and larger consolidated clinic building that will
ease patient access and increase administrative efficiencies.
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Once made, such a decision by a landlord and tenant should
ordinarily be the end of the matter. But the lease in question involves
land held in trust for my Tribe by the U.S. Department of the Interior.
With respect to this land, and this lease, my Tribe alone is the sole
beneficiary of that trust responsibility. Thus, the Department's sole
and only duty as trustee is to protect the interests of my Tribe. Like
any trustee, the Department's approval must be obtained before a
decision made by its beneficiary is given legal effect. Accordingly, as
soon as our agreements were given final approval and ratification by
the SIHC, Inc. Board of Directors in December, 2000, my Tribe asked the
Department to approve the lease amendment agreements, also known as the
lease relinquishment agreements.
We are astounded that H.R. 1239 is being given any consideration
whatsoever. The bill's basic premise is the time-worn and discredited
notion that imperial Washington, D.C. ``knows better than the local
Indians what is best for the Indians'' and thus the Federal government
should reverse a local decision.
H.R. 1239 Would Interfere with the Department's Trust Duties Owed to
Cuyapaipe.
By seeking to over-ride the SIHC, Inc. vote to accept the lease
amendment, H.R. 1239 would prevent the Department from approving the
early return of Cuyapaipe trust land to the Cuyapaipe. There can be no
dispute that this land is held for the sole benefit of the Cuyapaipe
Band. Congressman Hunter, the sponsor of H.R. 1239, years ago supported
our efforts to have this land placed in trust for the Cuyapaipe Band.
In a June 13, 1985 letter to the Department, Mr. Hunter wrote: ``I
strongly urge you to take whatever action is necessary to expedite
placing this 8.6-acre tract in trust, by the Department of the Interior
(Bureau of Indian Affairs) for the Cuyapaipe Reservation, so that
construction of a new health center can begin in a timely manner.''
(emphasis added). In recent months, one rationale given for H.R. 1239
is that the land was never intended for the benefit of the Cuyapaipe
alone. Mr. Hunter's own words at the time of the 1985 purchase
indicates otherwise.
Congress Should Stay Out of It; The Department's Approval of the Lease
Amendment Agreements is Ministerial.
For several reasons, the Department's decision to approve the lease
amendment Agreements should be properly seen as a simple, ministerial
act to be given without delay. The proper role of the Department as
legal trustee is quite limited on such an issue. Its only question on
review should be: `Is an early return of the trust land to the Tribe,
the sole trust beneficiary, in the best interest of the Tribe?' The
answer to that appropriately narrow question has to be `yes'. The
Cuyapaipe, like any landlord, should be permitted to renegotiate its
lease with a willing tenant if the landlord finds a better use for its
land. Likewise, the tenant has concluded, without any need for
Congressional advice or second-guessing, that the lease amendment
Agreements are very much in its interests. The Department, as trustee,
is obliged to approve such an amendment that benefits its trust
beneficiary. The Department should expedite the approval in order to
avoid delays that risk competitive harm and loss of opportunity for its
beneficiary.
H.R. 1239 Seeks to Overturn Bona Fide Local Votes of the SIHC, Inc.
Board.
The Cuyapaipe Band has not rescinded or revoked its lease with
SIHC, Inc. The Board of the SIHC, Inc. took a series of votes during
2000 as the lease amendment Agreements took shape. The last and
definitive vote was taken on December 18, 2000, when its seven-member
Board of Directors approved the final lease amendment Agreements by a
vote of four in favor, one opposed, one present but abstaining, and one
absent. The Chairman of the SIHC, Inc. Board of Directors, Mr. Ralph
Goff, Chairman of the Campo Band of Mission Indians, was present but
did not vote, abstaining in his capacity as Chairman. Chairman Goff
today will testify in opposition to HR 1239 and in support of the lease
amendment Agreements. The only Director absent was the representative
of the Viejas Band of Mission Indians who, although the meeting was
lawfully and adequately noticed, chose not to attend or to send an
alternate Director to this important meeting of the SIHC, Inc.
At an earlier July 10, 2000 meeting of the Board of Directors, six
directors were present for the vote on Resolution 00-07-10-01 approving
the transactions between the Cuyapaipe Band and SIHC, Inc. Three
directors voted in favor, two voted against, and one abstained. The
Director appointed by the Cuyapaipe Band, by agreement of the Board,
purposefully absented himself for this vote.
The SIHC, Inc. Board of Directors has intended, understood, and
treated abstentions as neutral; such abstentions have not been counted
in determining whether there is a majority vote. As of July 10, 2000,
however, the SIHC, Inc. by-laws did not specifically address this
understanding. Thus, after proper notice the Board voted 5-2 on
November 27, 2000 to amend the bylaws to clarify this original Board
intention.
No HUD Funds Were Used to Purchase our Trust Land in 1985.
Some Members of Congress have been erroneously told that we used
Indian community development block (CDB) grant funds received from HUD
when in 1985 we purchased the land we now hold in trust, and that
facilities funded with HUD grants are being inappropriately disposed.
In fact, last year Congressman Hunter introduced legislation (as H.R.
5477) that would have prohibited the Cuyapaipe Agreements if Federal
funds were used for land acquisition. After the Cuyapaipe Band
documented the fact that no Federal funds were used, Congressman Hunter
amended his legislation to its present focus of dictating unanimous
consent rules upon SIHC, Inc.
Here are the facts. In 1985, an initial CDB grant was awarded to
the Cuyapaipe Band for construction, contract services and
administration of the SIHC, Inc. health clinic. None of the federal
funds provided by this grant were used for land acquisition. Instead, a
private bank loan from the Pacific Commerce Bank was used to purchase
the Alpine Site for a total of $85,000. A portion of those funds was
contributed personally by former Cuyapaipe Chairman Tony Pinto. In a
letter sent to the Chairman of the Viejas Indian Tribe, dated December
12, 2000, the U.S. Department of Housing and Urban Development stated:
``The audit of the project supports the claim that the 8.9 acre parcel
was not purchased with federal funds.'' (See attached December 12, 2000
letter from HUD).
Four CDB grants funded construction of the SIHC, Inc. facilities on
the Cuyapaipe trust land leased to SIHC, Inc. A HUD letter (attached)
to Viejas Tribal Chairman Steve TeSam dated September 14, 2000
confirmed, pursuant to ICDBG regulations at 24 CFR 1003.504, that the
first three CBD grants had been previously ``closed-out'' properly. The
fourth and last CDB grant closed out on March 20, 2001. The HUD letter
concludes that after March 20, 2001 there are no more constraints on
the use by SIHC, Inc. of these facilities. Of course, this inquiry begs
the question--why would the U.S. object to us replacing these
Federally-funded buildings and modular units with modern, bigger,
better, and consolidated facilities paid for by non-Federal funds?
The Viejas Band's Opposition Is Transparent.
Who, one might reasonably ask, would benefit if they could block
the dramatic improvements in SIHC, Inc. health facilities and programs
that will come from the Cuyapaipe-SIHC, Inc. Agreements? It can only be
those with interests and agendas other than health care. Perhaps those
interests include those of the present Viejas tribal leadership who
operate a casino one mile east of Cuyapaipe's trust land in Alpine
where we intend to develop our gaming.
Since the key SIHC, Inc. vote at which they were absent, the
present Viejas leadership have not availed themselves of any of the
numerous opportunities they have had to resolve whatever issues they
may have with our lease amendment Agreements. Until seven days ago, the
Cuyapaipe Band has not been able to obtain an answer from Viejas as to
why Viejas opposes our Agreements. The Cuyapaipe Band wrote letters to
Viejas dated November 6, 2000, December 11, 2000, June 14, 2001, and
June 29, 2001, without ever receiving a substantive response. Cuyapaipe
Tribal officials made repeated telephone calls to Viejas Tribal
officials without a response until Viejas Tribal Chairman Steve TeSam
returned Cuyapaipe Tribal Chairman Harlan Pinto's telephone calls on
October 10, 2001, and offered, as an explanation for his opposition,
only that the Viejas membership had voted more than one and one-half
years ago that the SIHC, Inc. should remain ``status quo.'' But that
``vote'' occurred many months before the terms of our lease amendment
Agreements with SIHC, Inc. were negotiated.
By avoiding every opportunity to address any concerns they may have
about our Agreements, present-day Viejas leaders have failed to allow
established processes to work. Rather than Viejas conferring and
consulting with SIHC, Inc. and the Cuyapaipe Band, Congress has been
asked to insert itself into a local issue and over-ride a local
decision made under state-sanctioned corporate bylaws adopted by
representatives of seven sovereign tribal governments for purposes of
their internal governance.----
The Indian Gaming Regulatory Act of 1988 (IGRA), the agreements
between SIHC, Inc. and the Cuyapaipe Band, California Corporations law,
Proposition 1A, Cuyapaipe's Tribal-State Compact, other applicable
federal laws, and applicable HUD regulations provide appropriate
protection for all interests and all interested parties. Legislation
like H.R. 1239 has absolutely no merit, especially, where as here, it
is based upon distortions and misrepresentations which would serve, if
believed, to protect the Viejas Band's present gaming monopoly at the
expense of public health improvements and at the expense of a small
neighboring Tribe. For the Congress to permit H.R. 1239 to be enacted
would be contrary to the principles of free enterprise, market
capitalism, fair competition, and fair play that are at the very heart
of American political values.
Our Pending Lease Amendment Agreements Do Not Involve Gaming Approvals.
Our request to approve our lease amendment agreement is the only
decision now pending before the Department of the Interior before we
can proceed to implement the Agreements. All gaming-related compacts
and authorities are already in place and approved. In 1986, two years
before the Indian Gaming Regulatory Act of 1988 (IGRA) was enacted, the
land at issue was accepted into trust for the Cuyapaipe Tribe. In 1998,
the people of the State of California voted overwhelmingly to permit
Indian tribes to conduct gaming on tribal trust lands pursuant to IGRA.
In September, 1999, the Governor entered into a Tribal-State compact
with my Tribe. In March, 2000, the people of the State of California
again overwhelmingly voted to permit Indian gaming on tribal trust
lands pursuant to IGRA. In May, 2000, the U.S. Department of the
Interior approved the Cuyapaipe-California Tribal-State Compact. Unlike
Viejas, my Tribe waited until tribal government gaming was
unquestionably lawful and permitted before we began to develop plans to
conduct gaming on our trust land.
Our Agreements are fully consistent with Proposition 1A; my Tribe's
trust land is eligible for tribal government gaming pursuant to IGRA.
Our Tribal-State Compact contemplates our Band's trust land to be among
those lands eligible for gaming (Sec. 4.2. Authorized Gaming Facilities
- ``The Tribe may establish and operate not more than two Gaming
Facilities, and only on those Indian lands on which gaming may lawfully
be conducted under the Indian Gaming Regulatory Act'').
Waiting Until Gaming was Lawful Has Resulted in a Cruel Irony for
Cuyapaipe.
We find H.R. 1239, and the fact of this hearing, to be painfully
ironic since the California voters' proposition campaign was supported
by all the Tribes of California, including those already conducting so-
called grey-market gaming as well as those, like Cuyapaipe, who were
not, was premised on each Tribe having the right to conduct lawful
gaming under IGRA on tribal trust land. Consider the words of the
immediate past Chairman of the Viejas Band, Anthony Pico, after
Proposition 1A, the California Indian Self-Reliance constitutional
amendment, received a 64.6% approval by statewide voters, with a 71%
majority in San Diego County, the highest support percentage of any
county in California:
``Despite what the opposition has said, Prop 1A was not about slot
machines, religion or regulation. Like Prop 5, Prop 1A was about jobs
and justice. Specifically it was about whether Indians would have the
right to the same economic venues as other governments and commercial
interests. More importantly, Proposition 1A was about our right to
exist into the future.
The Cuyapaipe Band thought, and I would submit that 71% of the
voters in San Diego County thought, that Proposition 1A was about the
future existence of all federally-recognized tribes in California,
including both the Cuyapaipe Band and the Viejas Band.
The Viejas Chairman went on to say: ``Tonight's victory is a
vindication of the voters' will over the power of a few to change the
course of the future through legal technicalities and political
obstruction.'' Now, the Viejas Band is asking the U.S. Congress to use
legal technicalities to politically obstruct the outcome of a majority
vote by the Board of SIHC, Inc. so as to prevent my Cuyapaipe Band from
building a casino on our own land and dramatically improving health
care for Indians and non-Indians alike in East San Diego County. I ask,
on behalf of my Tribe, that this Committee not permit the Congress to
interfere in our local affairs. I ask this Committee to stand up for
what is right and stop this bill from moving forward.
Cuyapaipe's Agreements Represent the Highest Fulfillment of IGRA.
During the extensive congressional debate which preceded enactment
of IGRA, numerous Members of Congress stated that one of the many goals
intended to be achieved by this new statute was the creation of a
process through which tribes could generate revenues which could be
used to supplement the enormous shortfall in Federal funds needed by
those tribes for tribal purposes including the construction and
operation of health facilities. Cuyapaipe believes there is no better
way for us to advance the intentions and goals of IGRA than to devote
gaming revenues to the task of replacing aging health facilities,
supplementing dwindling federal health appropriations, and supporting
other community projects. There is presently no more critical
governmental function in eastern San Diego County than the provision of
health care. Our tribal members, and those of our neighboring tribes,
and indeed a majority of our non-Indian neighbors, all agree that
improving and expanding health care is a top priority.
If H.R. 1239 is enacted, the Cuyapaipe Tribe's carefully laid plans
to develop lawful gaming and substantially support health care will be
shredded. Is it acceptable public policy to punish a Tribe that has
strictly adhered to Federal law, while others who have not waited for
lawful authority are rewarded? Surely it is not.
It is unprecedented for a Tribe like Cuyapaipe to pledge and spend
such a considerable sum of money in advance of any gaming revenue. The
Cuyapaipe Tribe is able to allocate these very substantial
contributions to our Indian and non-Indian neighbors because we are a
small Tribe and because Cuyapaipe tribal leadership has insisted that
our Band continue our strong support for SIHC, Inc. We know of no other
Tribe in which its initial and long-term financial contributions to
health care are so large, and for the benefit of so many non-members of
the contributing Tribe. We are surprised, frankly, that our generosity
is met with such mis-information and hostility by a few people.
Local Community Support for the Cuyapaipe Agreements is Strong.
We have extensive local support within the Alpine community.
Cuyapaipe has worked closely with the Alpine community for the past
year to identify community projects that could benefit from financial
contributions by my Tribe. Health care, particularly the provision of
urgent care services, is of increasing concern given the recent closure
of the nearest emergency services hospital, and appears to be the top
priority. Increased funding for education, police and fire protection
are very urgent priorities as well. The Cuyapaipe Tribe is engaged in
extensive, ongoing discussions with various groups within the Alpine
community to identify projects which the Tribe will support with
substantial financial contributions. The construction of these health
clinics and casino, as well as their operations, will sharply boost the
number of jobs in eastern San Diego County with resulting benefits from
increased economic activity and tax revenue.
If the Congress abandons H.R. 1239 and the Department approves our
lease amendment agreements, our next step will be to build a $1.5
million replacement clinic on the Campo Reservation for SIHC, Inc., a
$5 million replacement clinic on 2.5-acres of the present 8.6-acre
leased parcel, and in just the first 15 years of our gaming operation,
provide an estimated $100 million to SIHC, Inc. as a percentage share
of our gaming revenues. We have also engaged in discussions with the
local Alpine community regarding our plan to provide an estimated $11
million in charitable contributions to the community over the first
seven years, after we begin operating our tribal government gaming
enterprise, to be used for education (construction of a new Alpine high
school), open space, recreation, a new Alpine library, an Alpine
community center, Alpine Fire Protection District, San Diego County
Sheriff's Department, and land for a San Diego County Sheriff
Department Alpine substation. In addition, if, before we begin
construction of the $5 million replacement clinic on the 2.5 acres
(discussed above), the Interior Department can approve our pending
application to accept into trust status the 17 acre Alpine Boulevard
property we recently purchased across the interstate from our present
trust parcel, we will divert that $5 million to combine it with another
$5 million we will contribute to construct a larger $10 million clinic
with the potential for urgent health care services at the Alpine
Boulevard property.
Enactment of H.R. 1239 Would Reward Unfair Competition.
If H.R. 1239 is enacted and the Interior Department otherwise fails
to approve our lease amendment Agreements, none of the financial
commitments or activity recited in the preceding paragraph can occur.
In fact, the only ``winner'' is the protection of the Viejas Band
Enterprise's gaming casino that will continue to operate without nearby
competition.--On September 14, 1999, the San Diego Union-Tribune quoted
immediate past Viejas Tribal Chairman Pico about the prospect of
competition from other tribes following the voters'approval of
Proposition 1A:
``Pico said Viejas isn't worried about competing for the local
gambling business because `there's plenty enough to go around'...Pico
said market constraints would dictate the size of new casinos in rural
areas of the county and state.''
The present Viejas leadership now appears to have done a complete
about-face. Viejas recently amplified its opposition to our lease
amendment Agreements in its letter to the BIA dated September 20, 2001
that opposes the Cuyapaipe Band trust application for the Alpine
Boulevard property we want to lease to SIHC, Inc.
In that letter, Viejas states: ``Viejas has focused its community
and economic development efforts on its own reservation, with recent
success in the viability of the tribal economy...'' But what Viejas
leaves unsaid is that eight years of its success was accomplished
through unlawful Class III gaming without a gaming compact with the
state of California and without federal regulation.
The Viejas letter also claims: ``Ewiiaapaayp is attempting to
undermine the Viejas Reservation economy...''--But the Cuyapaipe Band's
economic development is authorized by Federal law, by State law, and
will be developed pursuant to a Tribal-State compact approved by the
Governor, the California Legislature, and the Interior Secretary in
conformity with the overwhelming majority of the California voters. Our
development plan represents the finest in free enterprise, capitalism,
and fair competition that is intended to lead to self-sufficiency. How
can this Committee and the Congress be against this? Yet H.R. 1239 is
designed to kill our development at its roots.
The Viejas letter also states: ``This type of encroachment on the
Viejas tribal community's economic sustainability cannot be
tolerated...'' There is only one conclusion to draw from this--Viejas
is trying to use power it obtained through eight years of unlawful
gaming to get the Congress to--block the Cuyapaipe Band and SIHC, Inc.
from exercising their lawful powers of self-determination and free-
enterprise to--improve--health care for--Indians and non-Indians alike,
and to restore the Cuyapaipe economy.----
The Viejas letter then concludes that: ``The BIA cannot, therefore,
take any action which would facilitate Ewiiaapaayp off-reservation
gaming at the direct expense of the Viejas Band...'' First, let me be
clear, the Viejas reference to ``off-reservation'' is mis-placed. Our
eight acre parcel is tribal trust land, and the Indian Gaming
Regulatory Act of 1988 specifically authorizes Class III gaming under
our September 10, 1999 Tribal-State Compact on that land. Second, with
this statement the Viejas Band is saying the Interior Department has a
trust responsibility to Viejas to over-ride the Department's trust
responsibility to Cuyapaipe. If this policy were adopted, it would
violate fundamental Federal-Indian principles of the government-to-
government relationship the United States has with each Tribe. Viejas
is voicing opposition to decisions that were made a long time ago.
Congress enacted IGRA in 1988. The Governor signed and the Department
approved our Compact in 1999 and 2000, respectively (when Viejas
likewise first received its lawful gaming compact).
H.R. 1239 would require any alterations to leases entered into by
SIHC, Inc. to have the approval of the tribes of all seven SIHC, Inc.
Directors by tribal resolution in order to be given effect. This would
vest unilateral power in any single one of the seven member tribes of
SIHC, Inc. to veto the Agreement, which is the apparent intention of
the Viejas Band in supporting H.R. 1239. We believe it is an
inappropriate use of Congressional power to dictate changes to the by-
laws of but one specific non-profit corporation in the entire country.
Such a vote requirement is inconsistent with the requirements of
California corporations law and imposes an almost insurmountable
barrier to the conduct of business. It is not a proper role for the
federal government to ``fix'' the outcome of corporate Board actions by
giving one member the power to thwart the will of the majority,
particularly when the outcome serves the self-serving interests of the
one at the expense of the interests of the majority, and especially
when the financing and political influence of the one to promote such a
change in law were primarily derived from unlawful activities.
Cuyapaipe Has Always Given Significant Leadership to the SIHC, Inc.
Health Program.
The Cuyapaipe Band, and most specifically our recently-retired
Chairman Tony Pinto, has a long history of leadership in the area of
Indian health care and social services. ``Uncle Tony'' (as so many know
him), has been the catalyst for many developments and improvements in
East County. He was a key founder of SIHC, Inc. Uncle Tony led the
effort to rescue the SIHC, Inc. clinic when it sought a new location.
SIHC, Inc. is no stranger to moves. It had to move from the Sycuan
Reservation to the Barona Reservation in the early 1980s. When it had
to move again in 1984, Uncle Tony stepped forward. He identified Alpine
as a location well suited to respond to the twin problems besetting
SIHC, Inc. in 1984: (a) an insufficient land base to allow for needed
clinic expansion; and (b) the need for a central location to allow for
ease of access by SIHC, Inc. member tribes. Alpine was centrally
located within the Kumeyaay homelands. The Viejas Band then had about
1,657 trust acres in the Alpine community and SIHC, Inc. appealed to
Viejas for a long term lease of 10 acres.
In a letter from the Viejas Band to SIHC, Inc. dated October 18,
1984 the Viejas Band declined the SIHC, Inc. request for lease of a 10-
acre site for the clinic. Viejas Tribal Chairman Anthony Pico stated:
``...[W]e have carefully considered your request for a 10-acre site
on the Viejas Reservation with a long term lease and can not offer you
such a site. The Viejas Reservation is pursuing a vigorous development
plan and all suitable sites are presently identified for development.
Also, the facts are there is heavy concern from the tribal general
council which prevents us from offering a site. Hope your efforts are
successful.''
The Cuyapaipe Band offered to do more than just hope SIHC, Inc.
would be successful. The Cuyapaipe Band found available land suitable
for the clinic in Alpine, acquired the land with non-federal funds,
conveyed this fee land to the United States in trust, and leased the
land to SIHC, Inc. for 25-years plus 25-year option for a rent of $1
per term. 3 The Cuyapaipe Band went to these great lengths
despite the fact that the rest of our trust land base could not support
economic development, located as it is in the remote Laguna Mountains
35 miles northeast of Alpine, and comprised of 4,102 acres of sharp
mountain ridges and steep slopes at elevations between 5,600 ft and
6,600 feet with but 2% of the land base suitable for buildings.
4
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\3\ In exchange for this nominal rent, SIHC, Inc. helped pay off
the mortgage with non-Federal funds.
\4\ This trust land has a single-lane access road that is 12 miles
of steeply graded, narrow, unmaintained dirt road crossing private,
U.S. Forest Service, Bureau of Land Management, and San Diego County
properties with two locked gates. This land lacks all basic utility
services, and it would be cost prohibitive to do so. Congress enacted
the California Indian Land Transfer Act of 2000 that returned Bureau of
Land Management surplus land to six tribes, including 1,360 acres to
our land in the Laguna Mountains. However, of this acreage, 928 acres
was previously part of a trust land there, but was removed on paper by
errant BLM surveys, with no relief provided by the BIA despite repeated
complaints by the Band. As a result, the Cuyapaipe trust land will only
increase by 432 acres, all of which is on ridge tops or steep slopes. I
doubt that in my lifetime my Tribe will ever be able to make any
significant economic development use of our 4,102-acre trust land in
the remote Laguna Mountains. The best and highest use of our Alpine
trust land, both for the Band and SIHC, Inc., is to return its right of
use to the Band in order to significantly improve SIHC, Inc.'s ability
to provide health care to all residents of East San Diego County.
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The Cuyapaipe Agreements Offer a Unique Opportunity to Expand and
Improve Health Care Provided by SIHC, Inc.
As a result of the Agreements with the Cuyapaipe Band, SIHC, Inc.
will receive either a $5 million clinic in Alpine on Willows Road and
later another $5 million clinic on Alpine Boulevard, or a $10 million
clinic on Alpine Boulevard should the BIA expedite the trust approval
of the 17-acre Alpine Boulevard property and its lease to SIHC, Inc. In
addition, 5 the Cuyapaipe Band will contribute over the
first 15 years of its gaming operations an estimated $100 million to
SIHC, Inc. from the Band's casino revenues. These very significant
benefits include:
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\5\ Our development plan is carefully calculated so as to not
disrupt the delivery of any health care services at any time. The
existing clinic buildings will remain fully accessible and functional
throughout the entire construction process of their new replacement
clinics in Alpine and Campo. Only after SIHC, Inc. certifies that each
new facility is ready for occupancy will they move from the old
buildings to the new. Roadway access in Alpine will be totally separate
from access to the future gaming construction and facility site. Only
after the new consolidated clinic is fully occupied will the old clinic
buildings be torn down and the construction of a casino begin.
Throughout all phases, from construction through to operations, roadway
and parking lot access will be kept intact, with the old and new clinic
traffic at all times kept separate from the construction and casino
traffic.
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LThe $100 million contribution will permit SIHC, Inc. to
develop a world class clinic to serve the people of our community -
Indians and non-Indians alike. Among many other benefits, we expect
this to permit SIHC, Inc. to respond to our community's desperate need
for urgent care/emergency services.
LThe Band will build SIHC, Inc. a new clinic building on
the northern-most 2.5 acres of our current Alpine trust parcel. This
33,500 sq. ft. facility (the ``CCB'' or consolidated clinic building)
will consolidate all existing scattered facilities and operations under
one roof, providing more modern and spacious amenities as well as the
possibility of adding additional services. It has been designed by one
of the foremost clinic design firms in the Country.
LThe Band will also build SIHC, Inc. a new clinic building
on the Campo Reservation (the ``Campo Clinic''), to serve residents of
the outer reaches of what we call East County. This 8,000 sq. ft.
facility will replace an existing 2,500 sq. ft. modular building.
LThe Band recently acquired a 17-acre parcel of land on
Alpine Boulevard just across the interstate from our Alpine trust site.
We have applied to the BIA to accept this land in trust for the Tribe,
following which it will be dedicated to the exclusive use of SIHC, Inc.
The Band is committed to funding a $5 million clinic (the ``Alpine
Boulevard Clinic'' or ``ABC'') on this site, to form the centerpiece of
the major clinic to be developed over the coming years (utilizing some
of the $100 million noted above). Under our Agreement with SIHC, Inc.,
this 17-acre parcel must be accepted in trust by the Department before
we can build a clinic on it for SIHC, Inc. for a number of reasons. The
chief reason is that locating SIHC Inc.'s operations on trust land
insulates SIHC, Inc. from being subjected to costly union organizing
and collective bargaining and other requirements of the National Labor
Relations Act (NLRA) that infringes on Tribal Sovereignty and that
would divert funds from the provision of critically needed health care.
The NLRA does not contain language expressly applying the NLRA to
tribal governments nor expressly exempting such governments. In a 1988
case involving SIHC, Inc., and in several other cases, the National
Labor Relations Board (NLRB) has consistently held that a tribally
owned and operated enterprise located on Indian trust lands is exempt
from the NLRA. 6 At the time its case was before the NLRB,
the SIHC, Inc. clinic was located on Barona trust lands. Its location
on trust lands was cited as a key factor in the NLRB's decision
precluding attempts at union organizing on tribal trust lands. In
addition, locating on trust land allows SIHC, Inc., to operate as a
federally qualified health center subject to review by the IHS.
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\6\ Fort Apache Timber Company, 226 N.L.R.B. 503 (1976); Southern
Indian Health Council, Inc., 290 N.L.R.B. 436 (1988); Sac & Fox
Industries, Ltd., 307 N.L.R.B. 241 (1992).
---------------------------------------------------------------------------
The Band has supplied financing to construct the clinics, secured
by an irrevocable letter of credit. Construction of the CCB will
proceed soon after the BIA approves the Tribe's lease amendment
Agreements with SIHC, Inc. Development of the Alpine Boulevard Clinic
site will proceed once that land is taken into trust by the BIA. If
both these BIA actions occur virtually simultaneously, this would then
permit the $5 million earmarked for the CCB to be combined with the $5
million intended for the Alpine Boulevard Clinic and result in a larger
$10 million Alpine Boulevard Clinic. The Alpine Boulevard Clinic fee-
to-trust application is not essential to the success of our lease
amendment Agreements, but common sense would dictate that its
acceptance into trust be expedited in order to get greater health
benefits sooner to the entire Alpine community.
The Cuyapaipe Agreements Offer a Unique Opportunity to Bypass the IHS
Facility Replacement Backlog.
In its most recent facilities needs review (1994), the IHS
determined that deteriorating conditions require that it replace,
renovate or modernize 41 hospitals, 153 health clinics and 289 part-
time health centers. In addition, it found that 12 completely new
health clinics and 21 new health stations were in need of construction.
Now, years later, these unmet federally-supported facility needs are
even greater. The backlog is even bigger. The SIHC, Inc. clinic
facilities are among those needing to be replaced or modernized. The
President's recent Budget Request stated that the total unfunded amount
identified on the five-year IHS Health Facilities Planned Construction
Budget for fiscal year 2002 was approximately $938 million. That's just
the 5-year plan. The IHS's assessment of its overall facilities backlog
need is $7 billion for health facilities infrastructure, maintenance
and equipment needs. 7
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\7\ The fiscal year 2002 budget request for Indian health facility
construction totaled $37.6 million, and would enable IHS to provide
full funding to complete just two health care facility construction
projects. The IHS has completed construction of only 17 hospitals and
24 health clinics in the past 22 years. Meanwhile, the backlog is
growing because buildings are deteriorating faster than they are being
replaced. If the only option for a modern health care facility is to be
funded under the IHS system, tribes lowest on the queue, or not yet
even on the list, are not likely to see construction begun for at least
30 more years.
---------------------------------------------------------------------------
The House and Senate Appropriations Committees have recently noted
in their Committee Reports that billions of dollars are necessary to
remove the IHS facility backlog. In response, the Congress has
supported - and encouraged IHS to support--tribes in identifying and
implementing alternative approaches to facilities construction funding,
including a joint venture demonstration projects program under which a
tribe is encouraged to use a combination of tribal, private sector or
other available non-federal funds. Our Cuyapaipe-SIHC, Inc. Agreements
represent the perfect model of an alternative approach to funding the
critically needed construction of Indian health care facilities. The
$11.5 million in non-federal funds dedicated immediately, not under
some future multi-year plan, to the prompt construction of replacement
facilities would relieve the federal government of one of its financial
obligations to Indians in San Diego County, California.
The Cuyapaipe Agreements Offer a Unique Opportunity to Reduce the IHS
Services Funding Shortfall.
A severe shortage in funding for IHS-supported health services
compounds the $7 billion backlog in facility replacement needs. Funding
for operations, services and staffing for IHS-funded programs is
woefully inadequate. $7.5 billion (in 1999 dollars) is needed each
year, estimates the IHS, to address the disparities in health in the
American Indian and Alaska Native populations by providing access to
basic health services. If the goal is to meet basic health care
standards, and bring American Indians and Alaska Natives up to a
standard of health care available to federal employees under the
federal health plans, it will take some $8 billion a year. 8
---------------------------------------------------------------------------
\8\ IHS itself estimated in fiscal year 2000 that its per capita
expenditure for an Indian or Alaska Native person was $1,442, compared
to the $3,200 spent on health care for each non-Native U.S. civilian
citizen. According to the IHS-chartered Level of Need Funded Workgroup,
charged with developing a common estimate of health care funding needs
for Indian people, for insured individuals under a Federal Employee
Health Benefits plan, $3,391 is available, compared with $1,244 being
available for the average Indian or Alaska Native person with
comparable Blue Cross/Blue Shield benefits currently available under an
IHS or tribal health program. At the request of the Senate Indian
Affairs Committee over the past several years, the Congressional
Research Service has prepared reports which document the continued
under-funding of tribal programs, in constant dollars. Although the
level of IHS appropriations increased during fiscal year 1975 - fiscal
year 2001, that increase was at a lower rate than appropriations for
other Department of Health and Human Services programs. The fiscal year
2002 appropriations conference report provides an increase of $130
million over fiscal year 2001 enacted levels, far less than the $275
million increase needed simply to maintain current service levels
because of inflationary cost adjustments, population increases, and
disease onsets. The total IHS fiscal year 2002 funding of $2.8 billion
pales in contrast to the $15.1 billion needed on an annual basis to
bring Indian health services up to minimally acceptable levels.
---------------------------------------------------------------------------
Congress has urged tribes to find alternate funding sources to
supplement the meager federal appropriations. The Cuyapaipe-SIHC, Inc.
Agreements represent a clear and effective response. We are surprised
we must defend it, especially in a time of recession and deficit
spending constraints.
The Cuyapaipe Agreements Offer a Unique Opportunity to Our Alpine
Community.
While the specific avenues for making these contributions are
currently being negotiated, it is my Tribe's intent to donate several
million dollars a year to our local community once our gaming begins.
We view this as consistent with our obligations under the Indian Gaming
Regulatory Act - assuring that our non-Indian neighbors benefit from
gaming facilities developed in our area.
Over the past year we have consulted with numerous Alpine residents
in an attempt to better understand the needs facing our community. We
commissioned a nationally-recognized polling organization to provide us
unbiased and statistically accurate feedback on those issues, surveying
over 400 households to determine the interests and concerns of the
Alpine community. We also delivered direct mail to over 3,500
households in Alpine, and received express support from 96% of those
who responded to our request for feedback on our project. We formed a
Community Advisory Council and have regularly consulted with them,
seeking input and guidance about our plans. We have attended meetings
of many community organizations both to share our plans and to learn
about their goals and objectives. Those organizations include the
Alpine Citizens High School Committee, Alpine Friends of the Library
Committee, Alpine Planning, the Alpine Chamber of Commerce, San Diego
County General Plan Amendment Goals 2020, Sage and Songbirds, the Back
Country Land Trust, the Sheriff's Department, the Alpine Fire
Department, PTAs, Lions Club, East County Chamber of Commerce, and
others. In addition, our intended contributions to improved health care
in our community have already been mentioned.
One of our objectives is to ensure that each organization has an
equal opportunity to benefit from our support. To that end we are
working with community leaders to develop a fair and equitable process
for allocating our annual contributions.
Conclusions.
The Cuyapaipe decisions pending before the Interior Department
cannot, in all fairness, be deemed controversial. The Cuyapaipe Tribe
has waited to begin to develop gaming until it became unquestionably
legal to do so. The Tribe has voluntarily and remarkably committed
itself to devoting substantial gaming revenues to health care,
education and other needs identified by the local community. The Tribe
has obtained the agreement of its tenant to vacate part of its pre-IGRA
trust land. The BIA, as trustee, should applaud this, approve it, and
get out of the way. Likewise, the Congress should shelve H.R. 1239
because it is mis-guided, inequitable, and unsound policy that is
premised on inaccuracies and that interferes with the Department's
trust responsibility role. Additionally, the BIA should expedite the
acceptance of the Cuyapaipe Tribe's new 17 acres for an expanded health
facility in trust, since the Tribe and its tenant would then have the
opportunity to combine a portion of the donations earmarked for both
Alpine clinics to construct a single larger facility on the 17 acre
site permitting future clinic expansion.
The Cuyapaipe Band and SIHC, Inc. have taken every action in our
power to guarantee that the benefits of our Agreements will be realized
by SIHC, Inc. These actions include: (1) a definitive set of Agreements
that contain specific performance provisions and remedies; (2) the
funding of an irrevocable letter of credit with $6.5 million for the
construction of the new SIHC, Inc. clinics on Campo and Cuyapaipe trust
lands; (3) the lease of the 17-acre property to SIHC, Inc. for a 25-
year plus 25-year option term; and (4) the Cuyapaipe Band's offer to
the BIA to restrict the deed trust of the 17-acre property to limit its
use to health care uses only.
Accordingly, we ask that the Committee stop any further
consideration by the Congress of H.R. 1239, and that the Committee urge
the Department to expedite its review and approval of the Cuyapaipe
lease amendment Agreements as requested by the Cuyapaipe Tribe. In a
separate but related effort, we ask the Committee to urge the
Department to expedite its acceptance of the Cuyapaipe Tribe's
additional 17 acre parcel into trust for a new and expanded Alpine
Boulevard Clinic as requested by the Tribe.
This concludes my remarks. I would be pleased to answer any
questions the Committee may have. I ask that all exhibits I have
attached to our testimony be admitted into the record of this hearing.
Thank you.
______
[Six letters submitted for the record by Mr. Garcia have
been retained in the Committee's official files.]
[Attachments to Mr. Garcia's statement follow:]
[GRAPHIC] [TIFF OMITTED] T5752.001
[GRAPHIC] [TIFF OMITTED] T5752.002
[GRAPHIC] [TIFF OMITTED] T5752.003
[GRAPHIC] [TIFF OMITTED] T5752.004
[GRAPHIC] [TIFF OMITTED] T5752.005
Mr. Hayworth. Thank you, Mr. Vice Chairman. Hearing you use
those two words reminds me of a bit of doggerel that many
public speakers, especially Members of Congress, could
utilizer. Speaker, Dear Speaker, please suffer no delusion; the
two words we most want to hear from you are the two words ``in
conclusion.''
Chairman TeSam of the Viejas Indian Reservation, that in no
way would prompt you to go any faster than your colleague. But
we would ask you to offer your testimony now.
STATEMENT OF STEVEN TESAM, CHAIRMAN, VIEJAS BAND OF KUMEYAAY
INDIANS
Mr. TeSam. Thank you. Chairman of the Committee, honorable
members of the Committee, I would like to thank you for the
opportunity to testify on the subject of H.R. 1239. As Chairman
of Viejas Band of Kumeyaay Indians, I am deeply involved with
issues surrounding the SIHC Health Clinic. My appearance here
today is with full authority and direction from the Viejas
Tribal Council and our general membership. While the issue may
seem less significant than many others of the wider issues
faced by this Committee, the preservation of the Southern
Indian Health Clinic is an important issue, not only because it
preserves access to health care for thousands of people, both
tribal and non-tribal, but also because of the precedents that
could be set in Indian Country.
As you know, the clinic that currently occupies the site in
Alpine, California, was a result of many years of work on the
part of seven tribes to provide health care for tribal members
in a remote area of San Diego County. The clinic was previously
located on two reservations at different times, but these
arrangements was unsatisfactory for a number of reasons. In the
mid-1980's, the tribes unanimously decided that the fairest
resolution would find a neutral site, located as centrally as
possible for the seven reservations, and to construct a new,
permanent facility at that neutral site.
The question of how the land became titled to the Cuyapaipe
is not entirely settled. There seems to be some memory among
different elders from different tribes, that it was done by
drawing straws or some other arbitrary means. Although others
have argued that the fact that Cuyapaipe was the smallest tribe
played a role. One thing is certain: the titling of the land to
one tribe rather than all seven was done for an administrative
convenience, but that seems to have caused more problems than
it solved.
There was controversy involved with taking the land into
trust in Cuyapaipe's name alone, as evidenced by different
other tribes' resolutions in the decision by the BIA, calling
for land taken into trust for all seven tribes, some tribes
have said. In retrospect, this position seems to be the correct
one. However, at the time Indian gaming was in its infancy, and
no one could possibly have foreseen that any tribe might use
this land for anything other than the stated purpose.
The Southern Indian Health Council Health Clinic served the
tribal community well for the ensuing decade and began to
accept non-tribal members as patients as a means of enhancing
operating revenue. Recently, the Cuyapaipe tribe announced
their plans to change the use of the Alpine site by moving the
health clinic to temporary structures on the current health
clinic site for a casino. To this end, the Cuyapaipe Tribe sent
the BIA request to relinquish the 25-year lease on that land.
That request was rejected by BIA on the basis of incomplete
information, but a new proposal was submitted.
In addressing this request to terminate the lease of
Southern Indian Health Council, I should note that Viejas
supports the rights of tribes to have gaming facilities on
reservation lands. Viejas is a gaming tribe, and we believe
that there is a fundamental question of tribal sovereignty. The
issue here is the land upon which the health clinic sits today
was taken into trust for one purpose and one purpose only: to
provide a permanent health clinic for the benefit of the
members of the seven tribes. The fact that the land was titled
to the Cuyapaipe Tribe as a matter of administrative
convenience does not give one tribe the right to change its
use.
The fundamental issue is the land was taken into trust to
benefit seven tribes, and its use should not be changed without
the approval of the seven tribes. This concept was incorporated
in H.R. 5744, the Hunter-Filner-Cunningham bill from
legislation last year, which passed the House unanimously. It
is again incorporated into this bill before this Committee
today. That is the position supported by the county supervisor,
and by the entire delegation from that part of San Diego
County, as expressed in the BIA letter.
Mr. Chairman, I should be clear that BIA's primary concern
and only relevant concern is the preservation of the Indian
Health Clinic. Some will accuse us of fearing competition from
a nearby casino, but we should emphasize that we do not
actually know if having another casino in the area would be a
benefit or harm. Rather, our general membership listened
carefully to the council, some of the tribal elders, about
their efforts to establish a health clinic for all seven tribes
and get the land into trust for that purpose. They know that it
was done at a time before gaming, when resources were extremely
scarce. They were and are concerned about the current plan to
undo the elders' hard work and to jeopardize the health care
access, all for financial gain of just one tribe and their
outside investor.
I should emphasize that the Hunter-Filner bill does not say
that Cuyapaipe may never have a casino on that site. Rather, it
says that the lease relinquishment may not be approved until
there is consensus among all seven tribes. This bill is
intended to foster discussion and negotiation, and Viejas will
be an active and constructive participant in any such
negotiation.
We have always supported the reasonable efforts of other
tribes to improve their economic situation, and we will be
similarly open with Cuyapaipe. However, as things are
proceeding today, Cuyapaipe is seeking to press forward without
regard for the concerns or wishes of the other tribes involved,
and we believe they will continue to do so unless Congress
intervenes.
In closing, Mr. Chairman, I should emphasize that Congress
is dealing with many weighty issues in these difficult times,
and as grateful as I otherwise would be for your attention to
this matter, I and the Viejas tribe are very appreciative of
your Committee colleagues for taking time for us against the
backdrop of the war on terrorism.
Thank you again, and I look forward to answering any
questions you may have.
[The prepared statement of Mr. TeSam follows:]
Statement of Steven TeSam, Chairman, Viejas Band of Kumeyaay Indians
Chairman Hansen and members of the Committee, I would like to thank
you for the opportunity to testify on the subject of H.R. 1239. As
Chairman of the Viejas Band of Kumeyaay Indians, I have been deeply
involved with issues surrounding the SIHC Health Clinic from its
inception. My appearance here today is with full authority and
direction from the Viejas Tribal Council and our general membership.
While this issue may seem less significant than many of the wider
issues faced by this committee, I submit that the preservation of the
SIHC Health Clinic it is an important issue, not only because it
preserves access to health care for thousands of people, both tribal
and non-tribal, but also because of the precedents that could be set
for Indian Country.
In some ways, this issue is unique many knowledgeable people have
told us that they are aware of no other situation where land was taken
into trust for the benefit of multiple sovereign Indian tribes. Unlike
many Native American issues before this committee, however, the SIHC
Health Clinic issue is not about the rights of tribes versus the state
or federal government, but rather the rights and obligations of tribes
with respect to other tribes.
As you may know, the clinic that currently occupies the site in
Alpine, California was the culmination of many years' work on the part
of seven tribes to find the best way to provide access to health care
for tribal members in a remote area of San Diego County. The clinic was
previously located on the reservations of two other tribes at different
times, but these arrangements were unsatisfactory for a number of
reasons. In the mid-1980's, the tribes unanimously decided that the
fairest resolution would be to find a neutral site, located as
centrally as possible between the seven reservations, and to construct
a new, permanent facility on the neutral site.
This proposal for a permanent clinic site might never have become a
reality without the help of the author of H.R. 1239, Rep. Duncan
Hunter. I would refer you to Attachment A, which is Rep. Hunter's
letter to the Bureau of Indian Affairs, dated June 13, 1985 seeking to
have the Alpine site taken into trust for the new health clinic.
The question of how the land came to be titled to the Cuyapaipe
tribe is not entirely settled. Attachment B, the BIA memo describing
the land to be taken into trust, yields little information on this.
There seems to be some memory among our elders that it was done by
drawing straws or some other arbitrary means, although others have
argued that the fact that Cuyapaipe was the smallest tribe played a
role, and there is some evidence of this in the BIA memo. One thing is
certain: the titling of the land to one tribe (rather than all seven)
was done as an administrative convenience, and like many other things
done for administrative convenience, it seems to have caused more
problems than it solved.
There was clearly some controversy involved with taking the land
into trust in Cuyapaipe's name alone, as evidenced by Attachments C and
D: the Manzanita Tribe's letter protesting the BIA decision, and the
Jamul Tribal Council Resolution calling for the land to be taken into
trust for all seven Tribes, respectively. In retrospect, Jamul's
position seems to have been the correct one. However, at the time,
Indian gaming was in its infancy, and no one could possibly have
foreseen that any tribe might want to use this land for anything other
than its stated purpose, so the argument seemed largely academic.
One sub-issue that seems to command a lot of attention is the
question of whether federal Community Development Block Grant funds
were used to pay for the acquisition of the land. There is no dispute
that CDBG funds were used for the development of the clinic, but there
seems to be some disagreement as to whether they were used to acquire
the land; the Cuyapaipe tribe maintains that they were not.
In the interest of clarity, let me emphasize this: Viejas does not
believe that CDBG grants are the most important issue here, and we only
pursue it because some in Congress seem to consider it important, and
because others have accused us of misrepresenting the facts. But we do
believe that CDBG funds were used to purchase the land. I would refer
you first to the third paragraph of the BIA memo, which reads ``[t]he
Band received a Community Development Block Grant in the amount of
$446,840 from the Department of Housing and Urban Development for the
purpose of purchasing the land (emphasis added) and constructing a
health care center ``
We are aware of two contradictory letters sent by HUD's Office of
Public and Indian Housing on the subject. The first (Attachment E) said
very clearly that CDBG funds were used to purchase the land. The second
(Attachment F) partially retracted the assertions of the first, and
said instead that HUD's records were insufficiently specific to say
exactly how the funds were used, and that Cuyapaipe's accounting seemed
to indicate that they were not used to purchase land.
Cuyapaipe's version of the story, to the extent that it has been
consistent, is that the funds were used to collateralize a loan, the
proceeds of which were used to purchase the land. Setting aside the
fact that this, if true, represents a criminal violation of federal
law, Viejas insists that this still constitutes federal funds being
used to purchase the land. Perhaps the funds were used indirectly, but
value gained from the federal grants contributed to the acquisition of
the land.
Again, Viejas doesn't consider the question of CDBG funds to be the
essential argument in favor of H.R. 1239.
In any case, the SIHC Health Clinic served the tribal community
well for the ensuing decade, and began to accept non-tribal members as
patients as a means of enhancing operating revenue. Recently, the
Cuyapaipe tribe announced their plans to change the use of the Alpine
site by moving the health clinic to temporary structures and to use
most of the current health clinic site for a casino. To this end, the
Cuyapaipe tribe sent to the BIA a request to relinquish the 25-year
lease on the property in question. That lease relinquishment request
was rejected by BIA on the basis of incomplete information, but a new
proposal has been submitted (attachment G).
In addressing this request to terminate the lease of the SIHC
Health Clinic, I should start by saying that Viejas supports the rights
of tribes to have gaming facilities on reservation lands; Viejas is a
gaming tribe, and we believe that there is a fundamental question of
tribal sovereignty involved. The issue here is this: the land upon
which the health clinic sits today was taken into trust for one purpose
and for one purpose only: to provide a permanent health clinic for the
benefit of the members of seven tribes. The fact that the land was
titled to the Cuyapaipe tribe, as a matter of administrative
convenience, does not give one tribe the right to change that use.
It is true that some members of the board of directors of the
Southern Indian Health Council voted to approve the change in land use
three voted yes, two voted no, and two abstained. There is a legitimate
legal question as to whether this vote satisfies the requirement of a
true majority vote under California corporation law. But there is a
more fundamental question: Should a piece of land that was taken into
trust by the federal government as a way to provide health care access
for the members of seven tribes have its designated use and purpose
changed without the approval of all seven of those tribes. We at Viejas
believe that the appropriate answer to that question is no.
We have heard any number of promises from the Cuyapaipe tribe about
new and better health clinics that will result if only they can get
their casino into operation on the current SIHC Health Clinic property.
However, there has been no guarantee or actual movement in this
direction. No land has been taken into trust for the purpose of
establishing the new clinic. If the proposed lease relinquishment is
approved, construction of the casino is in no way contingent upon
construction of a new health clinic. None of the promises about new
health clinics, remote health clinics, or anything else related to
health clinics are in any way enforceable, either by the SIHC
Corporation, or by the thousands of persons now served by the current
clinic.
In fact, if the proposed lease relinquishment is approved, the only
thing that is certain is this: the current clinic will shut down and be
moved to trailers on the back of the property; a casino will go up on
the current site, and the Indians and non-Indians alike who have used
the clinic for the last decade will have to drive through a casino
complex to get to the trailers they will then have to call their
clinic.
Viejas does not question the integrity of the members of the
Cuyapaipe tribe. While we have no doubt of their good intentions, there
are still reasons to doubt the feasibility of the new health clinic
facilities they have promised as a replacement for the current clinic.
The Cuyapaipe tribe does not have the money to pay for a new health
clinic. They have indicated that they intend to pay for the new health
clinic with profits from their proposed casino. But they may be in for
a surprise: the existence of a casino does not assure profits at all;
it certainly doesn't assure immediate profits. Many tribal gaming
facilities in San Diego are currently cutting staff and reducing hours,
based on economic necessity. Furthermore, all their efforts to date
(including a very expensive lobbying effort that eight-member tribe may
be the only tribe with more lobbyists than members) appear to have been
paid for by a casino management company, Action Gaming Corporation from
Michigan. We assume that Action Gaming will seek to recoup their
investment before any profits are made available to construct a new
clinic. While all this may seem like speculation, so to are the
prospects for the replacement clinic facilities.
To repeat, the fundamental issue is this: the land was taken into
trust for the benefit of seven tribes, and its use should not be
changed without the approval of those seven tribes. This concept was
incorporated in H.R. 5744, the Hunter-Filner-Cunningham (Attachment H)
legislation from last year, which passed the House unanimously in the
closing days of the 106th Congress. It is again incorporated in the
bill before this committee today. That position is supported by the
County Supervisor, and by the entire delegation from that part of San
Diego County, as expressed in their letter to BIA.
Mr. Chairman, I should be clear that the Viejas Tribe's primary
concern, and our only relevant concern, is the preservation of the
health clinic. Some will undoubtedly accuse us of fearing competition
from another nearby casino, but we should emphasize that we do not
actually know if having another casino in the area would be a harm or a
benefit. Rather, our general membership listened carefully to the
accounts of some of our Tribal Elders about their efforts to establish
a health clinic for all seven tribes and to get land into trust for
that purpose. They know that this was done at a time before gaming,
when resources were extremely scarce. They were and are concerned about
the current plan to undo the elders' hard work, and to jeopardize
health care access, all for the financial gain of just one tribe and
their outside investor.
I should emphasize that the Hunter-Filner bill does not say that
Cuyapaipe may never have a casino on that site. Rather, it says that
the lease relinquishment may not be approved until there is consensus
among all seven tribes. The bill is intended to foster discussion and
negotiation, and Viejas will be an active and constructive participant
in any such negotiations. We have always supported the reasonable
efforts of other tribes to improve their economic situation, and we
will be similarly open with Cuyapaipe. However, as things are
proceeding today, Cuyapaipe is seeking to press forward without regard
for the concerns or wishes of other involved tribes, and we believe
they will continue to do so unless this Congress or the BIA intervene.
In closing, Mr. Chairman, I should emphasize that the Congress is
dealing with many weighty issues in these difficult times, and as
grateful as I would otherwise be for your attention to this matter at
any time, I and the Viejas tribe are doubly appreciative of your and
your committee colleagues' taking time for us against the backdrop of
the war on terrorism. Thank you for your time, and I look forward to
answering any questions you may have.
______
Mr. Hayworth. Chairman TeSam, we thank you very much for
your words of courtesy and your insight from your testimony. We
hear the bells ringing once again. We thank you for the brevity
of testimony.
Chairman Goff, it is not our intent to give you short
shrift, even as our pagers emit some sort of bizarre
interference. I don't know who is jamming that. But, sir, we
welcome your testimony. If it would be possible to hold it to
just a couple of minutes, that would be most appreciated.
STATEMENT OF RALPH GOFF, BOARD CHAIRMAN, SOUTHERN INDIAN HEALTH
COUNCIL, INC.
Mr. Goff. Thank you, Mr. Chairman and members of the
Committee. I will be very brief.
I think there is a fundamental issue here as you have heard
the testimony. I don't have a script here, but I want to
emphasize that we went through a very due process of working
with this issue. The project proposal was presented to us in
1996. Through this period of time, we went back and forth and
talked about it and dealt with it until 1999 when we decided to
find out more information on it. And it wasn't until 2000 that
we actually said--we entered into the agreement. The documents
are such that it protects the clinic. And I come here as the
clinic board chairman.
So we went through a very tedious process to get to this
point. We have a process. We have a legal and binding
agreement. This bill would strip us of our authority to do our
business, as we do it every day. We do this business every day,
and it would give the potential for this to set precedent on
any other nonprofit organization to do business anywhere. I
mean, this to me is just unthinkable.
I urge the sponsors of the bill to withdraw it, and I urge
Chairman TeSam to withdraw his support of the bill.
That is it. Thank you.
[The prepared statement of Mr. Goff follows:]
Statement of Ralph Goff, Board Chair, Southern Indian Health Council,
Inc.
Thank you for the opportunity to be here today to present testimony
in regard to H.R. 1239. My name is Ralph Goff and I am chairman of the
Board of Directors of Southern Indian Health Council, Inc. (hereinafter
SIHC). I also serve as the Tribal Chairman of the Campo Band of Mission
Indians. With me today is Joe Bulfer, Executive Director of SIHC. Also
in the audience are Kenneth Mesa, SIHC Board member and Chairman of the
Jamul Band of Mission Indians, and Robert Brown, SIHC Board member.
SIHC is a tribal organization providing health care services to the
approximately 8,000 Indians living on and near seven (7) Indian
Reservations in Southern San Diego County, California, through an
Indian Self-Determination Act, P.L. 93-638, contract with the U.S.
Department of Health & Human Services, Indian Health Service (IHS). We
have provided health services through P.L. 93-638 contracts since our
inception in 1981 (and incorporation in 1982). SIHC is a consortium of
the following seven (7) federally-recognized Indian tribes which joined
together to provide ambulatory health care services to their members
and other eligible Indians in their service area:
Barona Band of Mission Indians
Campo Band of Mission Indians
Ewiiaapaayp (Cuyapaipe) Band of Mission Indians
Jamul Band of Mission Indians
La Posta Band of Mission Indians
Manzanita Band of Mission Indians
Viejas Band of Mission Indians
Through SIHC, these seven tribes provide health care and related
services to their tribal members and other eligible Indians through the
establishment of a comprehensive health care system for the Indians of
Southern San Diego County. Besides providing health care services, SIHC
works to improve the environmental health and sanitation conditions on
Indian Reservations in San Diego County; to provide improved heath care
for children and adults through a program of home visitation and
counseling of Indian parents on health practices, nutrition and general
care of children and adults; to provide health education to the Indian
community; and to inform the member tribes and the Indian community of
the various medical and related services available in the surrounding
community and assist them in obtaining the services through a social
services department. We do so through a system of four clinics: one on
the Campo Reservation and one on the Cuyapaipe Reservation, one
outpatient substance abuse center at the La Posta Reservation, and one
inpatient Youth Regional Treatment Center, also at the La Posta
Reservation.
From the Indian Health Service (IHS), SIHC receives funding for
provision of health care services for approximately 8,000 Indians in
its service population. SIHC receives approximately $4.5 million from
IHS and approximately $5.5 million from other grants and contracts with
other agencies. However, according to IHS's own figures, SIHC only
receives about 60% of the funds we need to provide comprehensive health
care services for service population.
As the Committee is aware, the IHS has historically not provided
the same services or level of services for federally-recognized Indian
tribes in California as it does for tribes in other parts of the
country. Although the Federal Courts ordered IHS to correct these
funding inequities in the early 1980's in the case of Rincon Band of
Mission Indians v. Harris, IHS never fully complied and corrected these
inequities.
IHS has never provided funding for facilities in California, nor
has it built or operated any health care facilities or hospitals for
Indians in California. The only services provided for the 117
federally-recognized tribes in the State of California are those that
the tribes themselves are providing through Indian Self-Determination
Act contracts in facilities which the tribes have built with funding
from a variety of sources, but none from IHS.
With the history of underfunding and neglect by IHS, the Committee
should be able to clearly see the importance of the SIHC agreement with
the Ewiiaapaayp Tribe that will provide us with a new and enlarged
facility in Alpine, a new clinic on the Campo Reservation, and with
additional funding every year for the next 36 years. All that we had to
do to obtain these substantial advantages was to give up a portion of
our existing leasehold property on the Cuyapaipe Reservation. Despite
rumors to the contrary, the agreements we have entered provide that
SIHC is not required to move until a new clinic facility is built for
us and ready for our occupancy. No other SIHC member tribe has offered
to provide SIHC funding to improve SIHC's health care services and
facilities. All were given the opportunity.
We would appreciate the Committee reviewing and understanding this
opportunity provided by Ewiiaapaayp in the context of the funding
deficiencies that SIHC has suffered through the years. Because there
were no IHS facilities on any Indian reservation in our service area,
or anywhere in California, we started out in small tribally-rented
trailers on the Sycuan Indian Reservation. From there we moved the
trailers to the Barona Reservation; and, finally, we moved to new
buildings on the land in Alpine where our clinic is currently located.
Although we wanted to have the land in Alpine put into trust for all
seven SIHC member tribes, the BIA would not do so at the time.
Therefore, Ewiiaapaayp agreed to have the land that was purchased put
into trust in its name and leased the land back to SIHC for the maximum
term allowed by law (25 years plus a 25 year extension) at a cost of $1
per term. We subsequently obtained funding from HUD to build our
original clinic buildings on that land. Through the entire 20 years of
our existence, SIHC has struggled to provide the highest level of
services possible to the Tribes and to all eligible Indians in our
service area, but we have been forced to do so in the face of
significant underfunding, lack of adequate facilities, and the need to
purchase all hospital and specialty care from outside providers with a
limited IHS/Contract Health Services budget.
About five years ago the Ewiiaapaayp Tribe came to the SIHC Board
with a proposal to substantially enhance SIHC's facilities and health
care funding. After many delays and lengthy debate, an agreement was
finally negotiated that provides that SIHC would relinquish a portion
of the currently leased lands back to the Ewiiaapaayp Tribe
(hereinafter ``the Tribe''). In exchange for the relinquishment of a
portion of that land, the Tribe will finance, construct, and equip a
new $5 million clinic for SIHC that will be all in one building, rather
than several, and which will be significantly larger and more efficient
than the current clinic on the leasehold property. The Tribe will also
build a badly needed new $1.5 million facility for SIHC's use on the
Campo Indian Reservation. In addition, the Tribe has agreed to purchase
approximately 18 acres of land across the freeway from the existing
clinic, and, contingent upon federal approvals lease that land to SIHC
for fifty years and finance the construction of a $5 million new clinic
on that property. Finally, the Tribe agreed to pay SIHC a portion of
its annual revenues through the year 2036 which will come from the
Tribe's construction and operation of a gaming facility on the portion
of the currently leased premises that SIHC would vacate when the new
facility was fully constructed and ready for occupancy. These
provisions will clearly allow SIHC to provide better services to our
eligible Indian patients. The Board, therefore, determined that these
Agreements were in the best interests of SIHC and our patients.
In each of these transactions, SIHC's patients and services are
fully protected because no move out of any existing facility can or
will be required until the new facility is built, equipped, and ready
for occupancy. Contrary to rumor, never can SIHC be required to move
into trailers, temporary buildings, or other inadequate facilities. Nor
will there ever be a disruption in services because of the specific
provisions of the contracts protect SIHC in this regard and insure that
SIHC will not be required to vacate any facility until the new
replacement facility is completely ready for occupancy, as determined
by the SIHC.
Questions have apparently been raised with this Committee about the
internal workings and decisions of the Board of Directors of SIHC. SIHC
is incorporated as a California non-profit corporation. The SIHC Board
consists of seven members, with one Board member selected by each tribe
being served by the program who represents his or her tribe on the
Board. Although each of the seven tribes appoints its own
representative to the SIHC Board of Directors in accordance with the
corporate Bylaws, the tribes themselves do not have any direct right to
vote on the decisions of SIHC except through their designated
representatives on the Board.
Clearly, H.R. 1239, under consideration by this Committee, allows
any one tribe to veto the duly-adopted decisions of the Board of
Directors of SIHC. This Bill also allows any one tribe to thwart SIHC's
attempt to improve health care for all the Indians in the region in
accordance with our duly-adopted Bylaws and mission statement. If H.R.
1239 were enacted, that legislation would, in effect, give one tribe
unprecedented veto power over the decisions of the other six tribes. It
would also give any one tribe veto power over the duly-adopted
decisions of the Board of Directors of SIHC, which flies in the face of
SIHC's Bylaws and California corporations law.
SIHC is governed by its Bylaws and California non-profit law. At a
meeting on July 10, 2000, the Board of Directors voted on Resolution
00-07-10-01 to approve the above-described transactions because they
found that the expansion of health care, as stipulated in the
agreements, were in the best interests of all of SIHC's patients. This
original resolution was approved by a vote of three in favor, two
against, and one abstaining. The Director appointed by the Ewiiaapaayp
Tribe was absent. Historically the Board has treated abstentions as
neutral in its votes (i.e., abstentions have never been counted in
determining whether there is a majority vote). Because the SIHC Bylaws
did not specifically address this issue, after proper notice, the Board
voted 5 to 2 on November 27, 2000 to amend the Bylaws to clarify and
reaffirm its long term interpretation of its own Bylaws. Then, to
eliminate any further question, on December 18, 2000, the Board
reaffirmed its intention to enter into the agreements by a vote of 4 in
favor and one abstention.
In summary, the July 10, 2000 Board approval of the transactions
with the Ewiiaapaayp Tribe was a valid act of the Board which was
subsequently reaffirmed by a vote on December 18, 2000. Since the
decision was made to enter the agreements with Ewiiaapaayp, the entire
SIHC Board has moved forward together to see that the decision is
implemented because of the advantages it would provide for the health
care of their tribal members. In other words, although one or two of
the member tribes might have initially disagreed with the decision to
approve the agreements with Ewiiaapaayp for reasons having nothing to
do with the provision of health care, there is full and equivocal
support for those agreements within the SIHC Board, now that the vote
has been taken and a decision made.
The proposed legislation, H.R. 1239, would prevent SIHC from
improving the health care for the approximately 8000 Indians in our
service population through the new facilities and additional funding
that the agreements with Cuyapaipe would provide. Therefore, we urge
that the Committee refuse to approve the proposed legislation, or any
similar legislation.
Thank you for the opportunity to appear here today. We will be
happy to answer any questions which the Committee might have.
______
Mr. Hayworth. Chairman Goff, we thank you. We thank all the
witnesses.
The Chair again would remind Committee members that we will
allow you to submit written questions to the panels. The record
will remain open 10 days to do that.
We thank you for the brevity of your testimony, for the
insight you offer in rather complete fashion, and we will have
questions for you that we will submit in writing. We look
forward to getting those back for the record.
I thank the indulgence of the ranking minority member and
also my friend from Utah who stayed here for the duration.
I thank the audience and the panelists for their indulgence
given the truncated nature of this day.
And this hearing is now adjourned.
[Whereupon, at 12:45 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows:]
1. Statement of Hon. Frank Keating, Governor of Oklahoma.
2. Response to questions submitted to Michael Garcia.
3. Response to questions submitted to Steven TeSam.
4. Response to questions submitted to Ralph Goff.
Statement of Hon. Frank Keating, Governor of Oklahoma
I regret that I could not be with the Committee today, but pressing
matters in Oklahoma demand my presence. I do want to express my
wholehearted support for the proposed appropriation of $33 million,
introduced by Congressman Carson, and for the message Oklahoma's
representatives will bring to you today. We have a chance to create a
cultural and historical jewel through a rare federal-state-local
partnership, and I believe it is important that we seize that chance.
Oklahoma is home to more Native American citizens than any other
state save California. Our very name means ``Land of the Red People.''
We have within our borders the governments of 39 federally recognized
tribes. Where other states may have sequestered their Native American
citizens on reservations, Oklahoma has fully integrated them into the
mainstream of our cultural, civic, business and political life. A
member of my state cabinet, former Oklahoma Secretary of Transportation
Neal McCaleb, now serves as Director of the Bureau of Indian Affairs.
Our state's greatest ambassador, Will Rogers, was of Cherokee descent.
Oklahoma has long been home to famed Indian artists, ballerinas and
authors. Our largest military installation, Tinker Air Force Base, is
named for an Oklahoman of Osage descent who gave his life in World War
II. Native American culture permeates our state, and outstanding Native
American citizens play vital and central roles in every aspect of our
lives. Now, we have an opportunity to celebrate and enshrine that rare
heritage by creating a world-class Native American Museum and Cultural
Center in Oklahoma City.
The Center will be located at the junction of two of America's
primary travel routes, Interstates 35 and 40, on land valued at $15
million which has already been donated and dedicated for this use by
the City of Oklahoma City. The city has also committed $5 million to
construction of the Center, along with a down payment of $6.5 million
in state funds to complete this unique facility. I strongly support
additional state funding for this most worthy project. The proposed
federal appropriation would create a vital local-state-federal
partnership to build a historical and cultural resource of national
importance.
Others who will testify today will brief the Committee on the
Center's proposed design, features and value as an educational and
cultural treasure. My role is equally important--to emphasize the full
support of Oklahoma state government and our determination to build
this Center. Once it is completed, it will be America's finest and most
complete resource celebrating our Native American heritage, as well as
a key center for the preservation of Native American culture.
I am proud to urge Congressional support for this appropriation.
______
Responses of Michael Garcia, Vice Chairman, Ewiiaapaayp (Cuyapaipe)
Band of Kumeyaay Indians to Post-Hearing Questions
1. How did the land which was put in to trust for the benefit of
seven tribes come to be placed in only your tribe's name?
In 1986, the Ewiiaapaayp Band of Kumeyaay Indians (``Cuyapaipe'' or
``Tribe''), using private, non-federal funds, purchased in its name
alone the property from William and Diane Bishop. The application to
the U.S. Department of the Interior then requested that the land be
placed in trust for the Cuyapaipe Band. The Tribe's land was accepted
in trust status by the United States on April 1, 1986, after a fee-to-
trust process in 1985 and 1986 which provided for public notices and
requests for comment. No adverse comments were received during that
process, particularly from any of the SIHC, Inc. member tribes. The
Tribe did not execute a federal lease of this land to SIHC, Inc. until
January 1986, which was approved by the Bureau of Indian Affairs (BIA)
in February 1987. Other tribes benefited from this land only after
SIHC, Inc. accepted the landlord Tribe's offer of tenancy to SIHC, Inc.
and then only through each tribe's participation in the SIHC, Inc. as
members of the state chartered non-profit corporation Indian health
organization. Consistent with the fee-to-trust application, the BIA
placed no other tribes on the title. Among other supporting
documentation, Representative Hunter's June 13, 1985 letter in support
of the trust application states `` I strongly urge you to take whatever
action is necessary to expedite placing this 8.6-acre tract in trust,
by the Department of the Interior (Bureau of Indian Affairs) for the
Cuyapaipe Reservation, so that construction of a new health center can
begin in a timely manner.'' The Viejas Band of Kumeyaay Indians
(Viejas) claims that the Cuyapaipe land was supposed to have been taken
into trust for the benefit of all seven tribes, but offers up as its
only evidence a document that was written six (6) months after the date
the land was accepted in trust by the United States. Today, ownership
of the land by the Cuyapaipe Band presents a unique opportunity to
SIHC, Inc. a chance to obtain supplemental, non-federal funds and new
facilities that would not otherwise be available to the SIHC, Inc. if
the Viejas position was adopted. The bottom line is that health care
services will be expanded and enhanced only because of Cuyapaipe's
trust ownership and conforming use of the land.
2. According to your testimony, your tribe asked the Department of
Interior to approve the lease relinquishment agreement in December
2000. What is the status of the approval of that lease relinquishment
agreement?
It remains pending. The three agreements between the Cuyapaipe Band
and SIHC, Inc. were submitted to the Department of the Interior, Bureau
of Indian Affairs on December 26, 2000, for approval or written
confirmation that approval is not required. As of December 18, 2001,
the Department has not approved the agreements or provided written
confirmation that approval is not required. The Tribe is ever hopeful
that the Department's approval or written confirmation that approval is
not required will be provided in the near future, since, as a legal
matter, the BIA owes a trust responsibility as to this piece of trust
property solely to the Cuyapaipe Tribe as the sole trust beneficiary of
the land and as landlord in the lease. Additionally, it is
inconceivable that the trustee could conclude that it is not in the
best interest of a trust beneficiary to get a portion of its land back
earlier than it would otherwise regain control of it under the existing
lease.
3. Have you received notice on the status of your application to
place the 18-acre parcel of land into trust? When was the completed
land into trust application submitted to the Department of Interior?
The Cuyapaipe Band's fee to trust application for its approximately
18-acre parcel of land was submitted to the BIA on March 21, 2001.
Pursuant to the National Environmental Policy Act, a Finding of No
Significant Impact (FONSI) was issued by the BIA's Pacific Region
Office on November 7, 2001. We understand that the Department is in the
process of completing its review of the title to the parcel and is
taking steps to ensure compliance with the National Historic
Preservation and Endangered Species Acts. As of December 20, 2001, a
Notice of Decision has not been issued by the BIA.
4. In your testimony, you make reference to $11.5 million which are
contractually obligated to build new clinic buildings. Where does this
substantial amount of money come from?
The money comes from the Tribe. The money is essentially an
``advance'' of the Tribe's funds to be spent for SIHC, Inc. for health
care purposes before any of the Tribe's other funds are spent to
construct a casino. Pursuant to the contracts between Cuyapaipe and
SIHC, Inc. now under review by the Department, the Tribe is required to
fund the construction of a Consolidated Clinic Building up to a total
of $5 million (``Project Costs'') and to post an irrevocable letter of
credit in the amount of $6.5 million to secure its obligations to
construct the Southern Clinic and the Campo Clinic. See Consolidated
Clinic Building Construction and Partial Lease Relinquishment Agreement
Sec. 2(A); Construction, Relocation and Lease Relinquishment Agreement
Sec. 2(C); and Campo Clinic Construction Agreement Sec. 5. On December
26, 2000, the Tribe and its development partner, Luna Gaming San Diego
LLC, posted the $6.5 million irrevocable letter of credit. The
remaining $5 million will be funded by the Tribe and Luna Gaming
SanDiego LLC as necessary to construct the Consolidated Clinic
Building. The $11.5 million is but a portion of the total project funds
already provided or to be provided as needed in advance of casino
construction. Failure to construct a new clinic into which SIHC, Inc.
will voluntarily relocate would bar the Tribe from subsequently
constructing its proposed casino.
5. What will be the impact on health care for SIHC patients if the
agreements are not enforced?
If the agreements are not enforced or implemented, efforts to
provide health care for SIHC, Inc. patients will continue to labor
under a crippling and chronic shortage of funding from the U.S. Indian
Health Service. If the Interior Department does not approve the
landlord-tenant agreements made between the Tribe and SIHC, Inc., the
SIHC, Inc. clinic will be confined to the Tribe's current parcel of
property and its current medical clinic structures. The SIHC, Inc.
clinic is now housed in three separate buildings on three hill-side
tiers of the property. This layout makes further expansion of health
care services nearly impossible. Furthermore, the current layout
sharply limits SIHC, Inc.'s goal of expanding its medical and dental
services to include much needed community emergency services, urgent
care, expanded social services, cultural services and retirement
services. Under the Agreements, SIHC, Inc. possesses full rights to
enforce the agreements in the state courts. If SIHC, Inc. failed to
enforce the agreements, any of the tribes who control SIHC, Inc. could
sue SIHC, Inc. in state courts to compel enforcement of the agreements
in accordance with fiduciary duties reflected in California state
public benefit corporation codes.
6. You reference that the Department of Interior must approve of
the lease relinquishment agreement for it to be given ``legal effect.''
Can we assume, then, that these contracts, if or when approved, will be
legally binding contracts? Are they binding now?
The lease relinquishment agreements are binding. They need to be
approved because they amend the current lease between the Tribe and
SIHC, Inc. The current lease requires that any amendments or
modifications to the lease must be approved by the Secretary to be
effective. See 1987 Lease Sec. 32. The Tribe and SIHC, Inc. signed an
agreement to amend the lease so as to reduce the amount of trust land
which SIHC, Inc. now uses from 8.6 acres to approximately 2.5 acres.
The approval by the Tribe's trustee of this lease relinquishment or
amendment is a simple ministerial act that should be granted without
delay. The Tribe and the SIHC, Inc. have entered into enforceable and
effective contracts. To the Tribe's knowledge, no written approval by
the Secretary of the Interior of the contracts is required and the
contracts are binding now, provided, however, that some of the
obligations are the subject of conditions precedent as stated in the
contracts. In other words, until the agreements are approved, or
disapproved, the agreements legally bind the Tribe and SIHC, Inc. to
specific performance, including, but not limited to, the Tribe's
funding of the $6.5 million irrevocable letter of credit, the
establishment of the 18-acre parcel of land in trust, and the design of
the new health clinics.
7. What assurances do the SIHC and the tribes have that you will
honor the agreements? What recourse do they have if the agreements are
not honored?
The agreements are binding and enforceable. The contracts are
between two parties the Southern Indian Health Council, Inc., and the
Ewiiaapaayp (Cuyapaipe) Band of Kumeyaay Indians. Each party has
entered into the contracts with the intent of fully performing its
obligations. However, should the Tribe fail to perform its obligations,
all of the contracts contain appropriate waivers of the Tribe's
sovereign immunity, consent to suit, and arbitration provisions in
favor of the SIHC, Inc. See Consolidated Clinic Building Construction
and Partial Lease Relinquishment Agreement Sec. Sec. 16-18;
Construction, Relocation and Lease Relinquishment Agreement
Sec. Sec. 14-16; and Campo Clinic Construction Agreement Sec. Sec. 10-
12. Such provisions allow the SIHC, Inc. to exercise its rights and
seek its contractual remedies through arbitration, including the
ability to compel arbitration and enforce any arbitration award in a
court of competent jurisdiction.
8. If the casino should fail at any time or not materialize, how
would this impact the health care improvements and revenue sharing
outlined in the agreements?
It depends. If the required federal approvals are not obtained, no
money will be available for health care facility and service
improvements. If all federal approvals are obtained, the new clinics
will be built. Any subsequent, albeit highly improbable, casino failure
would affect only the promise of a future share of the gaming revenues.
However, the Tribe is confident that it will open and operate a
successful casino. The contracts are structured in such a fashion as to
limit the risk to the SIHC, Inc. by requiring various federal approvals
prior to any construction of the new clinics, relocation of the SIHC,
Inc. to a new clinic, or construction of the proposed casino. Should
the required federal approvals not be obtained, the clinics and the
casino will not be constructed. In the unlikely event that the Tribe's
casino should fail or not be constructed, the SIHC, Inc. would not
receive any additional funding. In the event that the clinics and
casino are constructed and the casino subsequently fails, the health
care facility improvements would remain in place because the actual
construction, installation of equipment and relocation to the new
clinics will have been completed prior to any casino construction or
operation. After the clinics are built, and the casino is subsequently
constructed and operated, additional payments are due to SIHC, Inc.
from the Tribe pursuant to Section 7 of the Consolidated Clinic
Building Construction and Partial Lease Relinquishment Agreement.
9. Is there any scenario in which the clinic would not be in
operation for any amount of time?
Absolutely not. The Tribe cannot conceive of a situation in which
the Tribe would cause the clinic not to operate for any amount of time
due to the carrying out of this project. Clinic operations will never
be shut down. See Consolidated Clinic Building Construction Agreement
at Sec. Sec. 8 11. The consolidated clinic building will be
approximately 33,500 square feet (much larger than the current facility
space) with access to 154 parking spaces and a dedicated access road.
See Consolidated Clinic Building Construction Agreement at Sec. 8. The
SIHC, Inc. will have authority to approve the preliminary design and
final specifications for the consolidated clinic building. See
Consolidated Clinic Building Construction Agreement at Sec. 8(D). SIHC
will not have to relocate to the new clinics until those clinics are
certified by the SIHC's construction consultant and the architect as
ready for occupancy and use by the SIHC, Inc. The Tribe and SIHC, Inc.
have contractually agreed to take all commercially reasonable steps to
avoid interference with the operation of the clinic. See e.g.,
Consolidated Clinic Building Construction and Partial Lease
Relinquishment Agreement Sec. 11. If the 18-acre parcel is accepted
into trust before the consolidate clinic building construction is
begun, then there is an opportunity to combine the two clinic project
funds into one $10 million account to build a new clinic on the 18-acre
parcel.
10. Do you feel that there should be restrictions placed on the
administrative process of taking land into trust that would limit the
use of the land to the use stated when the land was taken into trust?
No. The Tribe agrees with the Department that this would result in
an unworkable public policy as circumstances and conditions change over
decades and centuries. Accordingly, the Tribe does not agree with any
restrictions being placed on the administrative process to take land
into trust. Likewise, the Tribe does not agree with limiting the
highest and best use of Tribal property. If the 18-acre parcel is
placed in trust status by the United States, the title should not
contain a restriction or other covenant prohibiting the use of the land
as deemed proper by the Tribe. In this case, however, the Tribe has
agreed to a use restriction of a particular type a lease of the 18-acre
property to SIHC, Inc. for $1 for 25 years for a health clinic, with
the option to renew the lease for an additional 25-year period. At the
expiration of the lease or if terminated earlier for some reason, the
Tribe should not be required to limit its use of the land only to a
health clinic forever because it is entirely possible that some day a
health clinic feasibly could not be operated on the site. In contrast
to use restrictions on more temporary lease agreements, permanent use
restrictions on trust title would be an administrative nightmare for
the Department and would artificially limit the potential beneficial
uses of the land by the Tribe.
11. Why do you believe the Viejas tribe opposes the lease
relinquishment and the new agreements?
For anti-competitive, economic protection reasons. According to the
Viejas Band's September 21, 2001, letter to the United States
Department of the Interior, `` Ewiiaapaayp is attempting to undermine
the Viejas Reservation economy This type of encroachment on the Viejas
tribal community's economic sustainability cannot be tolerated .'' The
Indian Gaming Regulatory Act of 1988 (IGRA), the agreements between the
SIHC, Inc. and the Tribe, California State corporations law, California
Proposition 1A, the Tribe's tribal-state compact, other applicable
federal laws, and applicable HUD regulations provide adequate
protection for all interests and all interested parties. The Tribe has
waited patiently to begin to engage in lawful gaming under IGRA and a
tribal-state compact, unlike Viejas who for years conducted so-called
grey-market gaming without a tribal-state compact. Undoubtedly, Viejas
has created a market for its product, gambling, yet such economic
protectionist measures funded by years of unauthorized gaming should
not be tolerated by Congress and used to hinder the efforts of a
federally recognized tribe seeking to exercise its rights to economic
development and self-sufficiency on its own land.
12. Is it your impression that the Viejas tribe is willing to have
the current level of health care remain ``status quo'' in order to
protect their gaming interests?
Actually, Viejas Chairman TeSam said as much to Cuyapaipe Chairman
Pinto in an October 10, 2001 telephone call, when Chairman TeSam said
Viejas wanted to keep SIHC, Inc. health services at the ``status quo.''
Viejas' activities attempting to ``protect'' its gaming interests will
effectively deprive the SIHC, Inc. of any opportunity to expand and
will, at best, maintain the severely under funded ``status quo.'' A
severe shortage in funding for IHS-supported health services compounds
the $7 billion backlog in facility replacement needs. Funding for
operations, services and staffing for IHS-funded programs is woefully
inadequate. $7.5 billion (in 1999 dollars) is needed each year,
estimates the IHS, to address the disparities in health in the American
Indian and Alaska Native populations by providing access to basic
health services. If the goal is to meet basic health care standards,
and bring American Indians and Alaska Natives up to a standard of
health care available to federal employees under the federal health
plans, it will take some $8 billion a year. Congress has urged tribes
to find alternate funding sources to supplement the meager federal
appropriations. The Cuyapaipe-SIHC, Inc. Agreements represent a clear
and effective response. Yet, the Viejas Band seeks to deprive SIHC,
Inc. and its patients of the opportunity to access expanded, high
quality health care. The Tribe finds it more than ironic that the Tribe
must defend its unusually generous proposal, especially in a time of
economic recession and federal deficit spending constraints.
______
Response to Questions Submitted to Steven TeSam, Chairman, Viejas Band
of Kumeyaay Indians
Question 1.
You state that none of the promises about the construction of the
new facilities are enforceable by the SIHC or the people it serves. Is
it your understanding that the lease relinquishment contracts are not
enforceable by law--please elaborate?
Answer:
The contracts are not enforceable. It is the understanding of the
Viejas Band that the Cuyapaipe Tribe has made no enforceable waiver of
tribal sovereign immunity. Please note that the purported waiver in the
document submitted references ``. . . permitting actions in any court
of competent jurisdiction . . .'' Since Cuyapaipe is a federally
recognized Indian tribe, and since Cuyapaipe has no tribal court, there
is no ``court of competent jurisdiction.'' Additionally, the purported
waiver is further diluted by the provision requiring arbitration
(paragraph 19), and by the language that purports to limit court
jurisdiction to only those disputes requiring injunctive relief.
It is well settled that a waiver of tribal sovereignty, to be
enforceable, must be clear and unequivocal. Cuyapaipe's waiver is
neither. Additionally, a waiver of the sovereignty of a tribe is
usually documented by a Tribal Council resolution authorizing a tribal
leader to execute a document containing such a waiver. It is uncommon
for one tribal official, acting alone, to possess that authority.
Please note that the documents submitted do not include any resolution
of the Cuyapaipe Tribal Council (or any other document) which
authorizes a waiver of the tribe's sovereign immunity.
Because of the ambiguities, limits, and qualifications of the
waiver, we believe a court would likely find that the waiver, as made
in the current documents, is ineffective to waive the Cuyapaipe Tribe's
sovereign immunity from suit. There is no party who would have
authority to enforce the many promises that have been made by
Cuyapaipe. Without a valid waiver of immunity, Cuyapaipe is free to do
as it pleases with the current trust property if the lease is
relinquished. Without an enforceable waiver of tribal sovereignty, the
current SIHC Clinic lease is the only protection for health care
services at the SIHC.
Additionally, the BIA has indicated that land taken into trust for
an Indian tribe does not generally have restrictions that run with the
land. Therefore, any new land taken into trust could be used for a
casino, and the Cuyapaipe would be under no obligation to build a new
clinic on any of their trust land.
Its important to note that Cuyapaipe's investor, Action Gaming LLC,
gets the benefit of the sovereignty waiver, if one is found to have
been made, (Paragraph 25 of the Agreement), but is not a party to the
Agreement in other respects, and therefore cannot be sued to enforce
any of the promises the Cuyapaipe tribe has made concerning the
construction of a new clinic. This is significant because Action Gaming
is the only party with substantial resources; should they decide not to
finance a new clinic, the SIHC clinic, its patients, and its member
tribes will be left without meaningful recourse.
Question 2.
Your testimony includes language that suggests that the only
certainty about the lease agreement is that the clinic will be shut
down and moved to trailers behind the casino. However, Article 8 of the
Consolidated Clinic Building agreement, ``The SIHC agrees that the
consolidated clinic building comprising 33,500 square feet, with access
to 154 parking spaces and a dedicated access road, will be constructed
by the Tribe in accordance with the requirements for construction on
the Current Site.'' How do you reconcile these different scenarios?
Answer:
The SIHC is a California Corporation, which can be dissolved by
vote of the directors. The SIHC's promise that a clinic will be built
is enforceable only against SIHC, not the Cuyapaipe tribe, and has no
value whatsoever if SIHC ceases to exist. A promise by SIHC that a
clinic will be constructed must be weighed against the reality that
SIHC lacks any resources to finance a new clinic, and is depending on
'promises' of gaming revenue contributions which may never materialize.
The SIHC has no power to enforce its ``agreement'' that a clinic
will be constructed by the Cuyapaipe tribe. Without the enforceable
promise of the Cuyapaipe Tribe (with a valid waiver of immunity as
referenced in the answer to Question 1), the SIHC and its member tribes
have no power to force the Cuyapaipe to build, or to permit the
construction of, any new clinic on tribal trust land.
Question 3.
In your testimony, you state that if the proposed lease
relinquishment is approved, construction of the casino is in no way
contingent upon the construction of a new health clinic. Do you mean by
this that it is possible for a casino to be built without a new health
care facility being built? In the Consolidated Clinic Building
Construction and Partial Lease Relinquishment Agreement, Recitals B.
``The tribe and the SIHC have agreed that in exchange for the Tribe
constructing a new consolidated clinic building (CCB) on that certain
parcel of land (current site) the SIHC will relocate its current Clinic
operations to the CCB, relinquishing back to the Tribe that portion of
the land it no longer needs, while retaining all rights and obligations
to the remainder.'' How do you reconcile these different scenarios?
Answer:
See the answer to Question 1. Once again, the lack of an
enforceable waiver of sovereignty means that the SIHC, its member
tribes, and the clinic patients are left at the mercy of whatever the
Cuyapaipe band and its gaming investor decide to build.
Question 4.
Does any of your gaming revenue go to the SIHC?
Answer:
The Viejas Band has redirected its federal funds for health care to
the SIHC for many years, as have a number of tribes in San Diego
County. (For example: Tribal Priority Allocation funds (TPA funds)
under the ICWA in the amount of $30,000 were redirected to SIHC in
fiscal year 2001; TPA funds of $29,462 were redirected in fiscal year
2000; and similar amounts have been redirected in previous year. For
2002, the expected amount is $29,397.
Additionally the Viejas Band created an inter-tribal revenue
sharing program, which made gaming revenue available to all non-gaming
tribes in San Diego, including Cuyapaipe, beginning in late 1995.
Cuyapaipe received monthly payments under this plan for over three
years.
With the signing of the Tribal-State Gaming Compacts in California,
Viejas is required to contribute gaming revenue into a statewide
revenue sharing fund, which is then redistributed to tribes that do not
have gaming operations, or that have fewer than 350 machines, including
Cuyapaipe.
Question 5.
Why did you choose not to attend or send an alternate Director to
the December 18 meeting where the vote was taken regarding the
relinquishment of the lease?
Answer:
To the best of the knowledge of the Viejas Band, the Band's
appointee to the SIHC Board was present at the meeting held December
18, 2000.
Question 6.
Do you feel that the SIHC is not taking into consideration the
needs and desires of the Board members regarding improving health care?
If the agreements are realized, wouldn't health care improve for the
community?
Answer:
No, health care would not improve. An existing, successful clinic
would be uprooted in favor of a proposed, yet-to-be-built casino, which
may or may not operate at a profit.
Promises about the improvement of health care are illusory, because
there is no mechanism by which the SIHC or its patients could enforce
the claims made by Cuyapaipe or its gaming investors. Also, it is
important to note that the Cuyapaipe Tribe has sought to generate
public support by promising unspecified sums to the local community for
a number of purposes, including education (a new local high school),
parks and recreation, a new library, fire protection, and a new
sheriff's substation. These promises unfortunately overlook the fact
that the tribal gaming industry in Southern California is highly
vulnerable to economic downturns, so there is no guarantee that a
future casino on the current clinic site will produce sufficient
revenue to fund a new clinic in addition to funding all the other
pledges that have been made by the Cuyapaipe tribe.
Question 7.
If a tribe takes land in to trust and then changes the use of that
land, should the tribe be required to relinquish the trust status of
that land?
Answer:
It is the position of the Viejas Band that no land taken into trust
for an Indian tribe should ever be relinquished from its trust status,
unless such action is taken at the request or direction of the tribe
for which the land is held.
Question 8.
You mention in your testimony that the economic competition from
the Cuyapaipe casino is not an issue or that you do not know if it will
be harmful or beneficial to have a casino one mile from your casino.
What was your intention when, in a letter to the BIA on 21 Sept 2000,
that ``Cuyapaipe is attempting to undermine the Viejas Reservation
economy by moving its economic development efforts 40 miles off its
reservation and within one mile of the Viejas Reservation. This type of
encroachment on the Viejas tribal community's economic sustainability
cannot be tolerated.'' Could you clarify your view on this in regard to
these two seemingly contradictory statements?
Answer:
It is simply not clear what the impact of a proposed Cuyapaipe
casino would be. On the one hand, it is certainly possible that nearby
competition might lessen the revenues of the Viejas Casino; on the
other hand, some have argued that having two casinos nearly adjacent
might create more of a destination and thereby increase the customer
base for both properties. Obviously, at the time of the September 2000
letter, the prevailing view was that the competition would be
detrimental, and that opinion may prevail today. However, that issue is
not now and never has been the focus of Viejas' objections to the
change in land use. If Viejas' position on the competition question
seems unclear, that is because the issue of competition is not the main
concern of the Viejas Band, and it is irrelevant with respect to the
protection of healthcare issues that underlie H.R. 1239.
It should also be noted that the Cuyapaipe tribe has a large
reservation, (located approximately 70 miles east of San Diego) and
could certainly construct its gaming facility on its reservation, which
is the path that every other gaming tribe in California has been
required to take. Instead, Cuyapaipe seeks to subvert the process by
conducting gaming on trust land that is not part of a reservation, and
has recently filed an application with the BIA to have the SIHC Clinic
site re-classified as ``reservation property.''
We would note that the Cuyapaipe Tribe has no aboriginal claim to
land in the Viejas Valley area, which is where the SIHC clinic is now
located. The only reason Cuyapaipe has land in trust in this area, (in
addition to their actual reservation, which is some 40 miles away), is
that the Cuyapaipe Tribe was named as steward of the land where the
clinic was to be built. This was done because of the impossibility of
taking the land into trust for all seven SIHC consortium tribes.
Question 9.
What are the yearly revenues your gaming venture produces for your
tribe? Would you be willing to substitute that amount for the
California revenue-sharing program payment of 1.1 million per year?
Answer:
Viejas gaming operations yield substantial annual revenues for the
Viejas Band. We made significant investment, undertook a great deal of
risk, and invested more than substantial effort in establishing our
casino, which we consider a success. Today, we would not trade it for
revenue-sharing funds.
The reference in Viejas' testimony to the revenue sharing funds
that Cuyapaipe is eligible to receive is simply a response to a message
Cuyapaipe has been using that they are an impoverished group for whom
the proposed casino represents the only hope of economic development.
This is in fact not the case the revenue sharing program could provide
each Cuyapaipe tribal member roughly a six-figure annual income with no
risk, no investment, and no disruption of the health care services on
which the SIHC patients depend.
However, the relevant point is this: Viejas has no position on the
question of whether the Cuyapaipe tribe should engage in gaming it is
Cuyapaipe's sovereign right to make that determination. However, Viejas
is strongly opposed to the events that allow Cuyapaipe to take
advantage of administrative error giving them title to the health
clinic site by establishing a casino 30 miles from their reservation
over the objection of some of the tribes that were intended to benefit
from that site.
All other tribes in San Diego County had to make economic decisions
about the feasibility of gaming based on their reservation location and
market for gaming. Only Cuyapaipe has the unfair advantage of claiming
trust land and operating gaming in an area far removed from their
reservation. Viejas feels this is a violation of the representations
made by California tribes during the campaign to pass Proposition 1A,
which gave California tribes the right to conduct slot machine gaming.
Question 10.
What are your concerns regarding the Cuyapaipe/SIHC lease
relinquishment agreement when it appears to favor both parties and the
patients of the SIHC?
Answer:
To summarize the concerns of the Viejas Band, we feel that it is
wrong for Cuyapaipe to take a parcel of land into trust with the
understanding that the land is to be used for the benefit of seven
tribes, and then to make a substantial change in the use of that parcel
without the consent of each of the seven tribes who will be affected by
the change.
Second, we believe that Cuyapaipe's commitments to the SIHC are not
legally enforceable, as explained in the response to question 1. If the
existing lease is relinquished, the patients of the SIHC will have no
standing and no legal recourse to enforce the promise of a new clinic.
Third, we know that the revenues needed to fulfill the Cuyapaipe's
promises are speculative the casino may not get built for other
reasons, the investor may decide to fund the project at a reduced
level, and the economy of Southern California may not yield the level
of gaming revenue that has been projected. The only party that may have
present funds to fulfill the commitments is the gaming investor, and
the SIHC patients have no recourse against that investor, according to
the lease relinquishment documents.
In summary, the new clinic depends on the whim of the Cuyapaipe
Tribe and the projected profit from a casino that does not exist, and
that may or may not make money in its first few years, if ever.
Question 11.
This issue seems to be disputed mainly by your tribe and the
Cuyapaipe tribe. What effort has been made between the two tribes to
reconcile this issue?
Answer:
The Viejas Band wants this issue to be resolved by consensus; we
have always been willing to talk to the Cuyapaipe Tribe about this.
However, Cuyapaipe has very little reason to negotiate again, because
of an administrative decision on the part of the BIA, the land is held
in trust for Cuyapaipe, although it was intended to benefit seven
tribes.
H.R. 1239 does not prohibit the establishment of a casino; rather
it says that for a defined period of time, the land use may be changed
only if there is a consensus among the tribes. We would emphasize to
the committee, however, that as of this writing, Cuyapaipe is seeking
to push the lease relinquishment through the BIA without any attempt to
address Viejas' concerns.
Question 12.
You testified that the land was title to the Cuyapaipe as a matter
of administrative convenience. Did your tribe offer to take land into
trust for the original site for the health clinic?
Answer:
The reference to 'administrative convenience' describes a situation
where the BIA took the clinic site into trust for the benefit of seven
tribes and found it easier to title the land to only one tribe this
over the stated objections of two of the tribes. Viejas did not offer
to take land into trust because this was not intended to be a Viejas
clinic, or a Cuyapaipe clinic; it was supposed to provide health care
to the members of all seven tribes. Viejas supported the effort to
establish the SIHC clinic, because tribal leaders at that time believed
that a neutral site would be in the best interest of all tribal members
who would depend on the health care services of the SIHC clinic.
The whole point of choosing a new site (as Rep. Hunter's 1985
letter describes) was to have an independent, neutral site for the
clinic. Viejas did not seek 'control' of the land where the clinic
would be built, because the objective at the time was not to have any
tribe or group 'control' the site. Cuyapaipe's current efforts to
control the site demonstrate the importance of the ``neutral site''
goal.
Question 13.
Did your tribe ever offer some of its land for the original site of
the clinic?
Answer:
No, for two reasons. First, the Viejas reservation is very small.
It could not easily accommodate the clinic along with the homes of
tribal members and the tribe's essential services. But more
importantly, tribes were seeking an independent site at the time the
clinic site was acquired, because previous efforts to house the clinic
on other local reservations had proved unworkable. The Viejas Band felt
that an independent, neutral home for the clinic would be preferable.
______
Responses to Questions Submitted to Ralph Goff, Chairman, Southern
Indian Health Council
1. Did you seek land for the original site of the health clinic
from all seven tribes? What was the response?
SIHC sought a site that was well-situated for access by members of
the seven consortium tribes and that was available. All consortium
tribes were well aware of SIHC's needs, and the Cuyapaipe offered to
provide SIHC land in Alpine for a clinic site. Because locating a
clinic in Alpine was in the best interest of SIHC and its patients, the
SIHC Board of Directors (comprised of members from all seven tribes)
approved the arrangement.
2. Why did you settle on the current site for the health clinic?
The site is well-situated and was available. The SIHC Board
approved it.
3. If the new agreements do not take effect, what funds will you
use to make improvements to the health clinics?
IHS facility funding has never been available in California.
Therefore, without the financial benefits from the new agreements, SIHC
will have difficulty making even modest facility improvements and would
not be able to make the improvements specified in the new agreements.
The improvements specified in the new agreements are to be paid for
without federal funds.
4. Are the agreements between the SIHC and the Cuyapaipe legally
binding?
Yes.
5. What assurances do you have that the agreements will be honored?
Because the agreements are legally binding, their terms may be
enforced in a court of law.
6. What recourse do you have if the agreements are partly honored
or not honored at all?
The recourse is a legal suit.
7. What will happen if the Cuyapaipe casino fails or is never
opened? How would this impact the SIHC in regard to the current
services it provides?
The worst case scenario for SIHC is that it remains at its current
location in Alpine. There is no risk or downside to the new agreements
for SIHC. SIHC is not required to move out of its current facilities
until a new clinic is fully built and equipped to its satisfaction. As
such, current services will not be adversely impacted even if the
casino never opens or fails. If the casino is realized, however, the
upside for SIHC is very substantial. SIHC would get a comprehensive
building, a new clinic, and annual payments from Cuyapaipe for many
years.
8. In the agreement, you are promised certain amounts of revenue
from the Cuyapaipe over the next 35 years. How do you plan to use this
money?
The SIHC Board will determine based on short and long-term planning
how to allocate amounts received from Cuyapaipe. The funds will
certainly be used to maintain, improve, and increase the services
offered through SIHC, consistent with its mission of providing quality
health care for Indians of the SIHC consortium and its service area.
9. Have any of the other tribes approached the SIHC with proposals
for improvement of health care services through building improvements,
increased funds, etc?
No.
10. When was the most recent SIHC vote regarding the relinquishment
of the lease and what was the result of that vote?
The most recent vote was on December 18, 2000. On that date, the
SIHC Board passed a resolution by a vote of four in favor and one
abstention to reaffirm a prior resolution dated July 10, 2000 approving
the agreements with Cuyapaipe.
11. Were the board members of the SIHC aware that at the December
18 meeting that a vote on the relinquishment of the lease was to be
held?
Yes, pursuant to SIHC Bylaws a 30-day notice was given.
12. It is our understanding that the SIHC is composed of one
representative from each of the seven tribes. Do you feel that each
tribe is adequately represented on the board? Statements have been made
that the opinions of all seven tribes have not been taken into account
regarding this matter - do you feel this is true - please elaborate.
The SIHC Board is comprised of a member (and an alternate) from
each of the seven consortium tribes. Each consortium tribe selects its
director. As such, each consortium tribe is equally represented on the
SIHC Board. We add that this matter being addressed by the House
Committee was deliberated by SIHC for approximately five years and that
all consortium tribes had ample opportunity to comment upon and discuss
the proposal through their representative on the Board.
13. According to the SIHC bylaws, do the tribes have any right of
representation to the board other than the representatives sent to the
board by each tribe?
No, each tribe is fully represented by appointing a representative
to the Board.
14. What is the major opposition to the lease relinquishment
agreement?
The only opposition that SIHC is aware of is the opposition that
has been expressed to the House Committee on Resources. This opposition
appears to be motivated by gaming considerations and an attempt to
limit casino competition in San Diego County.
15. In Mr. Garcia's testimony, he mentions that the SIHC made a
request for land on the Viejas reservation prior to the acquisition of
the current site in Alpine and that this request was refused. If this
is true - please provide details regarding this request for land. Were
other tribes asked for land?
Current SIHC staff is unable to locate documents to specifically
verify Mr. Garcia's statements. However, we can confirm that SIHC Board
members were given an opportunity to propose alternatives to acquiring
the original land in Alpine. None did so. The Board therefore decided
to locate the clinic at its current site in Alpine.
We hope that these responses are helpful to the Committee.
______
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