[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
DISCUSSION DRAFT BILL REGARDING INDIAN GAMING AND ITS NEED AND EFFECTS
IN NORTHERN CALIFORNIA
=======================================================================
OVERSIGHT FIELD HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Monday, June 6, 2005, in Sacramento, California
__________
Serial No. 109-18
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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______
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Henry Brown, Jr., South Carolina Mark Udall, Colorado
Thelma Drake, Virginia Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
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C O N T E N T S
----------
Page
Hearing held on Monday, June 6, 2005............................. 1
Statement of Members:
Gohmert, Hon. Louie, a Representative in Congress from the
State of Texas............................................. 3
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Statement of Witnesses:
Brown, Valerie, Supervisor, Sonoma County, Northern
California Counties Tribal Matters Consortium.............. 25
Prepared statement of.................................... 28
Hancock Loni, Assemblymember, 14th Assembly District, State
of California.............................................. 54
Prepared statement of.................................... 56
Lohse, Leslie, Treasurer, Paskenta Band of Nomlaki Indians... 3
Prepared statement of.................................... 6
McGowan, Mike, Supervisor, Yolo County, and Chairman, Indian
Gaming Working Group, California State Association of
Counties................................................... 17
Prepared statement of.................................... 19
Mejia, Margie, Tribal Chairwoman, Lytton Band of Pomo Indians 48
Prepared statement of.................................... 52
Mitchum, Wayne R., Chairman, Colusa Indian Community Council. 7
Prepared statement of.................................... 8
O'Brien, Patrick, General Manager, East Bay Regional Park
District................................................... 34
Prepared statement of.................................... 36
Schmit, Cheryl, Director, Stand Up For California............ 38
Prepared statement of.................................... 40
OVERSIGHT FIELD HEARING ON A DISCUSSION DRAFT BILL REGARDING INDIAN
GAMING AND ITS NEED AND EFFECTS IN NORTHERN CALIFORNIA.
----------
Monday, June 6, 2005
U.S. House of Representatives
Committee on Resources
Sacramento, California
----------
The Committee met, pursuant to call, at 12:00 noon in the
California State Library, Conference Room, Floor 5, Sacramento,
California, Hon. Richard W. Pombo [Chairman of the Committee]
presiding.
Present: Representatives Pombo, Gohmert, and Costa.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
The Chairman. The hearing will come to order. I would like
to have everyone take a seat, that can. Today, the Committee is
seeking testimony regarding proposals in the Northern half of
California to take land into trust for Indian gaming purposes.
Specifically, we have analyzed the need for the discussion
draft bill I authored to amend Section 20 of the Indian Gaming
Regulatory Act in a way that increases local input.
Section 20 of IGRA prohibits gaming on lands taken into
trust for a tribe after October 17, 1988. At the same time,
Section 20 provides several complicated exceptions to this
prohibition that are meant to balance the needs of the tribes
who want to build casinos on newly acquired lands and the
concerns of State and local governments which have been
exercising jurisdiction over such lands.
Today, the scope and number of Indian gaming operations are
orders of magnitude larger than what they were when IGRA passed
in 1988. Indian gaming is now an $18-billion-plus industry, and
experts predict there is room for substantial growth.
California's tribes now generate more gaming revenues than
tribes in any other state. This is not inherently bad. Let's
keep in mind that Indian gaming stems from tribal sovereignty,
and there is nothing wrong with a tribe's desire to protect its
sovereign right to have gaming and to use it as a tool for
economic development and tribal services on reservations that
have suffered acutely from historic poverty, joblessness and
privation.
However, when IGRA was enacted in 1988, most everyone
expected that gaming would occur within the limits of tribes'
existing reservations. With a large number of recognized tribes
and tribes seeking to be recognized or restored, the State of
California has seen a growing list of proposals to build Indian
gaming facilities in areas where they were not expected.
In many cases, the surrounding communities feel unable to
absorb the social and financial impacts associated with
casinos, which can be ambitious in size and scope, yet IGRA
provides only for an analysis of the impacts on communities
with no real involvement by communities or other tribes in the
process of permitting an off-reservation facility.
Indian gaming should not be a source of conflict between
neighbors and communities. Several recent proposals to build
casinos have generated such strong opposition and alarm in
Northern California that some tribes are now pitted against
other communities, including other tribes. Some of today's
witnesses will elaborate on this unfortunate development.
This conflict is not a matter of perception; it's real and
has real consequences. Colleagues of mine in the House who do
not have much experience in dealing with tribes seem to take a
great interest in tribal issues only when an Indian casino is
proposed in their district where a tribe does not reside.
Off-reservation gaming is not just bad publicity for
tribes; it's sometimes the only publicity. This can affect how
Members act on bills affecting Indian tribes. Clearly, Congress
has a responsibility to examine Section 20 of IGRA so that both
the tribes and the people of California mutually prosper into
the future.
I look forward to hearing more about Indian gaming in
Northern California from today's witnesses and how the
discussion draft bill to amend Section 20 of IGRA might improve
the law that has contributed to the well-being of California's
tribal members.
[The prepared statement of Mr. Pombo follows:]
Statement of The Honorable Richard W. Pombo, Chairman,
Committee on Resources
Today the Committee is seeking testimony regarding proposals in the
northern half of California to take land into trust for Indian gaming
purposes. Specifically, we will analyze the need for a discussion draft
bill I authored, to amend Section 20 of the Indian Gaming Regulatory
Act in a way that increases local input.
Section 20 of IGRA prohibits gaming on lands taken into trust for a
tribe after October 17, 1988. At the same time, Section 20 provides
several complicated exceptions to this prohibition that are meant to
balance the needs of tribes that want to build casinos on newly
acquired lands, and the concerns of local and state governments which
had been exercising jurisdiction over such lands.
Today, the scope and number of Indian gaming operations are orders
of magnitude larger than what they were when IGRA passed in 1988.
Indian gaming is now an $18-billion-plus industry, and experts predict
there is room for substantial growth. California's tribes now generate
more gaming revenues than tribes in any other state.
This is not inherently bad. Let's keep in mind that Indian gaming
stems from tribal sovereignty, and there's nothing wrong with a tribe's
desire to protect its sovereign right to have gaming and to use it as a
tool for economic development and tribal services on reservations that
have suffered acutely from historic poverty, joblessness and privation.
However, when IGRA was enacted in 1988, most everyone expected that
gaming would occur within the limits of tribes' existing reservations.
With a large number of recognized tribes and tribes seeking to be
recognized or restored, the State of California has seen a growing list
of proposals to build Indian gaming facilities in areas where they were
not expected.
In many cases, the surrounding communities feel unable to absorb
the social and financial impacts associated with casinos, which can be
ambitious in size and scope. Yet IGRA provides only for an analysis of
impacts on communities with no real involvement by communities or other
tribes in the process of permitting an off-reservation facility.
Indian gaming should not be a source of conflict between neighbors
and communities. Several recent proposals to build casinos have
generated such strong opposition and alarm in northern California that
some tribes are now pitted against other communities, including other
tribes. Some of today's witnesses will elaborate on this unfortunate
development.
This conflict is not a matter of perception; it's real, and it has
real consequences. Colleagues of mine in the House who do not have much
experience dealing with tribes seem to take a great interest in tribal
issues only when an Indian casino is proposed in their district where a
tribe does not reside. Off-reservation gaming is not just bad publicity
for tribes, it's sometimes the only publicity. And this can affect how
Members act on all bills affecting Indian tribes.
Clearly, Congress has a responsibility to examine Section 20 of
IGRA so that both tribes and the people of California mutually prosper
into the future.
I look forward to hearing more about Indian gaming in northern
California from today's witnesses, and how the discussion draft bill to
amend Section 20 of IGRA might improve a law that has contributed to
the well-being of California's tribal members.
______
The Chairman. I want to recognize Mr. Gohmert for any
opening statement he may have.
STATEMENT OF THE HON. LOUIE GOHMERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Gohmert. Thank you, Mr. Chairman. It's an honor to be
here. It's great to see such public interest in any issue even
when it's divisive, but I'm here to learn, not to speak or
dictate, so thank you. I am pleased to be here.
The Chairman. Thank you. I would like to introduce our
first panel of witnesses. We have Tribal Treasurer Leslie Lohse
from the Paskenta Band of Nomlaki Indians and Chairman Wayne R.
Mitchum, Cachil Dehe Band of Winton Indians in Colusa.
The Chairman. If I could have you stand, as is customary in
the Resources Committee, we will swear in all of the witnesses.
[Witnesses sworn.]
The Chairman. Let the record show they have both answered
affirmatively.
Welcome to the Committee hearing. It's nice to see you
both. Let me take this time to remind all of today's witnesses
that, under Committee Rules, oral statements are limited to
five minutes. Your entire written statement will appear in the
record.
Ms. Lohse, we will begin with you.
STATEMENT OF LESLIE LOHSE, TRIBAL TREASURER, PASKENTA BAND OF
NOMLAKI INDIANS
Ms. Lohse. Mr. Chairman, members of the Committee, welcome
to California. Thank you for allowing me to appear before you
today. As you said, my name is Leslie Lohse, I am a member of
the Paskenta Band of Nomlaki Indians. It is located in nearby
Tehama County. I am the Treasurer and the spokesperson for our
tribe. I serve as the Pacific Region Area Vice-President for
the National Congress of American Indians, the BIA Central
California Agency Policy Committee Chairperson and Treasurer of
the California Tribal Business Alliance.
Today I will present my testimony on behalf of my tribe and
based upon my own experience.
Your leadership in addressing the issue of off-reservation
gaming is a very important and critical step in the right
direction and we do support this legislation.
Unfortunately, since the passage of IGRA, many non-Native
American opportunists have sought ways to cash in, some at the
expense of the tribes that they profess that they are helping
and some at the expense of the local community.
The purpose of the law was to provide a tool that is usable
to bring tribes out of more than a century of abject poverty,
fund reliable housing and protect schooling. We have seen that
impact upon our own tribal lands.
Some have taken titles to homes for the first time and some
are now able to send their children to colleges and
universities to further their capabilities and their
aspirations. IGRA is explicit in the fact that Indian tribes
are to be the primary beneficiaries of the gaming revenue and
its clear intent was to shield the tribes from outside
influences intent on siphoning those gaming profits away to
meet their own commercial ends.
There is a growing national concern that the inappropriate
tribe-stalking role taken on by these wealthy investors in
tribal gaming is corrupting the very purpose if not the letter
of the law. From Connecticut to San Francisco, from Minnesota
to our own Tehama County, tribal communities are beginning to
actively resist the spread of off-reservation gaming. Within
our own tribal community, we are experiencing the threat of
tribes succumbing to those pressures of outside investors who
encourage them to grab at land outside their territory for the
purpose of gaming.
The Greenville Maidu Indians of Plumas County, California,
are a case in point. This tribe has a great, rich history in
Plumas County, but has repeatedly attempted to claim land in
Tehama County where they have no historic aboriginal territory.
Nevertheless, encouraged by their investors, the tribes
have petitioned the Board of Supervisors twice to claim a
casino along I-5. This claim has been soundly rejected twice by
a vote of 4 to 1 but that doesn't stop the financial backers.
They persist in their request, costing the community much-
needed funds to maintain their own community, and hoping to
wear down the community's resistance.
The petition rewrites California tribal history to serve
the interests of the investors in picking a prime real estate
site. Most importantly to us, it is decided well within our
ancestral territory. The Greenville Maidu proposal distorts
history of their own and ours and defies careful and deliberate
court hearings on tribal lands.
It is but one more chapter in a rush funded by non-Indian
gaming investors to simply bend historical truths to serve
their exploitive interests.
The Greenville Rancheria issue was settled in the Hardwick
case which identified their Rancheria as being local within
Plumas County, more than 90 miles away from their current site.
But the developer is blithely ignoring court rulings. These are
the Wilmots of New York, a shopping center developer that has
found new goals in developing and funding and operating Indian
casinos.
Despite the Hardwick ruling and the rejection of the Board
of Supervisors, the Wilmots have gone ahead and purchased
property in the County along I-5. Their clear intention is to
relocate the Greenville Maidus to this new location because,
like other tribes, their ancestral land or their current land,
which many likely will have, are not within a good market area.
Strangely enough, some even claim that their own lands are
too environmentally sensitive, not caring about what impacts
they're imposing upon another tribe's ancestral land or
bringing to a local community. Members of the Committee, should
just any passing investor locate a casino in your district, in
your community by simply inducing a tribe to make a falsehood
and even knowingly false land claim? I can assure you the
investors' first priority is not the welfare of that tribe or
the return of that tribe to return to their ancestral land.
Investors, such as the Wilmots of New York, seem to like to
buy the land first and throw the tribe at it and see if it
sticks. Rather than reservation shopping, tribe shopping is the
more appropriate term I have seen several tribes fall victim to
such exploitive actions. That's why Federal law must be updated
to prevent this kind of exploitation and done so without delay.
The legislation has certainly forced the first step that will
stop the encroachment we're facing within the Tehama County.
Greenville Rancheria's 275 acres is located approximately
three miles east of Greenville, Plumas County, California.
Mr. Chairman, the Paskenta Band of Nomlaki Indians is not a
great competition. We only have the best hopes for our sister
tribes, but it's not to be at the expense of other tribes who
have stayed home or have not yet been recognized or at the
expense of local communities. Out-of-state investors should
never be able and permitted to hijack the process.
The Greenville Tribe Chairperson, Lorie Jaimes, has
testified before this Committee and spoke out against your
efforts to update the reservation law proclaiming, ``It is our
belief that IGRA does not need to be amended with regard to
off-reservation gaming because there is no genuine problem or
crisis in this area. Those who most loudly call for amendments
do so because they do not understand the process.''
Mr. Chairman, Members of the Committee, we respectfully
disagree with the Maidu's position. In our minds there is
clearly a problem of outside interference and this legislation
is working toward a fair and just solution. It is authored by
people who indeed understand the process.
Thank you for your efforts and this opportunity to testify.
I ask that my statement be entered into the record and I am
happy to answer any questions you may have.
The Chairman. Thank you for your testimony.
[The prepared statement of Ms. Lohse follows:]
Statement of Leslie Lohse, Treasurer,
Paskenta Band of Nomlaki Indians of California
Mr. Chairman, members of the Committee, welcome to California and
thank you for allowing me to appear before you today.
My name is Leslie Lohse, a member of, Treasurer and spokesperson
for the Paskenta Band of Nomlaki Indians of California located in
nearby Tehama County. I am also the National Congress of American
Indians (NCAI) Pacific Region Area Vice-President, U.S. Bureau of
Indian Affairs Central California Agency Policy Committee Chairperson
and Treasurer of the newly formed California Tribal Business Alliance.
Today I will present testimony based on my own experiences and on
behalf of Paskenta.
The Committee's leadership addressing the issue of off-reservation
gaming is a tremendous step in the right direction and we support this
legislation. Unfortunately, since the passage of the Indian Gaming
Regulatory Act of 1988, many non-Native American opportunists have
sought ways to cash in--sometimes at the expense of the Tribe and
sometimes at the expense of the local community.
The debate over Tribal gaming and their wealthy investors is taking
place in many communities around the country. Whether in Connecticut,
the San Francisco Bay Area, or out here in Tehama County, communities
are entrenched fighting the spread of off-reservation casinos. Within
our own tribal community, the Paskenta Band also feels the impact when
tribes led by investors search for land to claim for the purposes of
gaming.
The Greenville Maidu Indians of Plumas County, California, after
failed attempts to go into Oxnard, Ventura County and the Bay area,
have repeatedly attempted to claim land in Tehama County where they
have no historic aboriginal territory. The Greenville Tribe has
approached the Tehama County Board of Supervisors and was rejected
twice by a 4-1 vote; has now submitted a new proposal. No consideration
is being given to the fact that the proposed site is well within the
ancestral territory of the Paskenta Band of Nomlaki Indians.
The Greenville Maidu proposal presents a disturbing and exploitive
picture of Tribal Governments throughout this great nation. The
Greenville Rancheria issue was settled in the Hardwick case. The
stipulation and judgment in that matter provides that the exterior
boundaries of the plaintiff tribes' individual reservations
(rancherias) would be restored to pre-termination status. Therefore,
the Greenville Rancheria's ``275 acres, is located approximately three
miles east of Greenville, Plumas County, California.''
This indicates clearly that the United States and Greenville
Rancheria recognize that the Greenville Maidu's proper land request
should be limited to Plumas County, California, not Tehama County,
California. However, the developer, the Wilmots of New York, have
purchased property in Tehama County along Interstate 5. Therefore, the
Wilmots want to relocate the Greenville Maidu to this new location.
Such relocation will satisfy this out-of-state investor's appetite for
profit. No consideration is being given to the Maidu's true ancestral
territory or the land recognition indicated in the Hardwick case.
Again, the focus is on the needs of the investor, not the Tribe or
surrounding community.
Legal Counsel for the Greenville Tribe, Judith Albietz, when asked
why the Tribe does not have land in Greenville and if a site-search was
conducted and how this location was chosen emphasized, ``the developer
approached the Tribe with this project.'' That is taken from the
Minutes of the Meeting of the Board of Supervisors of the County of
Tehama, Tuesday, May 18, 2004. In addition, Ms. Albietz went so far as
to say, ``the developer of the project, the Wilmots, will be a good
partner with Tehama County...the facility will be run by the Wilmots.''
Notice she referred to the New York developer and not the Greenville
Maidu Indians.
Members of the Committee, should an investor have the right to
place a casino in your community, in your congressional districts, by
convincing Tribes to make a faulty land claim? I can assure you; an
investor's first priority is not that a Tribe returns to their
ancestral lands. Over the years, I have witnessed many Tribes fall
victim to empty promises made by investors--hopes shattered and
communities overwhelmed. Rather than ``reservation shopping,'' I have
found ``tribe shopping'' is probably the more appropriate term. It
seems that investors, such as the Wilmots from New York, purchase land
and then throw a tribe at it and see if they stick. Federal law must be
updated through this legislation to prevent these situations such as
the one we face in Tehama County.
Mr. Chairman, the Paskenta Band of Nomlaki Indians of California is
not afraid of competition. We only have the best hopes for our sister
Tribes who are less fortunate as they seek economic prosperity. But
that prosperity should not be at the expense of other Tribes or
communities. Out-of-state investors should not be permitted to hijack
the process.
The Greenville Tribe has testified before this committee and spoken
candidly about its opposition to efforts led by Chairman Pombo and
others to reform and update off-reservation gaming law. The Greenville
Maidu Chairwoman, Lorie Jaimes, testified before this committee in
Washington, D.C. on March 17, 2005, proclaiming that, ``it is our
belief that IGRA does not need to be amended with regard to off-
reservation gaming because there is no genuine problem or crisis in
this area...those who most loudly call for amendment do so because they
do not understand the process.'' Mr. Chairman, members of the
committee, there is clearly a problem and this legislation is working
toward a solution--offered by people who understand the process.
Thank you for the opportunity to testify. I ask that my statement
be entered into the record and I am happy to answer any questions you
may have.
______
The Chairman. Chairman Mitchum, please.
STATEMENT OF WAYNE R. MITCHUM, CHAIRMAN,
CACHIL DEHE BAND OF WINTON INDIANS, COLUSA
Mr. Mitchum. I want to thank you, Congressman Pombo, for
inviting me today to give testimony on this discussion draft
amending the Indian Gaming Regulatory Act to restrict off-
reservation gaming.
The Colusa Indian community, along with most tribes across
the Nation, is very concerned about any effort to open the
Indian Gaming Regulatory Act, no matter how noble the purpose.
To do so even in a controlled environment puts at risk the
sovereign rights of tribes across the United States.
The Indian Gaming Regulatory Act, IGRA, established a
prohibition against gaming on lands acquired in trust after
October 17, 1988. The procedures required in IGRA have worked
successfully for 17 years.
During this time, only three tribes have successfully taken
land into trust for gaming purposes off-reservation.
Unfortunately, when a tribe has circumvented the process
defined in IGRA, it reflects negatively on all tribes. The
matter is further complicated by developers who purposely seek
lands in urban areas with the hopes of capitalizing on a
tribe's ability to acquire off-reservation lands for gaming
purposes.
This practice, commonly referred to as ``reservation
shopping,'' is often promoted and financed by opportunistic
non-Indian developers who seek percentages of revenue from the
resulting off-reservation casinos.
This effort creates a media frenzy of speculation that
tribes are out of control in seeking lands for gaming purposes.
This is not the case.
Attempts by tribes to conduct gaming on lands outside of
their ancestral territory for the sole purpose of gaming,
jeopardizes long-standing claims by tribes seeking to restore
lands unjustly taken by past Federal policies.
It has also caused significant tensions between tribal
governments and created a backlash against Indian gaming by
citizen groups and leaders in the U.S. Congress.
In exchange for casino deals, tribes seeking off-
reservation lands have been willing to just cede important
sovereign rights to State and local governments and have
entered into exorbitant revenue sharing agreements.
The sovereignty loss and revenue sharing agreements by
these tribes become new baselines for other tribes when they
seek to obtain or renew Tribal/State gaming compacts or compact
amendments, therefore jeopardizing the sovereignty of tribes
engaged in on-reservation gaming and following the IGRA
process.
Along with other tribal leaders, I have serious concern
about the possible negative impacts of reservation shopping on
the long-term viability of Tribal government on-reservation
gaming. However, I do not believe opening IGRA is the best
answer.
Tribal government gaming has been the only vehicle that has
brought successful economic opportunity for my nation. While
some tribes have limited themselves to gaming, many others have
used the funds derived from gaming to rebuild their
infrastructures, to provide dialysis and medical facilities on
their reservations, to invest in quality child care for their
members and their employees, to expand into other forms of
economic opportunity such as manufacturing facilities.
Tribal government gaming has brought our members out of
poverty and restored pride in their ancestry and culture. We
will have a long way to go to bring people to the levels of the
financial security enjoyed by the rest of the Nation, but we
are well on our way.
Unfortunately, there are many citizen groups, as well as
members of the State and Federal Legislature, who would like to
see us fail. They oppose the success we have been able to reap
through tribal government gaming and do not understand the
restraints that IGRA imposes as to how our gaming revenues must
be spent.
Congressman, I have a few more lines, but I know I'm
running out of time.
The Chairman. Go ahead.
Mr. Mitchum. Rather than expose Indian Country to further
erosion of sovereign rights, which will surely happen if IGRA
is opened for modification, I urge Congress to work directly
with the Secretary of the Interior to require an ancestral tie
to lands in making two-part determinations under Section
20(b)(1) of the Indian Gaming Regulatory Act for proposed land
acquisitions.
The Colusa Indian community further urges Congress to
require the Secretary of the Interior to consult with other
tribes whose ancestral lands are sought for acquisition and
require the concurrence of those tribes before such lands are
eligible for gaming.
Last, I encourage Congress not to approve any special
legislation that would permit gaming on lands outside of the
tribe's ancestral territory.
Again, I thank you for this opportunity. I am available to
answer any questions.
The Chairman. Thank you.
[The prepared statement of Mr. Mitchum follows:]
Statement of Wayne R. Mitchum, Chairman,
Colusa Indian Community Council
I wish to thank you, Congressman Pombo, for inviting me to give
testimony on your Draft Discussion Document to amend the Indian Gaming
Regulatory Act To Restrict Off-Reservation Gaming.
The Colusa Indian Community, along with most tribes across our
Nation, is very concerned about any effort to open the Indian Gaming
Regulatory Act, no matter how noble the purpose. To do so--even in a
controlled environment--puts at risk the sovereign rights of tribes
across the United States.
The Indian Gaming Regulatory Act (IGRA) established a prohibition
against gaming on lands acquired in trust after October 17, 1988, with
certain exceptions:
1. Where lands are located within or contiguous to a Tribe's
reservation;
2. Within the last recognized reservation of a landless tribe;
3. Oklahoma specific provisions;
4. Lands taken into trust as part of a settlement of land claims;
5. Lands that constitute the initial or restored reservations of
Tribes acknowledged through the federal acknowledgment process or
restored to federal recognition; and
6. The so-called ``two part determination'' process in which the
Secretary of the Interior considers the best interests of the tribe and
its members and the impact on the surrounding community, and the
Governor of the State in which the gaming activity is to be conducted
must concur with the Secretary's determination.
The procedures required in IGRA have worked successfully the last
17 years. During this time only three tribes have successfully taken
land into trust for gaming purposes off reservation.
Unfortunately, when a tribe has circumvented the process defined in
IGRA, it reflects negatively on all tribes.
The matter is further complicated by Developers who purposely seek
lands in urban areas with the hope of capitalizing on a tribe's ability
to acquire off reservation lands for gaming purposes. This practice,
commonly referred to as ``reservation shopping'', is often promoted and
financed by opportunistic non-Indian developers who seek a percentage
of revenue from the resulting off-reservation casino. Their efforts
have created a media frenzy of speculation that tribes are out of
control in seeking lands for gaming purposes. This is not the case.
Attempts by Tribes to conduct gaming on lands outside of their
ancestral territory for the sole purpose of gaming jeopardizes
longstanding claims by Tribes seeking to restore lands unjustly taken
by past federal policies. It has also caused significant tensions
between tribal governments and created a backlash against Indian gaming
by citizen groups and leaders in the United States Congress.
In exchange for casino deals, Tribes seeking off-reservation lands
have been willing to cede important sovereign rights to State and local
governments, and have entered into exorbitant revenue sharing
agreements.
The sovereignty loss and revenue sharing agreed to by these Tribes
becomes the new baseline for other Tribes when they seek to obtain or
renew tribal-state gaming compacts or compact amendments, thereby
jeopardizing the sovereignty of Tribes engaged in on-reservation gaming
and following the IGRA process.
Along with other tribal leaders, I have serious concerns about the
possible negative impacts of reservation shopping on the long-term
viability of tribal government on-reservation gaming. However, I do not
believe opening IGRA is the best answer.
Tribal government gaming has been the only vehicle that has brought
successful economic opportunity for tribal nations. While some tribes
have limited themselves to gaming, many others have used the funds
derived from gaming to rebuild their infrastructures, to provide
dialysis and medical facilities on their reservations, to invest in
quality child care for their members and their employees, and to expand
into other forms of economic opportunity such as manufacturing
facilities.
Tribal government gaming has brought our members out of poverty and
restored pride in their ancestry and culture. We still have a long way
to go to bring our people to the levels of the financial security
enjoyed by the rest of the Nation, but we are well on our way.
Unfortunately, there are many citizen groups as well as members of
the State and Federal Legislature who would like to see us fail. They
oppose the success we have been able to reap through tribal government
gaming and do not understand the restraints that IGRA imposes as to how
our gaming revenue must be spent.
Rather than expose Indian Country to further erosion of sovereign
rights--which will surely happen if IGRA is opened for modification--I
urge Congress to work directly with the Secretary of the Interior to
require an ancestral tie to land in making two-part determinations
under Section 20(b)(1) of the Indian Gaming Regulatory Act for proposed
land acquisitions.
The Colusa Indian Community further urges Congress to require the
Secretary of the Interior to consult with other tribes whose ancestral
lands are sought for acquisition, and require the concurrence of those
tribes before such lands are eligible for gaming.
Lastly, I urge Congress not to approve any special legislation that
would permit gaming on lands outside of a tribe's ancestral territory.
Again, I thank you for this opportunity to share the views of the
Colusa Indian Community. I am available to answer any questions.
______
The Chairman. I thank both of you for your testimony.
I'm going to begin with questions for Ms. Lohse. Just to
begin with, can you describe the history of your tribe and its
experience with Indian gaming.
Ms. Lohse. With regard to Indian gaming in California, we
were approached by many investors when they first found out
that we had gained our recognition. They wanted to take it down
to the Bay Area, all over the place.
We said, ``No. We know where we're from. We're from Tehama
County and we came with nothing and we'll leave with nothing
before we go and put ourselves somewhere else because we
identify ourselves with where we are.''
Eventually, investors did come and try to relocate us. They
would offer us 25 acres, 10 acres, because that's all you need
to put a casino on. Again, we said, ``No. We're looking toward
the future and building a future for our tribe.''
We finally found an investor that would invest in some
acreage because we saw this gaming as a tool to spin off other
things, to make ourselves economically sound. Yet even that
investor wanted to be a Management Group. We said again, ``No.
We will not have a management group take care of us. We can
take care of ourselves.''
We can be the bank and enjoy some of the revenues from
here, but we will run it because we honestly believe just
exactly what Reagan had in mind when he passed IGRA, was the
fact that this would put the future of the tribes in their own
hands and we would gain opportunities if it works.
We said, ``No, we're going to make it work.'' So, we turned
down the management contract and they did do a consultant
contract. Since then, we bought out the investor within two
years because we were running it.
It's not behooving the investor necessarily to work
themselves out of the contract. They want to stay there for the
full seven years. But we said, ``No, we want to take control of
that.''
Instead, we've been able to do other things economically,
build hotels, all these kind of things, and we have turned into
the bank for some of the investors who come and we leased our
property to them.
So gaming, it has been a great tool. That's why we said
before if it's applied properly, IGRA does work. Unfortunately,
we have had too many lawyer lobbyists that are out there trying
to lead the tribes around and circumvent the process. That's
been our experience.
The Chairman. I understand, and I have had the opportunity
to talk to you before. I understand from your testimony your
concerns with other tribes moving in and taking--trying to
establish a facility on land that you don't believe is
historically theirs.
In the draft legislation, one of the concepts that we put
in dealt with what we have referred to as an ``Economic
Opportunity Zone, Indian Economic Opportunity Zone.'' How do
you feel--and I know you're familiar with the legislation--how
do you feel about that concept of being able to establish areas
that would be specifically for gaming like that?
Ms. Lohse. I'm not real clear about how that would work. I
know that the concept itself sounds good because it would
centralize and be able to have tribes basically buy into an
area, but I'm not sure how that works.
I think some of the questions that came up were, ``OK, if
this is going to be an Indian Economic Zone, I think if it's a
fee land type of setting or a more lucrative setting, who has
control of that land?
How are--what jurisdiction does that land fall under? What
are all of the rights that go with having that land? Who does
that go to? How is that protected and how is it monitored?''
Those are probably some of the concerns.
I think conceptually it's a good idea because then
communities know where it's going, where the tribe is going and
they wouldn't have so many fears as when they tribe gets re-
recognized, ``Oh, gosh, here comes another casino.'' Those are
some of the questions that I have heard and kind of pondered
myself.
The Chairman. I think there are two different ones as
you're aware. One is dealing with land that is already trust
land that a tribe already has. The other concept was to take
land that is not currently trust land and that would be taken
into trust and it would be done under the names of the tribes
that would be going in there and it would maintain the
sovereignty just as it was on current reservation land.
That would be a way of, I think, consolidating some of this
so that we don't end up with so many different proposals in
different places. As you testified to, it seems like there are
so many different proposals for where we go it makes it
difficult.
Chairman Mitchum, I wanted to ask you about that concept
with the Indian Economic Opportunity Zones and get your
feedback on that and how you feel about that.
Mr. Mitchum. I think it's basically the same. The concerns
that I would have, as far as mineral rights, where would that
go? As far as--I know what we have in Colusa.
If the tribes were to go to one specific place, what would
happen with those? When we purchase properties as far as my
reservation goes, we make absolutely sure that we have all
those mineral rights and everything.
I think as far as with having a group designated for a
spot, that would be my only concern.
The Chairman. In your testimony, you talk about a concern
for opening up IGRA and what some of the impacts would be or
what some of the possible amendments would be.
I'm not sure if you're aware or not, this year as the House
Interior Appropriations bill was working its way through the
House, there was an attempt made to put a moratorium on any new
Indian gaming at all anywhere in the country.
We were able to stop that from going forward because of
this draft legislation, because of my commitment to moving
forward and under regular order and having a Committee of
jurisdiction actually take control of this issue. But that
attempt was made and it is something that is out there. That's
not opening up IGRA to amendments; that's throwing it out the
door.
That is what we're faced with in the House right now and
the sense is that there is a very real concern and a very real
effort to move forward and just completely throw it away and
not just look at it and look at what any possible updates would
be, or any new amendments would be to it, but basically put a
moratorium on moving forward with anything on IGRA.
I think that's a much more real threat to the issues that
you have raised in your testimony than moving in forward on a
regular order with legislation like this.
My time has expired and I recognize Mr. Gohmert for any
questions he may have and welcome Mr. Costa to the hearing.
Mr. Gohmert. Thank you. I appreciate the opportunity and
appreciate your testimony. There's no reason to be nervous. I
don't wear a robe anymore like I used to, I don't see a bailiff
with a gun and handcuffs and I can't send anybody here to
prison. I want to learn.
Ms. Lohse, you had mentioned the purpose originally was to
bring Indians, Native Americans, out of abject poverty and I
appreciate and understand your concern about outside interests
being the ones that profit and whether or not they are behind
some of the movements in this area of gaming. I don't know, I'm
still learning.
Because you mentioned it, I am curious. On the gaming on
ancestral lands, you had mentioned buying out previous
investors. Overall, do you have any information, any raw data
as to how individuals have benefited? I know as a Judge when I
was sentencing people, I had the impression that some of our
Federal programs had basically instead of encouraging people to
develop their God-given talents and their--you and I know there
is so much potential in Indians, Native Americans, that is
often untapped.
Do you have data that would indicate how individual Indians
have benefited and not just been enslaved to a method of
getting cheap money?
Ms. Lohse. I'm glad you brought that up.
We put together our housing program. It's not Federal
dollars but we adhered to the Federal system in the fact of all
the requirements that you have, the requirements that you have
to put forward so that we make sure that they have some
ownership and responsibility.
Many times they think, ``I'm Indian, I can have this.''
That's not true. We have to understand there is a process. We
are in government and they need to come forward and put forth
their information and their application process.
Since we have just initiated this because we have just paid
off the investor, now we are making more and rather than paying
him, we were able to put aside $1 million toward our housing
which assists with down payments, the first home owner's down
payment of $10,000, but they have to show, you know, go through
the process.
They have to get qualified for a loan, so they're not going
out there because we don't want to put them into a losing
situation where they cannot sustain their home and have to have
it repossessed or fail on their mortgage payments.
That has brought about some accountability on the tribal
members, not just a program, but that they have to buy in, they
have a responsibility of meeting those monthly payments, those
kinds of things. Our children, we now are requiring them--they
don't get a per capita check while they are going to school.
Once they get out of school, they have to have a high
school diploma or a GED or they wait until they are 21 before
they get this amount of money because we want them to know the
encouragement is to go to school. Then we make sure that they
are in school when we help them to go further with their
education.
So, it's about accountability. As far as numbers, since
January, we have six new homeowners since initiating this
program. For many of the tribal people, they don't think that
they can do this because they are so used to someone doing it
for them.
We put the onus back on them to take responsibility and
it's actually been very uplifting to see many of them now come
and say, ``Wow, this is really cool because now I'm no longer
on welfare.'' We have taken poor people off welfare assistance.
At first, it was very scary for them because they were saying,
``Well, gosh, I'm going to responsible.''
Mr. Gohmert. How are they making a living?
Ms. Lohse. Now they're getting jobs within the community.
They work in our casino, on other parts of our hotels, that
kind of thing. Now they see that they can be a contributor.
They are no longer thinking, ``I'm just a taker,'' or ``I
can't.''
So, yes, the casino has offered jobs, the hotels and other
economic developments that are in their own community. They now
have the feeling like, ``Wow, I'm worth something.'' They can
meet their bills on a timely manner. Now they feel more
encouraged to go out and find work.
Mr. Gohmert. The benefits, the financial benefits, from
gaming goes to the member government or does it go passed down
to checks to individual members? I just wasn't sure of the
structure, if they were considered to be the actual investors--
--
Ms. Lohse. Yes, they are.
Mr. Gohmert.--and receiving like rolling checks or
something like that or if it just goes directly to the tribal--
--
Ms. Lohse. You have to put together a revenue sharing
allocation plan that gets approved by the Federal Government.
So much percentage goes toward education, toward housing,
toward general welfare issues.
Then, of course, there are some that you may be able to per
cap out. I know a lot of people per capita means that you--some
actually cringe at that and I know that there are many that
say, ``How is that right?''
Gaming revenue is tax dollars. Those are tax dollars and
yet President Bush's tax plan was to put money back into the
consumer's pocket to grow the economy. So any little amount
that goes back into our individual Member's pocket grows the
economy because now they are homeowners and----
Mr. Gohmert. Thank you. My time has expired but I do really
appreciate your responses.
The Chairman. Now I would like to recognize a new Member of
the Committee, Congressman Costa, for any questions he may
have.
Mr. Costa. Thank you very much, Mr. Chairman, for holding
this hearing. I think it's fitting and appropriate given the
nature of not only gaming in California, Indian gaming, but
also the impacts that you and I have discussed across the
country. So, we appreciate your bringing the Committee here for
that purpose as you work on the legislation that you have
already discussed.
I was looking at the Governor's proclamation as it relates
to his view of what our State policy is toward Indian gaming in
California. If my memory serves me correct, we have about 107
recognized sovereign nations here in California, give or plus
one are two I think, and others that are pending to seek
sovereign status or recognition and that list is longer, not
longer, but it's a significant list.
As I read, there have been 57 tribes that have successfully
negotiated compacts and another 7 plus the 1.
I guess my question to the two witnesses here is, the
Tribal Treasurer Leslie Lohse, is yours one of the ones of the
seven that have negotiated a compact?
Ms. Lohse. No.
Mr. Costa. You haven't?
Ms. Lohse. We were one of the 57 in the 1999 compact.
Mr. Costa. So you were previously already included, all
right.
Mr. Mitchum. We're in the same situation.
Mr. Costa. Then you have a sense, it seems to me, based on
the fact that you have a successful compact that you
negotiated.
My question to both of you is very simple: What do you
believe the State's policy is toward the recognized sovereign
nations in California that are not part of the 64 that
currently have negotiated successful compacts?
Who wants to respond first?
Ms. Lohse. I'm not sure what you're trying to ask, but----
Mr. Costa. Ostensibly, if we have 64 successfully signed
compacts, if you do the math and subtract 107 from 64 or 64
from--I believe you get the balance that conceivably could have
compacts in future.
I would like to understand what your view is in terms of
the policy for those recognized sovereign nations that today do
not have compacts.
Ms. Lohse. Obviously, that's kind of what we're talking
about here today. IGRA obviously takes precedence over whether
the land is eligible for gaming.
Then once that becomes eligible, then obviously the State
is mandated by certain stipulations adhered to, to negotiate a
compact with that tribe if they still choose to stay on the
reservation and game.
The other side of it is if they go off-reservation, then
that becomes the Governor's concurrence and the other things
that are applied to it.
Mr. Costa. What's your position for those who seek--the
balance that do not currently have compacts and go off-
reservation.
Ms. Lohse. Go off reservation? I am not for that because
the fact is that if they were to--like I said, this was meant
to be a tool to be used if usable. IGRA and gaming was not to
be the panacea for all tribes but it was to be used
responsibly.
Mr. Costa. I have spent a little time in the Legislature so
I'm familiar with that.
Chairman Mitchum, do you care to respond?
Mr. Mitchum. I can't add too much more other than that what
Ms. Lohse said. I basically feel the same way. I think if the
Governor wants to look at tribes, he has to look at them
individually. There are numerous times that we have had talks
and invited these folks out to see exactly what we're doing.
Mr. Costa. Are either of you satisfied with the State's
policy toward Indian gaming today?
Ms. Lohse. He just currently came up with the
proclamation----
Mr. Costa. No, I know that----
Ms. Lohse. Up until then, who knew what the policy was so I
think----
Mr. Costa. I didn't know. I'm not sure we actually had a
policy based upon my previous experience over the years.
Ms. Lohse. I think there has been great concern. You can
ask anyone in this room. The tribal leaders would like to speak
with the Governor to help them understand what policy he is
establishing.
Mr. Costa. Let me just close with another question. My time
is almost up. I am a supporter of Indian gaming. I have one
facility in my district, one nearby and three adjacent. My
mother wouldn't let me have it any other way. It's one of her
areas of entertainment.
But I am concerned. I want every one of the subsequent
witnesses to understand that I am concerned about what I
believe is a lack of State policy that has existed on this
issue for many in areas and what pertains to those tribes that
are sovereign nations but have not successfully concluded
compacts.
Ms. Lohse. We have the same criticisms. That's one of our
concerns here, that Chairman Pombo's legislation is addressing
the fact that many maneuvers and deals that are cut off do
impact all of us here in the State, and once again that states
firmly that as tribes we don't get to become an LLC, or
whatever, somewhere else.
We remain here, so it definitely impacts us what Indian
policy, whether it's gaming or any other issue, is here in
California. We would like to sit down with the Governor and
discuss it.
Mr. Costa. Thank you very much.
The Chairman. Mr. Costa has taken particular interest in
this issue and has discussed with me in the past the desire to
have the states have a clearer impact and a clearer policy when
it comes to Indian gaming.
I think that's one of the concerns that I have and the
Committee has and one of the reasons why this legislation was
put out to begin with.
Chairman Mitchum mentioned a concern about the loss of
sovereignty under the possibly of amendments. I think that's a
very real concern and it's something that I think we need to
address in anything that we move forward on.
Just as a follow-up to Mr. Costa's questions, do you feel
that some of the compacts--and I know you're not familiar with
all of the compacts that are being signed all over the country;
that's something that the Committee does get involved with--but
are you concerned about some of the compacts that are being
signed and the potential for loss of sovereignty under those
compacts?
Mr. Mitchum. I think there has been some sovereignty lost
or--what I'm afraid of is if they become competitors and those
agreements enforce the rest of these nations to abide by it.
My parents and my grandparents fought and died for what we
have today and I am not going to allow that to happen to them
if I can help it.
The Chairman. I have one concern when it comes to the
amount of money and the percentages and how that escalates.
Every new compact that is signed becomes a benchmark for the
next one that comes along.
The purpose of Indian gaming was to build the economy of
the reservations and to try to eliminate poverty and eliminate
joblessness. That was the purpose of it and if it's seen as a
source of revenue for the State or local governments it
completely changes the purpose.
I think I have a greater concern for some of the other
provisions that are being included in some of those compacts
and what long-term impact that has when it comes to
sovereignty.
One of the reasons why we got into this to begin with was
because of some of the provisions that were being put in. The
tribe, as Ms. Lohse talks about, ends up with an outside
investor who is looking for a tribe that will do something and
become--who have different motivations than the tribe does and
different things they want to protect than the tribe does.
Sometimes they are willing to accept things that they
probably shouldn't for short-term economic gain and it's not
worth giving up that sovereignty. That's one of the reasons why
we got into this to begin with.
Do the Members have any further questions of this panel?
The Chairman. I am going to dismiss this panel. Thank you
very much. If there are any further questions of you they will
be submitted to you in writing and you can answer those in
writing.
I will hold the Committee record open long enough to give
you an opportunity to respond in writing and it will be entered
into the record. Thank you very much.
I'm going to call the second panel, Supervisor Mike McGowan
from Yolo County; Supervisor Valerie Brown from Sonoma County;
Pat O'Brien from East Bay Regional Parks District; and Cheryl
Schmit, Director of Stand Up for California.
[Witnesses sworn.]
The Chairman. Let the record reflect all answered in the
affirmative. Welcome to the hearing. As I previously stated,
your oral testimony is limited to five minutes. Your entire
written statements will be included in the record.
The Chairman. Supervisor McGowan, we will begin with you.
STATEMENT OF MIKE McGOWAN, SUPERVISOR,
YOLO COUNTY, INDIAN GAMING WORKING GROUP
Mr. McGowan. Thank you very much. On behalf of the
California State Association of Counties, I would like to thank
Chairman Pombo and the other Members of Congress who are good
enough to stop and hear our testimony as you consider important
legislation. My name is Mike McGowan, Member of the Yolo County
Board of Supervisors and Chairman of the CSAC Indian Gaming
Working Group.
CSAC is a single, unified voice speaking on behalf of all
58 California counties. That voice is essential because there
really are only two kinds of California counties today, those
which are presently impacted by Indian gaming and those that
will be in the future.
We would contend that the issue of off-reservation gaming
raised in this hearing today has direct and unique bearing on
counties, potentially more so than any other jurisdiction of
local government. For this reason, CSAC has been very actively
involved in Indian gaming issues.
As you may recall, Supervisor Richard Forster of Amador
County testified on our behalf at your hearing in April in
Washington, D.C. We have also submitted written testimony on
your draft bill at that time. There are a couple of key points
that I will be making today that I think are important about
this Indian gaming issue in California.
First, regardless of the location of an Indian casino, the
California county will be confronted with significant impacts
from that casino's operations. Those impacts include increased
demands on social services, the criminal justice system, law
enforcement and fire protection, as well as impacts to
environmental resources such as air and water.
Counties are mandated by State law here in California to
meet these impacts whether they are caused as a result of a
casino within a city's borders, in an urbanized area or in a
rural area. Counties should therefore be included in all
decisions related to the construction and operation of tribal
casinos within their boundaries, including those within their
cities.
My second point is that CSAC can be a valuable resource to
those seeking more information about how to effectively address
the impacts of Indian gaming on local communities.
Over the past several years, CSAC has devoted considerable
staff time and financial resources to analyzing the impacts on
county services resulting from Indian gaming. Because of this,
CSAC has gained extensive knowledge that has proven helpful to
Tribal governments, other local governments and the State
government as well.
CSAC has also worked closely with two California Governors
to improve government-to-government relationships between
counties and tribes which benefit the State, those tribes and
county governments and the citizens.
The benefits to the State and county governments include
the establishment of judicially enforced negotiated agreements
for addressing the impacts from Indian casinos. Tribes are
benefited because they are now viewed as part of the solution
instead of part of the problem.
We believe that the current Tribal/State compacts which
require negotiation between tribes and counties prior to the
construction or expansion of casinos fills a large gap in the
Indian Gaming Regulatory Act, one that failed to address local
impacts of Tribal gaming.
It's no secret that Tribal gaming has rapidly expanded in
California in recent years. In fact, a survey last year
revealed that 35 counties out of the 58 in California have
active or proposed gaming operations within their borders, and
of those proposed, more than 30 are for off-reservation casino
sites, and as this Committee is aware, the pending off-
reservation proposals relate to projects on land far from a
tribe's ancestral territory.
If these proposals are approved, the effect would be to
bring Indian gaming to each and every one of California's 58
counties, with several counties juggling the effects of more
than one casino.
The impacts to counties, just in financial terms, on
traffic, water resources, wastewater treatment, the
environment, the criminal justice system and on would be in the
hundreds of millions of dollars. Without a requirement for
negotiated and enforceable agreements between counties and
tribes, counties would not be able to mitigate all of those
impacts. The result would be a significant reduction in the
quality of life for all California residents.
We recognize, the counties recognize, that tribal casinos
are not simply another profit-seeking development and fully
respect and support the desire of Tribal governments to
properly provide for their tribal members.
In this regard, California counties accept that one purpose
of IGRA is to provide Tribal governments with economic self-
sufficiency. For that reason, we do not oppose Indian gaming,
yet it has become increasingly apparent to CSAC that a delicate
balance is required to ensure that all forms of government,
whether they are tribal, municipal, county, State or Federal
and the people that they represent, are treated equitably in
addressing the impacts of Indian gaming.
Because we in California have several positive examples of
counties and tribes working together for the betterment of
their respective communities, CSAC is very supportive of
Chairman Pombo's efforts to give local governments,
particularly counties, an effective voice in addressing the
increasing practice of reservation shopping.
Reservation shopping is causing disruption and concern in
counties throughout California because it is often geared at
increasing profits to non-Indian promoters with little or no
consideration given to a tribe's heritage or historic lands or
to the impacts of a casino on local communities.
We support the Chairman's draft legislation in its
prohibition of tribes crossing state lines to build gaming
facilities in states where those tribes do not have any trust
land. We also support amendments to IGRA that would expand the
two-part determination to specifically include counties and
other local jurisdictions.
To the degree that some have interpreted CSAC's previously
submitted testimony regarding the two-part determination as
support for the elimination of that two-part determination,
that is not the case at all. To the contrary, CSAC remains
fully committed to the two-part determination in IGRA but
believes that it should be modified so that counties and other
affected local governments must also approve all land
acquisitions taken in trust by the Federal Government for a
tribe even when those acquisitions are considered as restored
lands.
I would close by thanking the Chairman again for allowing
us to speak today and for having the insight to begin the
analysis of IGRA making certain it accomplishes the purposes of
providing the income and well-being of the tribes but without
jeopardizing the health, safety and general welfare of all
members of our community.
We especially appreciate the Chairman's bill with its
necessary and appropriate revisions which will allow the
counties a significant voice in matters that create impacts
that counties are ultimately called upon by their communities
to address. This voice is critical if California Counties are
to protect the health and safety of their citizens.
Thank you all very much for taking your time and for giving
us this opportunity to address you today. We look forward to
working with you in this and other matters to improve this bill
and move forward with this issue.
The Chairman. Thank you.
[The prepared statement of Mr. McGowan follows:]
Statement of Supervisor Mike McGowan, Yolo County Chairman,
Indian Gaming Working Group, California State Association of Counties
On behalf of the California State Association of Counties (CSAC) I
would like to thank Chairman Pombo, Ranking Member Rahall, and the
other distinguished members of the Committee of Resources for giving us
this opportunity to submit testimony as part of the hearing to consider
Chairman Pombo's proposed legislation to restrict off-Reservation
gaming. I am Mike McGowan, a member of the Yolo County Board of
Supervisors, and Chairman of the CSAC Indian Gaming Working Group.
CSAC is the single, unified voice speaking on behalf of all 58
California counties. The issue raised in this hearing has direct and
unique bearing on counties, more so than any other jurisdiction of
local government.
There are two key reasons this issue is of heightened importance
for California counties. First, counties are legally responsible to
provide a broad scope of vital services for all members of their
communities. Second, throughout the State of California and the nation,
tribal gaming has rapidly expanded, creating a myriad of economic,
social, environmental, health, safety, and other impacts. The facts
clearly show that the mitigation and costs of such impacts increasingly
fall upon county government.
For the past three years, CSAC has devoted considerable staff time
and financial resources to the impacts on county services resulting
from Indian gaming. We believe that California counties and CSAC have
developed an expertise in this area that may be of benefit to this
Committee as it considers amendments to the Indian Gaming Regulatory
Act.
Introduction:
At the outset, the California State Association of Counties (CSAC)
reaffirms its absolute respect for the authority granted to federally
recognized tribes. CSAC also reaffirms its support for the right of
Indian tribes to self-governance and its recognition of the need for
tribes to preserve their tribal heritage and to pursue economic self-
reliance.
However, CSAC maintains that existing laws fail to address the off-
reservation impacts of tribal land development, particularly in those
instances when local land use and health and safety regulations are not
being fully observed by tribes in their commercial endeavors. As we all
know, these reservation commercial endeavors attract large volumes of
visitors.
Every Californian, including all tribal members, depend upon county
government for a broad range of critical services, from public safety
and transportation, to waste management and disaster relief.
California counties are responsible for nearly 700 programs,
including the following:
sheriff
public health
fire protection
family support
alcohol & drug abuse rehabilitation
elections & voter services
jails
roads & bridges
flood control
welfare
indigent health
probation
child & adult protective services
Most of these services are provided to residents both outside and
inside city limits. Unlike the exercise of land use control, such
programs as public health, welfare, and jail services are provided (and
often mandated) regardless of whether a recipient resides within a city
or in the unincorporated area of the county. These vital public
services are delivered to California residents through their 58
counties. It is no exaggeration to say that county government is
essential to the quality of life for over 35 million Californians. No
other form of local government so directly impacts the daily lives of
all citizens. In addition, because county government has very little
authority to independently raise taxes and increase revenues, the
ability to adequately mitigate reservation commercial endeavors is
critical, or all county services can be put at risk.
CSAC fully recognizes the counties' legal responsibility to
properly provide for and protect the health, safety, and general
welfare of the members of their communities. California counties'
efforts in this regard have been significantly impacted by the
expansion of Indian gaming.
Certainly compounding this problem is the fact that the expansion
in gaming has led some tribes and their business partners to engage in
a practice that is sometimes referred to as ``reservation shopping'' in
an attempt to acquire land not historically tied to these tribes but
which has considerable economic potential as a site for an Indian
casino. CSAC opposes ``reservation shopping'' as counter to the
purposes of the Indian Gaming Regulatory Act (IGRA). ``Reservation
shopping'' is an affront to those tribes who have worked responsibly
with counties and local governments on a government-to-government basis
in compliance with the spirit and intent of the IGRA as a means of
achieving economic self-reliance and preserving their tribal heritage.
CSAC commends Chairman Pombo and the other Members of the House
Resources Committee for seeking to curb the increasing practice of
``reservation shopping.'' This written testimony is in support of your
efforts to craft amendments to the IGRA that preserve the original goal
of the IGRA while minimizing the impacts of ``reservation shopping'' on
local communities. CSAC offers its assistance to Chairman Pombo and the
House Resources Committee in any manner determined necessary by the
Chairman and the Committee in its ongoing consideration of amendments
to the IGRA that balance the interests of gaming tribes with local
communities and governments.
Background:
A. The Advent of Indian Gaming
Even before the enactment of the IGRA in 1988, California counties
were experiencing impacts in rural areas from Indian gaming
establishments. These early establishments were places where Indian
bingo was the primary commercial enterprise in support of tribal
economic self-reliance. The impacts on local communities were not
significant in large part because the facilities where Indian bingo was
played were modest in size and did not attract large numbers of
patrons. Following enactment of the IGRA, the impacts to counties from
Indian gaming establishments increased with the advent of larger gaming
facilities. Even so, the impacts to local communities from these larger
gaming facilities were generally manageable except in certain
instances.
Over the last five years, the rapid expansion of Indian gaming in
California has had profound impacts beyond the boundaries of tribal
lands. Since 1999 and the signing of Compacts with approximately 69
tribes and the passage of Propositions 5 and 1A (legalizing Indian
gaming in California), the vast majority of California's counties
either have a casino, a tribe petitioning for federal recognition, or
is the target or focus of a proposed casino plan. As the Committee is
aware, many pending casino proposals relate to projects on land far
from a tribe's ancestral territory.
A 2004 CSAC survey reveals that 53 active gaming operations exist
in 26 of California's 58 counties. Another 33 gaming operations are
being proposed. As a result, 35 counties out of 58 in California have
active or proposed gaming. Most important, of those 35 counties
impacted by Indian gaming, there are 82 tribes in those counties but
only 20 local agreements for mitigation of the off-reservation impacts
on services that counties are required to provide.
B. Development of CSAC 2003 Policy
In 1999, California Governor Gray Davis and approximately 65 tribes
entered into Tribal-State Compacts, which permitted each of these
tribes to engage in Class III gaming on their trust lands. The
economic, social, environmental, health, safety, traffic, criminal
justice, and other impacts from these casino-style gaming facilities on
local communities were significant, especially because these gaming
facilities were located in rural areas. The 1999 Compacts did not give
counties an effective role in mitigating off-reservation impacts
resulting from Indian casinos. Consequently, mitigation of these
impacts could not be achieved without a tribe's willingness to work
with the local governments on such mitigation. Some tribes and counties
were able to reach mutually beneficial agreements that helped to
mitigate these impacts. Many other counties were less successful in
obtaining the cooperation of tribes operating casino-style gaming
facilities in their unincorporated areas.
The off-reservation impacts of current and proposed facilities led
CSAC, for the first time, to adopt a policy on Indian gaming. In the
fall of 2002, at its annual meeting, CSAC held a workshop to explore
how to begin to address these significant impacts. As a result of this
workshop, CSAC established an Indian Gaming Working Group to gather
relevant information, be a resource to counties, and make policy
recommendations to the CSAC Board of Directors on Indian gaming issues.
CSAC's approach to addressing the off-reservation impacts of Indian
gaming is simple: to work on a government-to-government basis with
gaming tribes in a respectful, positive and constructive manner to
mitigate off-reservation impacts from casinos, while preserving tribal
governments' right to self-governance and to pursue economic self-
reliance.
With this approach as a guide, CSAC developed a policy comprised of
seven principles regarding State-Tribe Compact negotiations for Indian
gaming, which was adopted by the CSAC Board of Directors on February 6,
2003. The purpose of this Policy is to promote tribal self-reliance
while at the same time promoting fairness and equity, and protecting
the health, safety, environment, and general welfare of all residents
of the State of California and the United States. A copy of this Policy
is attached to this written testimony as Attachment A.
C. Implementation of CSAC's 2003 Policy
Following adoption by CSAC of its 2003 Policy, the Indian Gaming
Working Group members met on three occasions with a three-member team
appointed by Governor Davis to renegotiate existing Compacts and to
negotiate with tribes who were seeking a compact for the first time. As
a result of these meetings, three new State-Tribe Compacts were
approved for new gaming tribes. These new Compacts differed from the
1999 Compacts in that the 2003 Compacts gave a meaningful voice to the
affected counties and other local governments to assist them in seeking
tribal cooperation and commitment to addressing the off-reservation
environmental impacts of the Indian casinos that would be built
pursuant to those Compacts.
Illustrations of Successful County/Tribal Cooperation
There are many examples of California counties working
cooperatively with tribes on a government-to-government basis on all
issues of common concern to both governments, not just gaming-related
issues. Yolo County has a history of working with tribes to ensure
adequate services in areas where casinos are operating. In addition,
Yolo County has entered into agreements with two tribes to address the
impacts created by casino projects in the county. In Southern
California, San Diego County has a history of tribes working with the
San Diego County Sheriff to ensure adequate law enforcement services in
areas where casinos are operating. In addition, San Diego County has
entered into agreements with four tribes to address the road impacts
created by casino projects. Further, a comprehensive agreement was
reached with the Santa Ysabel Tribe pursuant to the 2003 Compact with
the State of California.
Humboldt County, located on the north coast of the state, and
tribal governments have agreed similarly on law enforcement-related
issues. Humboldt County also has reached agreements with tribes on a
court facility/sub station, a library, road improvements, and on a
cooperative approach to seeking federal assistance to increase water
levels in nearby rivers.
In central California, Madera and Placer Counties have reached more
comprehensive agreements with the tribes operating casinos in their
communities, which are similar to those in place in my county. These
comprehensive agreements provide differing approaches to the mitigation
of off-reservation impacts of Indian casinos, but each is effective in
its own way to address the unique concerns of each community.
After a tribe in Santa Barbara County completed a significant
expansion of its existing casino, it realized the need to address
ingress and egress, and flood control issues. Consequently, Santa
Barbara County and the tribe negotiated an enforceable agreement
addressing these limited issues in the context of a road widening and
maintenance agreement. Presently, there is no authority that requires
the County of Santa Barbara or its local tribe to reach agreements.
However, both continue to address the impacts caused by the tribe's
acquisition of trust land and development on a case-by-case basis,
reaching intergovernmental agreements where possible.
The agreements in each of the above counties were achieved only
through positive and constructive discussions between tribal and county
leaders. It was through these discussions that each government gained a
better appreciation of the needs and concerns of the other government.
Not only did these discussions result in enforceable agreements for
addressing specific impacts, but enhanced respect and a renewed
partnership also emerged, to the betterment of both governments, and
tribal and local community members.
Illustrations of Continued Problems Addressing Casino Impacts
On the other hand, there are examples of Indian casinos and
supporting facilities where a tribal government did not comply with the
requirements of the IGRA or the 1999 Compacts. In Mendocino County, a
tribe built and operated a Class III gaming casino for years without
the requisite compact between it and the California Governor. In Sonoma
County, a tribe decimated a beautiful hilltop to build and operate a
tent casino that the local Fire Marshal determined lacked the necessary
ingress and egress for fire safety.
In other California counties, tribes circumvented or ignored
requirements of the IGRA or the 1999 Compacts prior to construction of
buildings directly related to Indian gaming. In San Diego County there
have been impacts to neighboring water wells that appear to be directly
related to a tribe's construction and use of its water well to irrigate
a newly constructed golf course adjoining its casino, and several other
tribal casino projects have never provided mitigation for the
significant traffic impacts caused by those projects.
In 2004, the focus of CSAC on seeking mechanisms for working with
gaming tribes to address off-reservation impacts continued. Governor
Schwarzenegger and several tribes negotiated amendments to the 1999
Compacts which lifted limits on the number of slot machines, required
tribes to make substantial payments to the State, and incorporated most
of the provisions of CSAC's 2003 Policy. Of utmost importance to
counties was the requirement in each of these newly amended Compacts
that each tribe be required to negotiate with the appropriate county
government to develop local agreements for the mitigation of the
impacts of casino projects, and that these agreements are judicially
enforceable. Where a tribe and county cannot reach a mutually
beneficial binding agreement, ``baseball style'' arbitration will be
employed to determine the most appropriate method for mitigating the
impacts.
D. The Advent of ``Reservation Shopping'' in California
The problems with the 1999 Compacts remain largely unresolved, as
most existing Compacts were not renegotiated. These Compacts allow
tribes to develop two casinos and do not restrict casino development to
areas within a tribe's current trust land or historical ancestral
territory. For example, in the Fall of 2002 a Lake County band of
Indians was encouraged by East Coast developers to pursue taking into a
trust land in Yolo County for use as a site of an Indian casino. The
chosen site was across the Sacramento River from downtown Sacramento
and was conveniently located near a freeway exit. The actual promoters
of this effort were not Native Americans and had no intention of
involving tribal Band members in the operation and management of the
casino. In fact, one promoter purportedly bragged that no Indian would
ever be seen on the premises.
In rural Amador County, starting in 2002 and continuing to the
present, a tribe being urged on by another out-of-State promoter is
seeking to have land near the small town of Plymouth taken into trust
for a casino. The tribe has no historical ties to the Plymouth
community. The effort by this tribe and its non-Native American
promoter has created a divisive atmosphere in the local community. That
new casino is not the only one being proposed in the County; a second,
very controversial new casino is being promoted by a New York developer
for a three-member tribe in a farming and ranching valley not served
with any water or sewer services, and with access only by narrow County
roads. The development of these casinos would be an environmental and
financial disaster for their neighbors and the County, which already
has one major Indian casino.
In the past two years in Contra Costa County, there have been
varying efforts by three tribes to engage in Indian gaming in this
highly urbanized Bay Area county. The possibility of significant
economic rewards from operating urban casinos has eclipsed any
meaningful exploration of whether these tribes have any historical
connection to the area in which they seek to establish gaming
facilities.
In addition, in 2004, California counties faced a new issue
involving tribes as a result of non-gaming tribal development projects.
In some counties land developers were seeking partnerships with tribes
in order to avoid local land use controls and to build projects that
would not otherwise be allowed under local land use regulation. In
addition, some tribes were seeking to acquire land outside their
current trust land or their legally recognized aboriginal territory and
to have that land placed into federal trust, beyond the reach of a
county's land use jurisdiction.
CSAC's 2004 Policy Regarding Development of Tribal Lands
To address these issues, the CSAC Board of Directors adopted a
Revised Policy Regarding Development on Tribal Lands on November 18,
2004 (attached as Attachment B). The Revised Policy reaffirms that:
CSAC supports cooperative and respectful government-to-
government relations that recognize the interdependent role of tribes,
counties and other local governments to be responsive to the needs and
concerns of all members of their respective communities.
With respect to the issues specifically now before the Committee
the following new Revised Policies apply:
CSAC supports federal legislation to provide that lands
are not to be placed in trust and removed from the land use
jurisdiction of local governments without the consent of the State and
affected County.
CSAC opposes the practice commonly referred to as
``reservation shopping'' where a tribe seeks to place lands in trust
outside its aboriginal territory over the objection of the affected
County.
Importance of County Involvement in Developing Mitigation:
The history and examples provided above illustrate the need for
counties to be involved in developing appropriate off-reservation
mitigations related to Indian casino activities. There is not yet a
definitive study on the impacts of gaming on local communities.
However, in those counties that are faced with large gaming projects,
it is clear that the impacts on traffic, water/wastewater, the criminal
justice system and social services are significant. For non-Indian
casinos it is estimated that for every dollar a community collects from
gambling-related taxes, it must spend three dollars to cover new
expenses, including police, infrastructure, social welfare and
counseling services. 1 As local communities cannot tax
Indian operations, or the related hotel and other services that would
ordinarily be a source of local government income, the negative impact
of such facilities can even be greater. This is one reason that CSAC
sought amendments to California Tribal-State Compacts to ensure that
the off-reservation environmental and social impacts of gaming were
fully mitigated and that gaming tribes paid their fair share for county
services.
---------------------------------------------------------------------------
\1\ Cabazon, The Indian Gaming Regulatory Act, and the
Socioeconomic Consequences of American Indian Governmental Gaming--A
Ten Year Review by Jonathon Taylor and Joseph Kalt of the Harvard
Project on American Indian Economic Development (2005) at p. 9 (citing
Sen. Frank Padavan, Rolling the Dice: Why Casino Gambling is a Bad Bet
for New York State at ii (1994).
---------------------------------------------------------------------------
In 2003, CSAC took a ``snapshot'' of local impacts by examining
information provided by eight of the then twenty-six counties (the only
counties that had conducted an analysis of local government fiscal
impacts) where Indian gaming facilities operated. 2 The
total fiscal impact to those eight counties was approximately $200
million, including roughly $182 million in one-time costs and $17
million in annual costs. If these figures were extrapolated to the rest
of the state, the local government fiscal costs could well exceed $600
million in one-time and on-going costs for road improvements, health
services, law enforcement, emergency services, infrastructure
modifications, and social services.
---------------------------------------------------------------------------
\2\ CSAC Fact Sheet on Indian Gaming in California (11/5/03)
(attached as Attachment C.)
---------------------------------------------------------------------------
Even when a particular gaming facility is within a City's
jurisdictional limits, the impacts on County government and services
may be profound. Counties are the largest political subdivision of the
state having corporate authority and are vested by the Legislature with
the powers necessary to provide for the health and welfare of the
people within their borders. Counties are responsible for a countywide
justice system, social welfare, health and other services. The
California experience has also made clear that particularly large
casino facilities have impacts beyond the immediate jurisdiction in
which they operate. Attracting many thousands of car trips per day,
larger facilities cause traffic impacts throughout a local
transportation system. Similarly, traffic accidents, crime and other
problems sometimes associated with gaming are not isolated to a casino
site but may increase in surrounding communities.
As often the key political entity and service provider in the area,
with a larger geographic perspective and land use responsibility,
county involvement is critical to insure that the needs of the
community are met and that any legitimate tribal gaming proposal is
ultimately successful and accepted. Local approval is necessary to help
insure a collaborative approach with tribes in gaming proposals and to
support the long-range success of the policies underlying the IGRA.
Comments on Draft Legislation:
CSAC fully understands that addressing impacts from Indian casinos
has been a contentious subject in some California communities. In an
attempt to minimize this contentiousness, CSAC has focused on
resolutions that show proper respect for all governments with roles in
Indian gaming. Ultimately, the two most involved governments are tribal
governments and county governments.
The overwhelming majority of Indian casinos are in rural areas.
Accordingly, county governments are those local governments in
California who find themselves most often in the position of needing to
address off-reservation impacts from Indian casinos. Current federal
law does not provide counties an effective role in working with tribes
to address off-reservation impacts from Indian gaming.
In California, through the most recent State-Tribe Compacts,
counties and other local governments have been provided an appropriate
opportunity to work with gaming tribes to address these off-reservation
impacts. The result has been improved government-to-government
relationships between tribes and county governments. Contrary to
possible fears of tribal leaders, local governments have not acted
arbitrarily or capriciously in their dealings with tribes. In fact, the
improved relationships are the result of each government gaining a
better understanding of the responsibilities and needs of the other.
Because we in California have several positive examples of counties and
tribes working together for the betterment of their respective
communities, CSAC is very supportive of Chairman Pombo's efforts to
give local governments an effective voice in addressing the increasing
practice of ``reservation shopping.''
Two-Part Determination
Chairman Pombo's bill would effectively end the two-part
determination presently set forth in the IGRA and prohibit tribes from
crossing state lines to build gaming facilities in states where those
tribes do not have any trust land. This is a significant first step in
solving a large portion of off-reservation gaming proposals considered
problematic by a number of tribal leaders, Members of Congress, and
State and local government officials. CSAC wholeheartedly endorses this
approach.
Newly Recognized, Restored, Landless Tribes
CSAC endorses Chairman Pombo's efforts to clarify how and where
newly recognized, restored, and landless tribes acquire lands in trust
for gaming purposes. The Chairman's effort to first ascertain a tribe's
geographic and historical ties to a particular area of the State makes
abundant sense. This approach recognizes that when a tribe has
geographic and historical ties to a community, a precedential effect to
those ties is warranted. Without those geographic and historical ties,
a tribe is no different than any other developer in seeking an economic
opportunity on lands that were not part of its heritage.
Indian Economic Opportunity Zones
CSAC does not oppose the concept of allowing two Indian Economic
Opportunity Zones per state. However, based on its experiences with
Indian gaming issues, CSAC believes that more details are needed. CSAC
has several recommendations on how to clarify this provision:
Zones should be limited to a tribe's trust lands, and
tribes should not be permitted to merge their separate trust lands to
create a mega-economic opportunity zone.
The size of the zones should be limited to an area not
exceeding two square miles in unincorporated areas or one square mile
in incorporated areas.
In states where zones are created pursuant to this
amendment, Indian gaming should not be permitted on land outside of a
zone or on land not already held in trust by the federal government at
the time this amendment is adopted, unless the tribe and affected state
and local jurisdictions agree in writing that any unavoidable
significant adverse impacts will be fully mitigated by the tribe.
The location of such zones should take into account the
impact that the zones could have on existing commercial endeavors.
Primary Geographic, Social and Historical Nexus
When the phrase ``primary geographic, social and historical nexus''
is used in this bill, CSAC recommends that it be based on objective
facts that are generally acceptable to practicing historians,
archeologists, and anthropologists. If there is a question by a tribal,
state or local government as to whether the nexus has been established,
the bill should provide for a judicial determination in either federal
or state court on the issue, where the tribe would have the burden of
showing the requisite nexus by a preponderance of evidence. This would
provide a credible mechanism for determining a tribe's primary
geographic, social and historical nexus and allow for judicial review
of the facts in cases of doubt.
Suggested Revisions and Clarifications
There are portions of Chairman Pombo's bill that CSAC respectfully
suggests require clarification or modification to eliminate ambiguity,
to clarify the intent of the bill, or to avoid misinterpretation. The
specific suggested revisions are shown in Attachment D. In addition to
these revisions, CSAC requests that language be added to give certainty
to the date that the amendment would become applicable so that, for
example, federal agencies would know whether a tribe's trust
application filed before the effective date of the amendment, but
approved after the effective date, would be subject to the amendment's
requirements.
Conclusion:
CSAC presents this written testimony to assist the Chairman and
Committee Members in their efforts to amend the IGRA to address the
increasing practice of ``reservation shopping.'' In California the
Chairman's bill, with necessary and appropriate revisions, would allow
counties a voice in matters that create impacts that the County will
ultimately be called upon by its constituents to address. This voice is
critical if California counties are to protect the health and safety of
their citizens. Otherwise, counties find themselves in a position where
their ability to effectively address the off-reservation impacts from
Indian gaming is very limited and dependent on the willingness of a
tribe to mitigate these impacts.
In those instances in California where tribal governments and
counties have met to work together to resolve issues of concern to each
government, responsible decisions have been made by both governments to
the benefit of both tribal members and local communities. Enactment of
this amendment, with some minor revisions, would provide for more
opportunities for these governments to work together. It would further
the original goals of the IGRA while helping to minimize abuses of the
IGRA that have proven to be detrimental to those tribes in full
compliance with all applicable federal laws.
NOTE: Attachments to Mr. McGowan's statement have been retained in
the Committee's official files.
______
The Chairman. Supervisor Brown.
STATEMENT OF VALERIE BROWN, SUPERVISOR, SONOMA COUNTY, NORTHERN
CALIFORNIA COUNTIES TRIBAL MATTERS CONSORTIUM
Ms. Brown. Thank you, Chairman Pombo.
Thank you for being here, Congressman Gohmert and it's nice
to see you again, Congressman Costa.
Mr. Costa. Nice to see you.
Ms. Brown. On behalf of the Northern California Counties
Tribal Matters Consortium, I would like to thank you for
bringing this particular hearing to Northern California because
that is indeed where there is a profound influence of
reservation shopping.
My name is Valerie Brown. I am currently a Member of the
Sonoma County Board of Supervisors and serve as Sonoma County's
Representative to the Consortium.
The Consortium is a collaboration between Napa, Solano and
Sonoma Counties. It is a new and growing organization founded
by county governments in the northern part of the San Francisco
Bay Area, based upon the realization that we must work together
to share expertise and to respond effectively to the legal and
policy decisions at the Federal level which often drive tribal
development.
Our counties are also similarly situated on the northern
edge of the lucrative San Francisco Bay area urban gaming
market and are the target for an increasing number of new
gaming proposals.
The Consortium's policies, which I gave you as an
attachment, are consistent with those of the proposed
legislation in that they make a deferential distinction for
development proposals from tribes that have significant
demonstrated ties to an area. Significant ties mean more than a
tribe passed through, hunted or had some other tenuous
connection to an area, but rather exercised a tribal
jurisdictional presence in a meaningful and direct manner.
The key distinction for development therefore should be not
necessarily urban or rural but rather presence or absence of a
documented relationship of a tribal group to the land on which
it seeks to develop.
Due to our shared proximity to the lucrative San Francisco
urban market, gaming promoters representing and loosely
affiliated with tribal clients continually approach Consortium
members. These investor-driven efforts are an affront both to
locally based tribes and to county governments that have worked
with local tribes on a government-to-government basis to
mitigate the impacts of casino development.
IGRA, as well as California Propositions I(a) and 5, were
passed with the expectation that gaming would be conducted on
existing Indian lands. Now the exceptions seem to be the tail
that is wagging the dog and upsetting the carefully designed
balance that afforded tribes the monopoly of Class III gaming
in California.
In Sonoma, for example, I and other County Representatives
were recently approached by financial backers of an unnamed
``mystery'' tribe that wanted to establish a Sonoma County
casino. It was clear this tribe, the identity of which the
investors refused to disclose, had not consulted with locally
based tribes and were interested only in finding a location
that placed them within reach of the lucrative San Francisco
market.
This is but the latest of a series of overtures made to
Consortium Members and of regional reservation shopping
efforts, some of which the Committee has already heard
testimony.
These investor-driven efforts have little regard for a
tribe's historic ties to an area or to true concepts of tribal
sovereignty and jurisdiction except to the extent it allows
them to open a casino. In fact, it appears that investors shop
for landless tribes.
The newest California twist to the reservation shopping
issue also shows how the current law now serves to pit tribe
against tribe. The Consortium is now observing tribes with
established casinos trying to leap-frog over other tribal
gaming operations to get closer to a population center. For
example, the Hopland Band of Pomo Indians, a Mendocino County-
based gaming tribe located north of Sonoma County, is trying to
move south along the highway 101 corridor toward San Francisco,
passing a Sonoma County tribe's operations that apparently is
reducing its profits.
The location the Mendocino tribe has chosen for its new
casino is within the historic Rancheria boundary of another
Sonoma County tribe. The Mendocino tribe has applied to the BIA
and the NIGC to transfer the land to its own tribal trust
property and to have it designated as ``restored'' so that it
is eligible for gaming.
The Mendocino tribe's Trust Transfer Application, which is
opposed by other Sonoma County tribes, is currently pending
before the BIA. It has become a question of who files first.
The draft legislation before the Committee takes several
important steps toward addressing this type of reservation
shopping and the Consortium endorses most of proposed language.
One amendment the Consortium would support is to have
Section (1)(A), which addresses newly recognized tribes,
provide for the same type of local government input as required
under Section (1)(B) for landless or restored tribes.
It appears that the inequities and need for land and
economic opportunities of newly recognized tribes is no
different than the needs of landless tribes and both similarly
require local input and consultation regarding mitigation.
The unintended consequence of treating the groups
differently is to place even additional pressure on the current
acknowledgment process by providing incentives for gaming
interests to promote the recognition of new tribes to avoid the
requirements faced by placing land into trust for landless or
restored tribes.
The experience in California, driven in part by the
restoration of illegally terminated rancherias, is that the
restored land exception to prohibiting gaming on lands acquired
after 1988 is being misused.
This is illustrated in the Hopland tribe's attempt to have
land found eligible for gaming under the restored land
provision, despite the fact the tribe already has land in trust
upon which it operates a casino and the land sought is within
another tribe's historic jurisdiction.
Similarly, Alameda and Contra Costa Counties have been
faced with numerous proposals to have land restored from remote
tribes for gaming purposes. These efforts are all attempts by
tribes and their investors to evade the two-part test under
IGRA that provides for consultation between local communities
and local tribes and the Secretary to determine whether gaming
on newly acquired trust lands is detrimental to the surrounding
community and concurrence by the Governor in that
determination. We actually would be supportive, as CSAC is, in
having a third part test and that is local jurisdiction.
Finally, the Consortium is interested in working further
with the Committee to refine the Economic Opportunity Zone
concept. It provides a creative mechanism to facilitate the co-
location of gaming operations to help avoid the leap-frogging
phenomena that now appears to be developing while also giving
tribes in remote locations an opportunity to share more fully
in the economic benefits of gaming.
It appears, however, that additional provisions should be
considered that take into account various issues, including the
potential size of the zone, county approval and a limitation to
take future land into trust for gaming purposes outside of the
created zones.
Again, the Consortium is appreciative of your efforts to
bring this hearing to Northern California and hear of our
concerns. We look forward to working with you as you continue
to make this bill work more amenably.
The Chairman. Thank you.
[The prepared statement of Ms. Brown follows:]
Statement of Supervisor Valerie Brown,
Northern California Counties Tribal Matters Consortium
On behalf of the Northern California Counties Tribal Matters
Consortium (Consortium), I would like to thank Chairman Pombo, Ranking
Member Rahall, and the other distinguished members of the Committee on
Resources for giving us this opportunity to testify. I especially want
to thank you for making the effort to conduct this field hearing in
Northern California where the issues surrounding tribal gaming and
reservation shopping have taken on such profound importance. My name is
Valerie Brown, I am currently a member of the Sonoma County Board of
Supervisors and serve as Sonoma County's representative to the
Consortium.
The Consortium
The Consortium is a collaboration between Napa, Solano and Sonoma
counties. It is a new and growing organization founded by county
governments, in the northern part of the San Francisco Bay Area, based
upon the realization that we must work together to share expertise and
to respond effectively to the legal and policy decisions at the federal
level which often drive tribal development. Our counties are also
similarly situated on the northern edge of the lucrative San Francisco
Bay Area urban gaming market and are the target for an increasing
number of new gaming proposals. The Consortium's Policies (attached as
Exhibit A) are consistent with those of the proposed legislation, in
that they make a deferential distinction for development proposals from
tribes that have significant demonstrated ties to an area. Significant
ties mean more than a tribe passed through, hunted, or had some other
tenuous connection to an area but rather exercised a tribal
jurisdictional presence in a meaningful and direct manner. The key
distinction for development therefore should be not necessarily urban
or rural but rather presence or absence of a documented relationship of
a tribal group to the land on which it seeks to develop. Further, the
Consortium Policies recognize large-scale gaming (and other
development) projects have significant local and even regional impacts
that, to be successfully addressed, require a collaborative effort
involving both county governments and affected tribes.
California, more than any other state, has experienced an explosion
of tribal gaming and land development since the 1988 enactment of the
Indian Gaming Regulatory Act (``IGRA''). This development accelerated
in California with the 1999 passage of Proposition 1A, and the 1998
passage of Proposition 5. The result is 54 operational casinos
maintained by 53 tribal governments in 34 counties, with at least 25
additional tribal casinos in the planning stage. The scope of potential
casino development is also reflected in the over 100 federally
recognized tribes in California, with over 60 existing compacts, many
of them providing for two casinos per tribe. As these IGRA casinos have
proliferated, increased tribal gaming wealth, or its promise, has
provided capital for still more gaming and non-gaming tribal
development. All levels of state government now face significant
challenges raised by tribal development initiatives.
It is often stated that when IGRA was enacted in 1988, it was
intended to serve as a delicate balance between the rights of states,
tribes and the federal government to address tribal gaming. The
``delicate balance'' is now upset. When IGRA was passed Indian gaming
was, nationally, a $100 million business. Today Indian gaming
enterprises account for over $18 billion in revenues with California
alone responsible for about one-third of that amount. IGRA's original
premise (and that of Propositions 5 and 1A in California) was that,
with limited exceptions, gaming would be limited to existing
reservations. Sadly, that is not how it is today.
This is especially critical in Northern California where a growing
number of tribal entities are attempting to acquire land, seek trust
status, and advance development proposals for casinos and other uses in
locations based solely upon market appeal. Some tribes are attempting
to develop land without regard to current reservation location or the
existence of historic or other significant ties to a chosen location.
There are many legal permutations of ``reservation shopping,'' and many
jurisdictions are forced to deal with the complex legal issues it
raises, often on an emergency basis. It is important to point out that
the issue of ``reservation shopping'' extends beyond gaming. Developers
are partnering with tribes to use the shield of sovereignty to embark
on development projects that would otherwise never be approved due to
land use inconsistencies or other impacts.
The Consortium was formed to address these challenges. With respect
to the issues specifically now before the Committee the following
Consortium Policies apply:
The Consortium is opposed to any federal fee-to-trust
request, for gaming or other development purposes, on behalf of a tribe
that lacks significant, long-term and documented ties to the area where
the trust land acquisition or development is proposed.
The Consortium is committed to working with tribes on a
government-to-government basis to consider development proposals within
the Consortium's policy framework.
The Consortium members are prepared to work with tribes
to insure that county-tribal agreements will fully mitigate
environmental impacts of a proposed project and that there will be
guarantees of substantial compliance with county ordinances, zoning and
environmental policies through an enforceable Memorandum of
Understanding or similar agreement.
These policies recognize counties have an obligation to work on a
government-to-government basis with tribes which have a significant
historic connection to a community. Implicit in the policies, as in the
proposed bill, is the recognition that the long-term success of Indian
gaming depends upon a partnership with local communities to address
off-reservation impacts and work together to accomplish common goals.
The Consortium Experience
Our participating counties are all members of the California State
Association of Counties (CSAC) and we support and endorse the testimony
submitted to this Committee by CSAC. The Consortium submits its own
testimony, however, to share the unique experience of tribal gaming in
the Northern San Francisco Bay Area. This experience underscores the
importance of Chairman Pombo's legislative proposal to address the
``reservation shopping'' issue in a manner which places significant
importance on a tribe's historic ties to a community. Like the
legislation, our approach also is deferential to tribal sovereignty and
economic development but acknowledges that the impacts of these
projects are borne by the off-reservation community and, in particular,
by county government regardless of whether the proposed project is
located in a city or county. The need to form the Consortium, itself,
illustrates the breakdown of the balances struck in the enactment of
the Indian Gaming Regulatory Act when tribes are allowed to move far
from their ancestral territory in search of greater gaming market share
and profit.
Of the Consortium member counties, only Sonoma County has federally
recognized tribes. One of these tribes has an existing casino facility
and the four others are at various stages of attempting to establish
gaming operations. Napa and Solano do not currently have any recognized
tribes within their jurisdictions. Due to our shared proximity to the
lucrative San Francisco urban market, gaming promoters representing, or
loosely affiliated with tribal clients, continually approach Consortium
members. Each is attempting to cash-in on the gaming market without
regard to a tribe's connections or historic ties to a community.
These, often investor-driven efforts, are an affront both to county
governments that have worked with local tribes on a government-to-
government basis to address gaming and other tribal development issues
as well as to locally based tribes. IGRA (which was intended to have
very narrowly drawn exceptions), as well as the California Propositions
1A and 5, were passed with the expectation that gaming would be
conducted on existing Indian lands. Now the exceptions seem to be the
tail that is ``wagging the dog'' and upsetting the carefully designed
balance that afforded tribes the monopoly of Class III gaming in
California.
In Sonoma, for example, I and other county representatives were
recently approached by financial backers of an unnamed ``mystery''
tribe that wanted to establish a Sonoma County casino. It was clear
this tribe, the identity of which the investors refused to disclose,
had not consulted with locally based tribes and was interested only in
finding a location that placed them within reach of the lucrative San
Francisco market. This is but the latest of a series of overtures made
to Consortium members and of regional reservation shopping efforts,
some of which the Committee has already heard testimony. These
investor-driven efforts have little regard for a tribe's historic ties
to an area or to true concepts of tribal sovereignty and jurisdiction
except to the extent it allows them to open a casino.
The newest California twist to the ``reservation shopping'' issue
also shows how the current law now serves to pit tribe against tribe.
The Consortium is now observing tribes with established casinos trying
to ``leap-frog'' over other tribal gaming operations to get closer to a
population center. For example, the Hopland Band of Pomo Indians, a
Mendocino County based gaming tribe located north of Sonoma, is trying
to move south along the Highway 101 corridor towards San Francisco,
passing a Sonoma County tribe's operations that apparently is reducing
its profits. The location the Mendocino tribe has chosen for its new
casino is within the historic Rancheria boundary of another Sonoma
County tribe. The Mendocino tribe has applied to the BIA and NIGC to
transfer the land to its own tribal trust property and to have it
designated as ``restored'' so that it is eligible for gaming. The
Mendocino's tribe's trust transfer application, which is opposed by
other Sonoma County tribes, is currently pending before the BIA.
The Draft Legislation
The draft legislation before the Committee takes several important
steps towards addressing the types of ``reservation shopping'' abuses
that now appear prevalent in Northern California. The Consortium
particularly endorses the need recognized in the bill to ascertain a
tribe's historic and ancestral ties to an area as a threshold before
allowing newly recognized, restored or landless tribes to take land
into trust for gaming purposes. This approach is in accord with the
Consortium policies and explicitly recognizes a distinction between
tribal entities that have significant documented historical ties to a
specific area and those that do not.
Similarly, the Consortium fully endorses the need to have local
government participating in the decision making process. This measure
affords local government the opportunity to work in a constructive
manner with tribes to insure that projects are appropriately sited and
that the off-reservation environmental impacts of gaming development
are minimized. One amendment the Consortium would support is to have
section (1)(A), which addresses newly recognized tribes, provide for
the same type of local government input as required under section
(1)(B) for landless or restored tribes. It appears that the equities
(and need for land and economic opportunities) of newly recognized
tribes is no different than the needs of landless tribes and both
similarly require local input and consultation regarding mitigation. An
unintended consequence of treating the groups differently is to place
even additional pressure on the current acknowledgment process by
providing incentives for gaming interests to promote the recognition of
new tribes to avoid the requirements faced by placing land into trust
for landless or restored tribes.
The Consortium also supports amendments to the bill which clarify
that a county or similar other general government entity providing
health, welfare and public safety services to the trust land must
approve a gaming trust acquisition. In California, even if a facility
and trust land is surrounded by cities, it is still the county that is
responsible for many public programs that will be impacted by a gaming
establishment including: emergency services, probation, jail services,
child and adult protective services, welfare, roads and bridges,
alcohol and drug rehabilitation, and indigent health. For a tribal
facility to be truly successful county government must play a role in
the process.
The experience in California, driven in part by the restoration of
illegally terminated rancherias, is that the restored land exception to
prohibiting gaming on lands acquired after 1988 is being misused. This
is illustrated in the Hopland tribe's attempt to have land found
eligible for gaming under the restored land provision (25 U.S.C. 2719
(b)(1)(B)(iii)) despite the fact the tribe already has land in trust
upon which it operates a casino and that the land sought is within
another tribe's historic jurisdiction. Similarly, Alameda and Contra
Costa counties have been faced with numerous proposals to have land
``restored'' from remote tribes for gaming purposes. These efforts are
all attempts by tribes and their investors to evade the two-part test
under IGRA that provides for consultation between local communities
(and local tribes) and the Secretary to determine whether gaming on
newly-acquired trust lands is detrimental to the surrounding community
and concurrence by the governor in that determination. As the
``restored lands'' exception appears to be fueling much of the
reservation shopping effort, it may be appropriate to consider, at this
point in IGRA's history, elimination or narrowing of the provision and
to require local government approval of a facility as contemplated
under the draft legislation.
Finally, the Consortium is interested in working further with the
Committee to refine the Indian Economic Opportunity Zone concept. It
provides a creative mechanism to facilitate the co-location of gaming
operations to help avoid the ``leap-frogging'' phenomena that now
appears to be developing while also giving tribes in remote locations
an opportunity to share more fully in the economic benefits of gaming.
It appears, however, that additional provisions should be considered
that take into account various issues, including, the potential size of
the zone, county approval and a limitation to take future land into
trust for gaming purposes outside of the created zone(s).
Conclusion
The Consortium appreciates the sensitive nature of these issues and
the controversy surrounding any amendments to IGRA. It is therefore
with genuine appreciation to Chairman Pombo and the Committee for their
leadership in trying to forge a solution to the reservation-shopping
problem that the Consortium appears today to present these comments. It
may be that circulation of the draft bill itself has already had a
positive effect as the BIA just recently rejected a gaming compact in
Oregon because land for the facility had not gone through the
appropriate fee-to-trust process or been subject to IGRA's two-part
test.
The proposed bill gives voice to local government concerns and
creates an opportunity for tribes and local government to work together
in a respectful constructive manner to achieve mutual goals. The
Consortium stands ready to assist the Committee as it works towards
addressing the problems created by ``reservation shopping'' and to work
with other interested parties to find a balanced fair resolution that
honors tribal sovereignty and respects the legal responsibility of
counties to provide for the health, safety, environment,
infrastructure, and general welfare of all members of their
communities.
______
Exhibit A
Northern California Counties Tribal Matters Consortium General Policy
Principles
I. Introduction
California, more than any other state, has experienced an explosion
of tribal gaming and land development since the 1988 enactment of the
Indian Gaming Regulatory Act (``IGRA''). This development accelerated
in California with the 1999 passage of Proposition 1A, and the 1998
passage of Proposition 5. The result is 54 operational casinos
maintained by 53 tribal governments in 34 counties, with at least 25
additional tribal casinos in the planning stage. The scope of potential
casino development is also reflected in the over 100 federally
recognized tribes in California, with over 60 existing compacts, many
of them providing for two casinos per tribe. As these IGRA casinos have
proliferated, increased tribal gaming wealth, or its promise, has
provided capital for still more gaming and non-gaming tribal
development. All levels of state government now face significant
challenges raised by tribal development initiatives. It is a key
consideration that these tribal development proposals are generally
governed by federal Indian law, which affords little protection to
communities struggling to address the profound local impacts that often
accompany gaming or other large tribal projects.
A. Purpose of the Consortium
Many tribal development initiatives, particularly gaming, have
regional impacts beyond any specific jurisdiction. The Northern
California Counties Tribal Matters Consortium (``Consortium'') is
founded by county governments based on the realization that they must
work together to share expertise and respond effectively to the federal
legal and policy decisions driving tribal development.
Along the legal pathway to any type of tribal development, there
are a series of federal decisions and procedural steps. These steps may
include tribal acknowledgment, land acquisition, fee-to-trust land
conversion, approvals for gaming uses of trust lands, and approvals for
gaming itself. Most of the steps offer a role and some measure of
influence for the state and affected local governments. While this role
is not as strong as it should be, it does afford an opportunity to take
action. Proactive state and local participation is crucial as federal
decisions are under consideration, because once made, jurisdiction over
the tribal entity and its members is vitiated by the tribe's sovereign
status, and key local regulatory powers are preempted once the property
becomes tribal land. Formation of the Consortium is important to allow
local governments to work together to understand the rules and laws
applicable to tribal status and development and to play a meaningful
and united role in shaping federal and state decisions.
County coordination is especially critical in Northern California
where a growing number of tribal entities are attempting to acquire
land, seek trust status, and advance development proposals for casinos
and other uses in locations based solely upon market appeal. Some
tribes are attempting to develop land without regard to current
reservation location or the existence of historic or other significant
ties to a chosen location. There are many legal permutations of
``reservation shopping,'' and many jurisdictions are forced to deal
with the complex legal issues it raises, often on an emergency basis.
Reservation shopping is fueled by improved tribal financial capability,
usually through third-party investors. This creates the ability not
only to buy land, but also to sustain long-term procedural and
political campaigns and legal disputes, often exploiting ambiguous
federal rules and policies.
Federal laws, regulations, and policies do provide states and local
government with some opportunity to influence the outcome of tribal
land development issues. Whether an affected state or local government
can effectively take advantage of the procedural opportunities
available to them depends on the governmental entity's knowledge of
federal law and procedures, its readiness to respond appropriately, and
its commitment to persevere in a position. A consortium of counties
provides a more influential body to address federal or state
legislative and administrative proposals regarding tribal matters.
B. Consortium Goals
The Consortium has been organized to inform member counties of
federal Indian law and policy so that they can effectively exercise
their authority to respond to emerging policy and tribal development
proposals. Each county belonging to the Consortium has varying degrees
of experience with the conversion of fee land to federal trust status
on behalf of Indian tribes and related proposals to develop that land
for gaming or other economic purposes. In almost all cases, tribal
plans for trust lands are inconsistent with the host county's general
plans, ordinances, zoning, environmental standards or other policies.
These lands and the facilities built on them become exempt from state
and local taxation, and land use control, and potentially lead to
serious adverse consequences on affected communities.
The Consortium's goal is to develop common principles that will
guide the actions of each county and enable them to influence
legislative and administrative policies in order to avoid or reduce
impacts as much as possible. These general principles are intended to
provide a proactive foundation for county action regarding trust land
proposals, to give advance notice of county policies and standards to
those who intend to propose tribal development on such land, and to
advise federal and state decisionmakers of a county's position.
The Consortium approach explicitly recognizes the distinction
between tribal entities that have significant documented ties to
specific locations in a county and those that do not. While federal
processes may also apply to this determination, Consortium counties
will make their own determination with respect to such ties. This will
guide county responses to tribal development proposals or development
initiatives, and assist the counties in taking positions in federal
proceedings. The presumption is that proposals by tribal entities
without significant ties to specific locations in a county will be
generally opposed and therefore ineligible for agreements with the
counties. Those having significant documented ties will be eligible for
government-to-government discussions and potential agreements
consistent with Consortium principles.
II. Consortium Basic Principles
The following principles represent the Consortium's general
policies toward tribal trust land acquisitions and other development
proposals on trust lands:
A. The Consortium is opposed to any federal fee-to-trust request on
behalf of any tribe that lacks significant, long-term and
documented ties to the specific location in the county where
the trust land acquisition or development is proposed.
The policy presumption is that each Consortium county will oppose
any trust land request, regardless of the developmental purpose, where
the tribe on behalf of which trust status is proposed, lacks
significant ties. Counties will make their own determination on this
issue and will be active participants in applicable federal
proceedings. Until the county in question is satisfied that such ties
exist, or are reasonably likely to be proven, no proposals for county-
tribal agreements will be entertained, and other agreements related to
the trust land proposal, such as those involving local governments or
the State, will be disfavored.
B. In circumstances where a county is satisfied that a tribe, or an
unrecognized group seeking federal acknowledgment as a tribal
entity, has significant ties to a specific location, Consortium
member counties:
1. Will work with the Tribe on a government-to-government
basis to consider development proposals within the policy
framework of the Consortium;
2. Will consider proposals to have land placed into trust for
any development purpose in accordance with applicable legal
authority on tribal purpose, need, and other factors, and to
ensure consistency with county ordinances, zoning,
environmental standards, health and safety standards, and other
applicable development rules and standards;
3. Will disfavor gaming-related proposals until it is
conclusively shown that the development is fully consistent
with Consortium principles and is in the best interest of the
county;
4. Will reserve the right to participate actively in any
tribal acknowledgment proceeding based on the merits of the
petition;
5. Will oppose federal acknowledgment proposals by groups
seeking federal recognition outside the BIA administrative
process (by legislation, for example) in the absence of
approval of the county or an existing county-tribal agreement;
6. Will require that any county-tribal agreement will fully
mitigate environmental impacts of the proposed project and that
there will be guarantees of substantial compliance with county
ordinances, zoning and environmental policies through a
Memorandum of Understanding or similar agreement, in which the
tribe must provide a sufficient waiver of tribal sovereign
immunity to permit enforcement of the agreement; and
7. Will oppose the Congressional designation of trust land or
the authorization of trust land selections in the absence of
approval of the county or the existence of a county-tribal
agreement.
III. Implementation Guidelines
In carrying out these principles, Consortium counties agree that
they will be committed to the following:
A. Mutual Respect. The counties will be committed to respectful
government-to-government relationships with tribal entities and
recognize the unique role and interest of each. The same
respect extends to the affected state and local governments.
The concept of reciprocal respect will guide the actions of
Consortium members.
B. Information Gathering. The counties affected by tribal development
proposals will obtain information needed to evaluate the unique
character of tribal status and the impacts of tribal
development on the community, and the well-being and economic
self-sufficiency of the tribal entity.
C. Education. The counties will develop, on an individual county or
cooperative basis, a public education program to promote
informed decisions on tribal proposals.
D. Active Participation. To protect local interests, the counties,
through the Consortium, will participate actively and
appropriately in state and federal policy and legislative
processes to support the principles of the Consortium.
E. Trust Land/Development Response. The counties will ensure that any
fee-to-trust transaction or other tribal development proposal
by a recognized tribe:
1. Is subject to a comprehensive agreement (e.g., Memorandum
of Understanding) enforceable in federal or state court between
the tribal entity and the county;
2. Is consistent with the county's general plan;
3. Undergoes environmental review that is at least equivalent
to the level of environmental review applicable to any
comparable non-tribal proposal, including impacts, cumulative
impacts, mitigation requirements, and other factors;
4. Includes enforceable provisions between the tribal entity
and the county under which the tribal entity agrees to make
payments to compensate for the government services typically
covered by applicable taxes, to provide a negotiated fair share
for health, welfare, and safety services, and to offset impacts
of whatever developmental activity is proposed. This recognizes
that such costs include: a) processing and administrative costs
(such as permitting); b) impact mitigation; and c) the ongoing
impacts of the activity or development;
5. Provides for the payment or mitigation from tribal entities
to cover all public sector costs and economic impacts (police,
fire, sewer, road, education, housing and others) associated
with any development on trust lands;
6. Satisfies the health and safety standards (ordinances) of
the county, either directly or by enforceable (third part
enforcement) tribal ordinances;
7. Includes enforceable conditions and limitations with
respect to the future development and/or changed use of any
land that is to be placed in trust on behalf of the tribal
entity; and
8. Includes a limited waiver of sovereign immunity of the
tribal entity sufficient to permit enforcement of the terms of
an agreement in federal or state court, or includes acceptable
alternative enforcement provisions.
F. State and Local Government Relationships. With respect to the
relationship between the counties and the State of California,
and with local governments in each respective County:
1. The counties will respect and seek a partnership with the
State and local governments consistent with these principles
and the legal rights and responsibilities of these other
governments;
2. Wherever possible, the counties will provide support and
assistance to local governments and the State as they consider
trust land and related tribal development proposals;
3. The counties will communicate these principles and
standards, once adopted, to local governments in each county,
the State, and any tribal entity interested in land within the
respective county; and
4. The counties will seek to make decisions that are
consistent with the interests of local governments within the
counties that are likely to be significantly impacted by any
proposed development.
IV. Conclusion
Tribal gaming and economic development on trust land presents a
significant challenge to local governments. Through these principles,
the counties in the Consortium will cooperate in efforts that protect
the public interest, and provide information to tribal governments
regarding the expectations that must be met to proceed with development
activities. The ultimate goal is to establish a foundation upon which
legitimate tribal development initiatives can proceed through a process
of mutual respect and cooperation while fully protecting local
community and tribal rights and interests.
______
The Chairman. Mr. O'Brien, please.
STATEMENT OF PAT O'BRIEN, GENERAL MANAGER,
EAST BAY REGIONAL PARKS DISTRICT
Mr. O'Brien. Thank you. My name is Pat O'Brien. I'm the
General Manager of the East Bay Regional Park District. Some of
you may know we cover both Alameda and Contra Costa Counties.
We're the largest property owner in that area. We operate over
96,000 acres of property and that includes a great deal of
wilderness areas and parks and trail Systems.
We also support grazing and about 50 percent of our
property is grazed which adds to the vegetation demands of the
property.
We have many historical and cultural resources of the
Native Americans that we protect. We're very supportive of the
Native American community. We do, however, have significant
issues with shopping for gaming purposes.
We are not against Indian gaming, but we are against this
shopping in urban areas. It does create a lot of issues and
problems; specifically, we have two specific impacts that we
have had and one a discovery which we would like to bring to
your attention which is of extreme concern.
The first impact is at Point Molate in the Richmond area.
This is a Master Plan Park and there have been two public
elections for funding for this park.
Both of them required a two-thirds vote and they got over
two-thirds vote, so a lot of support for it. When the Navy went
through a base closing process, an EIS/EIR was completed. It
allowed for or proscribed a park site on this property, 40
acres. Our Master Plan proscribed it.
The City of Richmond approved the plan in 1997. Then came
Indian shopping and out of some sort of magic the City
approved, moved forward with a casino which was planned with
the footprint of it right on top of the park property.
The California AG's Office has brought forward an issue and
joined in the suit on the EIR process. So it shows this
shopping creates somewhat of havoc in terms of planning, public
support and we were quite concerned about the outcome of that.
The other is at Martin Luther King Regional Shoreline Park.
This is over a 1200 acre park; it's in Oakland. It's one of the
few soft water estuaries in Oakland still preserved. Over
300,000 people a year visit this site.
A proposal came forward to put an Indian gaming casino in a
parcel which is covered on three sides by the park. Significant
impact. We objected to it. It is a big concern as to the impact
to the park. We have numerous issues with that.
However, in our discovery, there has been some very
questionable actions which appear to have been taken by the
previous Administration in terms of the Department of Interior
in that they confirmed sovereignty on the Lower Lake Rancheria
over the objections of the Bureau of Indian Affairs officials
and contrary, we believe, to Federal law and regulations.
We know that in 1994 the Tribal List Act required three
ways to be recognized: One is through an Act of Congress; the
second is by Jurisdictional Decree and the third is by Part 83
Administrative Regulations under the Secretary. But Part 83
prohibits Administrative recognition of sovereignty if it was
earlier terminated by Congress. In fact, this tribe was
terminated in 1956, and yet we can find no authority for the
recognition of sovereignty of this particular tribe.
So, it's a big concern to us and we have asked the
Secretary to provide any documentation. We did get some
documentation but we would really like this Committee to
actually look into it too because we think more documentation
needs to be available for our final judgment.
So, our issues are: Indian gaming shopping can have serious
impacts on the community. We have had in the Martin Luther King
area really a support by the whole community. The City of
Oakland, Alameda, San Leandro the County of Alameda have all
objected to this particular proposal and we think they have
some serious issues. I think your legislation is a very
important first step to really looking at this overall issue.
We are very supportive of those efforts.
The Chairman. Thank you.
[The prepared statement of Mr. O'Brien follows:]
Statement of Patrick O'Brien, General Manager,
East Bay Regional Park District
Chairman Pombo and members of the Committee, thank you for the
opportunity to appear before you today.
The East Bay Regional Park District (District) preserves for
present and future generations a priceless heritage of natural and
cultural resources near San Francisco Bay in Alameda and Contra Costa
Counties, California.
Today, the District manages over 95,000 acres of land consisting of
65 regional parks, recreation areas, wilderness, shorelines, preserves
and land bank areas. These areas are linked by 29 regional inter-park
trials which connect to 1,150 miles of trails within our parklands.
Ninety percent of the District's lands are protected and operated as
natural parklands. We provide recreational and educational
opportunities for millions of Bay Area residents, as well as visitors
from across the United States and around the world.
The District is committed to maintaining a high quality, diverse
system of interconnected parks which balances public usage and
education programs with protection and preservation of our cultural and
natural resources. More than 80 percent of District funding comes from
property tax and assessment district levies in the two counties, park
user fees, and park memberships.
Our commitment to cultural resources protection is strong and
ongoing. Just last December the District acquired 617 acres that
creates a permanent buffer for one of the most important Native
American cultural resource sites in the East Bay, the Vasco Caves.
My testimony today addresses two topics:
(1) the direct and adverse impact of Indian reservation
``shopping'' by gaming developers on one of the crown jewels of our
District parks, the Martin Luther King Jr. Regional Shoreline Park in
Oakland, and a proposed new park unit at Point Molate in Richmond; and
(2) the discovery of unlawful administrative actions in the
Department of the Interior that conferred Indian sovereignty on the
Lower Lake Rancheria over the objections of BIA officials and contrary
to Federal law and Interior Department regulations.
A third topic, the draft legislation you have prepared to address
off-reservation Indian gaming development, is the subject of separate
correspondence which we will be forwarding to you shortly.
1. Impacts Of Reservation Shopping On The East Bay Regional Park
District
a. Martin Luther King Jr. Regional Shoreline Park
The Martin Luther King Jr. Regional Shoreline Park is a 1,220-acre
park visited by more than 300,000 people annually. It protects the
remainder of a once-extensive marshland at San Leandro Bay, and is one
of the last salt marshes in Oakland.
By notice of November 26, 2004, (69 Fed. Reg. 68970) the Interior
Department announced that the Bureau of Indian Affairs (BIA) would
prepare an environmental impact statement (EIS) on the proposed
acquisition of land in trust for the purpose of constructing and
operating a tribal casino on 35.45 acres of land within the City of
Oakland and adjacent to the Martin Luther King Jr. Regional Shoreline
Park. The District, the Cities of Oakland, Alameda, and San Leandro all
oppose the casino development proposal. The Bureau of Indian Affairs
reported that as of April 8, 2005, more than 400 letters had been
received in opposition to the casino development proposal. We know of
no local jurisdiction that supports it. Moreover on May 18, 2005,
Governor Schwarzenegger issued a proclamation stating that he will
``oppose proposals for the federal acquisition of lands within any
urbanized area where the lands sought to be acquired in trust are to be
used to conduct or facilitate gaming activities.'' Oakland is one such
``urbanized area.''
The District has expended tens of thousands of dollars and
considerable time in addressing the environmental impacts of the casino
proposal on the Martin Luther King Jr. Regional Shoreline Park. The
burdens of the proposal are tantamount to an unfunded mandate, or
hidden federal tax, on Alameda and Contra Costa County taxpayers.
Moreover, the future acquisition in trust, if it occurs, will
permanently withdraw real property from Alameda County's tax base.
Considerable preliminary evidence has been assembled and submitted
to the Department of the Interior highlighting the potential adverse
impacts that a 24-hour, 7-day per week gaming operation would have on
the security of the Port of Oakland, the safety of flight operations at
Oakland International Airport, traffic circulation, and existing
commercial development. The anticipated environmental impacts
associated with water and air quality, increased noise and light
pollution, disruptive impacts on the Martin Luther King Jr. Regional
Shoreline Park, and its wetlands, migratory birds, and shorebirds will
require considerable additional time and resources to make a full
assessment of the proposed casino's impacts. It is significant that the
soils of the casino site are so polluted that the site is subject to a
deed restriction prohibiting the development of the land for human
habitation. The site is also subject to a federal consent decree agreed
to by the U.S. Army Corps of Engineers restricting development to uses
that would be compatible to the purpose of preserving the Martin Luther
King Jr. Regional Shoreline Park as habitat for migratory birds and
waterfowl.
b. Proposed Gaming Casino at Point Molate, Richmond, CA
The former Naval Fuel Depot Point Molate (Point Molate) is a
remarkable property. Despite many years of use by the Navy, Point
Molate is principally comprised of hillside and shoreline open space,
with rich natural, cultural, scenic and recreational resources.
Pursuant to Federal Base Closure actions, the Fuel Depot ceased
operation in 1995. A community process through the City of Richmond
created a Base Re-use Plan that selected as the preferred alternative a
mixed-use historical village centered around a winery, with a retreat
center, education and job training facilities, housing and light
industrial land uses. The District has worked closely with the City of
Richmond on the Plan, including preservation and enhancement of the
historic shoreline, with the understanding that the public benefits
from the reuse would be clear and guaranteed.
The Plan was adopted by the Richmond City Council in April 1997.
The Navy processed and completed a detailed ``Reuse EIS/EIR'' for such
uses and adopted a Record of Decision approving the document under
Federal National Environmental Policy Act (NEPA) in 2002.
In 2003, contrary to any prior planning or approvals, the City of
Richmond began a process and in fact sold the land to interests
representing the Guidiville Rancheria Tribe of Pomo Indians. The
purpose was to create a major urban gambling casino through an Indian
Tribe with no apparent ties to the specific land or Richmond area. The
Guidiville Band has now proposed an ``off reservation'' casino with
some 1,100 hotel rooms, 150,000 square feet of gaming and related
facilities.
The prior community approved plan, and the accompanying NEPA
document have apparently been discarded, and the proposed casino
located on top of a 40 acre public park site.
Point Molate has been a part of the District's Master Plan for
decades and the recent ballot measure approved by over two-thirds of
the voters in November 2004 contains funding for Point Molate projects.
Moreover, as long ago as 1988, the citizens of the District voted, also
by more than a two-thirds majority, to tax themselves to raise funds
that would be used in part to acquire land and develop facilities for
public use at Point Molate.
Opposition to build an ``off reservation'' casino at Point Molate
includes community groups, environmental organizations, and the Contra
Costa County Board of Supervisors. The District, along with local
community groups, has filed suit under California's California
Environmental Quality Act in order to require an open and public review
of the project, which by law, should have occurred prior to approval by
the City. The California Attorney General has recently joined the
lawsuit on the side of our District arguing that California law has, in
fact, been violated by the actions to date allowing the casino project
to proceed. We are grateful also for the Governor's May 18, 2005,
proclamation regarding urban gaming, which reflects a policy consistent
with our community values.
Nonetheless, current federal law and regulations severely limit our
ability to have a voice in this new casino project.
2. Unlawful Administrative Actions In The Department Of The Interior
That Conferred Indian Sovereignty On The Lower Lake Rancheria
In the course of reviewing the trust acquisition and casino
development proposal at the Port of Oakland site adjacent to the Martin
Luther King Jr. Regional Shoreline Park, we discovered evidence from
Department of the Interior and Bureau of Indian Affairs documents and
other materials that call into question the Lower Lake Rancheria's
status as a federally recognized Indian tribe. The results of our
research to date are set forth in the June 2, 2005, correspondence to
the Secretary of the Interior that is attached to our written
testimony.
In the Federally Recognized Indian Tribe List Act of 1994, Congress
specifically limited the means by which Indian tribes may receive
Federal recognition:
(1) By an Act of Congress;
(2) Pursuant to Interior Department and Bureau of Indian Affairs
Administrative procedures in 25 CFR Part 83 (the regulations are not
applicable to tribes terminated by an act of Congress); or
(3) By a decision of a United States court.
In 1956, Congress terminated the Lower Lake Rancheria by disposing
of the Rancheria land in fee simple and effectively terminating Federal
relations with the reservation's lone Indian occupant. There is no
record of any Indian tribe having ever been associated with the
Rancheria.
In the half century since Congress terminated the Rancheria, no
court has ruled that the congressional termination was unlawful. Under
the circumstances, the only way that Lower Lake Rancheria could be
restored to recognition was by an act of Congress. Congress has not
done so.
Nonetheless, in December 2000, at the end of the last
Administration, the Assistant Secretary for Indian Affairs issued a
letter that purported to grant administrative federal recognition to
the Lower Lake Rancheria. The Bureau of Indian Affairs experts on
tribal status in the Branch of Acknowledgment and Research vigorously
objected to the Assistant Secretary's intended decision. They wrote:
``Unless the Assistant Secretary-Indian Affairs (AS-IA) has clear
authority to act outside the acknowledgment regulations, and has
conducted a competent, neutral study of the facts in those cases, the
Department's credibility as an unbiased agency asked with acknowledging
tribes will be damaged by arbitrary acknowledgment....'' The experts
were overruled and Lower Lake was recognized.
A subsequent Inspector General's investigation into other
questionable tribal recognition decisions at the end of the last
Administration found evidence of a politicized administrative process
and apparent criminal conduct.
Had the last Administration followed Federal law and its own agency
regulations, we would today not have to bear the burden of an unfunded
mandate costing the District tens of thousands of dollars to
participate in a process that is the result of an illegal act. Instead,
the Martin Luther King Jr. Shoreline, which was thirty years in the
making, is now threatened and our confidence in the commitment of
federal officials to act within the limits of their authority is
shaken.
We request that the Committee review the attached information
regarding the Lower Lake Rancheria, and include it in the record of
this proceeding. Upon completion of that review, we ask that you join
is in requesting the Secretary to retract the invalid recognition of
the Lower Lake Rancheria, suspend the pending trust land acquisition,
and remove the Lower Lake Rancheria from the list of recognized tribes,
unless and until Congress restores it to Federal recognition.
The record we have examined is not complete. The District has a
Freedom of Information Act request pending in the Department of the
Interior. Accordingly, our testimony is based on the record that is
available at this time.
Thank you for the opportunity to present this testimony: I will be
happy to address any questions you may have about it.
NOTE: Attachments to Mr. O'Brien's statement have been retained in
the Committee's official files.
______
The Chairman. Ms. Schmit, please.
STATEMENT OF CHERYL SCHMIT, DIRECTOR,
STAND UP FOR CALIFORNIA
Ms. Schmit. Thank you. Cheryl Schmit, Stand Up For
California. I have already submitted my written testimony for
today and my letter from March on your original draft.
I just would like to make a few points today, very briefly.
Reservation shopping in California takes on many different
forms. We have tribes who have land acquisitions that are both
mandatory through Acts of Congress or discretionary where
tribes are attempting to get restored lands.
We have tribes who are making land acquisitions that are
contiguous or adjacent to existing reservations or rancherias
and tribes who are attempting to do land settlements, some that
are legitimate land settlements and others that are land
settlements that again like some of the restored lands issues
do not have the legitimate claims to the land.
Then we have a number of issues in this State where tribes
have taken land into trust under the guise of that it was going
to be for housing or for a medical clinic and instead it has
turned out to be for gaming.
Then additional pieces of ad hoc legislation which create
opportunities for gaming and which, Chairman Pombo, you
recognized last year in the amendment bill, H.R. 4908, which I
really appreciate as the citizens and that Committee likewise
appreciate.
Off-reservation proposals are having a domino effect of
impacts on local communities. There are political and legal
impacts that are existing. We have had referendums, recalls,
County Grand Juries, Federal Grand Jury investigations and
litigation over the California Environmental Quality Act,
redevelopment agencies abuse, a number of different types.
This is also reflected in some of these very small Tribal
governments that are really actually organizing for the first
time. There are internal enrollment disputes and continued
conflict.
The gaming investors and clearly the list of off-
reservation tribes' proposals that we have in the State today
documents that we have investors coming into the State that are
generating these proposals. These are ever-clever investors and
they are constantly finding new ways of acquiring new land in
order to create new, unchallenged exceptions for gaming.
I have two examples that are in Northern California right
now:
We have the Alturas Tribe who is currently constructing a
gaming facility on fractional interest allotment land over
which it has just recently begun to exercise governance, land
which is a significant distance from the tribe's established
land base and recently proclaimed to be under the tribe's
governance. They have not negotiated any type of agreement with
the local government and there are tribes in the area there
that are stuck with this ongoing construction.
The second example involves the Santana family, an
individual Indian family owning trust allotment land as of
2000, which is transferring governance of this very marketable
location in the City of Cloverdale, which is about 8,000
people, to the Hopland Tribal Government located about 50 miles
away.
Your legislation addresses some of these land schemes head
on by requiring historic tribal government nexus with the land
and local control but there are many exceptions that this
legislation may wish to give consideration to or the Committee
may wish to direct the Secretary of the Interior to begin
holding consultation hearings on the key process and in
California with local government.
Your legislation addresses local control. Accepting input
from local governments and affected communities I think is
significant because in the long run it will ensure the well-
being of the public and the working order of local
jurisdictions and clearly the long term success of Tribal
Governments.
The standard for California views with considerably concern
the economic zones that are set forth in the bill. CSAC has
made many suggestive revisions and modifications that support
concerns of citizens and communities affected by tribal gaming.
But we still view these and support the revisions in
general but we caution that there will be a lack of acceptance
and support for the idea of economic zones even as modified in
CSAC's language and for three very good reasons. An Economic
Zone is an incentive to identifying an area that is not
currently Indian country which invites the abuse of land
speculators and gaming developers who will drive the decisions
about the location of these zones rather than the cool minds of
policymakers.
Economic zones are a recipe to bypass environmental
regulations and review that will encourage the development of
mega-casinos in urban areas or in sensitive rural areas.
IGRA is already riddled with loopholes as everyone is
beginning to discover like the restored lands exception in the
two-part determination. It is basically promoting, at least in
California, a land draft with meaning.
I would like to express my great appreciation to you for
being willing to bring these contentious issues forward and to
try to address it in legislation. It is something that
California significantly needs.
The Chairman. Thank you.
[The prepared statement of Ms. Schmit follows:]
Statement of Cheryl Schmit, Director, Stand Up For California
My name is Cheryl Schmit. I would like to thank Congressman Pombo
and other distinguished members of the Committee of resources for
providing me this opportunity to speak before you today on behalf of
affected community groups across this great State of California. My
organization, Stand Up for California, serves as an advocate and
information resource for community groups and policy makers trying to
understand and respond to the complexities surrounding the expansion of
tribal gaming. My being here today demonstrates this committee's
recognition that all affected parties must be invited to the policy
debate that is essential to ensuring fairness, objectivity and
accessibility.
We support the efforts of citizens who want to make sure that there
are adequate protections for all communities adversely impacted by
unregulated gambling expansion. We do not seek to impede the economic
progress and advancement of California's native peoples; rather we seek
regulatory reforms that we believe are in the best interests of all the
inhabitants of this State.
We sincerely appreciate the effort of Congressman Pombo to bring
forward legislation in an attempt to restrict the proliferation of
tribal gaming and at the same time encourage greater local government
involvement in the mitigation of impacts.
Voters were emphatically told in Propositions 5 and 1A that the
ballot measures would be a limited exception to the prohibition on
casino style gaming and would not result in the proliferation of urban
casinos. Yet here we are today, with more proposals than any other
state all in varying stages of development. It is clear that off
reservation land acquisitions for gaming will undermine the
constitutionality of California's Indian gaming industry. Moreover, off
reservation casinos pose a serious threat to the tribal gaming
industry, as the public support which tribal governments enjoyed in
2000, is evaporating. The California electorate now feels betrayed by
the broken promises of no urban casinos.
California is significantly affected by tribes continuing to
reservation shop for new casino sites off established reservations and
without historic ties. Tribes and gaming investors continue to promote
numerous exceptions under IGRA for off reservation casinos that allow
for the development of gaming on lands acquired after the 1988 cut off.
The list I am providing you includes land acquisitions that are
mandatory and circumvent the Governor, discretionary requiring
gubernatorial concurrence and several exceptions to acquire land for
gaming in accordance with IGRA--such as contiguous lands, land
settlements through litigation or ad hoc legislation. This list
continues to document the influence of gaming industry dollars on
federal Indian policy for land acquisitions and tribal recognitions.
Many California tribal groups qualify for gaming due to the
enactment of Senator John McCain's 1994 legislation. The unintended
consequence of the List Act (Technical Corrections Act of 1994, Section
5, Pub.L.103-263, 108 Stat. 707 (May 31, 1994)) in California relates
to Rancheria lands that were owned in fee--not in trust by the United
States. The misapplication by the BIA of the Senator's amendment has
allowed numerous land-based groups to be elevated to the federal
recognition list despite legitimate questions that should have
occurred. Many of the Rancheria tribal groups began to organize for the
first time in 1994 and to develop off-reservation casinos.
Off reservation gaming has created a domino effect of impacts. It
has created numerous instances of internal enrollment disputes over
Indian lands, gaming money and power. It has set off political and
legal impacts on local governments and the surrounding communities of
citizens.
But gaming investors are ever-clever, coming up with new ways of
acquiring new land in order to create new unchallenged exceptions for
gaming. Two great examples exist in Northern California today:
The Alturas tribe is currently constructing a gaming
facility on fractional interest allotment land over which it has just
recently begun to exercise governance--land which is a significant
distance from the tribe's established land base and recently proclaimed
to be under the tribe's governance.
The second example involves the Santana family, an
individual Indian family owning trust allotment land as of 2000, which
is transferring governance of this very marketable location in a City
of Cloverdale (population: 8,000) to the Hopland tribal government
located approximately 50 miles away.
Your legislation addresses some of these schemes head-on by
requiring a historic tribal governmental nexus with the land and local
control. But, there are many exceptions this legislation needs to give
further consideration too.
Local approval
Your proposed amendments to IGRA would protect and ensure the well-
being of the public, the good working order of affected local
jurisdictions and the long-term success of tribal governments. Your
legislation addressing local input is greatly needed.
While the amendment specifically would remove the sole discretion
of the Governor to approve off reservation casinos it appears to expand
the approval to all affected parties. This amendment will require
precise language to clarify the approval process.
Revisions and Zones
Stand Up for California views with considerable concern the idea of
economic zones as set forth in the bill. CSAC has made many suggested
revisions and modifications that support the concerns of citizens in
communities affected by tribal gaming. Stand Up For California supports
these revisions in general but would also caution there is a lack of
acceptance and or support for the idea of economic zones, even as
modified in the CSAC language.
An economic zone is an incentive to identifying an area
that is not currently Indian country which invites the abuse of land
speculators and gaming developers who will drive decisions about the
locations of these zones rather than the cool minds of policy makers.
Economic zones are a recipe to by pass environmental
regulations and review that will encourage the development of mega-
casinos in urban or sensitive rural areas.
IGRA is already riddled with loopholes--like the restored
lands exception to the two-part determination in Section 20 of IGRA--
which has promoted a land grab for gaming.
Conclusion
Overall, while we sincerely appreciate the opportunity that this
draft legislation presents for a public debate on the impacts of tribal
gaming, we believe a more moderate approach will be less objectionable
and consistent with the delicate balance between the rights and
authorities of states, tribes and the federal government. For example,
we believe that rulemaking at the administrative level--a formal
revamping of the fee-to-trust process for all new land acquisitions is
a good beginning.
It is without a reasonable dispute that ``Reservation Shopping'' is
driven by out of state gaming investors, carefully controlling their
clients (a.k.a. tribes) and making ``development agreements'' rather
than ``management contracts''. These gambling interests are
deliberately circumventing the National Office of Indian Gaming
Management and the National Indian Gaming Commission by seeking to have
land taken into trust as restored lands. This type of abuse demands
federal regulatory action to protect the integrity of tribal gaming
operations and protect state and local governments.
An incremental change requiring approval of all
agreements is necessary as IGRA only requires management contracts to
be reviewed and approved.
Stand Up for California would like to see the full support of the
Conference of Western States Attorneys General and the support of all
Governors for this legislation. We thank you for your willingness and
courage to raise these timely and contentious issues in an open and
respectful debate.
______
The Chairman. I am going to start with Mr. McGowan. Just to
clarify the position of California Counties, there is not a
general opposition to Indian gaming on Indian trust lands now
or reservation lands now?
Mr. McGowan. No, there is not. We have chosen not to weigh
in on the question of the use of the land. We do not have any
formal opposition at all or any policy objection to Indian
gaming, provided it's carried out in the manner required under
the State and Federal law.
Our issue primarily has always been the impacts of on-
reservation activity on the surrounding lands. We are, the
County Supervisors are, essentially as our State Council
Members are, in their own purview. We are the stewards of the
land and protectors of the environment except on Indian land.
Our issue is that, that activity should not be carried out
in such a way that would adversely impact the neighborhood. My
rights extend to the end of my fist, but they stop somewhere
short of your chin. Our issue is that we set a level of
compatibility as far as honoring and respecting Indian
sovereignty, including its use of the land for gaming purposes,
but also having our responsibilities honored as well.
We believe quite frankly that through some requirements for
negotiation of those impacts and for judicially enforced
standards that most if not all of the concerns between tribal
wishing to engage in gaming and the County can be met. We feel
actually very confident about that.
Our main issue is the inclusion of local jurisdiction,
especially counties, in this decisionmaking process.
The Chairman. In the draft legislation we deal with local
government having a bigger voice in approving certain Indian
gaming facilities, but as a Supervisor, you are aware that if a
development comes in, you have to be able to show a nexus
between the impact and what is being required of that
development to pay for.
Mr. McGowan. Yes, sir.
The Chairman. To expand on Mr. Costa's idea that the State
have a policy in regards to Indian gaming, if that State policy
requires a negotiation between, consultation and negotiation
between the sovereign tribal government and local government to
have that tribe pay for whatever their impacts are on traffic
or what have you, if that was part of the State compact
process, would that address what the bulk of your concerns are
in terms of impacts, particularly on rural counties?
Mr. McGowan. It would go a long way. You're talking about
just the compacts. We're dealing with that right now with
trying to get these kind of provisions included in the new
compacts.
Governor Davis began the process at the very end of his
term and then Governor Schwarzenegger has picked up that and
has included local jurisdictions as one of the entities that
must be reckoned with in that fashion. That is, we have an
opportunity to negotiate to try to reach an accord. If we are
unsuccessful, there are actually repercussions for the side
that is unreasonable in that regard.
Once an agreement is reached, then there are the judicially
enforceable--there will be an enforcement.
We supported that. We would like to see a policy in
California that goes beyond just a compact because at the heart
of this for us is what you mentioned in the very beginning, is
this need for the nexus. Counties and cities for that matter
are very comfortable with doing that analysis and coming to
requirements for the development that meet that nexus test. We
do it all the time.
So it's not a new thing for us to deal with that, even if
it's a gambling casino in the middle of your jurisdiction. What
we're asking for in essence is, give us that opportunity to do
that which we do very well already.
The Chairman. Before my time expires, I'm want to go to Ms.
Schmit. In regards to the Indian Economic Opportunity Zones,
the law is not guaranteeing Indian gaming success to every
tribe. That was never contemplated. But in moving forward with
this legislation, I don't want to take away the opportunity
either.
So the idea of having an Economic Opportunity Zone was to
try to avoid some of the other issues that you raised in your
testimony with one tribe trying to leap-frog another, others
trying to use the system in order to be in an economically
superior place, but to work with local tribes, local government
and tribes that are seeking that opportunity and to try to
consolidate that within what we call the Economic Opportunity
Zone. That is the purpose of it.
I believe if you take that out of the draft legislation,
you are risking the possibility that you would be taking
opportunities away from tribes that currently exist for them. I
don't want to do that. So we're trying to thread this needle
and say, ``The opportunity is there for those who chose to do
it.'' Not every tribe chooses to game.
As Mr. Costa talked about it, about half of the ones in
California chose not to now. If you look across the country
it's similar to that. But those who do choose to game, I would
rather have that done in a more orderly fashion than what we're
currently experiencing right now.
Ms. Schmit. Right, and I understand that in the 1999
compacts, it was clearly in the compact that was referendumed,
and it was also I believe in Prop 5, there was the component of
revenue sharing made available to the non-gaming tribes of the
State and that was supposed to be an incentive not to open up
gaming.
Clearly, that revenue sharing continues today and many of
the tribes that are promoting off-reservation casinos, not all
but many, are very small numbers in the population and revenue
sharing right now is at 1.2 million.
Unfortunately, this amount of revenue when it goes to these
tribal governments, one tribe that I know of specifically is
splitting it 60 percent with the members and 40 percent with
the Tribal Council to go out and attempt to do reservation
shopping. So that incentive to decrease the proliferation of
gaming has kind of backfired on us.
I see the benefit to the economic zone, I truly do, but the
Governor in the compact process there was the idea of--not in
the compact--but there was this idea that there could be a
clustering of tribes to create an economic zone basically, and
it would have State oversight because it would be negotiated
through Tribal/State compacts.
But this is not going well. I think it can clearly be
demonstrated in Southern California between the cities of this
area in Barstow where we have five or six tribes promoting off-
reservation casinos. There is a debate between the tribes,
there is a debate growing within the cities. Clearly, the
citizens are not supportive of all of the casinos in one area.
Again, I think in my first letter I said it would need to
be very carefully crafted.
The Chairman. I understand your concern and the example
that you use as to how some of this money is being used, I'm
familiar with the number of tribes that currently have gaming
that have invested millions of dollars with other tribes who
don't have gaming to build their economic base within their
reservation and I have run into that all the time where these
tribes are actually taking their revenues that they have raised
from gaming and invested it, not just in themselves, but in
other tribes. Some with great success and they have been doing
that.
So this is controversial. This is a tough issue to get
around, but I don't want to push us into one particular box and
make it look like everybody is doing the same thing because
there have been some real success stories that are out there.
Ms. Schmit. A successful zone I think that has already been
created within the State, we can't really call them zones, but
we have had in the last compact process the Vian Cross
partnered with the Yuba tribe. That resolved a reservation
shopping issue in San Diego County very satisfactory. I think
that says lot about progressive leadership. Some of the tribes
in the State are willing to do those types of actions.
So, maybe one of the zones that you are suggesting would be
agreeable to success.
The Chairman. Mr. Costa.
Mr. Costa. Thank you very much.
Ms. Schmit, are you aware over the years that you have
participated and been involved in this matter of any sort of
clear, coherent, statewide policy as it relates to Indian
gaming in California?
Ms. Schmit. State policy? Citizens in the early days when I
got involved with this back in 1996 and at that time under
Governor Wilson citizens had access to the Governor's office to
give comment on what they wanted----
Mr. Costa. I understand and I'm familiar with all of this,
but I'm talking about under either the Davis Administration or
under the current Administration notwithstanding this
proclamation.
Ms. Schmit. At the end of the Davis Administration, yes,
there began to be a policy that was being addressed in the
compacts. With the new Administration, I know the proclamation
is new, but I have had access to numerous letters that the
Governor's office has sent to community groups and members of
City Councils.
Mr. Costa. Do you think it would be more accurate to
describe over the last 15 years it's really been more of a
case-by-case basis than individual sovereign nations that are
attempting to----
Ms. Schmit. Right. It has been case-by-case and each tribe
reasonably is geographical and culturally----
Mr. Costa. I understand.
Supervisor Brown, it's good to see you again.
Since you and I were both in the legislature for part of
the same time--you have your own experience based upon the time
you were there--is it clear that there has never really been
any sort of a statewide policy as it relates to Indian gaming
in California?
Ms. Brown. I think the policy has certainly changed. As Ms.
Schmit was referring, the original compact had a lot more
deference to the local government than the subsequent Davis
compact. I think that Governor Schwarzenegger is trying to
address some of the issues that----
Mr. Costa. Is there any clear State policy that you and
CSAC can put your hands on and say, ``This is the policy.''
Ms. Brown. I would say no. I would say it changes with--
just one of the things that I would like to add is that the
State of Arizona really doesn't have a lot of the same problems
that we do because their state compact doesn't allow outside
investors.
I think that's certainly an issue that ought to be looked
at in the future in terms of how we deal with this because that
has really brought forth a lot of problems for us a lot of
problems that we never expected.
Mr. Costa. Supervisor McGowan, do you care to weigh in?
Mr. McGowan. I would love to. If you strip away the
niceties, my arrival on the scene as far as Indian gaming
policies were concerned was a shock, at least I think it is.
The State of California has done a lousy job in really
addressing the issue of Indian sovereignty and Indian gaming in
California.
When CSAC started, we were just trying to get a little
attention here and be treated halfway decently. I think most of
the policy that has occurred here has really happened outside
of the State Legislature and the Governor's Office.
Mr. Costa. A number of you have spoken about reservation
shopping. As I think about it in the years that I have served,
it seems to be more like today with States in the process of
issuing franchises and every franchise is a different deal and
that's what concerns me.
It seems to me that hopefully we'll get your thoughts
today, reflect on it and maybe help generally what could be in
the future prospectively--obviously, those that have come among
the 64 compacts. Those are agreements and I don't think you can
violate them by law.
It seems to me in the future we have to look at where we're
going. May I add one thing?
Mr. Costa. Yes.
Mr. McGowan. It's fundamental that we address this issue
because for us to fumble around like this, suddenly can change
to cause tremendous pains and ill will between people of good
intentions. That would be the tribes themselves, local
jurisdictions, State jurisdictions, Federal jurisdictions.
We owe it to each other to get this stuff worked out so
that there is some understandable way to proceed on the rights
of sovereign tribes and also responsibilities to State and
local government.
Mr. Costa. Quick question: Does CSAC believe that counties
on a case-by-case basis are given leverage?
Mr. McGowan. Actually, when we started, that was definitely
true. As we have become, I think, more intelligent about how to
deal with these issues and how to develop a relationship with
the tribes, the counties are less and less in a situation where
they get leverage on the deal especially if they want to pay
attention to some of the successful stories from other counties
and tribes, so we're getting better at it.
Mr. Costa. Thank you.
Mr. Gohmert. Thank you. I have been doing a lot of reading
and trying catch up on this issue.
It has not been a major issue in Texas. Just to make sure
that I understand and I'm on the same page and understand
exactly.
My review of the draft bill indicates that this would end,
and what we have heard discussion about is the two-part
determination under IGRA. This proposed bill would end that and
prohibit the tribes from crossing the state lines and build
facilities where they don't even have a reservation.
It would allow Economic Opportunity Zones with each State
where Indian gaming is legal, but some of the high points that
jumped out at me if I understood correctly, a zone has to be
approved by the State and local government which would give,
the way I understand it, everybody including everybody here an
opportunity to come and weigh in and make sure the people that
they put into office represented their interests.
With regard to landless tribes, restored or landless
tribes, with requirements for getting land for gaming, only if
it is on their geographically historical area--the State and
local governments once again are the ones who have jurisdiction
and have to approve that. Is my understanding of your proposed
bill correct, Mr. Chairman?
The Chairman. That's the way the draft now reads.
Mr. Gohmert. So, there is nothing like local control and it
sounds like there hasn't been enough of that, working together.
I'm just curious as is my staff.
I have been a judge for many years so I'm kind of new to
this. If this is out of line, you can sure tell me, but since
you don't have a bailiff who will put me in jail, I'll ask it.
We have such a huge turnout here and it's obviously a
nonscientific poll, but by indication of hands, how many here
feel like you understand the draft of the proposed legislation?
Not too many, is it? From what you do understand, how many
support the legislation that appears that appears that it would
reign in some of the past abuses and allow more local control?
If I could see a show of hands in favor of that?
How many oppose the new legislation? We have a lot of those
don't yet have an opinion; they are just here. It's still a
good indication that this many people care and will come
forward and have been looking into it. I know that you have
already indicated that you will allow additional witness
statements and written questions, so I would just encourage
anybody that does wish to submit a written statement to do so.
From the four of you, are all four of you in favor of what
you have seen of the proposed legislation?
Mr. McGowan. CSAC's position is that we haven't taken a
position directly on the bill. We will be prepared to do that.
We're very happy. We like this progress. We think it is long
overdue.
There is much of it that touches us in our hearts as far as
local control is concerned. We would want to work with you all
about stands versus zones. I don't think it's possible. CSAC
does not have a position on that.
But this is progress, to see this kind of thoughtfulness
come out of the House is very important to us. It does touch
many of our issues. We want to work with you all.
Ms. Brown. I think the one thing that might be interesting
to share with you from the California perspective and being a
supervisor in county government is that we are mandated by the
State to put together a general plan and that general plan has
any number of elements dealing with infrastructure, dealing
with water, agriculture, housing, all of the elements. It's a
20-year plan.
When you have looked at your county from a 20-year
perspective, today and tomorrow you have an investor who comes
in on a 50-acre to 75-acre parcel and says--``Guess what? I
know that that was previously ag, but now we see it as a 300-
room hotel, an entertainment facility and a casino.'' It hugely
upsets the apple cart. From our perspective, it's important
that they are in at the beginning.
We have five tribes in Sonoma County and I will tell you
that four of them have been very willing to work with the
County, even though one tribe is a restored tribe and has no
requirement to do that whatsoever. They can do what they want.
They are sovereign. They have insisted on having public
hearings and working with the County.
It's been a very good lesson for us. I think what we're
trying to do is encourage that more because we are communities
that live side by side and we are governments that work side by
side. We have to understand where that goes.
Mr. O'Brien. I think it's a more profitable process. It
certainly puts a degree of rationality and planning which so
far as we have seen the reaction is that it goes against the
community. Some of them shopping but most of the time it seems
to go against the community interests and understandings of
work relationships.
Those issues need to be out on the table so people can deal
with them in a legitimate way.
Mr. Gohmert. Ms. Schmit, I'm not familiar with Stand Up For
California but I assume that you do advocate more than just
standing up. Are you in a position to say you support this type
of legislation or you're against it.
Ms. Schmit. Right. We're not taking a position on the draft
legislation.
Mr. Gohmert. So, you're just in a standing up mode.
Ms. Schmit. It's important to recognize the vision that
CSAC has put forward in general. What we're really supporting
is the fact that the Congressman is willing to bring this up in
debates, the fact that it is being debated in the House.
These are very contentious issues in the community where
there is reservation shopping and it's detrimental to the long-
term success of the tribes as it is detrimental to the citizens
of the community. We need some way to address these issues
through policy, through legislation, that allows us to live
side by side in this.
We can do this. In my county, I live in Placer County, we
faced this nine years ago. We had a tribe who through ad hoc
legislation was restored to Federal recognition. My neighbors
went crazy and it required some people to step back with cool
minds and think about this.
We were very fortunate in our county. Our County Supervisor
and our Congressman worked very closely with our county and
agreed upon a location in an appropriately zoned area that was
consistent with the general plan of our county. The agreement
that the tribe made with our county is a comprehensive
agreement. It did not infringe upon their sovereignty. Rather,
it was a very eloquent demonstration of the exercise of our
government. So, our county is not impacted like other
communities have been.
Mr. Gohmert. One of the darkest clouds on our American
history has been a number of agreements made with Native
Americans that have been broken, just discarded. It's a
terrible testimony of our past history.
So I appreciate input from everybody to kind of get me up
to speed. We just need a mechanism in place that allows both
sides of this issue to hold the other accountable for any
misrepresentation, whether it's the tribe holding the
government accountable or the local government holding the
tribal government accountable to the agreements. Thank you for
your time.
The Chairman. I am going to dismiss this panel. Thank you
for your testimony and for answering questions. Any further
questions will be submitted to you in writing and if you will
answer those in writing I would appreciate it.
Those of you who are testifying, please stand up and be
sworn.
[Witnesses sworn.]
The Chairman. Let the record show that they answered in the
affirmative.
The Chairman. Welcome to the Committee hearing, Chairwoman.
We're going to begin with you but before you start I remind you
that your entire written testimony will be included in the
record. If you can summarize that and keep your oral testimony
to five minutes, it would be appreciated. Thank you.
Before you begin, if I could just have order in the room.
We don't have any microphones in here and it's difficult for
the court reporter to hear. I would ask you to speak up when
you testify but if I could have a little bit more order in the
room, it would help everybody here.
Chairwoman Mejia, please.
STATEMENT OF MARGIE MEJIA, CHAIRWOMAN,
LYTTON BAND OF POMO INDIANS
Ms. Mejia. Congressman Pombo, distinguished members of the
Committee on Resources, thank you for inviting me to
participate today. My name is Margie Mejia and I am the
Chairwoman of Lytton Band of Pomo Indians.
To understand why we are here today, it's important to
understand something about the history of our tribe. Like most
California tribes, we are a small group with about 275 members.
Like many other California tribes, most of our members live in
poverty. Many have no or inadequate health care. Alcoholism and
substance abuse are continuing problems. We have many families
living together in tiny apartments.
Until the 1950's, we did have land. That land was in Sonoma
County. Today this is the site of some of the most prestigious
wineries anywhere in the world, but the reason that today there
are vineyards on that land instead of our homes is the result
of actions taken by the Federal Government.
In the 1950's, the Government decided to terminate the
small Native American bands like ours as part of a failed
Federal experiment to abolish reservations and forcibly
assimilate Native Americans into urban areas. The result was
that we lost both our legal identity and our land, but we never
lost our existence as a community. Many of us continue to live
together and to take care of tribal members in need as we do to
this day.
Eventually we sued the United States and the outcome of
that suit is that the Federal Government admitted it had broken
the promises it had made in the termination agreement. In 1991
our tribal status was restored; however, that settlement
effectively barred us from returning to our private land in the
Alexander Valley by prohibiting us from operating a gaming
facility in the area.
We had no choice but to agree to this condition because
otherwise with little or no resources of our own, we would have
been forced to fight a protracted legal battle against a group
of wealthy wineries and the County. After restoration we re-
established our Tribal Government, passed a Constitution and
the right to Tribal Council.
We also began to look for a means out of the relentless
poverty many of our members face and to rebuild our tribal
community. We turned to gaming since the Government offered
that to us as means of economic development and because it
generates enough money to allow us to get a loan and finance
the rebuilding of our tribe and tribal community.
In 1991, the restoration agreement, while barring us from
operating a gaming facility in Sonoma County, did not foreclose
on our right to find another community that might welcome us as
partners. We found our road to economic self-reliance in the
City of San Pablo. With the help from private investors we
purchased an existing card club that had been approved by the
local voters in 1994.
The City and the Tribe then negotiated a Municipal Services
Agreement. At the time, such an agreement was unprecedented in
California and was the most protected arrangement between local
interests and an Indian tribe in California.
But there were other hurdles to come. Although it was the
Government's wrongful actions which resulted in the loss of our
land, by the time the Government had admitted that and prepared
to make good on our loss, the legal landscape of the tribes had
changed.
The law had been passed which made it extremely difficult
for tribes to operate gaming on land taken into trust after
1988 unless Congress made that land eligible. Even though it
was not our fault that we were in this position and although
the law had not been intended for landless tribes, but rather
tribes with existing reservations, our efforts to seek help
from the Department of Interior went nowhere.
Finally, Congress acted to take that land into trust for us
as it had in the case of many other tribes in California and
other states. This was the final option after we had tried
everything else. Thanks to the efforts of Congressman George
Miller, that proposal was introduced in legislative form in
October of 2000.
On December 27th of that year, the President signed the
bill into law. There were newspaper articles about this at the
time, and subsequently there were two attempts to repeal this
proposal. Neither of those met with success. Relying on support
of Congress, we have made a substantial investment of time and
money toward gaming development.
We have negotiated generous agreements with both local and
State governments and have made every effort to be a good
neighbor. In fact, we believe we are doing exactly what the
Federal Government wanted us to do when it refused to settle
our restoration lawsuit until we agreed not to conduct gaming
in Alexander Valley. The Government told us to look elsewhere
and we did.
The Feinstein legislation represents another broken promise
made to the Lytton Tribe by the Federal Government. It is
nothing short of another Congressional termination. We believe
that our right to conduct gaming is a valuable property right
protected by the United States Constitution and that this right
cannot be taken from us without substantial compensation.
In addition, this legislation represents government action
and regulation that just goes too far.
The Lytton Tribe, like all American citizens, should not be
subject to government actions and regulations that deprive them
of their right to use their lands for economic development
purposes.
The act of taking the land into trust for us in San Pablo
was not the beginning of the story; it was the end of a very
long story, a story of poor treatment of our tribe at the hands
of the Federal Government.
That was an act of redress making good the wrong that had
been done to us more than 50 years before. To have simply said,
``We're sorry,'' and offered up a paper apology for the
treatment of our tribe would have wrong. Taking that land into
trust represented a meaningful act of redress. Taking that land
out of trust would make that gesture many empty words.
This is the background to our proposal for a casino project
on our land in San Pablo. Our initial proposal in 1998 (sic.)
was for a modest gaming operation with something on the order
of 1,000 slot machines. In the proposed compact that we signed
with the Government last year, that number was originally
5,000, which was then revised down to 2500 machines.
Since there has been some controversy about the change, let
me address that for a moment:
When we made our initial proposal in 1999, no compact, not
ours or any other tribe's, provided for any revenue sharing
with the State of California, nor did these compacts provide
local and State governments opportunity for substantial
environmental review, mitigation of local impacts or
involvement in gaming regulations.
We stepped up to the plate to do just that, reaching an
agreement to pay an unprecedented 25 percent of net gaming
revenues to State and local government, to pay our fair share
of public services and environmental mitigation. But that
commitment also required more slot machines than originally
envisioned.
We agreed to two exhaustive impact reviews prior to
anything being built. These provisions are modeled after the,
CEQA, California Environmental Quality Act, such as the
inclusion of project alternatives, mitigation and citizen
participation in the process.
The compact took one step farther by requiring the Tribe to
complete agreements of mitigation with its neighbors in the
City of San Pablo and the local community and State
Transportation Department.
Over and above our compact obligations, the Tribe spent the
past months engaged with the community to hear their hopes and
concerns about our project. We negotiated and signed a compact
with the Governor of California.
We have the strong support of the City of San Pablo where
the casinos would be located. We believe that this proposed
compact represented a good for all parties. Notwithstanding all
that, as you know, the California State Legislature has chosen
not to act on the compact.
As a result, we will now focus on our exercising our rights
under Federal law. We will renovate the interior of the
existing building to make it more attractive and to offer a
wider variety of Class II gaming activities, including Class II
electronic bingo games.
These are not video lottery terminals. They will fall well
within the definition of what constitutes Class II gaming. We
don't tend to push the envelope.
We did not ask to be in this situation. We did not ask the
Federal Government to take away our name and our land, but that
happened.
Now, decades later when the Government has finally acted to
right those wrongs, we believe it would be wrong to take away
our right to pursue economic self-sufficiency.
If this body wishes to address various issues associated
with Indian gaming, so be it. But I respectfully ask you not to
go back and retroactively change the rules for us.
What this body did in 2000 was the right thing to do. It
was to make good a wrong the Federal Government had committed
against our tribe. I ask you to let that act of justice stand.
Thank you.
Right those wrongs. We believe it would be wrong to take
away our right to pursue economic sovereignty associated with
Indian gaming, but I respectfully ask you not to go back
retroactively and change the rules for us. What this body did
in 2000 was the right thing to do. It was to make good on a
wrong that the Federal Government committed against our tribe
and I ask you to let that act of justice stand.
The Chairman. Thank you.
[The prepared statement of Ms. Mejia follows:]
Statement of Margie Mejia, Tribal Chairwoman,
Lytton Band of Pomo Indians
Congressman Pombo and distinguished members of the Committee on
Resources, thank you for inviting me to participate today. My name is
Margie Mejia, and I am the chairwoman of the Lytton Band of Pomo
Indians. To understand why we are here today, it's important to
understand something about the history of our tribe.
Like most California tribes, we are a small group, with about 275
members. Like many other California tribes, most of our members live in
poverty. Many have no or inadequate health care. Alcoholism and
substance abuse are continuing problems. We have many families living
together in tiny apartments. Only one of our members owns a home.
But until the 1950s, we did have land. That land was in Sonoma
County, and today this is the site of some of the most prestigious
wineries anywhere in the world. But the reason that today there are
vineyards on that land, instead of our homes--is the result of actions
taken by the federal government.
In the 1950s, the government decided to ``terminate'' small Native
American bands like ours as part of a failed federal experiment to
abolish reservations and forcibly assimilate Native Americans into
urban areas. The result was that we lost both our legal identity and
our land.
But we never lost our existence as a community. Many of us
continued to live together, and to take care of tribal members in need,
as we do to this day. Eventually, we sued the United States, and the
outcome of that suit was that the federal government admitted it had
broken the promises it had made in the termination agreement. In 1991,
our tribal status was restored. However, that settlement effectively
barred us from returning to our tribal lands in the Alexander Valley by
prohibiting us from operating a gaming facility in the area. We had no
choice but to agree to this condition because otherwise, with little or
no resources of our own, we would have been forced to fight a
protracted legal battle against a group of wealthy wineries and the
county.
After restoration, we re-established our tribal government, passed
a constitution and elected a tribal council. We also began to look for
a means out of the relentless poverty many of our members faced, and to
rebuild our tribal community.
We turned to gaming because the government offered that to us as a
means of economic development, and because it generates enough money to
allow us to get a loan and finance the rebuilding of our tribe and
tribal community.
The 1991 restoration agreement, while barring us from operating a
gaming facility in Sonoma County, did not foreclose our right to find
another community that might welcome us as partners. We found our road
to economic self-reliance in the City of San Pablo where with help from
private investors we purchased an existing card club that had been
approved by local voters in 1994.
The City and the Tribe then negotiated a Municipal Services
Agreement. At the time, such an agreement was unprecedented in
California, and was the most protective arrangement between local
interests and an Indian tribe in California.
But there were other hurdles to come. Although it was the
government's wrongful actions which resulted in the loss of our land,
by the time the government had admitted that, and prepared to make good
our loss--the legal landscape for tribes had changed. A law had been
passed which made it extremely difficult for tribes to operate gaming
on lands taken into trust after 1988 unless Congress made the land
eligible. Even though it was not our fault that we were in this
position, and although the law had not been intended for landless
tribes, but rather tribes with existing reservations, our efforts to
seek help from the Department of Interior went nowhere.
Finally, Congress acted to take that land into trust for us as it
has in the case of many other tribes in California and other states.
This was the final option, after we had tried everything else. Thanks
to the efforts of Congressman George Miller that proposal was
introduced in legislative form in October, 2000. On December 27th of
that year, the president signed the bill into law.
There were newspaper articles about this at the time, and
subsequently, there were two attempts to repeal this proposal. Neither
of those met with success. Relying on the support of Congress, we have
made substantial investments of time and money toward gaming
development. We have negotiated generous agreements with both local and
state governments and have made every effort to be a ``good neighbor''.
In fact we believe we are doing exactly what the federal government
wanted us to do when it refused to settle our restoration lawsuit until
we agreed not to conduct gaming in the Alexander Valley. The government
told us to look elsewhere and we did.
The Feinstein legislation represents another broken promise made to
the Lytton Tribe by the federal government. It is nothing short of
another congressional termination. We believe that our right to conduct
gaming is a valuable property right protected by the United States
Constitution and that this right cannot be taken from us without
substantial compensation.
In addition, this legislation represents government action and
regulation that goes ``too far''. The Lytton Tribe, like all American
citizens, should not be subject to governmental actions and regulations
that deprive them of their rights to use their lands for economic
development purposes.
That act, of taking land into trust for us in San Pablo, was not
the beginning of this story. It was the end of a very long story--a
story of poor treatment of our tribe at the hands of the federal
government. That was an act of redress, making good the wrong that had
been done to us more than fifty years before. To have simply said,
``We're sorry,'' and offered up a paper apology for the treatment of
our tribe would have been wrong. Taking that land into trust
represented a meaningful act of redress; taking that land out of trust
would make that gesture so many empty words.
That is the background to our proposal for a casino project on our
land in San Pablo.
Our initial proposal in 1999 was for a modest gaming operation with
something on the order of 1,000 slot machines. In the proposed compact
that we signed with the Governor last year, that number was originally
5,000, which was then revised down to 2,500 machines. Since there has
been some controversy about the change, let me address that for a
moment.
When we made our initial proposal in 1999, no compact, not ours or
any other tribe's, provided for any revenue-sharing with the state of
California. Nor did these compacts provide local and state governments
opportunities for substantive environmental review, mitigation of local
impacts or involvement in gaming regulation.
We stepped up to the plate to do just that, reaching an agreement
to pay an unprecedented 25 percent of net gaming revenues to state and
local government to pay for our fair share of public services and
environmental mitigation. But that commitment also required more slot
machines than originally envisioned.
We agreed to two exhaustive environmental impact reviews prior to
anything being built. These provisions are modeled on the California
Environmental Quality Act such as the inclusion of project
alternatives, mitigation and citizen participation in the process. But
the compact took one further step by requiring the Tribe to complete
agreements on mitigation measures with its neighbors in the City of San
Pablo, the local county and the state transportation department.
Over and above our compact obligations, the Tribe spent the past
months engaged with the community to hear their hopes and concerns
about our project. As a result, we reduced the size and scope of our
project, to make it a better fit for the community, while still
offering the creation of more than 6,600 new jobs.
We negotiated and signed that compact with the governor of
California. We had the strong support of the city of San Pablo, where
the casino would be located. We believe that the proposed compact
represented a good deal for all parties. But notwithstanding all that,
as you know, California's state Legislature has chosen not to act on
the compact.
As a result, we will now focus on exercising our rights under
federal law. We will renovate the interior of the existing building to
make it more attractive and to offer a wider variety of Class II gaming
activities, including Class II electronic bingo games. These are not
video lottery terminals. They will fall well within the definition of
what constitutes Class II gaming. We don't intend to push the envelope.
We did not ask to be in this situation. We did not ask the federal
government to take away our name and our land. But that happened. Now,
decades later, when this government has finally acted to right those
wrongs--we believe it would be wrong to take away our right to pursue
economic self-sufficiency.
If this body wishes to address the various issues associated with
Indian gaming, so be it. But I respectfully ask you not to go back and
retroactively change the rules for us. What this body did in 2000, was
to do the right thing. It was to make good a wrong the federal
government had committed against our tribe. I ask you to let that act
of justice stand. Thank you.
______
The Chairman. Assemblymember Hancock.
STATEMENT OF LONI HANCOCK, ASSEMBLYMEMBER,
14th ASSEMBLY DISTRICT
Ms. Hancock. Thank you very much, Chairman Pombo. My name
is Loni Hancock. I represent much of the northeast section of
the San Francisco Bay Area, including the cities of San Pablo,
Richmond and Oakland where casinos are being discussed and have
been proposed.
I want to thank you for your leadership in continuing the
discussion around the increasing controversy surrounding off-
reservation casinos and the respective roles of State, Federal,
tribal and local governments.
A brief look at how we got here. In 2000 the voters of
California passed a Statewide initiative, Proposition (1)(A).
Proposition (1)(A) amended the California State Constitution to
provide economic development for tribes by authorizing gambling
casinos on traditional ancestral tribal lands, which were
predominantly in rural areas. As a matter of public policy,
California voters made a limited and narrow exception to the
State Constitution's prohibition of Las Vegas style gambling.
In that campaign the opponents said, ``You wait, urban
gambling is going to be next,'' and the proponents of Prop
(1)(A) said, ``Never, it never will happen, not what we
intend.''
Given what they intended is what people voted for. Since
Prop (1)(A)'s passage, we have seen a good number of tribes,
more than 50 I believe, followed the Prop and opened gambling
casinos on their tribal land.
We have also seen a handful of tribes, with ambiguous
ancestral ties to land, making claims on that land for the sole
purpose of opening a gambling casino.
In the San Francisco Bay area alone, we face a proposed
development of up to four casinos in a 15 mile radius by tribes
who have scant, if any, ancestral connection to those lands. In
the case of the Lytton Band of Pomo Indians at Casino San
Pablo, which has been designated as a reservation, it's about
50 miles from Sonoma County where their lands were.
In another case, the Lower Lake Rancheria Koi Nation is
proposing a large casino adjacent to Oakland International
Airport, nearly 150 miles from the tribe's traditional lands in
Lake County. These are large-scale casinos in clearly in built-
up urban areas would be a violation of the will of the voters
and the intent of Prop (1)(A).
Congressman Pombo, your legislation addresses the issues of
the importance of local community support for any proposed
gambling casinos. I would like to talk briefly about the local
community response to the expansion of Casino San Pablo from a
card room to what would have been in the original compact, the
third largest gambling casino in the United States, larger than
anything on the Las Vegas Strip.
In a fully built-up area, half a block off the I-80
freeway, which is gridlocked for a large part of every day as
it is. I would also just like to point out that in Metropolitan
areas like mine, where one city blends into another, you really
would need to ask opinions of all the adjacent cities because
they will all bear negative impacts and they will get no
revenue under anybody's scenario.
I sent out a survey to every household with a registered
voter in it in my district; that's about 156,000 voters. The
return survey showed overwhelming opposition to the proposed
casino. 91 percent in opposition and even in the City of San
Pablo, which had been promised jobs and money, it was 67
percent opposed.
Later our local TV station, KPIX, did a survey and in their
survey return area it was somewhat different. There was a 57
percent opposition. In addition, the Contra Costa County Board
of Supervisors passed a resolution, bipartisan, against Casino
San Pablo and opposing all urban casinos.
The Alameda County Board of Supervisors also passed a
resolution against the Koi Nation proposal and cities in the
surrounding communities have done so as well.
Recently you have heard that the proponents of casinos say
they will not do Class III gambling anymore, but will do the
electronic bingo machines. There are some things you might want
to look at as well as you are considering several policies
because those electronic bingo machines actually look like and
act just like slot machines.
The technology is improved. The lights, the flashing, the
noises. You put money in and pull the handle just a like slot
machine. Each pull costs money; each pull is a gamble.
It is a slot machine experience with the same detrimental
social and economic impacts. The same increases in traffic,
crime, blight, unemployment, gambling addiction and adverse
impacts on social services.
The economics of urban gambling were made clear in a
hearing that we did hold in the District looking at some of the
research that has been done. There is a difference between, the
distinction between, ``destination gambling'' and what they
call ``convenience gambling.''
Destination gambling being where you go somewhere like Las
Vegas, you pay your money, you know what you're going to spend
on your vacation. You leave your money in Las Vegas and you go
home to wherever home is.
Convenience gambling does not mean a major tourist
destination, but rather is the person on their way home from
work who stops off to pull the handle and leaves without the
kid's lunch money or the rent money.
In fact, a recent study conducted by William Thompson at
the University of Nevada concluded that 85 percent of the money
made at Casino San Pablo, which is an example of an urban
casino, 85 percent of the winnings would come from people in
the Bay Area, meaning again, their discretionary money that
would otherwise be spent in local restaurants, local
businesses, local retail stores.
This may give the appearance of new economic development
but it's not. It's moving money around and can lead to economic
losses experienced by local families, local individuals and
local businesses.
To conclude, today California is experiencing a
proliferation of proposals for Indian gambling casinos that
have little to do with tribal self-sufficiency on tribal lands.
These off-reservation casinos are, in reality, being
aggressively supported and financed by out-of-state casino
developers and their lobbyists who clearly hope to build
casinos in every urban area of the State.
These Las Vegas-style casinos in urban areas were never
intended by the voters of the State of California and any urban
casino in the area creates a precedent.
Thank you again, Mr. Chairman for holding this hearing. I
look forward to seeing legislation that will prevent the
entrance of gambling casinos in California urban areas.
The Chairman. Thank you.
[The prepared statement of Ms. Hancock follows:]
Statement of Loni Hancock, Assemblymember,
14th Assembly District California
Good morning Chairman Pombo. My name is Loni Hancock, I represent
the 14th Assembly District in the California State Legislature. The
district includes most of the East San Francisco Bay Area including the
cities of Oakland, Richmond and San Pablo.
Thank you for your leadership in the House on this controversial
issue. It is also encouraging to see leadership in the Senate by
Senator John McCain and Senator Dianne Feinstein who has introduced
legislation directly related to the Lytton Band of Pomo Indians and
Casino San Pablo.
Today's hearing on ``off reservation'' casinos and your draft
legislation is continuing the discussion on the increasing controversy
surrounding tribal gambling casinos and the role of the federal, state,
tribal and local governments. The expansion of tribal gambling casinos
into urban areas-especially Casino San Pablo-has become one of the most
controversial issues in my district and in the state.
Let us look a briefly at the single most important event to the
authorization and ultimately the expansion of Indian gambling casinos
into urban areas.
In 2000, the voters of California passed a statewide initiative--
Proposition 1A. Proposition 1A amended the State Constitution to
provide economic development for tribes by authorizing gambling casinos
on traditional ancestral tribal lands. These lands were traditionally
in remote rural areas. So as a matter of public policy the California
voters made a limited and narrow exception to the state constitution's
prohibition of ``Las Vegas'' style gambling. This was the intent of
Proposition 1A.
Since Proposition 1A's passage we have seen a handful of tribes,
with ambiguous ancestral ties to land, making claims to that land for
the sole purpose of opening a casino. In the San Francisco Bay Area
alone we face the proposed development of up 4 casinos within a 15 mile
radius by tribes who have scant, if any, ancestral connection to those
lands. In the case of the Lytton Band of Pomo Indians at Casino San
Pablo, the casino's location is 50 miles from Sonoma County--the
traditional ancestral territory of their tribe. In another case, the
Lower Lake Rancheria Koi Nation tribe is proposing to build a casino
adjacent to the Oakland International Airport. This casino proposal
located in Oakland is nearly 150 miles from the tribe's traditional
lands in Lake County. Clearly, these casino proposals into the states
largest urban areas are in violation of the will of the voters and the
intent of Prop 1A.
Your legislation, Congressman Pombo, emphasizes the importance of
local community support for proposed gambling casinos and I would like
to talk briefly about the local community response to the expansion of
Casino San Pablo from a cardroom to a full fledged Class 3 gambling
casino.
I personally sent out a survey to every household with a registered
voter in my Assembly District, which contains 156,000 voters. The
returned surveys showed overwhelming opposition to the proposed casino.
The survey results indicated that 91% of my district opposes the
development of a casino at Casino San Pablo. Even within the City of
San Pablo-where the casino would be located- and where the city has
been promised jobs and money, 64% of the returned surveys opposed the
casino. Also, polls conducted by KPIX our local TV station that showed
that 57% of the respondents oppose the casino.
In addition, the Contra Costa County Board of Supervisors has
passed a bipartisan resolution against Casino San Pablo and opposing
all urban gambling and urban casinos. The Alameda County Board of
Supervisors unanimously passed a resolution against Koi Nation urban
casino proposal.
Cities in the communities surrounding gambling casinos which will
experience the negative impacts of increased traffic, crime, blight and
gambling addiction have taken positions against proposed urban casinos.
I have also received thousands of letters, emails and surveys that say
that Casino San Pablo is a bad economic development strategy for our
community and for our State.
Recently the proponents of Casino San Pablo have said that they no
longer intend to build a ``Las Vegas'' style casino, and that the
casino now will not feature slot machines. The proponents have stated
that they will operate only Class II gambling with electronic bingo
machines.
Electronic bingo machines are still slot machines. Push a button or
pull the handle, watch the reels spin, and see what you won. There are
flashing lights and sounds to stimulate the senses. Each pull costs
money. Each pull is a gamble. For the player it is a slot machine
experience with the same detrimental social and economic impacts as
Class 3 slot machine gambling.
These negative and detrimental impacts will include the same
increases in traffic, crime, blight, unemployment, gambling addiction
and adverse impacts on small business.
The issue is not Class II gambling or Class III gambling, or
electronic bingo machines or slot machines...the issue is location. The
location of urban casinos has substantial negative impacts on the local
economy.
Economics of urban gambling can be made clear with the distinction
between ``destination gambling'' and ``convenience gambling''? If a
casino is a singular and major source of tourism and patrons travel to
that casino to gamble and leave their money behind, that is destination
gambling. Las Vegas is good example. People travel, stay, shop, go to
entertainment venues at casinos in Las Vegas and go home, leaving their
money in Las Vegas.
Casino San Pablo is quite a different story. Casino San Pablo due
to its location in a already built out urban area will be an example of
``convenience gambling'' this kind of casino will not bring in revenue
from outside of the Bay Area. The money spent at the casino will
largely be from the people who live in work near the casino. In fact a
recent study conducted by William Thompson at the University of Las
Vegas Nevada concluded exactly that 85% of the money made by the Casino
San Pablo would be from people in the Bay Area.
If that is the case, the discretionary money that would have
otherwise been spent at local retail stores, local restaurants, small
merchants and local businesses will instead be spent at the casino.
This gives the appearance of ``economic development'' but negatively
impacts the local economy as experienced by local families and
businesses. In fact the previously mentioned study shows that the
direct economic losses experienced by the Bay Area from a class 3
gambling casino in San Pablo will be $138 million a year. Simply put
Casino San Pablo and the other casinos proposed in urban areas are a
bad bet.
To conclude, California is experiencing a proliferation of
proposals for Indian gambling casinos that have little to do with self
sufficiency on tribal lands. These ``off reservation'' casinos are, in
reality, being aggressively supported and financed by out-of state
casino developers and their lobbyists who clearly hope to build casinos
in every urban area of the State. These Las Vegas style casinos were
never intended by the voters of the State of California. The entrance
of tribal casinos on non-ancestral land in densely built urban areas,
such as San Pablo, would set a precedent for authorizing off
reservation gambling casinos throughout California and every state
where tribal gambling is permitted.
Thank you again, Mr. Chairman, for holding this hearing. I look
forward to seeing legislation to prevent the entrance of gambling
casinos into California's urban areas.
______
The Chairman. To begin with, I will start with you,
Assemblywoman Hancock. In drafting this legislation and I know
you are familiar with what we go through to do this, but one of
the reasons why--and I understand what your concerns are with
your District and where you can't really tell when you go from
one city to the next and impacts are felt all over.
One of the reasons why we limited it within the legislation
to the City jurisdiction is currently if the City of San Pablo
were to approve a 5,000 unit apartment building, that
unquestionably would have impact on surrounding cities. Good,
bad or indifferent, it would have some kind of impact.
Yet under current law in California, we don't require that
city to get approval of the surrounding cities in order to do
it.
I have concerns about the Federal Government becoming the
Federal land use where we determine what goes where. In
situations like this, I would fault on the side of what local
law is, what the State law is, in allowing them the ability to
do that.
In this particular situation, if they negotiated an
agreement with that particular city, they are responsible for
that. As we had with previous panels of Supervisors, there has
to be a nexus between what their impact is and what they
actually have to pay for.
That's kind of how I ended up with the draft that I did. I
do understand what your concerns are in terms of the impact on
the surrounding communities, but with tribes having their
sovereignty, they have a special situation that exists in
government-to-government negotiations.
I don't want to do anything within this legislation that
takes--that backs away from that and makes them do even more
than what we would require somebody else with a similar
development on a private site.
Ms. Hancock. I think that the problem that you're citing is
actually one of the reasons there is now a big push for more
regional planning on land use. You're exactly right about
shared impact and not shared responsibility.
Again, not to single out San Pablo, but San Pablo is a city
of about 30,000 people totally surrounded by the City of
Richmond of 90,000 people, all of them low income, all of them
in need. Contra Costa County provides social services to many,
many communities. They would all be impacted by the need that
would be created by the casinos.
It probably goes back to go something I heard
Representative Costa talk about. We also need State policies to
begin to look at this.
The Chairman. I don't think there is any question and Jim
was the first one that actually brought that up to me several
months ago. The more that we get into this, the more that I
believe he is right, that we do need to have some kind of
Statewide policy that at least makes clear what the policy is
as the State puts it out there so that everybody knows what it
is. Right now we don't have it.
It's not just California. I am not aware of any State that
has a clear policy. That is something we do have to deal with.
Chairwoman Mejia, I read through your testimony and over
the last several months I have had an opportunity to actually
look at your particular tribe's situation and what has happened
over the last 50 plus years to you.
I do not support anything that takes away your sovereignty
or takes away your opportunities. What has happened to you, I
think, is a classic case of a number of California tribes. You
have tried to do something about it, you have tried to move
forward with it.
I support your efforts for economic development. I believe
that if you had known twenty years ago where you would be
today, different decisions would have been made and we would
not have been in the exact same situation that we're in.
I think it's an unfortunate situation, but like it or not,
the challenges that you have gone through over the past couple
of years have highlighted this issue nationally and made it a
bigger issue. When I had Members of Congress from Connecticut
coming up to me and citing what has happened with your tribe as
one of the reasons why we need to stop Indian gaming, that is
one of the situations that we need to deal with.
Can you describe or can you explain to the Committee why
the decision was made to go to San Pablo to begin with? Can you
explain that? Historically from Alexander Valley, how did we
end up in San Pablo?
Ms. Mejia. I met with the County Board of Supervisors in
Sonoma County. They made it very clear that they didn't want us
there. I asked for suggestions.
They told us to look for maybe a newly formed city
government that could use some money, that they didn't need any
money because we offered to pay the mitigation issue. We
offered to pay our fair share and they said they didn't need
the money at the time.
I don't know if they do now or not. I haven't had further
discussions with them on it. So we did what they suggested.
Actually, we just started going out because we didn't want to
leap-frog around.
We knew there was another tribe there. We found American
Canyon, which was a new city government between Napa and
Vallejo. We, in talking with the city staff people there, they
led us to believe that they were actually very encouraging,
that they would be open to this.
Unfortunately, they didn't speak to their city
representatives. There was a public hearing held where I was
literally chased to my car at 9:30 at night by people. That
made it very clear to me that we weren't going to be in
American Canyon.
So, we were leaving and one of the people on our team
happened to drive by Golden Gate Field and thought, ``Well,
maybe we should talk to them because the big issue was going in
community that wanted you.''
We talked together with the people at Golden Gate Field and
they also owned Casino San Pablo. When we began discussions
with them, we started telling them what we had in mind. They
said, ``Well, gee, we have this card club over here that isn't
doing very well.''
The City really counts on the revenue from it and it has
declined because of the Asian market financial impact. I'm as
good at that as I am in politics, being one step back there.
But that was the reason and we began discussions with them to
participate in the card club because the voters in the
community were open to gaming.
We began those discussions. We were--then the next step
would be to meet with the City of San Pablo. In talking with
them, I am very proud to say that they have been very strong
allies since 1998 when we signed this agreement. That's how we
ended up in San Pablo. They sent us.
The Chairman. Thank you.
Mr. Costa.
Mr. Costa. Thank you, Mr. Chairman. My question is to
Chairwoman Mejia. I want to commend you on the very concise
history that you indicated that your tribe has been through and
as a result of that history the promises that were obviously
broken as it related to your ability to participate in what is
legal in California, which is Class III gaming.
I was wondering, based upon your experience over the last
15, 20 years, do you believe that the State of California has a
clear understanding or a concise policy as it relates toward
Class III gaming?
Ms. Mejia. I was aware of no policy until the Governor's
proclamation. I did sit through negotiations with the Governor
of the State of California. It's my understanding at that time
that his approach, at least it was with my tribe, and I don't
want to speak for the Governor, seemed to be that it was on a
case-by-case basis because each tribe is different. There are
different circumstances.
There were people that talked about Congressman Miller's
legislation in the Indian Commons Act of 2000 authorizing this
land to be mandated to be land that is taken into trust.
There were comments that it was done by stealth legislation
or whatever, even though it was actually put into the bill in
October and passed in December. It was in there for anyone who
had Internet access could have accessed that section.
Having said that, in July of 2001 Senator Reed attempts to
repeal the language. The tribe prevailed and it is stated in
the Congressional Record on the Floor that this was done
because of the unique circumstances of my tribe.
So then another attempt last Fall by Senator Feinstein.
It's like, we have been before Congress not once but twice, two
more times. How many times do we go before Congress? When do my
people get to say, ``We're OK''?
Mr. Costa. I would submit to you that parts of that would
be the result of a lack of nationwide policies on Indian
gaming.
Assembly Member Hancock, a variation on the question: Why
do you think, having spent 20 some years in the Legislature. I
can guess or I can surmise, not only this Governor but the
previous Governor as well, have not come together to--as we
understand the history over the last 15 years, as Class III
Indian gaming has expanded, why there has not been an effort or
an attempt to create a Statewide policy of the rules which are
clearly understood?
Ms. Hancock. I think that's a very good question. In all
honestly, probably some things that haven't been tracked very
closely until maybe the last four or five years when the
phenomenon of off-reservation gambling has begun to be
prevalent.
Many tribes did go ahead and use the process laid out by
the BIA and opened casinos on their traditional tribal lands.
The next wave seems to be getting the backing of investors.
I was very interested in Ms. Brown's information about Arizona.
Mr. Costa. And by CSAC's testimony, there are 25 or less
pending--including when you do the math, the 64 who have
compacts. I guess that's a total of 43, notwithstanding the 25.
Ms. Hancock. Yes. So I think it has become more than more
clear that we may need Statewide policy. I know there is at
least one Constitutional Amendment that is before the body that
would have a five year moratorium while we assess the number of
gambling casinos that we have now in California and what the
future may be and where they might go if there were any more at
all.
I think frankly you have raised a very good point, that we
need to have a Statewide policy.
Mr. Costa. Thank you.
Mr. Gohmert. As a follow-up on that, I'm wondering, if not
only should there be a Statewide policy but perhaps a county
policy. Contra Costa was giving me a little bit of background
about your sacrifices.
Jointly, I was reminded--I got to figuring out after 18
months of a grueling campaign for Congress, probably the last
person you ought to trust with making decisions for the Nation
is anybody who is stupid enough to run for Congress.
Nonetheless, it's an important issue. As I understand the
legislation talks in terms of the local city or community where
the lands are located, but I'm wondering if there should also
be each state looking at this, not just a State policy, but
should it empower the counties to have oversight or something
like this, should the legislation incorporate the counties into
this as well?
Of course, you have the possibility of the county with the
judgment of the local community for an overall county, but
there are a number of issues at work.
Do you have a feeling about that, whether it should be a
county or a local community? Obviously, you have participated
in communities you wouldn't necessarily want the counties
participating. What are your thoughts?
Ms. Hancock. In California, county government basically
carries forward law enforcement duties, also social services.
So, any increase in social services brought about by
bankruptcies, suicide, increased domestic violence or any of
those things, increases in crime, will be borne by the county,
not necessarily by the city because cities don't traditionally
do any social services at all.
For that reason, the county has a real stake. The county
also does roads and infrastructure. It seems to me they ought
to be involved.
Also, one of the reasons there was such strong opposition
throughout the Bay Area to Casino San Pablo was that the I-80
freeway is the lifeline, economic and social, for commuters to
get from work to home. The thought of increased congestion
would--the casino also directly--is now because it is still a
card room right now--it is directly adjacent to the only public
emergency room within 25 miles of the hospital.
Really, I will. I think this is the kind of thing we ought
to look at regionally because every city will feel the impact
and we need to look at these things together. Now again, we're
talking traditional tribal land, but when we're talking about
investors, often out-of-state investors that seem to be
predominantly located in Las Vegas, Arizona and Florida, doing
what they call ``tribe shopping'' in addition to them
``reservation shopping.''
It becomes a very frantic and sad set of choices for
everybody, including people who have enormous respect for
tribal integrity and sovereignty. I think we do need a State
policy and it does need to involve everyone who is impacted.
We're not talking about traditional tribal lands and I do
have to say that I have had many tribes come to me in great
distress because they built a casino 75 miles off the main road
of their traditional tribal land and they say if they thought
they could get right next to a freeway in the metropolitan area
they might have tried to do that.
Mr. Gohmert. Chairwoman Mejia, you obviously have an
intense sense of fairness and I admire that. With due regard to
what has happened in the past, in formulating a new Federal
law, what's your feeling about requiring to negotiate with--
outside the community with the counties.
Ms. Mejia. Speaking for my tribe, I can tell you that when
we negotiated the compact with the government of California, we
negotiated and we agreed to have before anything was built an
agreement, a mitigation agreement with the County of Contra
Costa. Not just the County, not just the City, our municipal
services agreement has been in place since 1998.
We also agreed to mitigate with the County and CalTrans who
also stepped up to the plate with a $25 million offer to
rebuild the interchange at San Pablo Dam Road prior to getting
it going and underway even before the mitigation agreement with
CalTrans was in place because we understood the need for that.
I think that my tribe has, to the criticism of other
tribes, stepped up to the plate because we understood we were
in an urban area and that we needed to step up to the plate and
address those issues.
Mr. Gohmert. I have just one question, referring to the San
Pablo Dam Road, is ``dam'' the way it's used there, is that a
noun or an adjective?
Ms. Hancock. I do think that we need a little clarification
there. The first compact that was put forth by the Governor for
5,000 slot machines did not involve the negotiations for
mitigation.
It also had a clause that says that the State Director of
Finance could at their sole discretion obviate any or all of
the local mitigation which at that time were only for local
governments. The second compact that was proposed for the 2500
slot machines, which was about the size of a casino on the
Vegas strip, did involve the county and was definitely a step
forward and would be something that any policy in the future
ought to consider.
Mr. Gohmert. Thank you.
The Chairman. I just want to ask one follow-up question of
Chairman Mejia. Knowing what you have been through over the
last several years, I don't know how familiar you are with the
draft legislation but in there is the opportunity to do what we
call ``Economic Opportunity Zones.''
I don't know how familiar you are with those provisions in
the draft, but would that have been an attractive option to you
knowing now with the hindsight of everything that has happened,
would that have been an option that your tribe would have
pursued rather than ultimately what you did go through?
Ms. Mejia. I understand the concept in the proposed draft.
I'm not sure how it gets implemented, but I can tell you that
being the Tribal Chair for the last ten years, for 275 poor
people, people living in very bad conditions, I would have
looked at all options.
The Chairman. The way the draft is written, there would be
two different zones. One would be on land that is currently in
trust and that would be a negotiation between that particular
tribe and others who would come into it. The other is the
ability to go into land that is currently not in trust, but
having the opportunity to bring that in trust for the tribes
that would be located there.
With a tribe such as yours that did not currently have land
in trust, that would give you an opportunity to go somewhere
with it. That was kind of the direction that we were trying to
deal with in that particular case.
That was not done with your situation particularly in mind.
It was actually a couple others that are out that made me start
thinking about that. It seems that in listening to your
testimony and the more I learn about what you have gone
through, that would have been an option for you.
Did any of the Members have any other questions or comments
they want to make? Mr. Costa?
Mr. Costa. Thank you very much, Mr. Chairman. On my own
time I would like to personally commend you for holding this
hearing this afternoon on what I believe is an important piece
of legislation, not only in California but throughout the
country.
You are to be commended for your work; this is not easy
work and you will probably end up getting more grief than you
will accolades. Having said that, for those of you as I look
around the room and many of whom I have met over the years,
you're probably, as you listen to my questioning, trying to
figure out, ``Well, what's Costa really up to this time?''
Let me tell you and I will try to be as clear as I can. For
one, I'm up to working with the Chairman of this Committee on
what I hope will be thoughtful, common sense legislation that I
think is necessary.
I commit to doing that as best I can. What I'm also up to
is trying to deal with the issues that I think are important to
the long-term impacts of Class III gaming in California.
Obviously, through my questioning I think all of you sense
that I have a sense of frustration on how this is happening on
an ad hoc basis, on a case-by-case basis where every deal has
become kind of a deal based upon the powers that be that were
involved rather than what the circumstances were with each
Indian tribe.
I think we need to be fair in all of our application in the
107 sovereign nations in California that are recognized. I
believe it is 107; correct me if I'm wrong. I know there are
others that are pending that would like to be recognized. I
think that's a difference in that; although, we probably should
consider that in legislation, tribes that have not been
recognized by the BIA, the Bureau of Indian Affairs that are
pending recognition.
In terms of my application of fairness, I would be
interested in all of your ideas, not just the 64 current
sovereign nations that have compacts, but also the 25 plus and
the number on top of that, that are seeking compacts. It would
be my hope--I don't know if we'll be successful, I know I'm
kind of still in the learning process in the Congress.
As we all know, legislation is not a precise scientific
process. It's kind of an art form. In Sacramento and in
Washington, D.C., as we apply our art, I would be interested in
listening to all of your comments and your ideas on how we can
try to put forth what I hope will be a fair and clear, logical
process on those 43 tribes, I believe, that currently do not
have compacts that are seeking compacts.
Realizing that the 64 that currently have them today, I
believe under State and Federal statutes are modified compacts.
I don't believe that there's anything that we can deal with
whether we like the compacts or not. What we finally say is I
do support Indian gaming in California. I have consistently
supported it.
As I told you, my mother would not have it any other way
because she likes to go to a couple facilities nearby as she
reaches her 90th birthday this year. I do want to be fair and I
think we need to believe that, whether this process involves
both local and State government, it ought to basically require
some guidelines to determine what the State policies should be
in California.
I think we all have ideas about how traditional tribes that
have the reservations and the landless tribes.
I think that needs to be hopefully addressed in the
legislation. That's kind of what I'm up to in terms of trying
to work as best I can with the Chairman, with the Members of
this Committee to see if we can produce thoughtful, common
sense legislation that deals with status for California and
hopefully better than we have been able to do so far.
Let's look at the long-term issues because I think that's
where we're going. There has been a tremendous lack of focus
over the last 15 years. Thank you very much.
Mr. Gohmert. Just to say thank you and thank all of you.
It's when people have been too apathetic that we have gotten
our worst laws so I appreciate your interest and your input.
The Chairman. I want to just, in closing, say that I
appreciate Mr. Costa making the effort to be here and
participate in this hearing. Obviously, this is an issue that
is not only important to his District and California but to the
entire country and I appreciate the input that he has had as a
Member of the Committee.
Mr. Gohmert made the effort to come out from Texas to be
part of this hearing. This is an issue that the Committee is
dealing with that may not be quite the issue in Texas as it is
in some other states and I appreciate him making the effort be
here to educate himself on what is a major issue.
The only comment I would say to Mr. Costa in terms of the
recognition process, that is another bill that is just as
controversial as this one. My effort as Chairman was to take a
number of these issues that have been before Congress and try
to settle them. None of them are easy.
Whether we're talking about the recognition process or off-
reservation gaming and the impact that has had, they are very
complicated issues that when you deal with every tribe from
tribe to tribe it's a different issue, different circumstances.
Because of that, instead of introducing legislation, we
introduced a draft bill. We put everything that we could think
of in that draft bill and put it out there and many of the
people in this room have had comments on that draft
legislation, good and bad about what works, what doesn't work,
why it won't work in your specific situation.
That was the process that I decided to through instead of
just telling you, ``This is the way it's going to be,'' I put
out a draft and said, ``OK, tell me what's wrong with it or
what's right with it.'' Over the last several months we have
gotten a lot of comments on it.
When we ultimately get to the point of introducing
legislation it will look different than the draft because we
have taken a lot of comments that have come in and tried to
respond to that and we have tried to make it so that it's
something that when it hits in the implementation stage it's
something that works. That's what we're trying to do with that.
I appreciate the panels for their testimony, all of the
witnesses today for your testimony. It will make this better
legislation by the time we get to the point of introducing the
bill. So, I thank you for that.
For those of you who had wanted the opportunity to testify
or have your comments heard as part of this hearing, I will
leave the hearing record open. Anybody who has comments that
they would like to submit, submit them to the Resources
Committee.
They will be included as part of the record and part of
this deliberative process that we are going through to come up
with legislation.
I want to thank all of you for being here. Actually, for a
crowded room and the number of emotions that are here, you did
pretty good. I appreciate that.
Mr. Costa.
Mr. Costa. Mr. Chairman, as a former Judge, Mr. Gohmert, I
thought, would be interested in the history of this room. It
was originally constructed to seat the California Supreme
Court. That's part of the reason it's such a beautiful,
historic room.
The Supreme Court had a lot of political leverage in the
late 1880's and '90s. They thought the climate was not so much
to their liking in Sacramento; that it was far better in San
Francisco.
This part of the State had a lot of periodic floods in
those days before the dams and reservoirs. Getting the
legislation changed to where they were assigned to the County
and City of San Francisco, they were required in part to
convene once a year in Sacramento to show the fact that they
were a part of the State of California.
They have maintained that tradition for over 100 years.
They meet in this room one day a year to reaffirm that they do
belong to California. It's a beautiful room to have a hearing.
The Chairman. In deference to my colleagues, I did not
spend a heck of a lot of time in the Capitol in Sacramento
having never served here and I stay out of courtrooms whenever
possible. I appreciate it, everybody, if there is no further
business before the Committee, this hearing is adjourned.
[Whereupon, at 2:35 p.m., the Committee was adjourned.]