[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
TO PROVIDE FOR AND APPROVE THE SETTLEMENT OF CERTAIN LAND CLAIMS OF THE
BAY MILLS INDIAN COMMUNITY, AND TO PROVIDE FOR AND APPROVE THE
SETTLEMENT OF CERTAIN LAND CLAIMS OF THE SAULT STE. MARIE TRIBE OF
CHIPPEWA INDIANS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
H.R. 2176 and H.R. 4115
__________
MARCH 14, 2008
__________
Serial No. 110-98
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
41-419 PDF WASHINGTON DC: 2008
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
C O N T E N T S
----------
MARCH 14, 2008
Page
THE BILLS
H.R. 2176, ``To provide for and approve the settlement of certain
land claims of the Bay Mills Indian Community''................ 2
H.R. 4115, ``To provide for and approve the settlement of certain
land claims of the Sault Ste. Marie Tribe of Chippewa Indians'' 6
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 11
WITNESSES
The Honorable Carolyn C. Kilpatrick, a Representative in Congress
from the State of Michigan
Oral Testimony................................................. 12
Prepared Statement............................................. 14
The Honorable Shelly Berkley, a Representative in Congress from
the State of Nevada
Oral Testimony................................................. 16
Mr. Carl Artman, Assistant Secretary, Bureau of Indian Affairs,
U.S. Department of the Interior
Oral Testimony................................................. 20
Prepared Statement............................................. 21
Chief Fred Cantu, Saginaw Chippewa Tribe of Michigan
Oral Testimony................................................. 23
Prepared Statement............................................. 24
Alice E. Walker, Esquire, Sault Ste. Marie Chippewa Tribe
Oral Testimony................................................. 25
Prepared Statement............................................. 26
Ms. Kathryn Tierney, Tribal Attorney, Bay Mills Indian Community
Oral Testimony................................................. 27
Prepared Statement............................................. 28
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of Dr. Guy Clark, Chairman of the National
Coalition Against Gambling Expansion........................... 19
TO PROVIDE FOR AND APPROVE THE SETTLEMENT OF CERTAIN LAND CLAIMS OF THE
BAY MILLS INDIAN COMMUNITY, AND TO PROVIDE FOR AND APPROVE THE
SETTLEMENT OF CERTAIN LAND CLAIMS OF THE SAULT STE. MARIE TRIBE OF
CHIPPEWA INDIANS
----------
FRIDAY, MARCH 14, 2008
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Johnson, Smith,
Sensenbrenner, Coble, Chabot, Issa, King and Jordan.
Staff Present: Diana Oo, Majority Counsel; George Slover,
Majority Counsel; Perry Apelbaum, Staff Director and Chief
Counsel; Kimani Little, Minority Counsel; and Sean McLaughlin,
Minority Chief of Staff and General Counsel.
Mr. Conyers. Top of the morning, Ms. Berkley, Ms.
Kilpatrick.
Ms. Berkley. Hi.
Ms. Kilpatrick. Hi.
Mr. Conyers. The Committee will come to order.
This morning, we're here to consider two bills that propose
to settle the land claims of two tribes from Michigan's Upper
Peninsula, the Bay Mills Indian Community and the Sault Ste.
Marie Tribe of Chippewa Indians, and allow them to establish
casinos in Romulus and Port Huron, Michigan, over 350 miles
away from their reservations.
[The bill, H.R. 2176, follows:]
[The bill, H.R. 4115, follows:]
Mr. Conyers. Concerns have been raised about the legitimacy
and the fairness of these land deals.
First, these bills would drastically change how casinos can
be approved, not just in Michigan but all over the country.
Under existing Federal law, the Department of the Interior
determines whether to take off reservation land into trust for
an Indian tribe to use to run casino gaming after carefully
considering numerous criteria and giving special scrutiny if
the new land is farther--quote, farther--thank you, Mr.
Sensenbrenner. We appreciate that--and if--quote,if the new
land, is quote, farther than a commutable distance from the
reservation. End quotation.
Without these constraints, there would seem to be no limit
to how far Indian gaming could be spread, which would be far
beyond reasonable bounds.
These bills would also alter central provisions of the 1993
compacts that both these tribes signed with the State of
Michigan. Circumventing these and other existing legal
processes could set a very bad precedent. The Sault Tribe
itself acknowledge as much in the 2002 congressional testimony
regarding the same claim before it became a party to it.
I am also troubled by the fact that these bills would
overturn the express wishes of the residents of Michigan.
In 1994, they passed a State-wide referendum to allow three
and only three private casinos to be built in the State and in
the City of Detroit.
In 2004, they passed another State-wide referendum to
strictly limit the expansion of private gaming in Michigan. Any
new private gaming facility must be approved by both a local
and a State-wide vote. This referendum would still allow the
city support hearing in Romulus to pursue casinos, but they
would have to do exactly what the City of Detroit did, one, get
the approval of the voters in the State of Michigan.
Both cities have already passed local referendums, so they
are already half way there, in a manner of speaking, but they
need to go the full distance.
And then, finally, authorizing the casinos in Port Huron
and Romulus in this fashion would unfairly disadvantage the
city of Detroit, to put it mildly. The city has suffered from a
sharp decline in the number of manufacturing jobs over the last
decade. The great people of the city have been working
extremely hard in recent years to improve its economy and
increase its competitiveness.
Our efforts have brought visible signs of economic
progress. The city has attracted new hotels, luxury
condominiums and new construction going on over all parts of
the city. It has built employment training centers and new
housing projects. It has succeeded in convincing major regional
employers to move their headquarters into downtown Detroit.
A crucial precursor to all these developments was the
establishment of the three casinos in the city. A few months
ago, MGM Grand opened a new $800 million hotel and casino.
Undoubtedly, MGM would probably not have made that kind of
investment if it knew that Congress would be considering
shoehorning in additional casinos right outside its borders.
The three casinos have provided over $1 billion thus far in
taxes and percentage payments. The city also has received
another $100 million in municipal service fees. This revenue
allows the city to invest in critical infrastructure and
services for its residents.
In addition to being a good source for revenue for the
city, the casino employs nearly 8,000 residents. These are
well-paying jobs. Most of them are union and have brought
tremendous health care benefits to people who were in desperate
need of quality health care coverage.
So let's have a discussion about the issue before us this
morning. The Judiciary Committee will be addressing these
concerns and will be taking your recommendation quite
seriously.
Between the two distinguished Members of Congress, which
one would like to precede the other?
Ms. Kilpatrick. Thank you, Mr. Chairman. I would proceed
first, if that is okay with the Chair.
Mr. Conyers. All right and that meets with the approval of
the gentlelady from Nevada, I presume.
Ms. Berkley. Absolutely.
Mr. Conyers. Turn your mic on. Caroline.
Ms. Berkley. Okay. Did I get it? Yes.
Mr. Conyers. Yes.
Carolyn Kilpatrick distinguished Member of the
Appropriations Committee, a former State legislator herself and
the Chair of the Congressional Black Caucus--may I just
interrupt myself for a moment?
Lamar Smith has agreed to make his opening statement now so
that we get a fuller picture of the view of the Members of the
Committee. The distinguished Ranking Member from Texas is
recognized.
Mr. Smith. Thank you, Mr. Chairman, and I always appreciate
your graciousness. I only hope I'm not interfering or
disrupting too much, but it is nice to be on the same side.
I join Chairman Conyers in opposing these bills, H.R. 2176
and H.R. 4115. I share Chairman Conyers' concerns with these
bills, but I oppose them for other reasons as well.
These bills transfer land from the State of Michigan to two
Indian tribes. The tribes will be allowed to use this land to
build casinos or other gaming establishments. I am concerned
that building more casinos will turn more people into
compulsive gamblers and lead to higher crime rates.
The link between gambling and crime is real. A 2004 study
by the Department of Justice indicated that more than 30
percent of pathological gamblers studied committed a robbery
within a year of their arrest. The study also stated that
nearly one-third of those arrested admitted they committed the
robbery to pay for gambling or gambling debts.
In addition, the same study found that 13 percent of those
studied said they had assaulted someone to get money. According
to the study, 25 percent of those assaults were related to
gambling.
Even proponents of Indian gambling admit the limitations of
legalized gambling.
Although casinos do bring some economic benefit to many
impoverished Native American communities, some tribes have
found that gaming is not a silver bullet for their overwhelming
needs. The pro-gaming National Congress of American Indians
states, ``Even after the advent of gaming, Indian reservations
continue to have a 31 percent poverty rate and a 46 percent
unemployment rate.'' They also note Indian health and education
statistics are among the worst in the country.
Further, these bills circumvent the well-established
Department of Interior process to evaluate the environmental
impact of a land transfer before approval. This Committee
should ensure that established procedures are followed in every
instance.
Mr. Chairman, I am opposed to legislation--this legislation
that, in my judgment, would in lead to increased gambling. And
I share the Chairman's concerns and I join him, as I say, in
opposing these bills, and I certainly will encourage my
colleagues to do the same.
Mr. Chairman, thank you again for yielding me time to make
this opening statement.
Mr. Conyers. Thank you very much, Lamar Smith.
Could I call on a senior Member of the Committee, Howard
Coble of North Carolina, and ask if he wanted to welcome our
congressional witnesses or make any comments about the subject
matter?
Mr. Coble. Thank you, Mr. Chairman. I'm sure you and the
distinguished Ranking Member have adequately and appropriately
addressed the issue.
Welcome to our colleagues, and I yield back.
Mr. Conyers. May I invite Steve King, the gentleman from
Iowa, to make any comments or welcoming remarks to our
congressional witnesses?
Mr. King. I thank our genteel Chairman for offering me the
opportunity.
I would like to welcome our witnesses to the panel.
Sometimes I find myself on the privilege of sitting on the
other side of this thing, and I want to state that I'll
maintain that level of collegiality that we maintain here on
the panel with the witness, and I look forward to your
testimony.
I thank you, and I yield back.
Mr. Conyers. Thank you very much, Steve.
I was introducing Carolyn Kilpatrick, my distinguished
colleague from the Detroit area, who has been an outstanding
State legislator, an activist in the civil rights struggle and
a distinguished Member of the Appropriations Committee. We have
your statement, and all statements will be put in the record,
both of Members and witnesses. So I ask Chairwoman Kilpatrick,
who is, additionally, the Chair of the Congressional Black
Caucus, 43 members strong, and invite her for her
recommendations and views on the subject matter that bring us
here today.
TESTIMONY OF THE HONORABLE CAROLYN C. KILPATRICK, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Ms. Kilpatrick. Thank you, Mr. Chairman, Ranking Member Mr.
Smith, thank you very much, and Members of the Committee.
Thank you, first of all, for holding the hearing. I started
in Resources, the head of a full Subcommittee hearing as well
as a full Committee hearing, and I'm happy that Judiciary is
continuing your responsibility to look at these bills.
You have my full statement, and thank you for putting it in
the record. I will summarize briefly.
We oppose these bills for a number of reasons.
Twenty years ago, the City of Detroit, under the leadership
of Mayor Coleman Young, begin the journey to bring casinos to
Detroit. We lost two local referendums before we finally won a
local referendum and then went to the State Capitol where we
did win another referendum and allowed three casino companies
to build in my district all three casinos. They are now
operating. Two have now built temporaries and are now moving on
to permanent sites.
And, as the Chairman mentioned, MGM has built a permanent
site, over $800 million, that just opened a couple of weeks
ago. They have been good neighbors, good citizens; and because
of the city's action, because of the State legislature's
passing legislation in 2004 and 1994 that said, yes, you can go
ahead, yes, these would be the only casinos in this State, and
if a community wanted to build a casino there are steps they
had to follow as well, local referendum, back to the
legislature and so forth.
This bill will circumvent all of that. These are dangerous
bills and a precedent that I don't think this Congress wants to
set. It really is opposing Michigan law, as I just explained to
you. It is controversial among the Native American tribes in
our State. There are 12 tribes, 12 tribes opposing this
legislation and only 2 supporting and, I might mention, the 2
that are going to be helped if this happens.
The city would lose thousands of jobs. Major investments
from the people who have been with us for the last 10 years who
built the temporaries and now the permanent casinos will be
certainly at a loss.
This new casino--one of them is 15 minutes from the three
that we already have in Michigan, plus one across the river in
Canada. For the reasons that Ranking Member Smith mentioned--
and I don't gamble. It's legal, but I don't, and I don't want
anybody I love to gamble. It is a terrible habit to get in. And
I get calls in my office all the time from children about
parents, grandparents about sons and daughters and all of that.
Four casinos within 10 miles of each other is more than enough
for two-thirds of the population from Michigan lives in my
area, and these casinos serve them well.
The Bureau of Indian Affairs already rejected this matter.
The Interior Department is being looking at the matter still. I
don't think we should circumvent their authority. They are the
rightful people to do. Indian Affairs has already rejected it,
Interior is looking at it, and, on top of all of that, it is
very uncertain.
And you will hear from the ancestral tribe whose land this
is that this may be reservation shopping, an illegal deal. And
I'm sure this Congress does not want any more illegal actions
coming to us from something that might not be just sound
enough.
So I would urge the Committee to take your time to look at
it closely for all the reasons that both the Chairman and the
Ranking Member already discussed, that we look and take our
time with a bill I am still opposing for the reasons that have
been mentioned. Eight thousand jobs have been created, over a
billion dollars in our area, sorely needed at a time when
manufacturing in America, let alone in Michigan, has been
decimated.
So, thank you, Mr. Chairman and Members of the Committee.
We hope you will oppose these bills, and I yield back the
balance of my time.
Mr. Conyers. Thank you very much, Carolyn Kilpatrick. You
are getting us off to a very good and fast start. I don't know
what Shelly Berkley is going to say about one part of your
comments, but we will soon find out.
Since our two congressional witnesses are under the same
time constraints as we are and there will not be questions
asked of them, if you want to leave now or whenever you want to
leave--you are welcome to stay here as long as you can, but you
are also able to leave. We're grateful for your testimony.
[The prepared statement of Ms. Kilpatrick follows:]
Prepared Statement of the Honorable Carolyn C. Kilpatrick, a
Representative in Congress from the State of Michigan
Chairman Conyers, Rahall, Ranking Minority Member Smith, and
Members of the House Judiciary Committee:
Thank you for holding this hearing today. I also want to thank
Chairman Conyers, Ranking Minority Member Smith, and Speaker Pelosi for
allowing these bills to be consecutively referred so that the Judiciary
Committee can do their due diligence on these bills. In essence, both
of these bills will allow two Native American tribes located in
Michigan's Upper Peninsula to build casinos 350 miles from their
reservations and near the City of Detroit.
My reasons for opposing these bills, which will allow land to be
taken into trust for gambling purposes for the settlement of proposed
land claims, are actually very simple. These bills set a dangerous
precedent for Congress; they contravene Michigan state law; they are
very controversial among the Tribes in Michigan and throughout Indian
Country; it is not clear that these land swaps are valid; and finally,
Congress has not had a comprehensive review of the Indian Gaming
Regulatory Act (IGRA) in nearly two decades. Furthermore, it is
important to note that these land claims have never been validated by
the U.S. Government or any court of law. In fact, the courts have ruled
against the Bay Mills Tribe on their claim on two separate occasions.
The people of Michigan have spoken at the ballot box about gaming
expansion in our state. In 1994, they voted to allow three casinos in
the City of Detroit. In 2004, the people voted to limit any more
expansion of gaming unless there was a statewide referendum. In
addition, the Michigan Gaming compact specifically prohibits off-
reservation gaming unless all of the Tribes in Michigan agree to a
revenue-sharing plan. These two bills are simply an attempt to
circumvent both the will of the people of Michigan and the compact the
Michigan State Legislature has made with the Tribes in Michigan.
Instead, these bills would have Congress mandate not one, but two
off-site reservation casinos located over 350 miles away from the
reservations of these Tribes. Moreover, the disputed land is located
near the two Tribes reservations in the Upper Peninsula but yet the
land they want for a ``settlement'' is located 350 miles away near the
City of Detroit. If these bills were to become law, what would prevent
other Tribes from seeking a land claim anywhere in the United States
for off-site reservation gaming? Is this the real intent of the Indian
Gaming Regulatory Act?
It is indeed ironic that in the 109th Congress, the House Resources
Committee, on a bi-partisan basis, passed legislation by an
overwhelming margin to restrict off-site reservation gaming. Yet today,
it now seeks to expand Native American gaming in an unprecedented
manner.
Congress passed the Indian Gaming Regulatory Act in 1988 that
allows Tribes to conduct gaming on lands acquired before October 17,
1988. In 1993, former Governor John Engler negotiated a gaming compact
with the seven federally-recognized Tribes in Michigan, including the
Bay Mills and Sault Ste. Marie Tribes.
In order to prevent a proliferation of Indian gaming across the
state, a provision was added to the compact that required any revenue
generated by off-reservation gaming be shared among the Tribes who
signed the compact. This provision has worked well for over 15 years.
The two bills before the House Resources Committee would simply nullify
this critically important provision of the Michigan Gaming Compact.
Both of these bills would allow the Tribes to; 1) settle a land claim
that has never been validated and is located near their reservations in
the Upper Peninsula of Michigan and 2) acquire lands 350 miles from
their reservation to build casinos. Furthermore, these bills actually
include gaming compacts in them that were never approved by the
Michigan State Legislature who has approved every other gaming compact.
It is important to note that Congress has never passed a gaming compact
in the history of Indian gaming. IGRA specifically grants that
authority to the states.
In 2004, the voters of Michigan spoke again in a state-wide
referendum and overwhelmingly approved a ballot initiative that would
restrict the expansion of gaming in the state of Michigan. This
referendum would require local and state-wide approvals for any private
expansion of gaming in Michigan.
The people and the elected officials of Michigan already have a
solution to this matter--the ballot box. There is nothing in the
referendum that would prevent the two Tribes and their non-Indian
developers from initiating a statewide referendum to get casinos in
Port Huron and in Romulus. In fact, both of those cities have already
passed local referendums. But the Tribes and their developers decided
to short-circuit the vote of the Michigan people and come to Congress
to get a casino on a proposed land claim that is located near the
Tribes reservation lands in the Upper Peninsula of Michigan.
I am aware that the Governor of Michigan has sent the House Natural
Resources Committee a letter supporting these bills. You should know
that there is no legal basis for the State to support these agreements
because, in fact, the State has already won this case in the Michigan
Court of Claims and the Bay Mills Tribe appealed it all the way to the
U.S. Supreme Court. The Supreme Court subsequently declined to hear the
case.
The Governor ignored the fact that the city of Detroit will be the
main victim of the states largess in these casino deals. The city of
Detroit will lose hundreds of millions of dollars as a result of the
competition of these new casinos and that will cause irreparable harm.
Harm to whom? Harm to the current investors of the casinos in the City
of Detroit, who have invested more than $1.5 billion in the
construction of the three casinos in the City of Detroit. Harm to the
thousands of jobs that have been created and the tax revenue that those
jobs generate for the City of Detroit and the State of Michigan.
Ultimately, this will harm the State. When compared to their private
counterparts, Native American gaming sites, because they are sovereign
nations, and must share their revenue with other Native American
tribes, do not bring in the tax revenue of private investors.
In the end, these two Tribes are seeking to do an end-run around
two statewide referendums and the Michigan Gaming Compact of 1993.
Rarely have voters in any state in this country spoken so clearly on
gaming issues. In light of all of this, it would be a travesty for
Congress to mandate two off-site reservation gaming casinos that would
have such negative impact on the people in Michigan.
But, for the moment, let us ignore the impact that these bills will
have on the City of Detroit. Let us ignore the precedent that these
bills will set, allowing any Native American tribe to claim any piece
of land hundreds of miles away, as their native tribal land. Let us
ignore the fact that IGRA has not been reauthorized in more than two
decades, and clearly needs to be revisited and revised by Congress.
What I cannot ignore is the strong possibility that the very integrity
of Congress is in jeopardy.
On October 10, 2002, in testimony before the Senate Committee on
Indian Affairs, The Chairman of the Sault Ste. Marie Tribe, Bernard
Boushor, said ``the Bay Mills case was a scam from the start.'' In
testimony and information provided to the House Natural Resources
Committee in February of this year, Saginaw Chippewa Chief Fred Cantu
cited Chairman Boushor's testimony, stating that the original lawsuit
on the land claim was a collusive lawsuit. I have provided Chairman
Boushor's statement to be included as part of today's testimony.
I would strongly encourage the Committee to carefully read these
documents on how this land claim actually began. The proponents of this
legislation have repeatedly stated that these bills are simply to
address the aggrieved landowners in Charlotte Beach. But according to
the Sault Ste. Marie Tribe ``the Charlotte Beach claim did not
originate with Bay Mills. It was a product of a Detroit area attorney
who developed it specifically as a vehicle to obtain an IGRA casino . .
. the goal was never to recover the Charlotte Beach lands.''
How was this originally a collusive lawsuit? The Bay Mills Tribe
sued Mr. James Hadley on October 18, 1996 who entered into a settlement
in which he gave land to the Bay Mills Tribe 300 miles from their
reservation to build a casino in Auburn Hills, Michigan. That plan was
rejected by the Department of Interior. The point is that Mr. Hadley
was not an aggrieved landowner, he was an active participant in what
the Sault Tribe described as ``a collusive lawsuit'' and ``a scam.''
I strongly encourage all of you to read the testimony of the former
Sault Ste. Marie Chairman before the Senate Committee on Indian
Affairs, the testimony of the Saginaw Chippewa Chief Fred Cantu, and
review the documents Chief Cantu provided to the Committee, which was
provided to the House Natural Resources Committee at its hearing in
February.
There is a way to save the integrity of Congress. The Saginaw
Chippewa Tribe has requested that the U.S. Department of Interior
investigate the land claims made by these Tribes, and determine whether
they are valid claims, worthy of federal resolution. It is my
understanding that the Department of the Interior is reviewing the
validity of these land claims. I would urge the Committee to wait until
this investigation is complete until it rushes into passing legislation
that mandates off-reservation gaming.
I thank the Committee for its time. Congress should not be in the
business of handing out off-site reservation gaming casinos. It is my
hope that the wisdom of the Committee and of Congress is the rejection
of both of these bills for the following reasons:
These bills set a dangerous precedent for Congress by
approving a compact which is a state, not a federal,
responsibility;
They contravene Michigan state law;
They are controversial among the Native American
tribes in Michigan; indeed, nine out of Michigan's 12 tribes
oppose these bills;
The City of Detroit would lose thousands of jobs and
hundreds of millions of dollars in the investments made by the
three casinos currently operating in Detroit;
The Bureau of Indian Affairs has already rejected a
similar application for gaming in Romulus, Michigan;
These bills would involve the removal of valuable
land from the tax rolls of the State of Michigan, resulting in
the potential loss of even more revenue;
It is uncertain that these land swaps are legitimate,
possibly jeopardizing the integrity of the U.S. Congress;
The Committee should allow the Department of Interior
the time to do their due diligence to determine if these are
valid land claims; and
Congress needs to revisit, revise and reauthorize the
IGRA, which has not had a comprehensive review in nearly two
decades.
Again, I thank the Chairman and the Ranking Minority Member for
this hearing. The Committee must reject these bills based on the merit
of the will of the people of the City of Detroit and the State of
Michigan.
Mr. Conyers. Shelly Berkley, Las Vegas, Nevada--that tells
you something right there. That speaks worlds of information
about this distinguished lady.
Shelly Berkley has distinguished herself on the Ways and
Means Committee, the Veterans Affairs Committee. She's been
strongly active in Foreign Affairs as one of the causes that
attract her great talent. She has been looking at this issue
for quite a while, and I'm happy that she was able to come
before the Committee today.
We recognize you, Shelly Berkley, for your comments and
your views on the subject.
TESTIMONY OF THE HONORABLE SHELLY BERKLEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEVADA
Ms. Berkley. Thank you very much, Mr. Chairman; and thank
you, Mr. Smith, Ranking Member, and all of the Committee
Members who have come today to listen to us testify on this
very important issue.
I appreciate the opportunity to speak today on an issue
that we have been dealing with in Congress for more than 5
years now, and it keeps rearing its ugly head again and again.
I'm especially thankful to you, Mr. Chairman, for obtaining a
referral of these bills to your Committee in order to more
fully investigate their potential impact. After listening to
your opening remarks, I'm not sure that there is much that I
can add to your body of knowledge, but I certainly shall try.
I strongly oppose the bills offered by my colleagues, Mr.
Dingell and Mr. Stupak, because they offer a blueprint to any
Indian tribe who wants to circumvent the laws regulating Indian
gaming in order to build a casino outside the boundaries of its
sovereign territory.
For those of you who are not aware, I not only represent
Las Vegas but I grew up in Las Vegas, the gaming capital of the
world. I'm living proof of the positive impact gaming can have
on a community.
My father moved his family to Las Vegas 45 years ago when I
was a young girl. He was a waiter. On a waiter's salary, he put
food on our table, clothes on our back and a roof over our
heads. And that's not a bad thing on a waiter's salary. He also
put two daughters through college and law school.
Now while I respect everybody's opinion about gambling, I
think I must say that, while I was raised in Las Vegas and
subjected to gaming all of my life, I don't drink, I don't
smoke, I don't gamble, I haven't assaulted anybody, I'm debt
free.
Mr. Conyers. As they say, as far as we know.
Ms. Berkley. As far as I know. And I'm not unique. I think
I'm rather representative of the people that I do represent.
I certainly don't begrudge the Bay Mills or Sault Ste.
Marie Tribe or the Michigan communities at Port Huron and
Romulus their desire to participate in this successful
industry. But I do take issue with them attempting to flout the
laws on Indian gaming, come to Congress for the worst type of
special interest, special legislation and compete with existing
facilities under an entirely different set of rules that they
would like Congress to implement.
We have a Federal law on the books that governs the process
for approving gaming by native Indian tribes. It's called the
Indian Gaming Regulatory Act. Under IGRA, the Bureau of Indian
Affairs can approve gaming on newly acquired land taken into
trust under very limited circumstances.
In the case of the Bay Mills and Sault Tribes, each of
which already has gaming on its reservation land, a suspect
land claim was used as a bargaining chip in settlements with
the Governor in which the tribes agreed to renounce their claim
and receive alternate properties which just so happened to be
in locations more conducive to gaming, namely, near the
population center of Detroit. In fact, a representative of the
Sault Tribe described the deal as shady in his Senate testimony
in 2002, but that was before his tribe joined the party and
stood to benefit from this.
In addition to the suspect land claim, which has been
tossed out of both State and Federal court, the settlement
reached with former Michigan Governor John Engler to allow
gaming at Port Huron and Romulus, which, incidentally, are part
of the ancestral lands of a different tribe, the Saginaw
Chippewa, violates Michigan tribal gaming compact which
requires that any new off-reservation gaming have the support
of all the tribes in the State.
As Mrs. Kilpatrick has already testified, most of the
tribes in the State are opposed to this, so these settlements
do not have that support.
Residents of Detroit can attest to the role gaming has
played in transforming that city. The three new casinos employ
more than 7,500 people in the city and contribute hundreds of
millions of dollars each year as tax revenue to the city and
the State. The two proposed facilities will compete with the
Detroit casinos for some of the exact same customers but as
sovereign tribal entities without the burden of State and local
taxes.
In a misguided attempt to promote tribal sovereignty, the
Committee on Natural Resources approved the Dingell and Stupak
bills last month with little attention to the potential
ramifications for other parts of our country. If these bills
become law, any one of the more than 500 recognized Native
American tribes can argue that they have a right to sue private
landowners in an attempt to bargain for gaming somewhere else.
This debate raises serious questions about issues under the
jurisdiction of the Judiciary Committee, and that's why I'm
glad we have an opportunity to testify in front of you today.
This is not a simple tribal lands claim, as the proponents
would like Members of Congress to believe. In short, Congress
is being asked to pass special interest legislation benefiting
two tribes, each of which already has gaming based on a suspect
land claim that has already been thrown out of State and
Federal court so they can open casinos hundreds, hundreds of
miles from their ancestral land in direct competition with
existing facilities that have helped revitalize a major
American city.
I commend you for taking a closer look at these issues; and
I thank you very much, Mr. Chairman, for again allowing me to
testify in front of your august Committee.
Mr. Conyers. Thanks. You're amazingly brief this morning,
Shelly Berkley.
Ms. Berkley. I'm learning from past mistakes.
Mr. Conyers. We are grateful to both of you for joining us,
and I know you will be following our activities, and we may be
coming back to you for consultation. Thanks so much for
starting us off.
We now call panel two. We have the distinguished Assistant
Secretary, Bureau of Indian Affairs, U.S. Department of the
Interior, Mr. Carl Artman; and then we have Chief Fred Cantu,
Saginaw Chippewa Tribe of Michigan;and then we have Alicia
Walker, the Sault Ste. Marie Chippewa Tribe; and Attorney
Kathryn Tierney, the Bay Mills Indian Community.
Cynthia Abrams of the National Coalition Against Legalized
Gambling is unable to be with us, but we will accept into the
record her written statement.\1\
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\1\ The statement referred to was not received by the Committee at
the time this hearing was printed.
---------------------------------------------------------------------------
I also note that our good friend and colleague, Hank
Johnson of Atlanta, GA, has joined the hearings, thank you.
The Chair recognizes the Ranking Member.
Mr. Smith. Thank you, Mr. Chairman.
As you just mentioned, Dr. Guy Clark, Chairman of the
National Coalition Against Global Expansion, was scheduled to
testify, but it turned out he is unable to do so, and so I
would like to ask unanimous consent that his statement or
testimony be made a part of the record.
Mr. Conyers. Without objection, so ordered.
[The prepared statement of Dr. Clark follows:]
Prepared Statement of Dr. Guy Clark, Chairman of the National Coalition
Against Gambling Expansion
As Chairman of the National Coalition Against Gambling Expansion, I
appreciate the invitation to submit testimony regarding the issue of
gambling expansion and the proposed legislation presently before this
Committee.
We strongly oppose this legislation because we believe these land
claims should go through the Bureau of Indian Affairs. There should be
no short cuts by attempting to win the favor of Congress.
But more importantly, my remaining comments will extend beyond the
specific questions of land claims before you this morning. Because the
driving force behind these land claims is the desire for more gambling
expansion.
Many of you will agree that nearly all of the debate around
gambling expansion in this country, whether in Michigan or anywhere
else, consistently focuses on questions about ``jobs'' and ``revenue.''
But what is remarkable about all of this frenzied discussion about
jobs and revenue is that virtually no one ever stops for a minute and
examines the product itself.
Because this is a debate not about just any kind of gambling. It's
not about Friday night poker games with the guys at work or buying a
square in the Super Bowl office pool. This fight is about exploitative
gambling--combating those who prey on human weakness for profit.
America is on an exploitative gambling binge. What started forty-
five years ago with a lottery ticket has evolved into addiction
delivery systems. There are now more than a dozen pathological gambling
states and many others heading there fast.
Today, the purest form of exploitative gambling is machine gambling
with close to 800,000 slot machines and video poker games in operation
in this country--that's one machine for every 395 Americans. And, it's
these machines that generate most of the profits for the casino trade.
What makes these electronic gambling machines exploitative?
According to Dr. Natasha Schull at MIT, when you look at what these
algorithms inside the machines are doing, it's a high tech version of
``weighting the deck'' or ``loading the dice.'' Using loaded dice in
gambling is cheating and is illegal.
The goal of the technology behind these electronic loaded dice is
no secret: how to get people to play longer, faster and more
intensively. Every feature of the machine--the mathematical structure,
visual graphics, sound dynamics, seating and screen ergonomics--is
geared, in the language of the casino trade, to get gamblers to ``play
to extinction''--which means until their money is gone. What the user
is seeing is not an accurate representation of what's happening inside
the machine.
In my own state of New Mexico, Konami, one of the largest slot
machine manufacturers, recently admitted to using subliminal technology
in its machines by deceptively flashing jackpot symbols at players. I
know you are well aware that many social scientists have done extensive
research on subliminal perception and its motivational power.
A modern slot machine doesn't have a handle to pull or use reels--
they use buttons and video screens. Instead of coins, they take player
consumer cards. And instead of a few games per minute, hundreds can be
played.
Instead of actual reels, they have virtual reels that rely on
complicated algorithms and virtual reel mapping, concepts that few
people in the casino trade itself understand--much less policy makers
and citizens considering these machines in their own communities.
But despite the exploitative nature of these machines, there are
still many people who say aren't people playing these machines
``voluntarily?''
All of you are familiar with consumer loyalty cards. Nearly all of
the supermarkets and drug stores offer them. They use these cards to
track consumers. The casino trade has taken this marketing research
technology to a whole new level. Anyone comforted by the idea that
playing the slots is voluntary should spend a day with those who work
for the casino trade.
People are targeted based on factors such as how fast they play a
slot machine, information that can be collected through their
``Player's Rewards card'' because many players use these cards directly
in the machine. The faster someone plays, the more likely they are to
play out of out of control. And the faster you play (i.e. more out of
control you are), the more you are offered incentives like free slot
play as well as free meals and hotel rooms.
The casino trade's message is ``most people gamble without a
problem'' declaring that ``only'' 5% of the general population has a
problem. To put it in real numbers, that's one out of every twenty
people. But the real question for everyone in this country to be asking
is: ``What is the percentage of problem gambling behaviour, not among
the general population, but of the gamblers who play electronic
gambling machines once a month or more?'' Because having these machines
locally is very different than having to travel to Las Vegas or drive
several hours to play them. Instead of going 2-3 times a year to play
the machines, now tens of millions of people are able to play the
machines weekly.
The facts show that more than fifty percent of regular electronic
gambling machine players are experiencing harm. That's of those who
play once or more per month. It's not telling it straight to say that
``most people gamble without a problem'' because the vast majority of
people don't play slots or haven't yet played long enough or frequent
enough to experience the imminent harm. And, it's these problem
gamblers who are the money makers. More than 80% of the revenues come
from 20% of the players.
Yes, there are a few other things in our society that are
exploitative but our government aims to protect us from exploitative
and predatory things. The major difference here is that many of our own
state governments are a virtual partner in the exploitation. In every
other instance, our government prosecutes such practices.
The time has arrived for a national solution to America's gambling
binge and it begins with a thorough and transparent investigation into
the electronic gambling machines that are driving the casino trade's
massive expansion.
It's time this country put the chance back in gambling.
Mr. Conyers. Carl Artman, the Assistant Secretary for
Indian Affairs, is a member of the Oneida Tribe of Wisconsin,
where he was chief counsel of the tribe before coming to
Washington as Associate Solicitor for Indian Affairs in the
Department; and he was confirmed in his current position last
March. We welcome him to these proceedings.
Your statements are all included in the record, and we
invite your oral testimony.
Good morning.
TESTIMONY OF CARL ARTMAN, ASSISTANT SECRETARY, BUREAU OF INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Artman. Good morning, Mr. Chairman, Members of the
Committee. Thank you.
My name is Carl Artman, and I am the Assistant Secretary
for Indian Affairs of the Department of the Interior. I am
pleased to be here today to testify on H.R. 2176, a bill to
provide for and approve this settlement of certain land claims
for the Bay Mills Indian Community, and on H.R. 4115, a bill to
provide for and approve certain land claims for the Sault Ste.
Marie Tribe of Chippewa Indians.
Through the legislation, Congress would approve and ratify
agreements executed in 2002 between the State of Michigan and
the Bay Mills and Sault Ste. Marie Tribes. Alternate lands
would be provided to each tribe in consideration for
extinguishing the tribe's claim to the Charlotte Beach,
Michigan, lands.
The Department does not support these bills for several
reasons.
The mandatory Nature of the Land Acquisition Provisions
would require that the alternative lands be taken into trust
even if NEPA liabilities exist on these lands. We recommend
that any acquisition in trust be conditioned upon the land's
meeting applicable environmental standards.
The mandatory nature of the land acquisition would also
preclude consultation with affected tribal, State and local
governments that takes place under our regulations.
In addition, section 2710(d) of the Indian Gaming
Regulatory Act requires a tribe and State to enter into a
compact approved by the Secretary and that notice of such
approval be published in the Federal Register prior to Class
III gaming occurring.
The settlement agreements include many provisions commonly
found in a tribal State compact under the Indian Gaming
Regulatory Act, such as:
The Governor's concurrence in the trust acquisition of the
alternative lands for gaming purposes.
Tribal payments to the State of Michigan in an amount equal
to 8 percent of the net win derived from all Class III
electronic games of chance in consideration for limited
geographical exclusivity, and payments in the aggregate amount
equal to 2 percent of the net win to the local units of State
governments.
Limitations of the tribe's Class III gaming operations in
Michigan.
A statement that section 9 of the compact is not implicated
by provision of the alternative land to the tribe and the
Governor's waiver of this provision to the extent it is
determined to be implicated.
However, these bills appear to circumvent the tribal State
compact approval process by bypassing the approval of the
Michigan State legislature. The Department respects tribal and
State rights and supports the tribal-State compact negotiation
and approval process. We believe that these provisions would be
best in a compact.
Finally, we're concerned with the lack of consultation with
other Michigan tribes that may be impacted by the terms of
these settlements, since the legislation would waive section 9
of the Michigan compacts to the extent that it is implicated by
the settlements.
This concludes my remarks; Mr. Chairman; and I would be
happy to answer any questions that the Committee has. Thank
you.
Mr. Conyers. Thank you, sir. We welcome your appearance
here.
[The prepared statement of Mr. Artman follows:]
Prepared Statement of Carl Artman
Good morning, Mr. Chairman and Members of the Committee. My name is
Carl Artman and I am the Assistant Secretary--Indian Affairs, at the
Department of the Interior. I am pleased to be here today to testify on
H.R. 2176, a bill to provide for and approve the settlement of certain
land claims of the Bay Mills Indian Community, and on H.R. 4115, a bill
to provide for and approve certain land claims of the Sault Ste. Marie
Tribe of Chippewa Indians. Because of the potential for liability to
the United States, and because the settlement agreements go beyond
those required for the settlement of a land claim and circumvent an
established process, the Department cannot support these bills.
BACKGROUND
H.R. 2176 would approve and ratify an agreement executed on August
23, 2002, between the Governor of the State of Michigan and the Bay
Mills Indian Community. H.R. 4115 would approve and ratify an agreement
executed on December 30, 2002, between the Governor of the State of
Michigan and the Sault Ste. Marie Tribe. The settlement agreements
provide the basis for Congress to extinguish the two tribes' claims to
the Charlotte Beach lands. In consideration for the extinguishments of
the tribes' claims, Section 2 of H.R. 2176 would require the Secretary
to take into trust for the Bay Mills Indian Community alternative land
located in Port Huron, Michigan. Section 1(b) of H.R. 4115 would
require the Secretary to take into trust for the Sault Ste. Marie Tribe
two parcels of land, one located in Oswego County, subject to the
approval of the Village of Vanderbilt and the Little Traverse Bay Bands
of Odawa Indians, and the other one located in the City of Romulus,
Michigan, subject to the approval of the City.
PROBLEMATIC PROVISIONS
Both bills would establish a 30 day requirement for the Secretary
to take land into trust for the Tribe once the Secretary receives a
title insurance policy for the alternative land that indicates it is
not subject to any mortgage, lien, deed of trust, option to purchase,
or other security interest. The mandatory nature of the land
acquisition provisions would require that alternative lands be taken
into trust even if the Department determines that potential liabilities
exist on these lands. The legislation precludes the Department from
evaluating the subject property to determine whether hazardous
materials are present. The Department asks that Congress consider the
cost to and potential liability of the United States Government with
respect to legislative transfers of land into trust, both in this
particular instance and all future mandatory trust transactions. We
recommend any acquisition in trust be conditioned upon the lands
meeting applicable environmental standards. The mandatory nature of the
land acquisition would also preclude consultation with affected tribal,
State, and local governments that takes place under our regulations.
In addition, section 2710(d) of the IGRA requires that a tribe and
State enter into a compact approved by the Secretary and that notice of
such approval be published in the Federal Register before Class III
gaming may occur.
The settlement agreements include many provisions commonly found in
a tribal-state compact under the Indian Gaming Regulatory Act (IGRA):
(1) the Governor's concurrence in the trust acquisition of the
alternative lands for gaming purposes;
(2) Tribal payments to the State of Michigan in an amount
equal to 8 percent of the net win derived from all Class III
electronic games of chance in consideration for limited
geographical exclusivity, and payments in the aggregate amount
equal to 2 percent of the net win from all Class III electronic
games of chance to local units of state governments;
(3) limitation of the Tribes' Class III gaming operations in
Michigan;
(4) the Governor's forbearance from exercising the State's
unilateral right to renegotiate the Compact pursuant to Section
12(c) of the Compact; and
(5) a statement that Section 9 of the compact is not
implicated by provision of the alternative land to the Tribe,
and the Governor's waiver of this provision to the extent it is
determined to be implicated.
However, these bills appear to circumvent the tribal-state compact
approval process by bypassing the approval of the Michigan State
legislature. The Department respects tribal and state rights and
supports the tribal-state compact negotiation and approval process.
Therefore, we believe that these provisions would best appear in a
compact.
Finally, we are concerned with the lack of consultation with other
Michigan tribes that may be impacted by the terms of these settlements
since the legislation would waive Section 9 of the Michigan compacts to
the extent it is implicated by the settlements.
This concludes my remarks. I will be happy to answer any questions
the Committee may have. Thank you.
Mr. Conyers. The Chair notes the presence of Steve Chabot
of Ohio, who is the Ranking Member currently, and also Jim
Jordan of Ohio. What is this, an Ohio pile-on here, everybody
from Ohio? Welcome to the hearing, gentlemen.
We now turn to Chief Fred Cantu, the Saginaw Chippewa Tribe
of Michigan. He has been that chief, having been unanimously
elected to it in December of 2005; and then he was reelected
last December. He has been appointed to a vacancy on the tribal
council in late 2004, and before that had been the chief of the
tribal fire department.
Chief Cantu, welcome to the Committee. I don't know if
you've testified in Congress before, but we've read your
prepared statement, and now we're happy to hear your views
summarizing your position.
TESTIMONY OF CHIEF FRED CANTU,
SAGINAW CHIPPEWA TRIBE OF MICHIGAN
Chief Cantu. Thank you, Mr. Chairman. This is probably my
third time here in Congress, but thank you.
My name is Fred Cantu. I'm the Chief of the Saginaw
Chippewa Indian Tribe. I want to thank the Committee for
allowing our tribe to testify today.
Mr. Chairman, let me start by saying these bills are very
controversial, not just here on Capitol Hill but also in
Michigan and across Indian country. This is because these bills
push the envelope past the limits of Indian policy.
I've submitted two items to the Committee which raise
serious questions about these two bills.
First, I have submitted correspondences of the Department
of Interior discussing and rejecting the request to prosecute
these claims because of the view--they view them as unwinable.
I also submitted testimony--testimony submitted by the
Sault Ste. Marie Tribe in 2002 opposing the Bay Mills claim and
attacking its validity.
It is important to note that these land claims have never
been independently verified by anyone. In fact, the Bay Mills
Indian Community claim was rejected by the State and Federal
courts; and the letters I have submitted show the U.S.
Department of Interior believes the claims fail on its merits
and cannot be won. But there are many questions that need to be
examined.
According to the former Sault Tribe chairman, this whole
land claim was a scam from the start. According to detailed
testimony the Sault Tribe gave in 2002 and which I've submitted
with my written testimony, the Charlotte Beach claim was
conceived by a Detroit area casino who developed it
specifically as a vehicle to obtain a casino, not to settle a
lands claim.
We would ask that this Committee to investigate the
detailed charges made by the Sault Tribe in their testimony
before the Senate Committee on Indian Affairs in 2002.
We also believe these bills undermine the Michigan gaming
compact, which specifically required that no tribe conduct off-
reservation gaming without a revenue agreement from the other
tribes in Michigan. This is a blatant attempt by these two
tribes to evade their obligation under the compact which was
specifically reviewed and approved by the Michigan legislature.
Furthermore, this legislation would have Congress ratify a
tribal State compact for the first time in history, which
undermines the intent of IGRA and circumvents the authority of
the Michigan legislature.
Our tribe is deeply concerned that these proposed casinos
are to be located in the ancestral lands of the Saginaw
Chippewa Indian Tribe. Neither the Bay Mills Tribe nor the
Sault Tribe has any ancestral connection to these lands, and
the Indians Claims Commission has ruled on this on two separate
occasion.
During the February 6, 2008, hearing in the House Resource
Committee, one Member of Congress remarked that these bills
were solely about settling the lands claim and nothing about--
to do with gaming. If that is the true goal, we believe the
validity of this claim should be proven.
To that end, we respectfully recommend that this Committee
remove the gaming provision from this legislation and have the
appropriate Federal agencies determine whether these lands
claims are legitimate. If they find that these claims are
legitimate, we would ask that they make a determination as to
the value of the claim and an appropriate compensation for
those claims. This would ensure that these land claims have
merit and would ensure the tribe are properly compensated if
these claims exist.
While these bills may be good for two tribes and their
nonIndian developers, we believe it is bad policy for Indian
country and urge the Committee to reject these bills.
Again, thank you for the opportunity to testify.
Mr. Conyers. Thanks, Chief Cantu. We appreciate you being
here one more time in the Congress.
[The prepared statement of Mr. Cantu follows:]
Prepared Statement of Chief Fred Cantu
My name is Fred Cantu and I am the Chief of the Saginaw Chippewa
Indian Tribe. I want to thank the committee for allowing our Tribe to
testify today.
Mr. Chairman, let me start by saying these bills are very
controversial--not just here on Capital Hill--but all across Indian
Country. Tribes across the country are waiting to see if Congress will
actually allow two Tribes to get casinos on lands 350 miles from their
reservations to settle a land claim that has never been validated by a
single court or the federal government. In fact, the Bay Mills Indian
Community's claim was rejected by both state and federal courts, and
has also been rejected by the United States Department of Interior.
These land claims have never been independently verified by
anyone--and these bills raise more questions than they provide
solutions. These claims would lower the standard for the establishment
of a legitimate land claim and would invite other tribes to seek land
claim settlements for casinos without any independent verification of
the validity of such claims. In fact it could be argued that the long
history and ill treatment received by tribes across the country could
support similar claims that are at least as compelling as those raised
in these bills.
If Congress passes these bills, you will have Tribes across the
country lined-up before Congress seeking casinos for land claims that
have never been proven valid. We have not found one instance in which
Congress has granted a Tribe a casino and a gaming compact for settling
a land claim, much less the type of an unsubstantiated and questionable
claims presented here.
These bills would establish a dangerous precedent and must be
rejected by Congress for the sake of Indian gaming. What separates
Indian gaming from private gaming is that Tribes are restricted to
gaming on Indian Lands--not wherever they feel it is most profitable.
If Congress begins authorizing Tribes to establish reservations 350
miles from their existing reservations and designates those lands for
gaming, it will completely undermine the whole premise of Indian
gaming. And that is why Mr. Chairman, no other Tribe supports these
bills.
Our Tribe is also deeply concerned that these proposed casinos are
to be located in the ancestral lands of the Saginaw Chippewa Tribe.
Neither the Bay Mills Tribe nor the Sault Tribe has any ancestral
connection or claim to these lands and the Indian Claims Commission has
ruled on this on two separate occasions.
We also believe these bills undermine the Michigan Gaming Compact
which specifically requires that no Tribe conduct off-reservation
gaming without a revenue agreement from the other Tribes in Michigan.
Very simply--this is a blatant attempt by these two Tribes to evade
their obligations under the Compact, which was specifically reviewed
and approved by the Michigan State Legislature. Furthermore, this
legislation would have Congress ratify a Tribal/State compact for the
first time in history--which undermines the intent of IGRA and
circumvents the authority of the Michigan Legislature.
During the February 6, 2008, hearing in the House Natural Resources
Committee, one Member of Congress remarked that these bills were solely
about settling a land claim and had nothing to do with gaming. If that
is the true goal, we believe the validity of this claim should be
proven. To that end, we respectfully recommend that this Committee
remove the gaming provisions from this legislation and have the
appropriate federal agencies, determine whether these land claims are
legitimate. If they find these claims are legitimate we would ask that
they make a determination as to the value of the claim and the
appropriate compensation for those claims. This would ensure that these
land claims have merit and would ensure the Tribes are properly
compensated if these claims exist.
But there are many questions that need to be examined. According to
the former Sault Tribe Chairman, this whole land claim was a scam from
the start. According to the Sault Tribe, the Charlotte Beach claim was
conceived by a Detroit area attorney who developed it specifically as a
vehicle to obtain a casino--not to settle a land claim. We would ask
this committee to investigate the detailed charges made by the Sault
Tribe in their testimony before the Senate Committee on Indian Affairs
in 2002.
Mr. Chairman, IGRA was meant to promote economic development on
Indian reservations--not to reward Tribes who scheme with non-Indian
developers.
While these bills may be good for two Tribes and their non-Indian
developers, it is simply bad policy for Indian Country. We would hope
the Committee does the right thing and rejects these bills.
Thank you.
Mr. Conyers. I'm now turning to a partner of the law firm
Greene, Meyer & McElroy. An attorney, Alicia Walker, a law
graduate from Georgetown Law School, is our witness today.
She's been representing Indian tribes for quite a while. She's
here today on behalf of the Sault Tribe.
Welcome to the Committee hearing.
TESTIMONY OF ALICE E. WALKER, ESQUIRE,
SAULT STE. MARIE CHIPPEWA TRIBE
Ms. Walker. Thank you, Mr. Chairman.
Unlike Chief Cantu, this is my first time testifying before
Congress, so I didn't get the button quite right.
Thank you for the opportunity to present testimony today.
As you noted, my name is Alice Walker. I'm from Boulder,
Colorado, a partner in the law firm of Greene, Meyer & McElroy.
We have represented the Sault Tribe for more than 20 years on a
variety of issues, and I am here today representing the Sault
Tribe on the settlement of the Charlotte Beach land claim.
It is my pleasure to appear before the Committee today to
urge its support for H.R. 2176 and H.R. 4115, both of which
would settle the long-standing claims of the Bay Mills Indian
Community and the Sault Tribe with respect to lands in
Charlotte Beach. The bills arise from two settlement
agreements. They were entered into in August and December of
2002, one between Bay Mills and the other between the Sault
Tribe. Both of the 2002 settlement agreements contain identical
language, except for identification of potential alternative
lands.
The record before the Committee on Natural Resources
describes in detail the nature of those settlement agreements
and the propriety of congressional approval of those settlement
agreements so that final resolution of the Charlotte Beach land
claim may finally come to fruition.
The issue before the Committee today relates to the need
for the judicial review provision in each of the bills, which
states as follows:
This is the enforcement provision: The settlement of land
claim shall be enforceable by either tribe or the Governor
according to its terms. Exclusive jurisdiction over any
enforcement action is vested in the United States District
Court for the Western District of Michigan. That provision is
section 1(e)(3) of H.R. 4115 and section 3(c) of H.R. 2176.
That mirrors section 14 of the 2002 settlement agreements which
provide that to the extent there is a dispute or controversy
involving the terms of this settlement, the parties agree that
all actions or proceedings will be tried and litigated only in
the Federal District Court for the Western District of
Michigan.
The judicial review provisions are consistent with the 2002
settlement agreement and indeed may be viewed as a belt-and-
suspenders approach to ensuring that no court other than the
United States District Court for the Western District of
Michigan will have jurisdiction over disputes arising under the
2002 settlement agreement. While the judicial review provisions
of the bills are consistent with the 2002 settlement agreement,
they are not necessary in order to accomplish the substantive
purposes of the bills, which is to finally resolve the long-
standing Charlotte Beach land claims to the satisfaction of
both tribes as well as the Charlotte Beach landowners.
Accordingly, the Sault Tribe does not object to retaining
the judiciary review provisions in the bill, since they are
consistent with the 2002 settlement agreements, or eliminating
those provisions, since they are arguably duplicative of the
underlying agreements.
On behalf of the Sault Tribe, I look forward to the
Committee's consideration of this issue and its referral of
H.R. 2176 and H.R. 4115 back to the House floor. Thank you for
the opportunity to testify today.
Mr. Conyers. Thank you so much. We are delighted to have
you here for your first congressional experience----
Ms. Walker. Thank you.
Mr. Conyers.--before the Judiciary Committee. It will be a
pleasant experience, I assure you.
Ms. Walker. I sure hope so.
[The prepared statement of Ms. Walker follows:]
Prepared Statement of Alice E. Walker, Esq.
Mr. Chairman and Members of the Committee, thank you for the
opportunity to testify today on behalf of the Sault Ste. Marie Tribe of
Chippewa Indians. My name is Alice E. Walker. I am a partner and
shareholder in the law firm of Greene, Meyer & McElroy, P.C., located
in Boulder, Colorado. Our firm has represented the Sault Tribe for more
than twenty years on a variety of issues, and I am here today
representing the Sault Tribe regarding the settlement of the Charlotte
Beach land claims.
It is my pleasure to appear before the Committee today to urge its
support for H.R. 2176 and H.R. 4115, both of which would settle the
long-standing land claims of the Bay Mills Indian Community and the
Sault Ste. Marie Tribe with respect to lands in Charlotte Beach,
Michigan. The bills arise from two Settlement Agreements, entered into
in December of 2002, one between the Sault Ste. Marie Tribe and the
State of Michigan, and the other between the Bay Mills Indian Community
and the State of Michigan. Both of the 2002 Settlement Agreements
contain identical language, except for the identification of
alternative lands. The record before the Committee on Natural Resources
describes in detail the nature of those settlement agreements and the
propriety of congressional approval of those settlement agreements so
that final resolution of the Charlotte Beach land claims may finally
come to fruition.
The issue before the Committee today relates to the need for the
judicial review provision in each of the bills, which states as
follows: ``(c) Enforcement--The Settlement of Land Claim shall be
enforceable by either the tribe or the Governor according to its terms.
Exclusive jurisdiction over any enforcement action is vested in the
United States District Court for the Western District of Michigan.''
That provision is Section 1(e)(3) of H.R. 4115, and Section 3(c) of
H.R. 2176. That provision mirrors section 14 of the 2002 Settlement
Agreements, which provide that ([t]o the extent there is a dispute or
controversy involving the terms of this Settlement, the parties agree
that all actions or proceedings will be tried and litigated only in the
Federal District Court for the Western District of Michigan.
The H.R. 4115 and H.R. 2176 judicial review provisions are
consistent with the 2002 Settlement Agreement, and indeed, may be
viewed as a belt-and-suspenders approach to ensuring that no court
other than the United States District Court for the Western District of
Michigan will have jurisdiction over disputes arising under the 2002
Settlement Agreements. While the judicial review provisions of the
bills are consistent with the underlying 2002 Settlement Agreements,
they are not necessary in order to accomplish the substantive purposes
of the bills, which is to finally resolve the long-standing Charlotte
Beach land claims to the satisfaction of both Tribes as well as the
Charlotte Beach landowners. Accordingly, the Sault Tribe does not
object to either retaining the judicial review provisions, since they
are consistent with the 2002 Settlement Agreements, or eliminating
those provisions, since they are arguably duplicative of the underlying
agreements. On behalf of the Sault Tribe, I look forward to the
Committee(s consideration of this issue and its referral of H.R. 2176
and H.R. 4115 back to the House floor.
Thank you for the opportunity to testify today.
Mr. Conyers. Attorney Tierney, you are welcome here as the
counsel for the Bay Mills Indian Community. You've represented
them from the beginning of your legal career, and I am looking
forward to getting the benefit of your experience as it applies
to the questions that are now before the Judiciary Committee of
the House of Representatives.
Welcome to our hearing this morning.
TESTIMONY OF KATHRYN TIERNEY, TRIBAL ATTORNEY,
BAY MILLS INDIAN COMMUNITY
Ms. Tierney. Thank you, Mr. Chairman. It is a pleasure to
be here.
I have to say, this weather almost prevented me from making
it, and so I'm glad to be sitting at this table.
As you've indicated, I am here as in-house counsel for the
Bay Mills Indian Community and representing them and also its
President of the Executive Council, Mr. Jeffrey Parker, who was
invited to testify here today. In his absence, I am sitting in
on his behalf.
As you know, Mr. Parkertestified before the House Natural
Resources Committee in February of this year about these two
bills; and I have provided as an attachment to my one-page
statement the full text of his submission to that Committee,
hoping that way to provide sufficient information to you and
not to duplicate matters by repeating myself and therefore
perhaps preventing more expeditious review of this material.
I think it is important for all of us to recognize that the
reason why we have sought these bills is that it requires an
act of Congress to settle land claims. That is why the Bay
Mills Indian Community has sought legislation to resolve this
matter, and that is why we are hopefully and respectfully
asking for your support in having that done.
I know that the materials that Mr. Parker has presented
have been in circulation, so I think it best and most
appropriate for me to offer my assistance, if I can, in
answering any questions that Members of the Committee might
have and thank you for the opportunity to address the
Committee.
Mr. Conyers. Thank you so very much.
[The prepared statement of Ms. Tierney follows:]
Prepared Statement of Kathryn L. Tierney
ATTACHMENT
Mr. Conyers. To our female attorneys, Ms. Walker and Ms.
Tierney, here's what I'm thinking about. The Charlotte Beach
lands have been in private hands since the late 19th century.
When did your tribes interest in pursuing those lands first
manifest itself?
Then think about this with me. Since the land claims are
against the State of Michigan, what do you imagine the Federal
Government has to do with this?
And, finally, why do the two land settlement agreements
break with the 1993 compact that both your tribes entered into
with the State of Michigan, particularly with the issue of
sharing revenues?
And then, Chief Cantu, how easy would it be for the Saginaw
Tribe to assert a claim like the two asserted here? And if you
did, what do you think the geographical limits on where you
could build a casino would play into that?
I'll let the ladies start first, and then the Chief will
follow up.
Ms. Walker. And, Mr. Chairman, I will defer first to Ms.
Tierney, since she in Bay Mills was the first to pursue the
land claims, if we start with your first question.
Ms. Tierney. Thank you.
The Bay Mills Indian Community has always been federally
recognized. It has had that name since it was organized under
the Indian Reorganization Act in 1936. But, prior to that, it
was considered the Indian people living on or near Sault St.
Marie. It is in that context that this claim first arose in
1857.
The efforts to resolve it go back that far; and if you look
at Mr. Parker's testimony before the House Resources Committee,
he gives you a time line starting at the bottom of page 3 and
through page 4.
Let me quickly repeat that in a summary fashion. The bank
sought to protect land that they wished to live on permanently
by placing it in trust with a Governor of the State of Michigan
named Kingsley S. Bingham and his successor in office, at the
recommendation of the superintendent of the Michigan agency,
thinking that that would be the best way to ensure that land
speculation, et cetera, could not result in the loss of the
land to the Indian owners.
In the 1870's, for some reason that no one has ever been
able to determine, the land was placed on the tax roll of
Chippewa County, which is still the county in which these lands
are located, and was sold for tax sales in 1874 and 1875. That
immediately resulted in disputes and claims and requests to the
United States to fix this matter, to obtain the land back; and
that effort went into the following century.
There is correspondence going back to 1916, 1920, 1925,
1930's, all trying to obtain this land back. The correspondence
at that time was with the United States, and those documents
are referenced in materials that Mr. Parker submitted to the
House Resources Committee and a copy of which has been provided
to this Committee.
All of that correspondence indicates that the United States
does not have a role to play in obtaining the land back from
the subsequent owners through the tax sales because the United
States did not own it at the time. The trust was not with the
United States. It was with the Governor of the State of
Michigan.
In the 1970's, there was an effort again to bring up this
issue to the 2415 process, which this Committee, I am sure, is
quite familiar with. It was a statute of limitations provision
in which claims for trespass against lands held for Indian
people had to be filed for money damages or forever be lost.
There was an initial deadline of 1976, I believe it was,
that was extended until the early 1980's. This claim again was
identified pursuant to that process and subsequently rejected
by the Secretary of Interior, stating that in order for it to
be a 2415 claim, again title to the land it had to have been at
least at one point when the trespass occurred in the United
States. Because it was in trust with the Governor, it was not
an appropriate claim under 28 USC 2415.
Subsequently to that, Bay Mills sought its own way to
resolve this matter by filing suit both in Federal court
against all the landowners currently holding title in that
area, as long as anyone else who had an interest in the
property--now we're including banks, road commission, anyone
who had an appreciable property interest.
The litigation, as everyone has noted, resulted in a
dismissal on procedural grounds due to the fact that the Sault
Ste. Marie Tribe was identified as an indispensable party who
could not be joined without its consent.
The case was dismissed. The dismissal was upheld by the
Sixth Circuit. The efforts to obtain relief from the State of
Michigan resulted in a claim filed with its court of claims.
That was rejected, saying the statute of limitations had run.
It was only after those efforts were gone through without
success and the fact that the property owners were still
seeking to have relief from the clouds on their title that the
effort was made by the Governor then of the State of Michigan,
John Engler, to sit down with the Bay Mills Indian Community
and reach an agreement, which was made in August of 2002.
Mr. Conyers. Chief Cantu, I presume you're in complete
agreement with these observations?
Chief Cantu. Yes, I believe so.
Mr. Conyers. What do you think about the question that I
asked you?
Chief Cantu. It's been a little bit since you asked that
question, and I would ask if you could repeat that for me.
Mr. Conyers. How difficult would it be for the Saginaw
Tribe to assert a claim like the two that are being put forward
by the counsels to your left?
Chief Cantu. Well, I think that would lower the bar for any
land claim that would be out there.
The claims should be verified by a court. Without
verification of such claims by an act, then, yes, the Saginaw
Chippewa Tribe and many others could also establish a lands
claim anywhere else.
Mr. Conyers. What's your feeling about this conversation
we're in, Mr. Artman?
Mr. Artman. I think Ms. Tierney's recitation of the facts
is accurate, and I just want to underline in there that in her
recitation of the facts this was a settlement of land claims
between the State and the tribe. As the tribe's trustee, we
weren't involved in this latter end process. At the very
beginning, we provided the money to purchase the initial lands
which were lost through the tax sales, but through this we
weren't involved in it. And, as indicated by Ms. Tierney, the
2415--it was rejected under the 2415 claim as well by the
Department back in the '80's.
You asked about the distance of Chief Cantu and how this
could--this settlement created additional settlements for other
tribes. I don't know that this may set up----
Mr. Sensenbrenner. Excuse me, Mr. Artman. Would you mind
hitting the button? I don't think your mike is on.
Mr. Artman. I'm sorry.
This settlement of a land claim may or may not set up a
precedent for additional land claims themselves. I think that a
lot of that precedence would also have to be rooted in the
history that's out there.
One of our biggest concerns, though, with this is the
precedent or the road map that this may create to circumvent
the Indian Gaming Regulatory Act itself, again, by putting in
Class III provisions or provisions that you might normally find
in a Class III compact that goes through the approval of the
tribal council and the State itself. And in the State of
Michigan I believe that the Attorney General's opinion is that
it has to go through the Governor's office as well as the State
legislature.
You are circumventing the State process, it seems; and then
you are also circumventing the Federal process as laid out in
the Indian Gaming Regulatory Act by getting the approval of the
Secretary of the Interior.
Mr. Conyers. Thank you very much.
Steve Chabot.
Mr. Chabot. Thank you very much, Mr. Chairman.
I'm filling in for the Ranking Member, Lamar Smith, now;
and he gave an opening statement. So I'll refer to that opening
statement in which Lamar Smith indicated that both Chairman
Conyers and he opposed these two bills because they would,
well, among other things, transfer land from Michigan to the
two tribes in order to build--in which they could build casinos
or other gaming establishments.
And one of his concerns was that building more casinos
could lead to more people becoming compulsive gamblers and also
the linkage to higher rates of criminal activity. I share those
concerns as well, as I know that many other Members of Congress
do; and I would invite any of the members of the panel to
briefly comment on that. Because I have one more question in
the 5 minutes that I have allotted to me, so we can either go
down the line or anybody can jump right in.
Ms. Walker, I see you going for the buzzer there, so----
I had a short answer, and I think that the question really
isn't whether we need another casino in Michigan, and whether
they were going to lead to the bad elements that follow from
additional casino gambling that the Committee has noted today.
Really, the question is about whether Congress will participate
in the settlement of these very longstanding land claims that,
according to testimony, and certainly my review of the record
and my participation in this process, are quite valid. They are
longstanding.
Ms. Tierney has recited very carefully the history of Bay
Mills' efforts to try to get these resolved. I think that
focusing on the addition of casinos really takes away from what
these bills are really trying to accomplish, which is really
settling these long-term land claims once and for all to the
satisfaction of the tribes, the State, and the Charlotte Beach
landowners.
Mr. Chabot. Anybody else want to comment, or should I go on
to my second question?
Chief Cantu, did you want to comment?
Chief Cantu. Thank you. If this was a legitimate land
claim, then why was testimony given by the Sault Ste. Marie
Tribe and the Bay Mills Tribe about the importance of
developing the gaming, how it would create jobs. Our whole
position is that this is a valid land claim. Let's take all of
those provisions out of there and let's get it settled.
Mr. Chabot. Let me go on with my second question. Again,
this is from Mr. Smith's opening statement. He indicates that
the Pro-gaming National Congress of American Indians itself
stated, ``Even after the advent of gaming Indian reservations
continue to have a 31 percent poverty rate and 46 percent
unemployment rate.'' They also note that Indian health and
education statistics are among the worst in the country.
So, again, getting back to the point, and I know that you
are talking specifically about land claims, but the
implications to many of us up here is the fact that this could
result in additional casinos or gaming establishments going up,
and many of us consider that to be not necessarily in the best
interest of the public because of the associated ills that go
often times with gaming.
But, again, if one is arguing that there are good things
that come from this, how do you respond to those continuing
high levels of poverty and a 46 percent unemployment rate,
despite the fact that gaming is available on a number of
reservations? So if anybody wants to touch on that.
Mr. Artman. I see you going first.
Mr. Artman. Thank you very much. I think the statistics
often times don't show the whole picture. There are some very
successful tribal casinos out there, there are some
unsuccessful tribal casinos out there. But the fact remains
success is largely driven by location.
Many of the reservations, in fact, a great majority of the
reservations across the United States, are located in the areas
that aren't accessible to a market for gaming. So the ills that
have affected reservations for decades still exist today, even
with gaming.
Gaming is not the cure-all. Tribes across the Nation, with
or without gaming, are looking for that economic development,
whatever that may be. So you still do have large swatches of
unemployment throughout Indian Country, crime is larger than
the national average, and education statistics for the students
are lower than the national average. These are all things that
we tackle on an everyday basis at the Department of Interior,
and gaming is just a portion of that.
The issues and ills and successes in Indian Country are
difficult to categorize under a general category of all of
Indian Country. You have to look at it on a regional, or even a
local basis.
Mr. Chabot. Mr. Chairman, I note my time has expired, so I
yield back the balance of my time.
Mr. Conyers. The Chair notes the presence of Darrell Issa,
the gentleman from California. But I will recognize Howard
Coble now.
Mr. Coble. Thank you, Mr. Chairman. I appreciate that. Good
to have you all with us.
Mr. Artman, does the Indian Gaming Regulation Act require a
tribe that receives a transfer of land to enter into an
agreement about the use of that land with the State where the
land is located?
Mr. Artman. There are two portions of that question, or two
things we have to address in that question, Congressman. First
of all, the land itself. The land itself comes, before you can
game on it, the land has to be held in trust by the United
States. The United States takes the land into trust under the
Indian Reorganization Act, the regulations, the 151 regulations
specifically a part of that.
During that process, the State has the opportunity, as well
as local communities have the opportunity to comment on taking
that land into trust. Where the State plays an even larger
role, looking at the additional gaming portion of that
question, is during the Indian Gaming Regulatory Act Class III
compacting process. In order to engage in Class III gaming on
land that is in trust or on the reservation, the tribe and the
State have to agree to a compact, and then that is submitted to
the Department of the Interior.
So the State certainly has a larger, very large role in the
development on how that land will be used for gaming purposes
during the IGRA process.
Mr. Coble. Do these bills ensure that such an agreement
will be made?
Mr. Artman. These bills seem to circumvent the Indian
Gaming Regulatory Act process by inserting at the congressional
level here many of the provisions you might normally find in a
Class III compact. These are things that are regulations, and I
believe even the Indian Gaming Regulatory Act, Congress, in
drafting that, would prefer to be negotiated between the tribal
government and the State government.
Mr. Coble. Thank you, sir.
Chief, does the Michigan State Constitution require voter
approval for additional gaming establishments?
Chief Cantu. Yes, it does.
Mr. Coble. Well, has the State held a referendum on the
plan for these lands?
Chief Cantu. I am not sure that they have.
Mr. Coble. Ms. Walker, one side contends that the Michigan
State Constitution requires voter approval for new gaming
establishments, is my interpretation. It is
furthermore my interpretation that you claim there is
exemption to the referendum rule for the Indian gaming.
Now I am going to ask you which of the two positions is
accurate, and I think you are getting ready to tell me.
Ms. Walker. I am getting ready to refer to the letter that
John Wernet has provided, addressing this very issue as to
whether the settlement agreements would constitute an amendment
of the compact and thereby whether the amendment of the compact
would require voter approval.
There has been recent Supreme Court decision in the
Taxpayers of Michigan Against Casinos v. Michigan in which the
compacting process was upheld. The amendment to the compacting
process was upheld without requiring a new legislative approval
for that amendment.
But getting back to the other underlying issue, whether
these bills constitute an amendment, it is our view, obviously,
that they do not, and that is what the Governor has said, that
is what the testimony before the Natural Resources Committee
has determined, that these are not amendments to the compact,
and that in fact the compact allows these bills to go forward
consistent with their provisions.
Mr. Coble. I thank you.
Ms. Tierney, Mr. Artman is here representing the Department
of the Interior, who has expressed opposition to these
transfers.
Now what do you say, Ms. Tierney, when one would say that
it is a perhaps unwise or untimely or dangerous precedent to
allow the established department procedures to be circumvented?
What do you say to that?
Ms. Tierney. Actually, sir, I do not believe that this
legislation controverts established procedures. There is
significant and numerous precedents for this body, meaning the
Congress of the United States, to direct the Secretary of the
Interior to accept title in trust to land on behalf of a
specific Indian tribe. So in that sense, there is no precedent
being established. In fact, there is also legislation that has
been passed in previous Congresses not only directing the land
to be taken into trust, but specifically allowing gaming to
occur. There are references to those particular provisions in
Mr. Parker's testimony. I am not going to bore everyone by
trying to find it while I sit here.
So in that sense, I am not sure what Mr. Artman has in mind
by stating that this is setting precedent or circumventing
procedures in a way that has never occurred in the past,
because it has.
Mr. Coble. Mr. Chairman, I know you like us to conclude
before that red light illuminates.
Mr. Conyers. Take all day.
Mr. Coble. You are a very generous Chairman. I yield back.
Mr. Conyers. Hank Johnson, the gentleman from Georgia.
Mr. Johnson. Thank you, Mr. Chairman. I would like to ask
who owns the land in Port Huron and in Romulus that your two
tribes would receive in these land deals.
Ms. Tierney. The Bay Mills Indian community's legislation
and agreements specifically identify particular parcels, both
of which are currently in private hands, both of which are
subject to understandings that the title to them will not
transfer out of private hands unless or until this legislation
is enacted.
Mr. Johnson. So land is owned by some person who, or entity
that is not identified currently. Would you wish to reveal
that? I am sure it is public record.
Ms. Tierney. I do not have the specific names. I can
provide that.
Mr. Johnson. Is it individuals?
Ms. Tierney. The owners of record, they are on the title as
recorded in the register of deeds office for St. Clair County.
I just don't want to give the wrong information. I would like
to check in order to provide it.
Mr. Johnson. How was it that those lands were arrived at as
the ones that would be subject to the Indian claim?
Ms. Tierney. These were lands that----
Mr. Johnson. I mean I am sure that these particular parcels
that you have in mind are a part of a large--I mean it is part
of the State of Michigan.
Ms. Tierney. They are.
Mr. Johnson. How is this particular part of the State
selected for this particular action?
Ms. Tierney. For the Bay Mills Indian community, and I can
only speak for Bay Mills, and defer to counsel for the Sault
Tribe on the other matters, Port Huron was identified by then
Governor Engler as a location that he would like to see gaming
be available. So we looked at that area closely and found that
it would be one in which we were willing to enter into an
agreement to accept land in return for the Charlotte Beach
property.
Ms. Walker. Thank you. The situation is similar for the
Sault Tribe in that the Governor indicated areas that could use
economic development, and looking to the casinos as a source
for that purpose. The Sault Tribe has three options for the
land acquisition; one is in Romulus. We have been talking about
Romulus today, but there are really three options under the
bill. One is Romulus, one is Flint, and the other is land in
Oswego County.
So there are options for purchasing those. They are in
private ownership in this time. But they are areas that, as Ms.
Tierney noted, would support economic development and that the
tribe is examining for the propriety of substituting them for
the Charlotte Beach land claims.
Mr. Johnson. So these are lands in private hands in the
State of Michigan; the United States has no particular claim to
the property, if you will?
Ms. Walker. Not at this time.
Mr. Johnson. But now in this legislation you would be
looking for the United States to ratify an agreement between
the Governor and the tribes to settle a Federal claim?
Ms. Tierney. There is a Federal law, sir, the Indian Trade
and Intercourse Act, which was first enacted by the United
States in the early 1800's, the one that we still refer to now
was passed in 1834, which specifically prohibits Indian land
from being disposed of without the consent of Congress. It is
still the law of the country. That is why we are here. We need
Congress' consent to relinquish our claim.
Mr. Johnson. Relinquish to the Federal Government?
Ms. Tierney. To the Charlotte Beach property, that is
correct. That is the property we have been talking about
earlier that I had indicated had been lost because of tax
sales.
Mr. Johnson. It is not owned by the Federal Government
either, is it?
Ms. Tierney. No.
Mr. Johnson. Does the Federal Government assert some kind
of interest in that property, Mr. Artman?
Mr. Artman. No, we do not.
Mr. Johnson. So the Federal Government would simply just
ratify an agreement between the State and the private parties
and that would then, according to this legislation,
automatically entitle the property to a Class III gaming
license. Is that what we are talking about here?
Mr. Artman. Under this legislation, that is correct. This
would mandate that the United States take into trust this land,
and all claims would be relinquished, and according to
legislation, gaming could occur on that land.
Mr. Conyers. Would the gentleman from Georgia yield for a
follow-up on his questions?
Mr. Johnson. I will.
Mr. Conyers. How did Governor Engler in his wisdom decide
where this casino ought to be located?
Ms. Tierney. That is not something I am privy to.
Mr. Conyers. Well, I mean, Mr. Artman, do you have other
instances in your experience where a Governor determines where
a casino outside of the reservation itself is located is going
to be?
Mr. Artman. There has been precedent with--as mentioned
earlier, there has been precedent with regard to taking land
into trust, perhaps even through the congressional process,
that has resulted in gaming. One such case was with the Seneca
in New York, another was Wyandot in Oklahoma and Kansas.
Mr. Conyers. They weren't hundreds of miles away from the
reservation.
Mr. Artman. Arguably, no, they weren't.
Mr. Conyers. Arguably. I mean they either were or they
weren't. I suggest to you that we are looking for some history
where a Governor in his wisdom decides that hundreds of miles
away from the Indian reservation let's start a casino, ladies
and gentlemen. I guess the Indian reservations say who are we
to object to the Governor's wisdom. And here we go.
Now we are being asked, as Johnson has brought out, now the
government is being asked to retroactively, the Congress,
ratify all of this and say look, let's make it legal, let's get
this over with, and let's forget the fact that there are
several unusual, to me, unusual factors about this matter.
Is that too disingenuous? Isn't that what we are doing here
today? That is what is proposed to be done by the Congress.
Right?
Ms. Walker. Mr. Chairman, may I comment, please? With
respect to other gaming facilities in which a Governor has
agreed to a distance location, I think the good example is the
Forest County Potawatomi facility in Milwaukee, which is over
200 miles away from the reservation lands. This exists. This
has happened. There are several situations in which this
occurs. I think Seneca is another example. They have got a
casino in Niagara, which is far away from the town of
Salamanca.
Mr. Conyers. This is a regular process.
Ms. Walker. For approval of a land claim?
Mr. Conyers. Look, this is either irregular or ordinary.
Ms. Walker. I think it is regular.
Mr. Conyers. In each of those cases I would just like to
know, since the overwhelming majority of casinos are granted
for the immediate benefit of the reservations and communities
of the Indian tribes, but now it seems like somewhere along the
line, historically, if you are right, people are saying well,
and in those two instances I would want to know why did they
pick hundreds of miles away from the casino.
Mr. Artman.
Mr. Artman. In the case just brought up, the Forest County
Potawatomi, that, and along with two others, the Forest County
Potawatomi was actually the longest of the two-part
determination process. But that doesn't set a precedent for
what is occurring here today. The Forest County Potawatomi,
along with two others, we have only approved three two-part
determinations, all went through the Indian Gaming Regulatory
Act two-part determination. It went through the Secretary
approval process, in which we reviewed it, analyzed it under
certain conditions, and then the State approved it as well.
Now certainly the State may have played a role in placing
that particular gaming location in that area, but that was also
done through the Federal law at the administrative level and
not here at Congress. What we are concerned about is the
precedent set here in Congress for circumventing that
administrative process as set forth in IGRA.
Mr. Conyers. What Congressman Johnson and I are trying to
figure out, going back to the Michigan cases, why did they pick
these two plots of land to do a casino? He put on a blindfold
and went to the map and stuck a pin in and said aha, Sault or
Port Huron; another blindfold, Romulus, Michigan. Is that how
it happened?
Ms. Tierney. I don't believe so.
Mr. Conyers. I don't think so either.
Ms. Tierney. I believe the best place to look perhaps is
the testimony in support of this legislation that was done in
2002 before the Senate Indian Affairs Committee in which a
statement was presented in testimony given by Lance Boldrey,
the Deputy Legal Counsel for Governor Engler.
Mr. Conyers. But what did he say?
Ms. Tierney. I will have to defer to the text itself. I
believe that there was an explanation as to the process by
which the Governor agreed to those locations.
Mr. Conyers. Okay.
Mr. Johnson, should I invite you for any conclusion before
we turn to our colleague from California?
Mr. Johnson. I think you have clarified sufficiently. I
will yield back the remainder of my time.
Mr. Conyers. Thank you.
Darrell Issa.
Mr. Issa. Thank you, Mr. Chairman. You have gone a long way
toward setting the record straight. There is nobody on this
Committee I think that represents more native American tribes
and bands than I do. There is nobody on this Committee I think
that would begin to be as dedicated to tribal sovereignty as I
am. I don't say that out of brag, I say that because I have
some of the best examples of Native Americans who, throughout
the Spanish period, were mistreated, nearly exterminated, taken
off their aboriginal lands, taken to missions, where three-
quarters of them died.
Those who are left today in California have returned to
their aboriginal lands. They have sought over the last 100
years to regain some small portion of the reins that they
operated under. But in every case, the land in trust that they
enjoy today, small or large, represents some portion of the
land that they can lay a legitimate claim to, going back a long
time, actually long before our records.
The Constitution says that we, the Congress, have the right
to regulate commerce with foreign nations and among the several
States and with Indian tribes. Now, it doesn't say that Indian
tribes are American Indians. And there is a reason for that.
I want to get to a number of questions. We don't have
American Indians, we have Indians of aboriginal regions. They
have independent rights in those regions. They do not have
rights beyond those regions. I think that is well thought of in
the Constitution.
We have made exceptions. Certainly, the Trail of Tears
created a situation in which we took people's historic areas
and now thousands of them are living in Oklahoma and other
States. We made allowances for that. We made allowances for our
sins of the past, not for a selection in order to promote
Indian gaming.
Let me go through a couple of things. First of all, Mr.
Artman, they have made a selection of land. They have not
bought it in fee simple. Instead, they have made an agreement
to purchase it. In your opinion, aren't they making the
agreement to purchase that is really not contingent on land in
trust, it is really contingent on Indian gaming, it is really
contingent on the value added? They have offered enough money
for land to be purchased not for tribal purposes, but directly
for casino purposes, and that is the reason they haven't bought
it in fee simple today, isn't that true?
Mr. Artman. Not having seen the actual documents, the
option document for the land, I can't speculate as to what the
purposes are. This is something though, a practice that we
often times see with regard to land in trust, that the option
isn't exercised until the very last minute going into trust.
Often times in those same situations those are related to
gaming. And the condition precedent for gaming is that the land
be in trust.
Mr. Issa. In fact, land in trust is a procedure we do to
take off the tax roll and into trust as a Federal asset on
behalf of the tribe. We do that because of tribal purposes.
Isn't that correct?
Mr. Artman. Yes. By taking it into trust, certain
privileges and immunities are accorded to that land.
Mr. Issa. Didn't we pass the IGRA, the Indian Gaming
Regulatory Act, anticipating that this would be one of many of
a portfolio of activities that tribes on their reservations
could do? The act in no way, shape, or form said go out and buy
land. The act intended and required that it be their land in
order to have a casino on it, land in trust. Even if they
already had fee land that they owned, that was never available
for gaming. Isn't that correct?
Mr. Artman. The Indian Gaming Regulatory Act essentially
frames an already existent right in States where tribes are
located if there is Class III gaming already occurring in those
States.
Mr. Issa. So, in a nutshell, this is reservation shopping
in absolute terms, correct? Is there anyone there that can
dispute that this doesn't look, act and smell like reservation
shopping for the purpose of Indian gaming? Even the others on
the panel. Let's be honest, this is a selective selection not
for purposes of Indian housing, not for a tribal health center;
this is for an operation that in fact is a casino.
Is anyone going to try to sit here, under oath, we are
under oath, doesn't matter, lying to Congress is a felony,
anyone going to tell me that is not true, or they believe by
some convincing evidence that it is not true?
Thank you. That is an important point to get across.
Ms. Walker. I would like to respond, if I could. Thank you.
Mr. Issa. Just to that question.
Ms. Walker. Yes, sir.
Mr. Issa. Do you say, yes or no, that this land is for some
other significant purpose besides the primary purpose of
operating a casino for benefit to the tribe? Yes or no.
Ms. Walker. Yes, it is.
Mr. Issa. What is that other purpose?
Ms. Walker. The other purpose is to provide revenues to
allow the tribe to support itself.
Mr. Issa. Sorry. I asked the question. The correct answer
is no other purpose than to provide revenue to the tribe. It is
a casino to provide revenue to the tribe.
Ms. Walker. It is a casino to provide revenue to the tribe.
Mr. Issa. Okay, thank you. I have got very little time. The
Chairman has been indulgent already, and there is a lot more to
cover because this is an important constitutional issue and it
is one that I think this Committee has to take very seriously.
I represent--my State represents over 100 Indian tribes. We
will just talk about Jamul, an Indian tribe near the Mexican
border. They have less than four acres. They were driven nearly
into extinction.
Is there any reason, Mr. Artman, today that the Jamul
Tribe, sitting near the Mexican border, in a rural, poor area,
with only four acres at this time, should not be able to bid
and buy this land against that tribe? It is 1,500 miles, 2,000
miles. Is there any reason that this tribe is any more entitled
to go 300 miles than my very poor Jamul Indians or my La Jolla
Indians, neither one of whom have a location convenient for
casino gaming and both of whom would benefit tremendously by
this opportunity?
Mr. Artman.
Mr. Artman. I think if you look at the Indiana
Reorganization Act and 151 regulations, clearly you are going
off reservation to do something at this point. As I stated in a
memo on January 3 to our regional director in our Office of
Indian Gaming, we need to, by the mandates of the regulations
that have been on the books for decades, give a greater
scrutiny to any desire to move off reservation, and the further
you go, the greater the scrutiny.
Now if Jamul wanted to move to Charlotte Beach, I think
certainly we would give that a lot of scrutiny, as we would
anyone that would want to move 300 miles.
Mr. Issa. Let's be a little more close in then. The Jamul
Indians or the La Jolla Indians only have to go 30 or 40 miles
to get to some very profitable casino sites that are already
operating. Thirty or forty miles. If we allow this land in
trust for the purpose of gaining revenue through casino gaming
to occur 250, 300 miles away outside of an area that if the
tribes were all still in tact the neighboring tribe would not
let them in, not beyond maybe a meal. They would not be allowed
to move in and take over land.
If we allow it, is there any reason that we wouldn't have
to essentially have a domino effect that every other poor tribe
wanting revenue would be able to select downtown Los Angeles,
downtown San Francisco, Dallas, Houston, any other city that
was, let's say, within 250 miles? Is there any basis that
somehow this tribe, these two tribes have any more entitlement
than hundreds of tribes around the country who do not happen to
have the ideal gaming location but do have a gaming location
within 250 or 300 miles?
Mr. Artman. I think you have hit upon one of our biggest
concerns when we were developing the January memo, in that you
are opening it up greatly for any other tribe to go great
distances. If you allow one tribe to go a great distance, then
you do begin to open it up for all tribes to be able to
consider it.
Certainly, there is going to be that opportunity to have a
greater market elsewhere. When do you stop, what are the
limitations. These are the things we consider all the time.
Mr. Issa. I am going to ask one more question.
Mr. Artman, it is a little outside of your direct
knowledge, but I think you are the most appropriate to answer
this, and I think the Chairman would appreciate this. We also
sit together on an antitrust task force. We are very cognizant
on this Committee that another Committee regulates commerce,
but we deal with whether or not government or private
enterprise operates in a monopolistic way.
If we allow opportunistic travel outside of reasonable
aboriginal territory, reasonable historic tribal lands, if
we allow it to a group of Americans; in other words, we say
well, because they are sovereign, we are going to let them make
a deal with the State, not the Federal Government, deal with
the State, and they are going to make these moves for purposes
of putting casinos up, why in the world wouldn't--and I know
Shelly Berkley was here a minute ago, and she is not a neutral,
and I am, I don't happen to have private casinos in my
district--why in the world wouldn't Harrah's and all the other
major casino operators be able to cry foul, to say that in fact
they should be able to put up right next door and around these
reservations competing casinos; in other words, have virtually
unfettered ability to compete, if in fact we are going to allow
other Americans, and they may be the first Americans, and we do
have a special obligation, but once we give up that special
relationship that comes from their aboriginal claims and we
simply say well, it's good for your people to do it and it is
going to be somehow good for the economy, once we do that, why
wouldn't this Committee consider that we have no right to allow
the States to give to the Indians and keep private enterprise
out, once we lose the justification of their unique
relationship with this government?
Mr. Artman. I think one of the large differences between
Harrah's and any Indian tribe is the fact that the Indian tribe
is a government, and inherent with the government rights comes
a number of rights and responsibilities. One is the ability to
engage in gaming similar to the State that it may be located in
that does Class III. There is that limitation.
Mr. Issa. But there is no State in the Union that operates
Class III gaming. No State. They simply allow private
enterprise to do it, and that is where the right comes from. I
just want to make sure we understand.
Mr. Artman. A lot of these are considered Class III. That
is what creates that basis for many tribes. Looking at it from
the governmental perspective, and this may help to answer a
question, and you are right, I am not an antitrust expert, but
one of the things we focus on, one of the concerns we have is
the jurisdiction is exercised on the reservation, and that is
the highest exercise of jurisdiction.
Mr. Issa. Here, we are asked to create a reservation to
create sovereignty, not in fact to codify a sovereignty that
was taken away. This is not tribal land and is not being put
into trust for purposes of being tribal land, it is being put
into trust for purposes of being a casino.
Mr. Artman. That is why we examine in that process very
carefully what it will be used for, how far away it is from the
reservation. That is why we are asking those critical
questions, because we don't want to dilute the exercise of
sovereignty for that tribe. That is a very important
cornerstone.
Mr. Issa. Mr. Artman, I am going to yield back after one
last question to the Chair.
In your opinion, this does not pass the sniff test of
aboriginal tribal land, or the next closest reasonable
thing, and therefore putting this into trust would not serve
the legitimate sovereign rights of these Native Americans,
these first citizens. Whether or not they go into casinos isn't
the point. The point is this is not an appropriate tribal land,
and it is not the closest land to their aboriginal legitimate
claim, is it?
Mr. Artman. We haven't had the opportunity to look at those
documents because this bill and the prior court actions at the
State level haven't given the United States the ability to
engage in that process. Our issues, our concerns with this
legislation are in the process. It doesn't allow it to go
through the 151 process in which we look at those things, nor
does it allow the compacts to go through the IGRA process also,
where we would look at those things.
Mr. Issa. Thank you, Madam Chair. I hope we have made the
case that we do need to allow the regular order of this process
in order to get the facts. I yield.
Ms. Jackson Lee. [presiding]. Let me thank the witnesses as
well. We have a vote on the floor. So I will quickly pose some
questions, and forgive me if they have been asked and answered.
I will ask for witnesses to have very succinct answers.
Chief Cantu, just help me, does your tribe own any casinos
at this time?
Chief Cantu. Yes, we do. We own the Soaring Eagle Casino
and Resort.
Ms. Jackson Lee. Tell me, what do you think is the sense of
the commitment of the compacts and the trust? Why do you feel
that the legislation before us pierces that structure that has
been put in place?
Chief Cantu. Well, I think that, with Mr. Johnson's
question, that the compact requires it, the type of off-
reservation gaming be approved by other tribes. The tribe
agrees with Mr. Artman here that the concerns are bypassing the
requirements of the compact.
Ms. Jackson Lee. Which is that other tribes have to agree,
and the tribes that are before us are asking that casinos be
put off their reservations or their sites?
Chief Cantu. That is correct. Our ancestral lands.
Ms. Jackson Lee. On your ancestral lands.
Chief Cantu. That is correct.
Ms. Jackson Lee. I guess I am confused, Ms. Walker and Ms.
Tierney. Why would you be doing this? I want to be open minded
as well, but what is the basis behind at least challenging the
compact?
Ms. Walker. We don't believe we are challenging the
compact. We believe what we are doing is consistent with the
compact, and that is the nature of the testimony given before
the Natural Resources Committee as well.
Ms. Jackson Lee. Which says?
Ms. Walker. That this is entirely consistent with the
compact. The compact does not limit the number of casinos that
individual tribes may have, and section 9 of the compact that
the Governor chose not to enforce in the 2002 settlement
agreements is a revenue-sharing provision.
Ms. Jackson Lee. What about the requirement of having the
other tribes agree to placement?
Ms. Tierney. Section 9 of the 1993 compacts, which is one
that both Bay Mills and the Sault Ste. Marie Tribes signed with
the State and approved by the Secretary, does not require
approval of the other tribes; it simply requires a revenue-
sharing if it is a two-part determination fee-to-trust request
under section 20 of the Indian Gaming Regulatory Act.
Ms. Jackson Lee. You are prepared to share revenue?
Ms. Tierney. We agree with the State that section 9 of the
compact is not implicated by our land settlement agreement with
the State.
Ms. Jackson Lee. But are you prepared to share revenue?
Ms. Tierney. No, ma'am. It is not required.
Ms. Jackson Lee. Are you in fact suggesting that casinos
would be on Chief Cantu's land?
Ms. Tierney. No, I am not. In fact, we have submitted
testimony and documents to the National Resources Committee,
which is also in my submission here today, which indicates that
the aboriginal claims of the Saginaw Chippewa Tribe to the Port
Huron area are not what Mr. Cantu has indicated.
Ms. Jackson Lee. Let me ask Mr. Artman very quickly. I am
going to call this hearing to an end. Can you explain how the
U.S. would be liable for supporting these bills?
Mr. Artman.
Mr. Artman. If the land were taken into trust without going
through the environmental review process as mandated under
NEPA, we may be taking land into trust that comes with
environmental liabilities. At that point, we would be accepting
those liabilities once it goes into trust.
Ms. Jackson Lee. So whatever liabilities would occur, the
U.S. Government would have to be responsible for?
Mr. Artman. That is correct. The way the bill is written,
it doesn't give us the opportunity to afford those kind of
environmental reviews.
Ms. Jackson Lee. Let me thank you very much, all witnesses,
for your testimony.
Without objection, Members will have 1 week to submit any
additional written questions, for which we will forward and ask
that you answer as promptly as you can to be made part of the
record. Without objection, the record will remain open for 1
week for the submission of any other additional materials.
The hearing has helped enlighten the many procedural
irregularities involved in these two land deals. Strong
concerns have been raised about the shortcuts that hack through
important legal steps that were established to give all voices
a chance to be heard and to give all issues their due
consideration and about the potentially indiscriminate spread
of casino gaming into all corners of our country if a precedent
like this is allowed to gain a foothold.
The concerns of the Chairman about these land deals and the
two bills that would bless them for casinos, in disregard of
established Federal legal protections and in defiance of the
express wishes of Michigan voters, have only increased this
morning. The Committee will consider the next appropriate steps
accordingly. We thank the witnesses all. You have all been
heard.
With that, the hearing is now adjourned.
[Whereupon, at 1:40 p.m., the Subcommittee was adjourned.]