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Tribes dispute local power over trust land decisions
Thursday, November 10, 2005

Indianz.Com Listening Lounge:
Introduction - 9:29 - 1.62MB
Panel I - 32:28 - 5.57MB | Q&A - 54:55 - 9.42MB
Panel II - 12:24 - 2.15MB | Panel II - 14:54 - 2.55MB | Q&A - 18:41 - 3.20MB
Note: Panel II testimony is split in two files because the committee went into recess and later resumed its business.
• Witness List

At a House hearing on Wednesday, tribal and Indian gaming leaders criticized a bill that would give local governments more input into trust land decisions.

Tribal witnesses told Rep. Richard Pombo (R-California), the chairman of the House Resources Committee, that his bill would erode hundreds of years of policy and precedent. They said the trust relationship exists between the federal government and tribes and not with local governments.

A provision requiring a local vote on land decisions "would be a shift in federal Indian law and policy, giving local communities unprecedented intrusion into the trust relationship between the United States and the tribes," said Deron Marquez, the chairman of the San Manuel Band of Mission Indians.

Representatives of the National Indian Gaming Association, the largest tribal gaming lobby, testified that the trust relationship has already been diminished by the requirement that tribes negotiate with states for gaming compacts. They said local input is already considered through the Interior Department's lengthy and cumbersome land-into-trust process.

"Requiring local community approval for the exercise of tribal rights on their own lands would set a bad precedent for us," said Ernie Stevens Jr., the chairman of NIGA and a member of the Oneida Nation of Wisconsin.

But Pombo, a firm advocate of tribal sovereignty, defended his proposal amid the criticism. Noting controversy over off-reservation casinos, he said Indian gaming is a special situation that requires more consideration of local views.

"We're not talking about the local community having veto authority or regulatory authority over trust lands," Pombo said. "We're talking about lands that is not currently in trust."

Some colleagues on the committee didn't agree. Rep. Ron Kind (D-Wisconsin) said the bill establishes more layers of state and local approval than are necessary.

Kind said the bill "would establish veto power at multiple levels. It's a five-step approval process moving beyond the normal consultation that currently takes place ... by the Department of Interior."

"Not only does this latest draft require the [Interior] secretary's approval, but the approval of the governor, the state legislature, the local government and also neighboring tribes, each one of which could exercise their veto to stop any acquisition of lands," he said.

State and local representatives countered that they deserve more say over what happens in their backyards. The officials were careful to note their overall support for Indian gaming and the jobs and revenue it has created, but that the expansion of the industry has changed the landscape.

"While I believe that reservations are sovereign nations, I know they are not islands," testified Dianne Jacob of the San Diego County, California, Board of Supervisors. She cited pending casino developments in the county that could impact local communities in profound and potentially negative ways.

The hearing was called to address the second draft of Pombo's bill. It would make it harder for tribes to acquire lands that are not part of an existing reservation and use them for gaming.

Specifically, the bill amends what is known as Section 20 of the Indian Gaming Regulatory Act of 1988. IGRA, in general, bars gaming on lands acquired after 1988 but the section provides a number of exceptions for tribal land claims, for newly recognized tribes and for restored tribes that had been terminated. There are also exceptions for lands contiguous to an existing reservation or trust allotment.

For tribes that can't meet one of the exceptions, the section creates a process called a two-part determination. This requires the state governor to approve trust land decisions that involve gaming.

According to a review by Indianz.Com based on government documents and Congressional testimony, the exceptions have been used nearly 30 times to allow gaming on lands that were not part of an existing reservation as of 1988.

The two-part determination process, on the other hand, has only been successful three times since 1988. Several more cases failed either because the local government didn't support it, prompting Interior to reject the proposal, or because the state governor vetoed it after Interior gave approval.

Additionally, Indianz.Com has uncovered at least a dozen instances in which tribes in Oklahoma acquired lands for gaming without seeking a determination of their Section 20 status. The practice has been confirmed by BIA officials and is the subject of a forthcoming Inspector General report.

The Bush administration is planning to draft new regulations to cover Section 20 land acquisitions, according to George Skibine, a BIA official in charge of gaming. He hasn't given a timetable of when the process would occur.

Stevens told the committee that Congress should wait for the regulations to be developed rather than reopen IGRA and potentially harm tribal rights. Clarification will discourage a lot of the off-reservation casinos proposals, he testified.

According to Skibine, the BIA is currently considering nine off-reservation gaming applications and has approved 15 land-into-trust for gaming decisions since 2001. He has suggested, in public and in testimony to Congress, that the controversy has been somewhat overblown.

Meanwhile, Penny Coleman, the lead attorney for the National Indian Gaming Commission, has testified that her agency is considering about 50 "Indian lands" determinations. She indicated that most are for lands within or contiguous to an existing reservation while some are for proposals that might be considered off-reservation gaming.

At yesterday's hearing, tribal leaders were unanimous in their concern for local input on trust land decisions but were split on the wisdom of off-reservation gaming itself.

Marquez and Cheryl Kennedy, the chairwoman of the Grand Ronde Tribes of Oregon, were clearly opposed to "reservation shopping," which they said has harmed inter-tribal and tribal-state relations. But Ron Suppah, the chairman of the Warm Springs Tribes of Oregon, and John Barnett, the chairman of the newly recognized Cowlitz Tribe of Washington, said tribes should be allowed to exercise their existing rights.

"We are simply to find a piece of land to call our home," Barnett testified. "We ask only for the same opportunities as those tribes that were lucky enough to be federally recognized and have a land base when IGRA was enacted."

From the Indianz.Com Archive:
McCaleb reopens controversial gaming debate (January 2, 2002) | McCaleb revokes trust land standards (November 9, 2001)

Relevant Links:
NIGC Indian Land Determinations - http://www.nigc.gov/nigc/nigcControl?option=LAND_DETERMINATIONS