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House committee to consider off-reservation gaming
Tuesday, July 13, 2004

The debate over off-reservation gaming heads to Congress today where lawmakers in the House will hold a hearing on the controversial and growing practice.

Although the subject has come up before, the House Resources Committee is holding its first-ever hearing on gaming on off-reservation and newly acquired lands. The panel will take testimony from tribal and federal officials on all sides of the debate.

Last month, a Bureau of Indian Affairs official said the Bush administration was mulling its position on whether tribes should be able to open casinos on ancestral territory hundreds of miles away from their existing reservations. In some cases, tribes are looking in other states.

At the June 24 hearing on two off-reservation casino bills, Aurene Martin, the BIA's second-in-command, said officials have "initiated internal discussions" on off-reservation gaming. "Our discussion will address the issue as a global matter and will hopefully provide a blueprint for us for our decisions in the future," she said.

Martin is scheduled to return to the committee today where she will join a slew of witnesses representing several tribes and Indian gaming organizations. The hearing is decidedly tilted to the tribal viewpoint -- with the exception of Rep. Jim McCrery (R-Louisiana), who fought an off-reservation gaming proposal in his state -- there are no state officials or anti-gaming groups on the agenda.

That doesn't meant there won't be conflicting opinions presented. Among those scheduled to testify is Leaford Bearskin, chief of the Wyandotte Nation of Oklahoma, whose gaming plans in Kansas are opposed by the four federally-recognized tribes there. The tribe's Class II casino in downtown Kansas City has been deemed illegal by federal regulators and is currently closed.

Also slated to appear is Leslie Lohse, treasurer of the Paskenta Band of Nomlaki Indians in California and an area vice-president for the National Congress of American Indians. The Paskenta Band is concerned about another tribe's attempt to open a casino in its backyard.

Tribes in Oklahoma and California have been among the first to stake gaming rights away from their existing lands. In Oklahoma, tribes are motivated by lucrative Class III games like slot machines that are legal in Kansas and other nearby states. In California, tribes in remote areas want a better chance to compete in the state's $4 billion Indian gaming market.

Yet even in places like North Dakota, the issue has come up. The Turtle Mountain Chippewa Tribe, whose chairman Leon Morin is scheduled to testify, has floated plans for an off-reservation casino in Grand Forks, which is traditional tribal territory.

But other tribes with casinos in the state are opposed to the idea. The Great Plains Indian Gaming Association, whose executive director Kurt Luger is on the witness list, participated in meeting to discuss the proposal late last month. Luger also heads the North Dakota Indian Gaming Association.

On the national front, Ernie Stevens Jr., chairman of the National Indian Gaming Association, is scheduled to testify. NIGA's executive director, Mark Van Norman, when asked at an Indian law conference this past April whether Congressional action on off-reservation gaming was likely, said he didn't think so.

At the time, Martin suggested lawmakers might act to limit off-reservation gaming, possibly by inserting riders in appropriations bills. "[R]epresentatives in Congress ... continue to call us and ask us what we are going to do about it and I think they want to do something about it on the Hill," she said at the Federal Bar Association's annual Indian law conference.

Even some pro-tribal advocates in Congress think action might be needed because the BIA has not yet resolved several off-reservation gaming applications. "Do you think the Congress should wait for the [Interior] department for a decision?" Rep. Eni Faleomavaega (D-American Samoa) asked Martin last month. "Or should we just zip it in an amendment and be done with it?"

Currently, the Indian Gaming Regulatory Act (IGRA) of 1988 bars gaming on off-reservation lands or newly acquired lands. But there are several exceptions that tribes can meet to bypass the restriction.

Newly-recognized tribes, for example, are exempt because they lacked a land base at the passage of IGRA. Tribes in Oklahoma that acquire land within their former reservation are exempt too. Tribes who receive land as part of a settlement can also seek gaming there.

Even those tribes that don't necessarily meet the qualifications can follow what is known as a two-part determination that requires the approval of the state governor where the casino would be located. Since 1988, only three off-reservation casinos have been approved in this manner. A federal appeals court recently upheld the two-part determination provision of IGRA.

Another more controversial route is to seek a separate act of Congress to sanction gaming on newly-acquired lands. One California tribe benefited from this tactic when its land purchase was "back-dated" prior to 1988. A federal appeals court upheld this law against a series of challenges.

Today's hearing begins at 10 a.m. in Room 1324 of the Longworth House Office Building. A live-audio only link can be found at http://resourcescommittee.house.gov.