STATEMENT OF FRANKLIN DUCHENEAUX
(DUCHENEAUX, TAYLOR & ASSOCIATES)
BEFORE THE
SENATE COMMITTEE ON INDIAN AFFAIRS
OVERSIGHT HEARINGS ON
OFF-RESERVATION ACQUISITION OF LAND FOR GAMING
MAY 12, 1998

Mr. Chairman, my name is Franklin Ducheneaux. I am partner in the firm of Ducheneaux, Taylor & Associates. From March 1973 to December 1990, I was the Counsel on Indian Affairs to the House Committee on Interior and Insular Affairs under the chairmanship of Congressman Morris K. Udall, and would like to comment from that background. 

Before beginning those comments, I would like to make a disclaimer for the record. My small lobbying firm represents several Indian tribes and tribal organizations. However, I am not representing those tribes or organizations at this hearing, and my remarks may not necessarily reflect the position that they might take on the subject matter of these hearings. 

Secretarial Authority 

The issue of the acquisition of land outside of Indian reservations for purposes of Indian tribal gaming has been the subject of considerable misinformation, ignorance and distortion. The right of Indian tribes to engage in, or license and regulate, gaming activities on land within their jurisdiction was not granted by the Indian Gaming Regulatory Act (IGRA). This is an inherent right which they possessed as a part of their sovereign status as self-governing entities. IGRA is a Federal law limiting that right. 

Through various treaties of cession, often forced, or through outright confiscation, Indian tribes lost most of their aboriginal land. Even within the small, barren reservation land left to them are considerable amounts of land now in non-Indian ownership. For these reasons, Congress, in section 5 of the Indian Reorganization Act of 1934 (25 U.S.C. 465), conferred a discretionary power upon the Secretary of the Interior to take land into trust for Indians and Indian tribes. 

Section 5 provides that-- 

"The Secretary of the Interior is hereby authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians . . . . Title to any land or rights acquired pursuant to this Act shall be taken in the name of the United States in trust f or the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation."
History of Section 20 of IGRA 

Before and during the consideration of legislation which became IGRA, several proposals were made, both from Indian tribes and non-Indian communities, to have the Secretary take off reservation land in trust for Indian tribes for gaming purposes. These proposals raised unwarranted concerns among some members of Congress who, ignoring the discretionary nature of the Secretary's power, believed that there would be rampant transfers of such off reservation land within or near urban areas for Indian gaming. 

As a consequence, IGRA, as enacted, contains section 20 which limits the discretionary power of the Secretary under section 465 of title 25, United States Code. It should be noted that early versions of this language would have prohibited the Secretary from acquiring off-reservation land for tribes for gaming purposes. In a clear recognition that such acquisitions might be desirable and appropriate under certain circumstance, Congress rejected this prohibitory language. 

Section 20 of IGRA prohibits Indian gaming on land acquired off-reservation and taken in trust for an Indian or Indian tribe after October 17, 1988. However, it also provides certain exceptions to this general prohibition. In particular, it provides that the general prohibition on gaming on such land shall not apply when-- 


"(T)he Secretary, after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary's determination. . . ."

Serious questions were raised about the constitutionality of the language which appears to give non-Federal officers, i.e., State Governors, a veto power over exercise of a discretionary power of the Secretary of the Interior. Some tribes asserted that, because of the constitutionality question, the concurrence power was only advisory in nature. While the Supreme Court has not ruled on this issue, a lower Federal court decision has upheld the constitutionality of the section and, therefore, the veto power of a state governor. 

The evidence shows that the Secretary of the Interior has full power, under the discretionary authority of 25 U.S.C. 465, to prevent Indian gaming operations from being established in inappropriate locations, or against the clear will of other nearby tribes, and of the State and local communities. The discretionary authority to acquire title includes the power to reject individual fee-to-trust requests if the Secretary determines that such a refusal is warranted for any reasons. 

As already noted, in the enactment of IGRA, Congress expressly preserved the Secretary's authority and responsibility for fee-to-trust acquisitions by providing, in 25 U.S.C. 2719(c), that, "(n)othing in this section shall affect or diminish the authority and responsibility of the Secretary to take land into trust". 

The history of tribal requests for off-reservation fee-to-trust transfers for gaming purposes makes very clear that section 20, as enacted, presents no problem for States and local non-Indian communities which would be opposed to such transfers. In the ten years since enactment of IGRA, despite numerous requests for fee-to-trust transfers, only one such request has been finally approved and this request had the strong support of the State and local non Indian communities. In another case, the Secretary did approve a transfer, but the governor of the state involved effectively vetoed the transfer. 

In fact, in many of the cases involving a tribal request for a fee-to-trust transfer, State and local governments or private non-Indian entities have approached an Indian tribe to seek a fee-to-trust gaming transfer in their communities to aid them in dealing with high unemployment and economic downturns. As noted, even with such local non-Indian support, only one such transfer has occurred. 

The current Secretary of the Interior has made extremely clear that, even where it is determined that such a transfer would be in the best interests of the requesting tribe and not detrimental to the surrounding community, he will not approve a request without strong State or local non-Indian support. This policy, coupled with the veto power in the Governor, effectively renders section 20 fee-to-trust transfers under complete State control. 

S. 1870 Amendment to Section 20 of IGRA 

New section 17, as added by S. 1870, is in lieu of the fee-to-trust provisions of subsection (a), (b), & (c) of section 20 of IGRA. 

Subsection (a) provides that, except as provided in subsection (b), gaming shall not be conducted on land acquired in trust after the date of enactment of IGRA unless it is within or contiguous to existing reservations, or, with respect to Oklahoma tribes without reservations, within the boundaries of former reservations or are contiguous to other land held in trust or restricted status for such tribes. 

COMMENT 

This provision is very similar to the existing provision of IGRA in section 20(a), with one major exception. In addition to the exception made for Oklahoma tribes without reservations, IGRA makes an exception for land taken in trust for tribes outside Oklahoma without reservations if the land is in that tribe's last recognized reservation. There is no reason this should not be retained. At least, no reason have been given for deleting it. 

Subsection (b) of the new section 17 makes three exceptions to the prohibitions of subsection (a). It would not apply to certain lands of the St. Croix Chippewa Tribe of Wisconsin nor to certain lands of the Miccosukee Tribe of Florida. In addition, it would not apply to any land where the use of such land is provided f or in a Tribal-State compact or by any other agreement between a tribe and a state.

COMMENT

The exceptions for the St. Croix and the Miccosukee are already in IGRA. However, the bill eliminates four exceptions now found in section 20 of IGRA. First, it eliminates the power of the Secretary, in section 20(b)(1)(A), to make a determination that such fee-to-trust transfer is in the best interests of the tribe. This finding must be concurred in by the Governor. Apparently, the drafters of S. 1870 left it out on the grounds that it has only been used once. That is no reason to omit this important, but limited, right of the tribes. 

The S. 1870 provision also omits the exception for lands taken in trust as part of a land claim settlement, as an initial reservation for a tribe recognized by the Secretary, or for lands taken for a tribe restored to Federal recognition. These should be restored to the legislation. 

The bill also omits the language of section 20(c) which preserves the right of the Secretary to take land into trust. No reason is given for the omission. 

It does include a new exemption arising from agreements in negotiated compacts or other state-tribal agreements. While this new exception may be desirable and useable, it again puts the tribes at the mercy of the state. 

Conclusion 



Mr. Chairman, the Indian gaming tribes are generally pleased that your legislation contains a fix to the problem caused by the Seminole decision. IGRA was a very delicately balanced compromise between the inherent right of the tribes, under the Cabazon decision, to be free of state regulation of class III, and the insistence of the states that they be given a role to play in such tribal activity. 

As a compromise, Congress prohibited class III Indian gaming unless conducted pursuant to a Tribal-State Compact. Recognizing that this provision would give the states a veto over class III gaming, this committee and Congress authorized tribal suits against states in Federal court for failure to bargain or for bargaining in bad faith. The Seminole decision destroyed this compromise, and we now see state after state violating Federal law by refusing to negotiate or to use the Seminole decision as a weapon to coerce tribes into unconscionable compacts provisions. 

For a number of years, we have witnessed the State of California violate the provisions of IGRA with impunity, and not being held to account by the Federal government. Instead, the tribes, which have been the victim of the intransigence of the State, are now faced with retaliatory action by the U. S. Attorneys who should be filing suit against the State for violation of IGRA. 

The alternative compact provisions of your bill would provide a remedy to the problems caused by the Seminole decision. However, there are some provisions of S. 1870 which do cause concern for tribes. The amendment to section 20 is one of those concerns. While tribes would like to see it amended to eliminate the Governor's veto power, they are also realists. On the other hand, as noted in my statement, despite wild charges to the contrary, section 20 has only resulted in one off-reservation fee-to-trust transfer for gaming purposes. While it has not been of any great benefit to tribes, neither has it been any great problem for states and local governments. At very least, it should be left as it is. 

Mr. Chairman, that completes my statement and I am available for any questions the members of the Committee may have.