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CHAIRPERSON OF THE
SAULT STE. MARIE TRIBE
OF CHIPPEWA INDIANS
BEFORE THE
SENATE COMMITTEE ON INDIAN AFFAIRS
HEARING ON H.R. 2120, A BILL TO PROCLAIM
SAULT TRIBAL LAND A RESERVATION
MAY 15, 2008
SEQ CHAPTER \h \r 1 My name is Aaron Payment, I am the Chairperson of the Sault Ste. Marie Tribe of Chippewa Indians (Sault Tribe). I would like to thank the Committee for the opportunity to present this testimony on H.R. 2120. I would also like to thank the Michigan delegation for supporting this legislation.
This bill is important to my Tribe because as I see it, it is simply an effort to correct a failure of the federal government to properly exercise its trust responsibility to my Tribe. Importantly, the Federal District Court in Michigan agrees with us and has enjoined the United States from enforcing its decision that the land in question is not a Reservation under federal law. Sault Ste. Marie Tribe of Chippewa Indians v. United States of America, 2:06-cv-276 (Western District, MI) (2007). I attach a copy of this decision for the record. Equally as significant the Department of the Interior has testified in support of this legislation.
The Sault Tribe reestablished its relationship with the Federal Government in 1972 after twenty long years of seeking federal recognition. The Treaty of March 28, 1836, 7 Stat. 491, with the Chippewa and the Ottawa Bands of Northern Michigan, recognized my Tribes aboriginal territory. Now, our service area includes Chippewa, Mackinac, Luce, Schoolcraft, Alger, Marquette and Delta Counties. We are a descendancy Tribe with the number of enrolled members now approaching 33,000. Approximately 12,000 reside in the service area. Since receiving recognition in 1972, my Tribe has engaged in a systematic process to reacquire land in the Upper Peninsula of Michigan within our service area to meet the needs of our members who live in our traditional territory.
The present day trust land of my Tribe is just over a thousand acres located in the City of Sault Ste. Marie and approximately 567 acres located in six separate sites within our treaty territory at Manistique, Wetmore, St. Ignace, Hessel, Marquette and Escanaba, Michigan. All of these lands are held in trust by the United States for the benefit of my Tribe and are recognized as Indian Country subject to tribal and federal jurisdiction pursuant to the 18 U.S.C. 1151.
On these lands, we operate our tribal government and administrative programs, housing programs, health programs, social service programs, law enforcement, and tribal businesses. Of the 1,600 acres held in federal trust, only 124.8 acres have been formally proclaimed as reservation. That is less than 8%. As is the case with many tribes recognized in the last thirty years, we are a land poor tribe when you consider the number of members per acre. Only 500 of our 33,000 members (or about 1.5%) reside on our reservation. Only 4% of those who reside in our service area (500/12,000) are able to reside on the reservation given our limited land base.
H.R. 2120 concerns one piece of land (approximately 65 acres) that the Tribe purchased in St. Ignace, Michigan. In 1983, we requested that the United States take into trust and proclaim this land as a reservation under the Indian Reorganization Act of 1924, 25 U.S.C. 465, 467 (1983 Parcel). The United States took this land into trust in 1983 but never proclaimed it a reservation. This is so despite the fact that the Tribe twice requested that it be proclaimed a reservation. H.R. 2120 would correct this egregious oversight.
In 1986, we opened the Kewadin Shores Casino on the 1983 Parcel. Because we did not have a great deal of resources at this time, we elected to open the Kewadin Shores Casino in an existing building. After the enactment of the Indian Gaming Regulatory Act, my Tribe entered into a compact with the State of Michigan in 1993. Over time we added to the existing structure. However, this casino became an unwieldy conglomeration of add-ons. This type of facility composition posed significant health hazards to our 406 employees, because there was poor air circulation and ventilation due to cigarette smoke and concentrated population. There were also serious sewage problems with this facility and its location. Finally, the internal maze like flow within the building was not good for our customers and the outside appearance was equally unappealing.
Given the limitations of this facility, we decided to build a new building. In looking at our land holdings, the Board determined that it was not in the Tribes best interest to build on the same spot as the old facility because building the gaming space, lobby and hotel space on the 1983 parcel would mean having to dislocate several tribal families and other governmental programs from the land. Additionally, building on the same location would mean losing revenue during construction. The casino was instead built on a piece of land immediately adjacent to the old casino, which the Tribe acquired in trust in 2000 (2000 Parcel).
As I understand it, the previous Administration believed that the Tribe could do gaming on the 2000 Parcel, because a provision in the Indian Gaming Regulatory Act that states that land taken into trust after October 17, 1988 are eligible for gaming if such lands are located within or contiguous to the boundaries of the reservation of the Indian Tribe on October 17, 1988. 25 U.S.C.2719(a)(1).
I am advised that under the Supreme Court precedent, the 1983 Parcel is a reservation. The Supreme Court has held that the principal test for determining whether Indian land constitutes a reservation is whether the land in question ha[s] been validly set apart for the use of the Indians as such, under the superintendence of the government. United States v. John, 437 U.S. 634, 648-49 (quoting United States v. Pelican, 232 U.S. 442, 449 (1914)). In another case, the Court has said no precedent of this Court has ever drawn the distinction between tribal trust land and reservations and that the dispositive question was whether the area has been validly set apart for the use of the Indians as such, under the superintendence of the Government. Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991) (quoting John). The 1983 Parcel is clearly land set aside for the use of Indians and has been under the superintendence and jurisdiction of the United States since 1983.
In 2003 the Tribe asked the Department of the Interior to concur with this view. In February of 2006, we finally received an opinion from the Interior Solicitors Office stating that notwithstanding the fact that the 1983 Parcel was set aside for the Tribe and is under the jurisdiction of the United States, because the United States had never proclaimed it a reservation, it did not meet the definition of a reservation under federal law. Accordingly, the Acting Associate Solicitor determined that the 2000 Parcel was not land contiguous to a Reservation under IGRA.
By this time, we were close to finishing our new building, which was to be a new hotel and casino with a state-of-the art air filtration system. We held numerous meetings with Interior officials to urge them to correct their decision and rectify a problem that was created by the governments own inaction. This was to no avail. The NIGC warned us that if we operated in the new building, they would issue a closure order.
However, because the old facility was so unsafe, we elected to invest $3 million and put the Kewadin Shores Casino in a temporary building (or sprung structure), which was entirely on the 1983 Parcel, but is adjacent to the new casino building on the 2000 Parcel. While operating in the interim facility, the Tribe brought suit against the United States, challenging Interiors determination that the 1983 Parcel was not a Reservation.
In August of 2007, the Federal District Court for the Western District of Michigan granted the Tribe a preliminary injunction against the United States and permitted the Tribe to open in the new facility. The Courts basis for its preliminary ruling rested on a number of factors one of them being the high likelihood that the Tribe would prevail on the merits that the 1983 Parcel is a Reservation under federal law. The other factor was the negative impact on the Tribe if it could not operate in the new facility. We are now operating in the new facility.
We are currently still in Federal Court. The briefing on the merits on this case is now complete. We are hopeful for a positive outcome. I know the question for the Committee is why do we need the legislation if we are hopeful about our litigation?
First, there is no guarantee in any litigation. Second, this litigation is very costly for the Tribe. Even if we win at the District Court level, there will be an appeal. This legislation moots the need for this costly litigation and will make things as they should have been when the Tribe asked that this land to be proclaimed a Reservation more than a decade ago.
Finally resolving this matter without further litigation is vital to us. My Tribe spends 97% of our net revenue on membership services to make up for the shortfall of federal funding. The loss of income that could result if we are forced to close the new facility and reopen in another structure will likely result in a cut in membership services.
Moreover, tribal members and non-Indians alike in the local community could lose their jobs at the Kewadin Shores Casino. Forty five percent of all our casino employees are non-Tribal. Approximately $13.5 million of our $30 million payroll supports jobs for those who are not Tribal members, which underscores that this not simply an Indian problem. Jobs we provide afford great benefits, like retirement and health care. Jobs for which individuals pay taxes and re-circulate excess income in an already stagnating economy. We currently employ about 20% of the adult workforce of the local city of St. Ignace a tourism town. Job losses will result in additional burdens on the Tribes and States social services as those who lose their jobs will turn to Tribal and State support programs.
The inability to use our land as we believe it should be used is entirely the fault of the United States. The Tribe requested two different times (1986 and April, 1988 both prior to the enactment of IGRA in October 1988) that the United States proclaim the 1983 Parcel a reservation. In 1988, the United States got so far as to inform the local governments that a reservation proclamation was impending. As we understand it, only the ministerial act of publishing the notice in the Federal Register was not done.
In a supportive document from Terry Virden, BIA Regional Director in Minneapolis, the BIA acknowledges that the Tribe complied with all applicable procedures prior to the enactment of IGRA in October of 1988 and that an administration oversight is likely to blame. Why this land was not proclaimed a reservation, we do not know, but we do not believe that the Tribe or the people of the Upper Peninsula should have to pay for this failure.
H.R. 2120 would do what the United States said it was going to do in 1988 and what it should have done in 1983 or even 1986. My Tribe has made a significant investment of $41 million to build this new casino to provide a safe and healthy place for our 406 employees and customers and to continue to be the economic engine of this area of the State. We did this on land that is held in trust and is contiguous to land that has been in trust since 1983. The new replacement casino does not increase gaming. Nor does it add to the number of casinos now operating in Michigan. However, according to the Department of the Interior, the only way that the Tribe can operate a casino on this landwithout negotiating with the state is this legislation. We have the support of the city, township and county governments, and the neighboring tribe of just thirty miles the Little Traverse Bay Band of Odawa Indians - for this legislation.
Again, I would like to thank the Committee for its time and attention to this matter.
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