Answer. I am not sure whether people in the BIA staff told them or gave them a general sense of where it was going or not. Question. Is distance from a proposed site part of detriment? Solely distance. I am not talking about the effect on the St. Croix, I am talking distance. Is that part of a section 20 analysis at all? Answer. No. Question. That would fall under a 465 type analysis? Answer. Well, the distance from the casino, or from the tribal home lands, I think may compel a different result on the quality of the detriment that needs to be shown, and the explanation is the further away you get, the less compelling the tribes' needs are and I would accept a lower standard of detriment. You still have to find detriment, but a lower standard than if it was next door. Question. Do you know if that was ever communicated to the tribes? Answer. I have no idea if it was or not. Question. Is that a stated policy or just a belief you have in your position? Question. Is that a well-communicated policy? Answer. The sense that, if you go away from your homeland, that you need more support as you go away I think is something understood by tribal communities. I mentioned earlier that in letters to tribes earlier than this, when we talked about getting through a section 20 application, I think we put in the letters that you need to build local support off reservation, so to the extent that the tribes knew they had to build that support, I think that was well understood. Actual written policies, I am not sure if they knew that or not. Question. Is it your view that local opposition must articulate a specific or tangible detriment to the community? Answer. In this case, they did. I am not sure what would have been my decision if they had not. My briefings from the staff is that the town's opposition, communication to us, whether it mentioned specific problems, traffic, and that is the one I remember discussing, and also land use conflicts. If there had been no-you know, no reference whatsoever, given it still that far away, I probably would have accepted it, but I didn't face that issue here. I mean, I had information that there was rationale. I don't know what the answer would be. Question. Sure. So that it is for a section 20 analysis, let me be specific on that, must local opposition have an articulated detriment? Answer. It is certainly preferable that they do. Must they, I would have to talk to the Solicitor's Office about that. I don't have an answer that I could give you in the abstract. I think that it is so far away at a certain point, we would probably accept just the naked, bare opposition only. Mr. BALLEN. But that was not this case in any event, it is a hypothetical question. The WITNESS. Right, because in this case, the specific rationale and the problems were communicated. EXAMINATION BY MR. DOLD: Question. The problems were communicated to you? Answer. To me, yes. I mean, I think there is a spectrum of opposition that contains rationales and evidence, bare naked opposition, and then discriminatory type of opposition, where someone might say their town doesn't want a sovereign Indian nation in their area, and where this would fall is, I think on the first part, where they have some rationale. Mr. BALLEN. This, meaning the Hudson case? The WITNESS. Right. EXAMINATION BY MR. DOLD: Question. I am interested, you mentioned before traffic was an issue. Do you know what specifically at all or can you-it would just be too much traffic? Answer. Right. We had a discussion with George on traffic, and it may have been the access routes to the casino, and given that casinos have heavy traffic and can draw thousands of people, the backlogs to the city, whether there were stop lights, are all things we may have discussed. So generally casinos do bring heavy-in other cases, the traffic issue has been very big, it has added cost to repair roads, it has led to more police protection being necessary. So traffic is a big deal in these kinds of situations. Mr. BALLEN. Mr. Anderson, let me ask you this. I mean, is this something, if the locally elected officials and governments in the area represent to you concerns that justify this, is this something that you have the expertise to second guess their concerns about their own traffic problems? The WITNESS. No, I don't, because generally they know how many traffic police cars they have, and whether they have 24-hour coverage or not, and some towns don't. They have their local official just on emergency calls. So I couldn't be able to begin to delve into what their law enforcement capability would be. Mr. BALLEN. Do you think it is appropriate for the area office to second guess local communities on their own ability to assess locally. The WITNESS. I don't think they should second guess. Generally, if it's at an early stage, if one can get more information, that is preferable, but I don't think that the area office has the capability to second guess someone's assessment of their own law enforcement capabilities. Mr. BALLEN. Or their own traffic problems? The WITNESS. Yes, the number of lights, the cost necessary to repair roads due to increased traffic. EXAMINATION BY MR. DOLD: Question. Is it your testimony local communities don't have the ability to assess that, doesn't have the ability to assess whether the local community is telling them the truth? Answer. Yes, that's right. If a local community says we have traffic problems because we only have three police cars, I don't think the area office is going to be able to go out and say, no, you actually have the funding capability to do, say, six police cars. Question. But the town would certainly know, right? Answer. Yes. Question. The town would know? Answer. Yes. [Anderson Deposition Exhibit No. MA-5 was marked for identification.] EXAMINATION BY MR. DOLD: Question. I am showing Mr. Anderson what has been marked as MA-5, and I am providing him with a highlighted copy and the highlighting is mine, and it partly is a mistake, but it will make it easier for you to at least go to the sections that I want to talk about. It is a memo from the United States Department of the Interior, Bureau of Indian Affairs, the Minneapolis area office. The date is tough to read at the top, but it is, I will represent to you, November 15, 1994, to Assistant Secretary of Indian Affairs, who at the time was Ada Deer, from the office of Area Director, and a request for off-reservation gaming for land in Hudson, Wisconsin. Have you seen this before? Answer. Yes, I was shown this by the Senate investigators in September. Question. Did you see it at all around the time when you were making the decision? Answer. No. Question. Okay. Did anyone let you know that the area office had recommended to take the land into trust? Answer. I was aware of that fact. In fact, it is in the decision letter. Question. And turning your attention to number 3, which is on page 6, the highlighted area of your text there. Mr. BALLEN. Where is it? Mr. DOLD. Page 6. EXAMINATION BY MR. DOLD: Question. Number 3, it is the agreement for government services, and it reads: The three tribes, the City of Hudson, County of St. Croix entered into an agreement for government services on April 18, 1994. Under this agreement, the city and the county will provide general government services to the proposed gaming facility. The services to be provided include, without limitation, police, fire, ambulance, rescue, emergency medical protection, road maintenance, et cetera. Were you aware that the city and the county entered into a contract for government services to provide the casino, if proposed, if it were accepted? Answer. In April of 94, no. Mr. BALLEN. I'm sorry, I missed your question and answer. Mr. DOLD. Was he aware of a contract between the city and the county, and he said not aware in '94. The WITNESS. I think I was aware-well, I was certainly aware by the time of the decision that the City of Hudson opposed. So any agreement that had taken place before that would have certainly been moot by that point. But I was not aware of this agreement. EXAMINATION BY MR. DOLD: Question. On the next page, it says: The tribes have agreed to initially pay the city and county $1,150,000 for services. Would this have mitigated some of the police concerns you mentioned, the traffic or some of the water or ambulance or things like that? Answer. No. Because the city opposed the casino, there would have been no agreement. So it would not have mitigated it at all. In fact, it seems that the city would have been responsible for over $1 million of impact itself. Question. So this would be void, in your opinion? Answer. Yes. I don't think the city was committing to us that they opposed casino, but if the casino came in, they would agree to this offset of payment for services, and that was not communicated to me. Mr. BALLEN. Just to follow up on this, agreement for community services was entered into by city authorities to cover themselves in the event the application was approved, it does not necessarily mean it was an expression, in fact you had opposition from the community? The WITNESS. Yes, I mean, the way I read this document, clearly by April of '95, they opposed the agreement and I assume this agreement would have been moot at that point or void. Mr. DOLD. If I make a representation to you that the city attorney has written in that it was not moot at that point in time, the agreement was still valid, would that have any affect upon the decision? The WITNESS. It is hard to answer that question. If the city opposed it and they are saying because there are traffic problems, and the city attorney is saying that that is not a problem because they will have this agreement in place, it would have been more information that would have been helpful to know, but I am not sure if it would have it sounds like we would have a conflict between the city attorney and the city resolution at that point. I am not sure how to resolve that. Mr. BALLEN. Were you aware of any conflict at the time? The WITNESS. No. Mr. BALLEN. You had a resolution problem with the city council? The WITNESS. Right. Mr. BALLEN. Resolution from the neighboring Town of Troy, you also have a letter from the mayor and the alderman? The WITNESS. At that point, I didn't get any cross signals from the city or the Town of Hudson that there was kind of a split opposition, that they opposed it, but if it went forward they would agree to be reimbursed by the tribe of fee services. [Anderson Deposition Exhibit No. MA-6 was marked for identification.] EXAMINATION BY MR. DOLD: Question. I am showing Mr. Anderson what has been marked as MA-6. This is a letter from the mayor. I ask you to take a look over it and see if you have ever seen that document? Answer. No, I haven't seen this document. Question. Can you tell us what this document is, do you have any idea what it might be? Answer. No. Question. This document here is addressed to the United States Department of the Interior from the Bureau of Indian Affairs, attention Robert R. Jaeger, Acting Area Director, from the mayor, Thomas Redner, March 17, 1994, and will read a little bit from it: This letter is in response to your request for input on whether the gaming establishment on newly acquired land is detrimental to the surrounding community. This is in relation to the application from the Red Cliff, Lac Courte bands of Lake Superior Chippewa Indians and the Sakaogon Chippewa community. I think you will find, as you review the attached material, which I do not have here with us, that the City of Hudson has a strong vision and planning effort for the future and that this proposed casino can apparently be accommodated with minimal overall impact, just as any other development of its size. Answer. Yes. Question. Does that appear to be an endorsement from the mayor? Answer. It certainly seems to suggest by March of '94, a year before the town reversed itself, that the mayor supported it. Mr. BALLEN. Were you aware of the fact that this mayor would part, I think, because his expressions were recalled by the citizens of the town? Mr. DOLD. I am going to object and just ask if you have that on record, that it was a result of this matter? I mean, please, if you have something, show me, because that is something I do not know. Mr. BALLEN. Let me restate the question. Would it make a difference if the mayor was recalled, this particular mayor, and another democratically elected official was in at the time The WITNESS. To answer your question, I have read press accounts about the mayor and also a referendum and reversal of the town's position, and I knew that in November, when the area office submitted this, this supportive application, that between then and I think the decision, the local community support had changed. That is from press accounts, and I have read somewhere about the mayor and I have also read about a referendum in the town. EXAMINATION BY MR. DOLD: Question. Can you tell me what is wrong, if I can turn back to Exhibit No. 5, what is wrong with this recommendation? Answer. Without having studied it, I can't begin to tell you. Question. That is probably an unfair question for me to say without giving you the opportunity to study it, having said that you haven't seen it. I will rephrase that. Answer. I mean, to answer the question fairly I would actually have to have the Indian Gaming Management Staff review this and give me their conclusion as to why they would not have supported the views of the Area Director. EXAMINATION BY MR. BALLEN: Question. Mr. Anderson, in fact, did not the Indian Gaming Staff review the area office's determination at that time? Answer. Yes, they did, and we do state in our decision letter that we rejected the recommendations of the area office. Now my recollection is that the support for the town had changed dramatically from the time this was the recommendation had been made to the time the decision had been made. EXAMINATION BY MR. DOLD: Question. Do you know what it was based on? Answer. The opposition of the town? Question. Yes. Answer. I didn't look beyond what was provided to us and what was referenced in our letter about the traffic problems and others. I don't know what the dynamic was between the change of the government. I basically accepted the government's stated views in their governmental documents and I didn't go beyond that. Question. I am just trying to get an essence now of if the tribes have put months, if not years, into an application, they work to get agreement with the city council, they get the mayor's approval on it, they get a FONZI from the area office, they get a recommendation from Ashland and they get a recommendation from Denise Homer at the area office, they are going along, and can that just be stopped by the local opposition? They apparently have addressed matters like police and fire and those things that we have talked about earlier in an agreement with the tribes. I am just trying to get an understanding it? Answer. In certain cases, yes. Question [continuing]. What switches and what throws that switch, what triggers Answer. The facts of what the area office might perceive as the town, the local community's capability and effects on their jurisdiction has to be reviewed by the town itself, and I would not accept these as binding conclusions. I mean, certainly, if, at this time, the town supported this, that is the context in which these recommendations were made, and that context had changed completely by the time it had come to our office. EXAMINATION BY MR. BALLEN: Question. Who, Mr. Anderson, has primary responsibility for deciding these Indian gaming applications, would it be the area office or the central office of the Indian Gaming Staff in Washington? Answer. For off reservation, final decision and review authority is in the central office in Washington. The primary reviewer within the central office for recommendations by the local BÌA is the Indian Gaming Management Staff, and that is why Secretary Lujan instituted this policy that the department carried forward, is to have an office with a national context review these applications and with expertise, and I am not sure how many area office decisions were made by the area office here, but the Indian Gaming Management Staff had reviewed all of them. Question. And the articulated decision, or the articulated opposition-I'll withdraw that because I know we talked about it, but the articulated opposition, could it have been mitigated? Answer. The opposition. Question. Because we already established it cannot be for racism type things, it can't be just that we don't want Indians coming into our town, it has to be forAnswer. Some rational reason. Question. And the rational reasons I have been able to come up with are things like traffic? Answer. Yes. Question. Environmental impact on the river? Answer. Sure. Every part of this, if I could finish, could be mitigated. If they resubmitted their application and they had somehow got the support of the local community through their elected officials and the resolutions, they had a new agreement in place with the city, certainly these problems would be mitigated. That would have been the pathway to getting this thing approved. EXAMINATION BY MR. BALLEN: Question. To follow up, I'm sorry, this question has been asked in various depositions by Majority counsel about the local opposition, and what is a legitimate or not reason, but if the citizens at the time, hypothetically, and I hate to ask hypothetical questions, had a moral opposition to gambling and did not want gambling in their community and it didn't matter who was running it, whether it was an American Indian tribe or the Pope or the United States Government, they didn't want gambling in their community, isn't this a view that you have to look at if expressed by the will of the locally elected officials? I mean, is it the job of the Federal Government and the Department of Interior and Bureau of Indian Affairs to simply override local opposition? Answer. It is certainly not the goal to override. If the sole reason was moral opposition, if they were extremely far away, that would carry more weight than if they are nearby. I mean, moral opposition alone, closer to the tribe, would be something we would have to scrutinize a lot more. I would say this, I would be reluctant to rely solely on moral opposition, though, as a grounds. Mr. ELLIOTT. Can we go off the record? Mr. DOLD. Sure. [Discussion off the record.] EXAMINATION BY MR. DOLD: Question. Whose job is it at the department to determine whether opposition, local opposition, is valid? Answer. The primary evaluator of local opposition is the Indian Gaming Management Staff. They are the primary office. Question. And referring you back, just to the Hartman memo, that was a recommendation by a member of the Indian Gaming Management Staff, but this was a recommendation by Mr. Hartman here to take the land into trust, is that correct? Answer. No, that is incorrect. Question. Okay. Please tell me what it is? Answer. Mr. Hartman's memo addresses the question of detriment, and he does not believe that there is a finding of detriment in this case, but probably most importantly is he preserves the issue of best interest on the last page, Page 16 of his document, let me find that: Staff recommends that the termination of the best interest of tribe and its members be completed. Mr. Hartman or Mr. Skibine, I am not sure, one of the two, expressed to me that there were strong concerns about the lease adjacent to the casino that were troublesome, so this was not a-in fact, it has been widely misconstrued that Mr. Hartman's memo is an endorsement overall of the trust land application, which it was not. Mr. BALLEN. I'm sorry, could you just restate your answer or can the court reporter read it back, because I think some of it got lost there. [The reporter read back as requested.] The WITNESS. I wanted to make sure I said that this document has been widely misconstrued as an endorsement by Mr. Hartman of accepting this land into trust, |