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This e-mail that just came out, which is marked as TH-9, was written in 1997, April of 1997; is that correct?

Answer. March, I think originally, 3-26.

Question. 3-26 was the one by Skibine, and then-no, yours is still 3-27. Okay. Answer. Yes.

Question. And the deficiencies, the long list of deficiencies are the ones that we went over earlier in the deposition?

Answer. Yes, in part, yes; without sitting down and looking at the list, but I expounded on a couple-three of them.

Question. And you do have a list somewhere? You said looking at the list. There is a list?

Answer. I'm not sure there is a list, one, two, three, but there's an itemization of the defects.

Question. And again, if we can get a copy of that, because I'm not sure we have that, but that again would be most helpful.

Answer. Okay.

Question. I also wanted to touch base, if I could, when you say that your memo, your work product that the Indian Gaming Management Staff put together, which you signed, you said that it wouldn't see the light of day, or you didn't think that it was going to see the light of day.

Why did you not expect that memo-being that you are part of the career staff, why did you not expect that memo, which you researched and dealt with the tribes and the area office, to see the light of day?

Answer. Because it's an intermediate draft and ultimately we would have come out with a finding of fact similar to what is out of the area office; and certainly drafts are part of the administrative record, but normally you end up focusing on what the final findings of fact are in the determination. So I wouldn't

Question. When you say it wouldn't have seen the light of day, you would mean it would not be published, it would not be seen in its final form?

Answer. Right. In other words, it sees the light of day because it is part of an administrative record, but then it becomes subjected to either controversy or lawsuit. In the normal course of business, everybody reads the final. You will notice in here you don't have any draft copies of Denise Homer's report.

Question. Would something like the memo that you drafted for the Director of the Gaming-Indian Gaming Management Staff, ever be shown to the Secretary? Answer. You mean in its draft form?

Question. In, I guess, in its draft form, any kind of material that you put together for the Gaming Management Staff Director, would anything like that ever be shown to the Secretary of the Interior?

Answer. I wouldn't think so normally. I mean, I can't think of any reason why it would be withheld, but normally you would have a-the final findings of fact that would address it, and he would certainly see that; but intermediate drafts, they even get protection to the extent that they are predecisional.

Question. I guess really the point I am trying to narrow in on is, what documentation would the Secretary have available to him to make his decision?

Answer. I'm not aware that either the Secretary or the Assistant Secretary or Deputy Assistant Secretary had a copy of my draft memo.

Question. Do you have any idea what they did have copies of?
Answer. No.

Question. Apart from your involvement in the civil litigation, which does not interest us in the slightest, or even the litigation going on in the Federal courts or Wisconsin courts, you say that you had talked with people at the Department of Justice with regard to clearing out the administrative record and getting everything together.

Have you talked to anyone at the Department of Justice or spoken with anyone at the Department of Justice from their Campaign Task Force?

Answer. No.

Question. Do you know if the Campaign Task Force has asked for documents from the Department of Justice or from your office?

Answer. They haven't asked me, but on the others, I don't know.

Mr. DOLD. I have nothing further.

Mr. Hartman, thank you very much for your time. Mr. Elliott, thank you for coming in.

Mr. ELLIOTT. Thanks.

The WITNESS. You're quite welcome.

[Whereupon, at 1:23 p.m., the deposition was concluded.]

[The exhibits referred to follow:]

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RE:

Meetings of May 23 and 24 in Washington, D.C.

The following is a report concerning the meetings I participated in during your trip to Washington, D.C. on May 22&23.

May 22

BIA: In an effort to better understand the current status of the Hudson track
proposal, Debbie, Carl Artınan and I met with Mike Anderson, Deputy
Assistant Secretary for Indian Affairs, George Skibine, Director of the Office of
Indian Gaming Management, and Tom Hartman, a member of Skibine's staff.
The Indian Gaming Management Office will send a letter to the Red Cliff
Tribal Council this week stating that their office expects to complete the
review of the request within one month. The paperwork will then be sent to
the Solicitors Office at Interior to make certain the Office of Indian Gaming
and the BIA Minneapolis Area Office have complied with all of the
requirements outlined under Section 20 of the Indian Gaming Regulatory
Act. The Solicitor would then pass the paperwork along to the Secretary's
office for the approval or rejection of the petition. The Secretary has the
ability to approve the transfer of land into trust under two areas of the law,
first Section 20 of IGRA and second, Section 151 of the Code of Federal
Regulations which govems land acquisitions by Indian Tribal Governments
and individual Indians.

Section 20 of IGRA states that the Secretary must determine 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. Skibine stated that their office is first attempting to
assess whether this transfer would be "detrimental" to the "surrounding
community".

Because neither "detrimental" nor "surrounding community" are defined in
IGRA, the BIA has written guidelines, "Checklist for Acquisition for Gaming
Purposes". "Surrounding community” includes most forms of non-Indian

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government within a 30 mile radius of the lands in question and all Indian governments within a 50 mile radius of the lands in question. (The definition for Indian governments has been enlarged to a 100 mile radius for all future petitions.) The term "detrimental" means activities which might arise other than normal competitive pressures. For example, an argument establishing detriment might include increased auto traffic, a drain on the area water supply, or other environmental concerns. However, even environmental concerns can be offset by parties willing to negotiate new traffic patterns, additional parking lots, new roads, new sewers, etc. Public sentiment or opinion is not considered "detrimental", therefore, little weight is given to communities which pass resolutions in opposition to gaming unless they demonstrate an impact on the community. Moreover, the economic impact a gaming establishment might have on other gaming or non-gaming establishments is also of little concern to the BIA because it falls into the definition of a "normal competitive pressure".

Should BIA find the petition not to be detrimental to the surrounding community, they would then move to consider the impact such action would have on the tribe(s) requesting the transfer.

Mike Anderson clearly does not want to establish a precedent against tribes wishing to bring land into trust in the future. He largely wanted to know what justification the Oneida had in opposing the sovereign actions of another Indian Nation or group of Nations.

Mary Frances Repko, Staff to Sen. Feingold: Debbie and I discussed the Hudson track and the recent conversations Debbie has had with representatives of the Stockbridge Munsee. She stated that Sen. Feingold intended to stay out of this issue. She said that he did not want to take sides against any tribe wishing to engage in gaming.

Senator Feingold is using the accord which Oneida reached with Ashwaebenon to illustrate how Tribal governments and local units of government can work together when bringing land into trust. This illustration is usually sent to constituents who complain about tribes taking land off the tax rolls.

(Note: Debbie and Bill Gollnick met with Senator Feingold on Tuesday evening. I was not present at that meeting.)

May 23

Senator Kohl: Debbie outlined the Oneida's opposition to the Hudson track and explained the Stockbridge proposal. We pressed Senator Kohl to contact Secretary Babbitt to let them know of his interest in the track issue, and he

Debbie also thanked the Senator for all of his help in securing funds for additional police officers on the Reservation. Funds were provided under the crime legislation passed last year and the Oneida were successful grant applicants.

Congressman Roth: Debbie outlined the Oneida's opposition to the Hudson track and explained the Stockbridge proposal. We thanked him for his letter to Secretary Babbitt in opposition to the Hudson Track We also offered to get him any information he might need relative to the activity of the Stockbridge proposal. He had no immediate reaction to the proposal.

Analysis

With respect to the Hudson track, things don't look good. BLA staff is interested in protecting the rights of tribes who might one day wish to take off reservation lands into trust for gaming purposes. Mike Anderson asks what criteria should be established to prohibit a tribe from moving off reservation land into trust for gaming purposes. An answer which does not threaten sovereignty is difficult to find.

Reaching the "detrimental" standard is difficult, too. According to Tom Hartman, all of the economic impact statements are of no value in this assessment. The addition of a new Indian gaming establishment to a market area_brings "normal competitive pressures". The BLA has difficulty saying "no" to one tribe in favor of another, especially when the statute gives them no direction. BIA feels this decision is proper, and in the long run, will work to assist tribes when they are challenged by non-Indian groups with economic arguments alone.

In the case of the Hudson track, or for that matter the Kaukauna track, many of the environmental issues were addressed when the sites were originally established. Although one could argue that casino style gaming will bring more cars, busses, and people, it is likely that accommodations can be made to bring the facilities into line with current laws.

Finally, The political opposition from St. Croix County, the City of Hudson, Obey, Roth, and Gunderson may not be worth very much under the BIA dcfinition of "detrimental" None of these letters say much other than to voice a general objection to the spread of gaming. BIA, in their willingness to uphold the interests of the greater number of tribes, has decided not to give such statements very much weight.

Mike Anderson said to me after our meeting that they are trying to keep this issue on the merits and they will try to thread the needle" on this request.

Things might change when the politicians like Babbitt and Duffy become involved, but without the law on their side it will be difficult to kill the deal.

Should Babbitt come out against Hudson, he will likely find his excuse in Section 151 of the CFR. I would strongly suggest we look into this area of the law to help Babbitt reach his conclusion.

As we know, Governor Thompson remains the key to stopping this effort.

Please let me know if you have any questions.

cc: Carl Artman

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