Question Do you have any documents pertaining to the Hudson Dog Track in your personal possession? Answer I have press clippings from the matter. I believe that's the extent of my documents. Question Mr. Anderson, perhaps you can give me a better understanding of the sections that the Department of Interior looks at when they are going to take land into trust. I know in my previous depositions we have talked about section 465; we have talked about 151 determinations; we have also talked about section 20 of IGRA Can you give me kind of a run-down, very quickly, very brief, of when it would be appropriate to make a 465, when it would be time for a section 20, and when would be a 151? Answer. Section 465 is the Secretary's general authority to take land into trust, and for nongaming purposes, that would be the basic mechanism we use for acquisi Section 20 only applies to gaming acquisitions, and it requires it only applies to acquisitions off the reservation. So if it is not contiguous to the reservation, then section 20 requires a two-part determination from the Department initially on detriment to the local community, surrounding communities, and also whether it is in the best interests of the tribe, and then more process on concurrence from the Governor. Sometimes, if the land is already into trust, then obviously there is no 465 application. The section 20 determination will come into play. In cases where there's neither land into trust and there is no gaming going on, then there has to be both parts of the statute would apply then. Question. Both 465 and section 20? Answer. Right. Question. Is there an order, a specific order that goes through, or can you apply either? Answer. There's not a specific order. One could make a finding independently on either ground that one did not want to take land into trust either for 465, because it didn't meet the standards of 465, but particularly if there's environmental problems, or if there's detriment to the community, and back to 465, that really goes to tax impacts to the community; 465 deals more specifically with the support or nonsupport for the community, what kind of effects it might have on jurisdictional land use conflicts, that kind of analysis. Question. So 465 is more general? Answer. Yes. Question. Could the Secretary take land into trust for gaming purposes and not implement a section 20, or not use a section 20 analysis? Mr. BALLEN. Are you talking about off reservation? Mr. DOLD. Off reservation. Because I think you testified earlier that the only time you would use section 20 is for off reservation; is that right? The WITNESS. No. You would have to go through section 20 in order to do off-reservation gaming. If you wanted to do gaming, yes, you would have to go through section 20. EXAMINATION BY MR. DOLD: Question. So 465, if the Secretary wanted to take land into trust off reservation, if the tribe wanted to do gaming on it, the Department of Interior would have to use a section 20? Answer. That's right. Mr. BALLEN. Does the converse hold true, that if you make a determination under 465 not to take the land into trust, you have to look at section 20 as well? The WITNESS. No. They are an independent analysis. You can reject on either basis. EXAMINATION BY MR. DOLD: Question. Do you know if there has ever been a section 465 analysis used to deny an application to take land into trust for off-reservation gaming purposes, if that's ever been done before, exclusively 465? Answer. I don't know the answer. Could you restate that? I'm not sure if I understood the question. Mr. DOLD. Can you read it back? I'm not sure I can even recall. The WITNESS. Are you saying in the history of the Department have we rejected an off-reservation gaming activity? Mr. DOLD. I remember. EXAMINATION BY MR. DOLD: Question. It was based solely on 465? And let me say I don't know of one, I'm just asking if you do. Answer. Well, frequently, tribes make applications for acquisition at the area office. It's certainly conceivable that the area return packages or decline to recommend to our office, and that's where I would become aware of it, that the application didn't make-wasn't acceptable for environmental problems or an environmental assessment wasn't done. So it's certainly, you know, conceivable that some were rejected for that reason. Question. Fair enough. Would it be fair to say that you don't know of any that came to the central office, that you just don't know offhand? Answer. I would have to review my records. There may have been. I just don't recall at the moment whether there were any. Question. Do you know of anyone ever articulating any problems with the standards set in section 20 of IGRA during your tenure at the Department of the Interior? Answer. There's certainly discussion of the interpretation of it, of the terms, best interest of the tribe, what did that mean, what did the term detriment mean. And so along the course of my tenure there, there has been discussion of what the meaning-of what Congress meant by those terms. Question. Were they ever resolved, or were you ever given any directive as to what they meant? Answer. Well, the gaming office had a checklist of review of the 151 applications. On section 20, typically, if there was a rejection based on section 20, there would be a letter sent by the Department that laid out the rationale for why there was a rejection. There may have been in those documents some expression that could have illuminated the terms "best interest" or "detriment." Question. So did you-what was your-let me step back. Did you have an understanding or an idea of what "best interest" meant? Answer. In the abstract, no. Where I apply the terms "detriment" or "best interest," were usually to a particular fact situation. It was difficult to say that there would be a standard that would say something was always in the best interest or that there would be a one-size-fits-all standard that was a detriment. So generally, the illumination of the term came through specific fact situations. And so I would answer that yes, I did in a specific fact context. Generally, I couldn't articulate a one-size-fits-all definition. Question. Were there general guidelines articulated from the Secretary's office or from the Assistant Secretary's office on what things we should look for in best interest or detrimental? Answer. Yeah. The major one on detrimental would be effect on the planning and land use planning of a local community. Also, environmental considerations, and traffic and other impacts on the land and particularly the surrounding community. That was the primary focus of the analysis on detriment, as well as what kind of information did local communities convey in terms of support or nonsupport for applications. Question. Mr. Anderson, when did you first hear-let me ask this again. I know that you have testified in your Senate deposition that the first time you recall having heard this was in April. Is that still your understanding? Answer. That is correct. Question. At a meeting that the Secretary went to in Wisconsin? Answer. Yes. Question. Did you think it was a good idea that the three tribes were cooperating, that three tribes were cooperating to go into this venture together? Answer. I don't think I had an opinion on the joint venture nature of that application. Question. How much do you know, or how much did you know at the time about the three applicant tribes? Answer. I knew most of the Lac Courte Orielles tribe, because Gaiashkibos was the president. I never visited any of the tribes. In fact, I'm not even sure if I had visited Wisconsin at that point. Mr. BALLEN. Excuse me. You say you have never visited it ever, or just in the context of this particular The WITNESS. To that point, I don't think I had ever visited Wisconsin at any point. I think the first trip was in '96. I was somewhat familiar with Sokaogon, the Mole Lake tribe and their environmental problems. I have a vague recollection that each tribe had done some casino gaming, that Lac Courte Orielles had a facility, that it was a small, but not profitable facility, that Red Cliff, I really didn't—I don't know if I had much information about that tribe, other than location. So I would say it was like environmental issues and Lac Courte Orielles gaming. As far as gaming in Wisconsin and tribes' ability and the compact issues there, I had some understanding of that and some understanding of the treaty rights litigation that some of the tribes were involved in, which would have affected those three tribes as well, particularly Lac Courte Oreilles. Question. Just to correct something that you just said, you said your first trip might have been in '96, April. Did you mean April of '95? Answer. Yes. Question. Did you have any idea of how financially well off the three applicant tribes were? Answer. I knew that these tribes were tribes that basically were low-income tribes, that they did not have a lot of wealth. They did have ongoing ventures, particularly Lac Courte Orielles. I think they had some tank operations there, and I knew that. I think at that time each of the three tribes had casinos, but I'm not sure what their market was. Question. Did you have any idea what their per capita income was at the time of the application? Answer. No. Mr. BALLEN. But you knew they were low-income tribes. The WITNESS. Right. I mean, like I didn't know the actual amount of the per capita. I know that most Indian tribes and tribal members are on the low end of the per capita scale. I would assume that probably a large proportion of the tribal members were probably below the poverty line. EXAMINATION BY MR. DOLD: Question. When you say "low income," about- Question. Did this have any weight, or did you accord any weight to this fact that the three tribes were financially poor when you took thatMr. ELLIOTT. Let him finish his question. EXAMINATION BY MR. DOLD: Question. Did you accord any weight to the fact that the tribes were financially poor in your decision regarding the Hudson Dog Track? Answer. To understand the question, to the actual decision? I would say no as to the application of the statutory and regulatory test. I was aware of the general, general conditions of Lac Courte Orielles that I expected. I mentioned Mole Lake. And Red Cliff were probably in the same type of situation. But as far as application of the regulatory, no, regulatory standards, no, I didn't accord any weight to the financial conditions. Question. When you say “regulatory conditions," you are talking about the twopart test? Answer. And the 151. Question. And the 151 would be the general, just Answer. Yes. Question. I'm more familiar with section 20. Answer. The 151 primarily goes to the tax impacts of taking land into trust and off-reservation community, as well as land use conflicts and environmental problems. That's the primary test we use to determine whether to take land into trust for nongaming purposes. Mr. BALLEN. Mr. Anderson, are you generally aware what's your view? Does gaming help tribes? If they are poor, is it something that you want to help at the Bureau of Indian Affairs? The WITNESS. Yes. Well, the Department as always, and has testified in Congress, to its staunch support for Indian gaming as a valid economic development tool. It's almost a given that gaming is in the right circumstance, good for the tribe, if it's in its best interest, if the terms of the economic deal are good for the tribe. As far as placing decision-making weight on that factor, at least the decision letter I signed didn't cite that as a factor. EXAMINATION BY MR. DOLD: Question. Did you take into account in your analysis of the Hudson application the financial impact it would have on opposing tribes? Answer. Yes. Opposing tribe, the St. Croix tribe, one tribe. Question. Do you know what their financial position was at the time that you turned down-at the time the decision was made to turn down the application? Answer. Yes. At the time, I don't know the specific annual gross revenue of the St. Croix operation, but it was, it was very profitable. Question. And did they voice an objection or a concern to you? Answer. Not to me directly. To the staff. Question. Do you know what that concern was? Answer. I believe the nature of the concern was that they had developed a market for the casino in that area, and that they felt that there would be a detrimental impact to their market if another casino was located nearby. I believe they also may have provided studies to that effect as well. Question. So correct me if I'm wrong, it is a valid opposition for an opposing tribe to object on economic grounds? Answer. Yes, and the letter states that as a factor. Mr. BALLEN. Does it make a difference where the opposing tribe is located and where the proponent tribe is located in terms of distance from the proposed site? The WITNESS. Yes. The more compelling case is where a tribe locates away from its homeland directly into another tribe's market area. Typically, the Bureau at that time I think was using a 50-mile radius, and St. Croix was I believe within about 38 miles of the proposed site. If a tribe is going to a location where there is minimal or no effect on another tribe, the concern wouldn't be valid at that point. So we do try to compare, and that's the term, surrounding community, that we try to see what tribes are in the surrounding community where their might be an impact, market impact, economic impact. Mr. BALLEN. And how far, for the record, were the proponent applicant tribes located from the proposed site? The WITNESS. They ranged from 188 miles away to within 80 miles; 188 and 88 miles, I believe. Mr. BALLEN. So the closest tribe was actually the St. Croix tribe? The WITNESS. That's correct. EXAMINATION BY MR. DOLD: Question. I don't want to belabor this point, I just want to get this down, if I can, for the record. You had already testified that economic grounds were sufficient, and we understand that; that's in the letter. Are those concerns that can be mitigated? Answer. Yes, they could be mitigated. If the three applicant tribes had entered into a joint venture where there was some type of sharing of the proceeds from a location, that's one way in which it could be mitigated. Question. Do you know if this was communicated to the three applicant tribes? Answer. I don't know. I didn't communicate it to them. Question. Is there somebody that is supposed to communicate with the applicant tribes on problems that are found at the Department of the Interior? Answer. Yes. The primary vehicle the Department uses to communicate technical expertise, and that's how they use the term, "the Department," is the Indian Gaming Management Staff, and they will sometimes send lawyers, financial analysts and others to tribes who are developing an application to give them technical expertise on how to structure their application. That also occurs at the area office level as well from the BIA, but they will sometimes go out to different locations and provide that kind of assistance. The area where they get most involved is in the area of environmental assessments so that a tribe knows if they have a wetland or something, they will know the standards that they should follow and what kind of studies they should do. Question. Do you know if anybody from the IGM-I'm sorry, the Indian Gaming Management Staff did that in this case, went out and consulted with the tribes? Answer. I don't know. Question. And just to quickly ask a question, I will make it quick, I think Mr. Ballen had brought this to light. Do you think the Hudson Dog Track would have provided economic opportunities for the three tribes? Answer. It's difficult to say. Clearly-and the reason it is difficult to say is that the financial terms that they had with Gallaxy Gaming, who was going to be a copartner in this operation, was something that caused the Indian Gaming Management Staff, and particularly Tom Hartman, great concern. The terms seemed to lend itself to an open-end lease arrangement on an adjoining parking lot that may have locked the tribes into millions of dollars of payment, even if their compacts expired. And so in the abstract, without having had a final analysis of best interest, it was difficult to say whether this was would provided an opportunity or not, or, in fact, may have saddled them with debt they couldn't have repaid. Question. Did you ever receive any information, or do you remember any information on the impact a casino in Hudson, Wisconsin, may have had on the St. Croix tribe? Answer. I didn't review specific market information. I was informed by the staff, the Indian Gaming Management Staff, that there was an impact and that was also contained in the letter, the decision letter as well. There may have been discussions about the location and the market area that was developed by St. Croix, but I don't recall any specifics. Question. Do you recall who on the Indian Gaming Management Staff told you that, or communicated that to you? Answer. I don't remember who the major staff advisors on the market impact would have been. George Skibine and Tom Hartman. Question. Did they tell you how much of an impact; do you recall? Answer. I didn't quantify from them the exact. It was that there would be a detrimental impact to the market, but I don't think I—at least I don't recall at the time if there was dollars discussed. Question. Let me show you a document here. This might refresh your recollection, and it might not. Mr. DOLD. I will mark it as MA-1. [Anderson Deposition Exhibit No. MA-1 was marked for identification.] [Note.-All exhibits referred to may be found at the end of the deposition.] Mr. DOLD. I'm showing Mr. Anderson what has been marked as MA-1. It is what I will call the Hartman memo. It is the June 8th memo to the Indian Gaming Management Staff director from what is marked Indian Gaming Management Staff signed by Tom Hartman. It is also marked "Draft" at the bottom and throughout the pages here. I have some very specific questions, so if you would like to review, you certainly can. I will give you that opportunity. The WITNESS. Okay. EXAMINATION BY MR. DOLD: Question. First of all, have you ever seen this document? Question. Do you recall seeing this document back around the time that you were reviewing the Hudson Dog Track application? Answer. No. The first time I recall seeing this document was in a Senate Governmental Affairs Committee deposition, I think in October. Question. Was this position ever communicated to you when you were at the Department of the Interior? Answer. The contents of this memo were not communicated. I have some recollection of Tom's views on the market impacts of other-on other tribes, and we did participate in a meeting with the Oneida tribe on May 23rd where he expressed those views, and Mr. Skibine may have characterized those views as well. Question. What were those views, if you recall? Answer. Tom, as I recall from the May meeting, basically had a free market approach to Indian gaming, that the Department should not protect the market areas of other tribes. I didn't explore with him whether this applied to the markets of adjoining tribes or whether it applied in any case where a tribe developed a market, but I understood that he basically had a premarket approach. Question. If I can direct your attention to page 4 of the Hartman memo, the line just above section C, it refers to Sandra Berg, a longtime Hudson businessperson, wrote in support and states that the opposition to the acquisition is receiving money from the opposing Indian tribes. Have you ever heard that allegation before? Answer. The Senate investigators asked this question about people lobbying the towns. That's the first I had heard about it. Question. And would that have an effect upon the decision-making process as far as taking weight, or putting weight in the local opposition? Answer. It's difficult to answer that in the abstract. Mr. ELLIOTT. I'm going to object to this question. I mean, would what have an effect, the fact that somebody said it, or the fact that it actually happened? Because there is nothing in the record to say that it actually happened. Mr. DOLD. Fair enough, and I don't want to-I would like to go over both. |