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PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Government Reform and Oversight. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/reform]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.
THE DEPARTMENT OF THE INTERIOR'S DENIAL OF THE WISCONSIN CHIPPEWA'S CASINO APPLICATION
THURSDAY, JANUARY 22, 1998
House of Representatives,
Committee on Government Reform and Oversight,
Washington, DC.
The committee met, pursuant to notice, at 10:10 a.m., in room 2154, Rayburn House Office Building, Hon. Dan Burton (chairman of the committee) presiding.
Present: Representatives Burton, Hastert, Morella, Cox, Mica, Souder, Shadegg, Sununu, Snowbarger, Waxman, Lantos, Kanjorski, Maloney, Barrett, Norton, Cummings and Kucinich.
Staff present: Kevin Binger, staff director; Richard Bennett, chief counsel; Judith McCoy, chief clerk; Teresa Austin, assistant clerk/calendar clerk; William Moschella, deputy counsel and parliamentarian; Will Dwyer, director of communications; Ashley Williams, deputy director of communications; Dudley Hodgson, chief investigator; Barbara Comstock, chief investigative counsel; Dave Bossie, oversight coordinator; James C. Wilson, Robert Rohrbaugh, and Uttam Dhillon, senior investigative counsels; Kristi Remington and Bill Hanka, investigative counsels; Robert Dold and E. Edward Eynon, investigative attorneys; Robin Butler, office manager; Carolyn Pritts, Tom Bossert, and Barrett Davie, investigative staff assistants; Phil Schiliro, minority staff director; Phil Barnett, minority chief counsel; Kenneth Ballen, minority chief investigative counsel; Michael Raphael, David Sadkin, Michael Yang, and Michael Yeager, minority counsels; Harry Gossett and Rick Jauert, minority professional staff members; Ellen Rayner, minority chief clerk; and Jean Gosa and Andrew Su, minority staff assistants.
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Mr. BURTON. The committee will come to order. Good morning. A quorum being present, the Committee on Government Reform and Oversight will come to order.
Today, we will continue the hearing we started yesterday regarding the Department of the Interior's decision to deny an application made by three Indian tribes in Wisconsin to take land in trust for gambling purposes.
Our first panel today consists of George Skibine. Mr. Skibine, would you stand and be sworn, please?
[Witness sworn.]
Mr. BURTON. On behalf of the committee, we welcome you here today and we recognize you to make an opening statement. We would like you, if you can, to confine it to 5 minutes, and if you have more than that, we will submit it for the record.
Mr. WAXMAN. Before he begins, Mr. Chairman, I want to say something. We have in the audience Hilda Manuel, who is the Deputy Commissioner of the Bureau of Indian Affairs; she is Mr. Skibine's superior. She is the one who has actually had conversations with Secretary Babbitt, and it seems to me that we ought to have her testify as well.
I know yesterday we suggested it, and there were a number of others that we also recommended, the Republican officeholders who opposed the project. The argument there was that they opposed the project. This isn't about the project, this is about whether anything went on improperly in the decision of the Department of the Interior.
Hilda Manuel's deposition has been taken. It is part of the record, as has Mr. Skibine's. I think it would be appropriate if we give her an opportunity to give us her testimony and subject her to the questioning that all other witnesses have encountered as we search for the truth.
Mr. BURTON. Mr. Waxman, we will take that under advisement; however, this particular panel has been scheduled and we will proceed as we had planned.
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Mr. WAXMAN. Well, yesterday we had a surprise witness with 5 minutes' notice, and we could have this witness testify as well.
Mr. BURTON. We have ruled on that.
Mr. Skibine, you may make an opening statement.
STATEMENT OF GEORGE SKIBINE, DIRECTOR, INDIAN GAMING MANAGEMENT STAFF
Mr. SKIBINE. Thank you, Mr. Chairman.
Mr. Chairman, distinguished members of the committee, my name is George Tallchief Skibine. I was born 45 years ago near Paris, France, where I lived until approximately 1968. Both my parents were American citizens, I was born an American, and my mother is an Osage Indian from Fairfax, OK.
I have a degree in economics from the University of Chicago, and a law degree from the University of Minnesota Law School. I am a member of the bar of the District of Columbia and a member of the Minnesota State bar. I have been a civil servant for some 20 years, and served in various positions with the Bureau of Indian Affairs and the Office of the Solicitor's Division of Indian Affairs. I am neither a political appointee nor a politically connected lobbyist.
I am here today to testify before the Committee on Government Reform and Oversight relating to its investigation into whether political contributions to the Democratic National Committee influenced a decision of the Department of the Interior to refuse to place in off-reservation a 55-acre parcel of land located in Hudson, WI, and known as the St. Croix Meadows Greyhound Track, or the Hudson Dog Track, in trust for gaming purposes. I want to thank you for inviting me to testify this morning and giving me the opportunity to clarify my role in the dog track matter.
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I was involved in reviewing the Hudson Dog Track casino application from the time I joined the Indian Gaming Management Staff as its Director in February 1995, through the signing of the final decision letter on July 14, 1995. Throughout this period, I participated in numerous discussions on the subject with civil servants in the BIA and the Solicitor's Office, as well as with Secretarial appointees.
To the best of my recollection, all of these discussions were entirely on the merits of the application. As I have told those who have deposed me in this matter, I was never contacted by the White House, the Democratic National Committee, or the Clinton-Gore campaign regarding the dog track matter, nor was I aware of anyone else at the Department of the Interior being contacted by the White House, the DNC, or the Clinton-Gore campaign regarding this matter. I knew nothing and heard nothing during this period about any partisan political contributions given in the past or expected in the future having anything to do with this decision. As far as I know, the decision of the Department regarding this proposal was made entirely on the merits. I have never had a conversation with Secretary Babbitt about this or any other matter.
I strongly support Indian gaming as a legitimate economic development activity for Indian tribes. But off-reservation Indian gaming proposals, particularly those that involve partnering with non-Indians, must be more closely scrutinized under applicable legal standards.
In the winter and spring of 1995, it was my job to make recommendations to my superiors at the Department in such matters as the Hudson Dog Track. On June 29, 1995, I drafted a recommendation in the form of a proposed letter to the three applicant tribes informing them of the decision of the Department not to exercise its discretionary authority, pursuant to section 5 of the Indian Reorganization Act of 1934, to take the Hudson Dog Track into trust.
I made this recommendation based on the record before me and that record indicated that this acquisition would be extremely controversial. The application was opposed for various reasons by the town council of the city of Hudson, by the town of Troy, by the State representatives for Wisconsin's 30th assembly district, by the U.S. Representative in whose district the Hudson Dog Track is located, by the attorney general for the State of Wisconsin, and by numerous Indian tribes in both Wisconsin and Minnesota. Under the circumstances, I could not in good conscience recommend to the decisionmakers that it was the time and the place to exercise the Secretary's discretionary authority, especially since there is no affirmative trust duty under the IRA to take off-reservation land in trust, and the Secretary has unfettered discretion to say no. I was not pressured in any way by anyone to reach a particular recommendation in this matter.
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You may choose to question the wisdom of my professional judgment in this matter, and reasonable people may disagree on the merits of my recommendation; however, it was made solely on the merits. Throughout this investigation I have always tried to tell the truth as I know it. I am a civil servant of two decades' standing who has chosen a career in public service because I believe it is a high calling. My integrity, honesty, and good faith have never before been challenged.
While in certain respects I regret being cast in the middle of this controversy, I understand and deeply respect the role of Congress' oversight responsibility in making sure that decisions delegated from the legislators to the executive are made according to standards established in legislation and not for improper political motives. In my 20 years of service, I have worked equally well with both Republican and Democratic administrations, and I have taken pride in remaining nonpartisan on the job so that my recommendations could be made with the degree of professionalism expected of a nonpolitical civil servant.
This matter has placed incredible demands on me personally and professionally. I am very eager to put it behind me and resume devoting my full attention to my responsibilities in carrying out the important work of the Department.
Accompanying me today is Mr. Tim Elliott, Deputy Associate Solicitor for the Division of General Law at the Department of the Interior.
Mr. BURTON. Thank you, Mr. Skibine.
[The prepared statement of Mr. Skibine follows:]
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[The official committee record contains additional material here.]
Mr. BURTON.
1We will now recognize Mr.——
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Mr. ELLIOTT. Mr. Chairman?
Mr. BURTON. Yes, sir.
Mr. ELLIOTT. I am Tim Elliott, and I also have a statement I would like to make, if it's permissible.
Mr. BURTON. And what is your position, Mr. Elliott?
Mr. ELLIOTT. I am an attorney with the Department of the Interior and accompanying Mr. Skibine at this hearing.
Mr. BURTON. It is not regular for those other than the witnesses to testify. You weren't called to testify, were you?
Mr. ELLIOTT. No, sir.
Mr. BURTON. Are you here as his legal counsel?
Mr. ELLIOTT. Yes, sir.
Mr. BURTON. Well, you can serve in that capacity, but as far as you making an opening statement, it is not necessary.
Mr. ELLIOTT. Thank you, sir.
Mr. BURTON. Mr. Skibine, we appreciate your being here and we will now yield to Mr. Bennett for 30 minutes.
Mr. BENNETT. Good morning, Mr. Skibine.
Mr. SKIBINE. Good morning.
Mr. BENNETT. Sir, you have been with the Department of the Interior for 20 years; is that correct?
The WITNESS. Yes.
Mr. BENNETT. And, actually, I think February 5, 1995, was your first day on the job as director of the gaming office; is that correct?
Mr. SKIBINE. That is correct.
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Mr. BENNETT. And 3 days after arriving on the job you attended a meeting with the congressional delegation of the Minnesota delegation; is that correct?
Mr. SKIBINE. That is correct.
Mr. BENNETT. Had you ever, during your 20-year career with the Department of the Interior, attended a meeting of a congressional delegation?
Mr. SKIBINE. Not that I can recall.
Mr. BENNETT. Were you aware that Mr. Patrick O'Connor, who will be called to testify before this committee next week, were you aware that Mr. O'Connor had in fact organized that meeting?
Mr. SKIBINE. No, I was not.
Mr. BENNETT. You met Mr. O'Connor at that meeting, didn't you, sir?
Mr. BURTON. Would you pull the microphone a little closer, please.
Mr. BENNETT. You, in fact, met Mr. O'Connor at that meeting; isn't that correct?
Mr. SKIBINE. Not to my knowledge.
Mr. BENNETT. Do you recall who was there?
Mr. SKIBINE. Yes, I think in my deposition I recalled who was there based on—and if I can turn to something.
Mr. BENNETT. Go right ahead, sir.
Mr. SKIBINE. Pardon?
Mr. BENNETT. Go right ahead, if you would like. And while we're waiting, if I could have exhibit 297–B placed on the screen here in the hearing room.
While you're looking, Mr. Skibine, this exhibit reflects a meeting having been set up and scheduled by Mr. Patrick O'Connor, an attorney and lobbyist for the Minnesota Indian tribe, which opposed the casino application of the Chippewa Indians. And it is on the screen there before you.
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Can you see it there, sir? I believe there is a TV set right there.
[Exhibit 297B follows:]
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[The official committee record contains additional material here.]
Mr. SKIBINE. I think my eyes are failing here.
Mr. BENNETT. We're trying to increase the size of the print.
Mr. SKIBINE. OK.
Mr. BENNETT. There is even a reference in that memorandum to who the important Washington players are that need to be contacted. Do you see that on the exhibit?
Mr. SKIBINE. OK, I'm handed a document.
Mr. BENNETT. That is the exhibit that's on the screen and now is in your hand, sir, 297–B.
Mr. SKIBINE. OK, I have it.
Mr. BENNETT. If you would refer to that exhibit, it references this February 8, 1995, meeting, your third day on the job. And if you will note there, about four lines from the bottom, there is reference to important Washington players who need to be contacted. Do you see that there, Mr. Skibine?
Mr. SKIBINE. No. OK. Yes, OK, I do. Yes.
Mr. BENNETT. And do you recall who some of those important Washington players were?
Mr. SKIBINE. What I do have, that was sent to me from a Whalen Peterson, or a Peterson in Representative Oberstar's office, is a list of the people who attended the meeting of February 8th in Congressman Oberstar's office.
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Mr. BENNETT. And how many people were in attendance there, sir?
Mr. SKIBINE. OK. On this list that was sent to me——
Mr. BENNETT. First of all, who advised you that there was going to be this meeting, by the way?
Mr. SKIBINE. I'm sorry?
Mr. BENNETT. Who advised you on your third day in office that there was going to be this meeting with the Minnesota delegation?
Mr. SKIBINE. I was called by someone in the Secretary's office.
Mr. BENNETT. Mr. John Duffy?
Mr. SKIBINE. No, maybe, probably his secretary or his assistant, and asked to come up and accompany him to that meeting.
Mr. BENNETT. Was there any explanation as to why you were meeting with a Minnesota delegation in connection with a Wisconsin casino application?
Mr. SKIBINE. No, there wasn't.
Mr. BENNETT. Go ahead, you were trying to recollect who was at that meeting.
Mr. SKIBINE. There are 20 people who are listed here, and if you want I can read them.
Mr. BENNETT. Go right ahead, sir, if you will. Quickly, please.
Mr. SKIBINE. Now, this recollection is based on a memorandum sent by Whalen Peterson to me.
Mr. BENNETT. I understand, sir.
Mr. SKIBINE. It is not necessarily my own recollection.
Mr. BENNETT. I understand.
Mr. SKIBINE. All right. It would be Representative Jim Oberstar, Representative Bruce Vento, Representative David Minge—or Minch/Minge—Senator Paul Wellstone, Representative Bill Luther, MIGA Chairman Myron Ellis, Frank Ducheneaux, Beverly Benjamin, Tadd Johnson, John McCarthy, Stan Crooks, Jeannie Bolen, Bobby Whitefeather, Lewis Taylor, Larry Kitto, Whalen Peterson, James McKinney, John Schaefler, Mike Eckstein, and Kurt Bluedog.
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Mr. BENNETT. Were there any representatives from Hudson, WI, there, sir?
Mr. SKIBINE. Not that I can see.
Mr. BENNETT. Were there any representatives of the Chippewa Indian tribe which had applied for the casino?
Mr. SKIBINE. No.
Mr. BENNETT. Do you know whether there was any discussion, not about the economic impact upon Minnesota tribes or the economics of the application, was there any discussion about detriment to the community, detriment to Hudson, WI?
Mr. SKIBINE. Yes, I think there was.
Mr. BENNETT. Do you have any notes to reflect that conversation?
Mr. SKIBINE. No, but I think that Lewis Taylor, the chairman of the St. Croix Chippewa tribe, was there, and I think he was addressing—that he was there for the purpose of addressing detriment to the St. Croix tribe, which is a Wisconsin tribe.
Mr. BENNETT. Detriment to his tribe?
Mr. SKIBINE. That's right.
Mr. BENNETT. Detriment to his economic interest?
Mr. SKIBINE. Well, detriment to his tribe, yes.
Mr. BENNETT. It would cost his tribe money if the other tribe got the casino approved; isn't that what he was there for, sir?
Mr. SKIBINE. Well, I think he was there to say there would be detrimental impacts on his tribe in general.
Mr. BENNETT. Did you ever notify the Chippewa Indians of who had applied for the casino? Did you notify them of this meeting?
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Mr. SKIBINE. We did eventually.
Mr. BENNETT. Eventually?
Mr. SKIBINE. Yes.
Mr. BENNETT. Six weeks later; isn't that correct?
Mr. SKIBINE. That is correct.
Mr. BENNETT. Have you read the opinion of Judge Barbara Crabb of the Federal court in Wisconsin with respect to that 6 weeks' delay, sir?
Mr. SKIBINE. I probably read it at some point a few years ago. I don't recall it right now.
Mr. BENNETT. In fact, there was, I think—if we can have exhibit 302 from yesterday's hearing placed on the projection screen. That, in fact, was a letter from John J. Duffy on March 27, 1995, reflecting that there was at least a 6 weeks' delay prior to even notifying the Chippewa Indians of this meeting. What was the reason for that delay, Mr. Skibine?
[Exhibit 302 follows:]
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[The official committee record contains additional material here.]
Mr. SKIBINE. Well, from my perspective, when I came to the gaming office, I was very new at the job and it took me several weeks, in fact practically the whole month, probably, to just learn the ropes and learn the office and how things were supposed to be done, and essentially catching up on everything, on all the matters that were pressing at the time.
I was also involved in another project which took a lot of time away from the office for me, which was a negotiator in a negotiated rulemaking on the Indian Self-determination Act, for which the Department, the Department of HHS, and 48 tribal representatives, which took a lot of time for me.
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And I think that essentially, when I got around to realizing that we needed to set a deadline and to send this out, you know, with the red tape and all, it came out on, what's the date?
Mr. BENNETT. March 27th. In fact, that wasn't even a letter from you. That's from Mr. John Duffy, highlighting the fact that I think Mr. Ackley, who testified yesterday, had confronted him about this meeting.
Do you have any correspondence refreshing that you, sir, ever wrote to the three tribes advising them of this February 8th meeting?
Mr. SKIBINE. Well, I think I wrote the letter for——
Mr. BENNETT. You drafted it for Mr. Duffy.
Mr. SKIBINE. Right.
Mr. BENNETT. Mr. Skibine, you are aware, are you not, of the civil litigation, obviously, in the Federal court in Wisconsin, and the opinions by Judge Barbara Crabb with respect to political influence in the decisionmaking process in this case?
Mr. SKIBINE. I am——
Mr. ELLIOTT. Just a minute. Just a minute, Counsel.
Mr. SKIBINE. I'm aware of the litigation, but I cannot really talk about the opinions.
Mr. BENNETT. Let me put, if I can, up on the projection screen the two quotes from her. One quote, and I will lead in with another just to highlight your recollection on this point, sir, if I can.
Judge Crabb has said in an earlier portion of the opinion, I believe—and this Judge Crabb is a respected jurist from Wisconsin, appointed by President Carter to her position, Mr. Skibine. She states in the opinion, ''I believe there is a distinct possibility that improper political influence affected this application.''
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And then the quote that's there on the television screen here in the hearing room: ''There is considerable evidence that suggests that improper political pressure may have influenced agency decisionmaking.''
Would you agree with Judge Crabb that improper political influence may have been involved in this matter, Mr. Skibine?
[The information referred to follows:]
INSERT OFFSET FOLIOS 62 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. Can you repeat the question, please?
Mr. BENNETT. Would you agree with Judge Crabb that improper political influence may have been involved in this matter?
Mr. SKIBINE. No, I have no knowledge of that.
Mr. BENNETT. Well, in fact, Mr. Skibine, according to the testimony we've heard here yesterday, as well as some affidavits I will place on the projection screen, you yourself have previously made comments about the political influence killing this application; haven't you?
Mr. SKIBINE. I don't think so.
Mr. BENNETT. Directing your attention, sir, to a meeting in Wisconsin with the Lac Courte Oreilles, at the Lac Courte Oreilles Indian reservation on December 3, 1996, do you recall being asked at that meeting—first of all, did you attend that meeting, Mr. Skibine?
Mr. SKIBINE. Yes, I did.
Mr. BENNETT. Do you recall being asked at that meeting why the Department of the Interior did not approve the application for casino gambling at the Hudson Dog Track facility?
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Mr. SKIBINE. No, I do not.
Mr. BENNETT. Do you know whether or not you were asked why?
Mr. SKIBINE. I do not recall being asked that question.
Mr. BENNETT. Would it surprise you to know that there were people who were present there who have testified, Mr. Havenick testified yesterday, Chairman Arlyn Ackley of the Mole Lake Band testified specifically that you made comments about politics in Washington causing the rejection of the Chippewa application?
Mr. SKIBINE. Yes, it would surprise me. If I may——
Mr. BENNETT. Do you know those comments were made yesterday?
Mr. SKIBINE. Do I know those comments were made? Yes, I do.
Mr. BENNETT. Did you watch the proceedings yesterday on C–SPAN?
Mr. SKIBINE. I watched some of it.
Mr. BENNETT. I think we got preempted on television a little bit yesterday on some other matters, but in case you watched on C–SPAN, what is your response to Chairman Ackley and to Mr. Havenick?
And in fairness to you, sir, let me place on the projection screen three affidavits. And recently, this morning, there are additional affidavits. But just initially the affidavits of, first of all, Mr. Fred Havenick, owner of the dog track, these are exhibits, Counsel, 354–1, 2, and 3, and there are three other affidavits that are being marked and will be placed in the record.
[Exhibits 354–1, 354–2, and 354–3 follow:]
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[The official committee record contains additional material here.]
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Mr. BENNETT. So you understand the framework of the question, Mr. Skibine, the affidavits are Mr. Fred Havenick, the owner of the dog track, a Mary Ann Polar, treasurer of one unsuccessful tribe, and Mr. Peter Liptak, another tribal official. All of these people have submitted sworn affidavits to this committee essentially saying that you made comments to the effect that your staff had approved the application of the Chippewa Indians, but that when it got to Washington, I think all three of them refer to ''politics took over,'' and the application was rejected.
In light of those affidavits, sir, are you prepared to say that you did not make those comments?
Mr. SKIBINE. Yes. Let me——
Mr. BENNETT. So those affidavits would be false; is that correct, Mr. Skibine?
Mr. SKIBINE. Let me put this in context. We were contacted by the Lac Courte Oreilles tribe to come to Wisconsin to discuss with them the problems that the Wisconsin tribes had with the upcoming renegotiation of their Class III gaming contracts with the State of Wisconsin. And we agreed to come there to make a presentation about compact negotiation. At the same time, the tribes asked us to come and discuss with them, the three tribes, either the day before, to discuss with them and give technical advice on placing land in trust, in general.
We clarified to them that we could not and would not discuss the Hudson—the litigation involving the Hudson Dog Track at this meeting; that our attorneys had advised us that we would be unable to go up to Wisconsin to discuss the Hudson Dog Track matter since it was in litigation. We made that absolutely clear to the Lac Courte Oreilles tribe that this was not going to happen. And they told us that they would inform the other two tribes there that the litigation and whatever happened during the litigation of the Hudson Dog Track would not be discussed.
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Now, when we got there, and I was there with—it was myself, Paula Hart of my staff, on the Indian Gaming Staff, Nancy Pierskalla, another staffer on the gaming staff, Troy Woodward, an attorney in the Solicitor's Office who came to handle legal questions, and also to make sure that we did not stray into discussing the Hudson Dog Track litigation, as well as Tim LaPointe was there, he is the gaming coordinator with the Minneapolis area office, and Robert Jaeger, superintendent of the Great Lakes agency, and I think another BIA employee. Now——
Mr. BENNETT. Sir, I don't mean to cut you off. I only have but so much time to answer questions, and I'm just—ask questions, and I'm just trying to ask you, apart from what the meeting was supposed to be about, we have sworn testimony before this committee, in addition to three affidavits, people flat-out under oath saying that you made reference to political pressure in Washington. And I'm asking you, sir, if you deny ever saying that?
Mr. SKIBINE. Yes, I tossed and turned most of the night last night trying to think of what I could have said at this meeting so that it would have been misconstrued.
Mr. BENNETT. Of five different people; four different people.
Mr. SKIBINE. Yes. As to what I may have said that could have led them to make that statement. And I don't want to accuse here anyone of lying. It's not——
Mr. BENNETT. I'm not either, sir.
Mr. SKIBINE. Huh?
Mr. BENNETT. I'm not either.
Mr. SKIBINE. Right. So I'm not going to say that these affidavits are lies; I'm going to say that essentially they, as far as I can see, they must have misconstrued or misunderstood something that I was saying. And I was trying to see and recollect in our conversation what it is that we discussed. And I can tell you what we discussed, if you want.
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Mr. BENNETT. Well, I don't need you to go into the details. My point was you deny—you basically disagree with their contention?
Mr. SKIBINE. That's correct.
Mr. BENNETT. OK. And let me show you——
Mr. ELLIOTT. Mr. Bennett.
Mr. BURTON. Let me just say, Mr. Skibine, we want to be as fair to you as possible, but we want to make sure that you understand the gravity of the questions that are being presented to you.
We have six people who are at that meeting, three of them under oath, the other three in sworn affidavits, that you said that political pressure from above was brought to bear upon your decision that had been approved at lower levels.
Now, I want to make sure that you understand the gravity of the question and the gravity of your answer. You are saying you did not say anything like that?
Mr. SKIBINE. That's correct.
Mr. BURTON. Thank you.
Mr. ELLIOTT. Mr. Chairman and Mr. Bennett, we have declarations from the other Interior Department employees who were at that meeting, made under penalty of perjury, as we do under the Federal Rules of Civil Procedure, that indeed no statement like that was made at that meeting.
Mr. BENNETT. As far as I'm concerned, Counsel, you should seek to introduce those into the record. Mr. Chairman, I recommend they be admitted into the record.
Mr. BURTON. Without objection.
[The declarations referred to follow:]
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Mr. BENNETT. Mr. Skibine.
Mr. SHADEGG. Mr. Chairman, may we have copies?
Mr. BURTON. Yes. If you would submit those, we will give copies to the other Members. We will get copies of those. Can we get a staff member down there to do that?
Mr. BENNETT. Mr. Chairman, in light of some of that time, if I may have an additional few minutes, perhaps, in light of some of this delay?
Mr. WAXMAN. Wait, wait. I reserve an objection to that. On what basis is he going to get more time?
Mr. BURTON. We are not going to give any more time than the 30 minutes, Mr. Waxman. We will be here all day if we have to be. Just relax.
Mr. BENNETT. Mr. Skibine, if I can put up on the exhibit screen exhibit—well, don't put that up yet. Let me just ask one question, Mr. Skibine.
Your prepared statement that you read this morning noted that you became the Gaming Management Staff Director February 1995, and were involved throughout the signing of the final decision letter on July 14, 1995. And then I believe your statement, from which I'm reading and I think you read earlier, you say, ''I knew nothing and heard nothing during this period about any partisan political contributions given in the past or expected in the future.'' And then you say, ''As far as I know, the decision of the Department regarding this proposal was made entirely on the merits.''
I gather, sir, then, that from February 1995 up until July 14, 1995, that's the period about which—to which you were referring when you made your opening statement; is that correct, sir?
Mr. SKIBINE. That is correct.
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Mr. BENNETT. And as far as you were concerned during that period there was no politics involved?
Mr. SKIBINE. Not to my knowledge.
Mr. BENNETT. Let me show you exhibit 321 on the screen here in the hearing room.
According to these records, produced by the Department of the Interior, Mr. Skibine, this is an e-mail communication authored by you to members of your staff dated June 30, 1995. And if you will note there, sir, your e-mail communication from you to members of your staff says:
''Even if the Town of Hudson and the Town of Troy embraced the proposal, we may still not change our position because,'' and it says ''FO,'' and I assume that was meant to be of, it is a typographical error, because of ''political opposition on the Hill, largely generated by the Minnesota and Wisconsin tribes who oppose this acquisition.''
In light of reviewing your own e-mail in late June 1995, Mr. Skibine, is it still your position before this committee today that political opposition and political pressure had no place in the decisionmaking process with respect to this application?
[Exhibit 321 follows:]
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Mr. BURTON. Can you pull the microphone a little closer?
Mr. SKIBINE. Oh, I'm sorry. I think that the opposition of the Congressmen and congressional delegations was a factor that can be considered in denying an application under section 465. It certainly is something that we can rely on in making that determination. That doesn't mean that there was political pressure exerted, as long as they have a reasonable basis for their recommendation.
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Mr. BENNETT. And the political opposition of the Minnesota tribes, sir, would be based on what, other than their own economic self-interest?
Mr. ELLIOTT. Mr. Bennett, you're going to have to define politics for this witness.
Mr. BENNETT. I'm not sure if I can, Mr. Elliott. That's a very big question.
Mr. ELLIOTT. Well, it's your question.
Mr. BENNETT. Well, I think I will ask the questions and I don't intend to respond to you, sir, in trying to define politics.
Mr. Skibine, so you understand the setting here, sir, we are not here accusing you of any impropriety. The question here is a matter of whether politics came to bear in this decision.
We have noted affidavits from people that say you talked about it openly, were very candid about it in December 1996. You have now submitted affidavits from people who say they were at the meeting and you didn't make that comment. There is now an electronic mail communication from you, sir, to your staff, during the time period about which you just spoke a few minutes ago in your opening statement where you are talking about politics and political opposition. And I'm trying to clarify it.
It is still your position that politics didn't come into play with respect to the rejection of this casino?
Mr. SKIBINE. I think that maybe I misspoke on the e-mail. What I meant is the opposition of the Minnesota and Wisconsin tribes, based on their opposition to the Hudson casino.
Mr. BENNETT. Mr. Skibine, let's move on to another point, if we can. With respect to the Indian Gaming Regulatory Act and its application, there are essentially two standards that were discussed and can be discussed in more detail, I imagine later, two standards that have to be addressed; isn't that correct, whether it's in the best interest of the tribe applying for the casino and whether there is detriment to the surrounding community? Isn't that correct?
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Mr. SKIBINE. Under section 20 of the Indian Gaming Regulatory Act, if the off-reservation acquisition is subject to the two-part determination of section 20, then, yes, there is a two-prong test regarding this.
Mr. BENNETT. And looking at exhibit 328, which, in fact, is the rejection letter signed by Michael Anderson of your staff on July 14, 1995, that makes reference not only to the discretion of the Secretary of the Interior, Mr. Bruce Babbitt, but also makes reference to that particular act, doesn't it, sir, if you want to take a second to look at that?
[Exhibit 328 follows:]
INSERT OFFSET FOLIOS 72 TO 74 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. Can I correct something? Mr. Anderson is not on my staff.
Mr. BENNETT. I'm sorry, sir. What is Mr. Anderson's position?
Mr. SKIBINE. I think he is the Deputy Assistant Secretary for Indian Affairs.
Mr. BENNETT. I didn't mean to give you a promotion. Go right ahead.
In light of reviewing that letter, essentially it makes reference to applying that act and those standards to the denial and the rejection of the casino application, doesn't it?
Mr. SKIBINE. Yes, it does.
Mr. BENNETT. And, in fact, with respect to that application, Mr. Skibine, I think Secretary Babbitt, in his opening statement before the Senate Governmental Affairs Committee, has made the following comment, if this can be up on the projection screen—I don't think it's on the screen, but I will quote it for you. It says the Department based its decision solely on the criteria. I think Secretary Babbitt's exact comment is, the Department based its decision solely on the criteria set forth in section 20 of the Indian Gaming Regulatory Act.
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In fact, that is not really accurate, is it, sir? And in light of the deposition you gave, that is not a correct statement, was it, Mr. Skibine?
Mr. SKIBINE. That is true, that's inaccurate.
Mr. BENNETT. And why was that statement by Secretary Babbitt which he made before the Senate inaccurate?
Mr. SKIBINE. It is inaccurate because a ground for refusing to take the land into trust is a decision not to exercise the discretionary authority of the Secretary to take land into trust, pursuant to section 5 of the Indian Reorganization Act, 25 U.S.C. 465.
Mr. BENNETT. In fact, Mr. Skibine, with respect to the chronology of these events, you are aware, are you not, that the offices in Ashland, WI, as well as the Minneapolis, MN, office had approved this application; isn't that correct?
Mr. SKIBINE. No, they had made recommendations.
Mr. BENNETT. They had made recommendations. Excuse me, sir, they had not rejected the application; isn't that correct?
Mr. SKIBINE. That's correct.
Mr. BENNETT. They had not found any detriment to the surrounding community?
Mr. SKIBINE. That is correct.
Mr. BENNETT. If I can ask, you said you had no knowledge of any involvement of the White House with respect to the rejection of this application. Was that your testimony, sir?
Mr. SKIBINE. Yes, it is.
Mr. BENNETT. If I can have exhibit 317 placed on the screen, please, and the exhibit is there before you, Mr. Elliott.
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Looking at exhibit 317, Mr. Skibine, that is, in fact, a memorandum to Miss Jennifer O'Connor from Mr. David Meyers. Do you know Mr. Meyers, Mr. Skibine?
[Exhibit 317 follows:]
INSERT OFFSET FOLIOS 75 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. No, I do not.
Mr. BENNETT. Have you ever met him?
Mr. SKIBINE. No, I have not.
Mr. BENNETT. This is from the White House, and it reflects that Mr. Meyers spoke with Heather Sibbison regarding the status of the dog track application. And this memorandum is dated June 6, 1995. Who is Heather Sibbison?
Mr. SKIBINE. Heather Sibbison is a special assistant in the Office of the Secretary.
Mr. BENNETT. And works for the Department of the Interior?
Mr. SKIBINE. Yes, she does.
Mr. BENNETT. Do you know why Ms. Sibbison would be talking to people at the White House about this application?
Mr. SKIBINE. No, I do not.
Mr. BENNETT. Can you imagine any circumstance under which she would want to be talking to the White House and advising them of the status of a matter such as this?
Mr. SKIBINE. You would have to ask her.
Mr. BENNETT. You yourself could not provide any justification for that; could you, sir?
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Mr. SKIBINE. Excuse me?
Mr. BENNETT. I say you yourself could not provide any justification for that? You weren't on the phone talking to the White House, were you?
Mr. SKIBINE. I was not.
Mr. BENNETT. Let me show you, if I may, sir, in terms of the chronology here, to move through with my time, exhibit 317–A, which was the—this is, in fact, a draft memorandum prepared by Tom Hartman. Mr. Hartman is on your staff, correct?
[Exhibit 317A follows:]
INSERT OFFSET FOLIOS 76 TO 92 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. Mr. Hartman was on my staff.
Mr. BENNETT. And where is Mr. Hartman now assigned?
Mr. SKIBINE. He is assigned in the Indian Gaming Management Staff, but I no longer work there.
Mr. BENNETT. And, basically, in that draft memorandum, June 8, 1995, Mr. Hartman notes that he recommends—and look at the language if you want, sir, it is on the screen, and it is before you—that the Secretary, Secretary Babbitt, based on the following, determined that the proposed acquisition would not be detrimental to surrounding community. Do you see that language there, sir?
Mr. SKIBINE. Yes. Can I make one comment?
Mr. BENNETT. Go right ahead, sir.
Mr. SKIBINE. For future reference, those TVs on the table are—either my eyesight is absolutely horrendous, or they are totally unacceptable in terms of being able to see what is there.
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Mr. BENNETT. So noted. I apologize to you, sir.
Mr. SKIBINE. But Mr. Elliott has given me the documents.
Mr. BURTON. Do you not have the documents before you?
The WITNESS. Yes, I do.
Mr. BURTON. Well, refer to them, then, if you cannot see it on the screen.
Mr. BENNETT. In fact, it is clear, is it not, that in that draft there is a draft recommendation by a member of the staff that the Secretary must determine that the proposed acquisition would not be detrimental to the surrounding community; isn't that correct? That is the language there, isn't it?
Mr. SKIBINE. That's correct.
Mr. BENNETT. And are you aware of the fact, sir, and I understand you have not read all the legal documents in the court challenge in Wisconsin, but Judge Crabb, the judge in the civil case, has even commented upon the complete turnaround in the position of the Department of the Interior from the date of that memorandum, June 8, 1995, to the ultimate rejection. Are you aware that she has talked about that turnaround, sir?
Mr. SKIBINE. No, I have no recollection of that.
Mr. BENNETT. Let me show you, if I can, a series of e-mail communications from your office. Let's look first at exhibit 322, which is, I think, an e-mail communication, sir, to you from Heather Sibbison, the same individual who had been in contact with the White House.
Has Mr. Elliott been able to find that exhibit yet to put it before you?
[Exhibit 322 follows:]
INSERT OFFSET FOLIOS 93 HERE
[The official committee record contains additional material here.]
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Mr. SKIBINE. Yes, I have it before me now.
Mr. BENNETT. With respect to exhibit 322 placed before you, do you see—I note that she makes reference to not including in the rationale the opposition, or the opposing tribes, noting that regardless of what happens, the Minnesota tribes will still be against it. She also makes reference to the uneasiness of Mr. Collier. Who is Mr. Collier, sir?
Mr. SKIBINE. Mr. Collier was Secretary Babbitt's Chief of Staff.
Mr. BENNETT. And she makes reference to some tribes getting all the goodies at the expense of the other tribes. Do you see that language there?
Mr. SKIBINE. Yes.
Mr. BENNETT. I also note that she made a comment. I would like to get your reaction to this, sir, as a career Department of Interior employee. Theoretically, she says in her e-mail, theoretically they should all have equal opportunities.
Do you believe that the matter of the tribes having equal opportunities is just theoretical, Mr. Skibine?
Mr. SKIBINE. I'm not sure I understand the question.
Mr. BENNETT. I am not sure if I understand what she meant by ''theoretical.'' That is why I am asking you. She is talking about the raw opposition of the Minnesota tribes, and she says theoretically they should all be treated equally. And I am asking what your reaction is to that e-mail from a member of your staff to you whether it is theoretical that they should all be given equal opportunity.
Mr. SKIBINE. First, Ms. Sibbison is not on my staff.
Mr. BENNETT. I am sorry, Ms. Sibbison of the Department of the Interior. My question, sir, is not whether she is on your staff.
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Mr. SKIBINE. I want to make sure that all these people——
Mr. BENNETT. OK, fine. My question to you, sir, is noting that language, do you believe it is theoretical that the Indian tribes should all be treated equally?
Mr. SKIBINE. You know, I don't know what she meant by that or what Mr. Collier meant by that, and I don't even want to speculate on that.
Mr. BENNETT. And referring back to your e-mail, in June also, the matter of political opposition on the Hill, I gather that you don't deem that it is theoretical with respect to that type of opposition?
Mr. SKIBINE. With respect to——
Mr. BENNETT. I mean, my point is that your comment back to her—that your e-mail communication with respect to political opposition didn't address the matter of whether it is theoretical that they should be given equal opportunity?
Mr. SKIBINE. I think what I said in my e-mail is that for purposes of my draft letter, I wanted to keep in there, in refusing to take the land into trust under—to err on the side of discretion under section 465—to keep in there the opposition of the Minnesota tribes. And we don't have a list of the Minnesota delegation and their reasons, but that that was a factor that I certainly considered.
What she is saying here is that she disagrees with me, and she says that, in fact, if it is—if the three tribes come back with self-support from their local towns and Congressmen, the Secretary's office may look—might look at the proposition in new light.
Mr. BENNETT. Mr. Skibine, let me refer you—I am running out of time here. I am not trying to cut your answers short, but if I can have exhibit 323 up on the screen, please, that is an e-mail communication to you from Mr. Kevin Meisner. Again, I don't know if he's on your staff, but he's with the Department of the Interior.
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That e-mail notes to you, sir, that all objections of surrounding communities, including Indian tribes, are not enough evidence of detriment to the surrounding community, do you see that there, sir?
[Exhibit 323 follows:]
INSERT OFFSET FOLIOS 94 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. Yes, I do.
Mr. BENNETT. Let me ask you this in concluding, because my time is up, Mr. Skibine. At any point in time does your file reflect you contacting, you as the director of this office, contacting these Indian tribes which had applied for the casino and advising them of any problems; giving them an opportunity to cure any defects? Is there any letter from you, anything that would have given the Chippewa Indians an opportunity to cure any defects in their application?
Mr. SKIBINE. I think that we—on March 27th we sent the tribes a letter advising them of the extension of the comment period. We had several meetings with the tribes and with Mr. Havenick and Mr. Moody and Mr. Eckstein, and numerous telephonic conversations with tribal staff, where the problems that we had with the applications were communicated to them.
The file that was generated, or the record that was generated on the extended comment period was submitted to the three tribes, and I believe in the record they submitted their comments following review of the documentation.
Mr. BENNETT. Mr. Chairman, I believe I'm out of time. Thank you, Mr. Chairman.
Mr. BURTON. Mr. Waxman, you are recognized for 30 minutes.
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Mr. WAXMAN. Thank you, Mr. Chairman. First of all, I am going to yield to Mr. Cummings 3 minutes of my time.
Mr. CUMMINGS. Thank you very much, Mr. Waxman.
Thank you, Mr. Skibine, for appearing before this committee this morning.
Mr. SKIBINE. Good morning.
Mr. CUMMINGS. I represent an area of Maryland that is close to where you live, and I am also the ranking member of the Civil Service Subcommittee, and a Member that represents thousands of Federal employees, like yourself, that have dedicated their lives to serving the American public.
I read your deposition, and there are parts of it that trouble me deeply. I am not troubled by your answers, because I truly believe that you answered truthfully. I am troubled by the way you were interrogated for more than 7 hours. That is a long time.
It should be noted that your deposition before the Senate Governmental Affairs Committee took slightly less than 2 hours. In this committee's deposition you were questioned for nearly 7 hours without regular breaks. That is like a full-time job. And the deposition was continued to the following day.
The American public should know, and my colleagues should know, that this man is a diabetic, a condition that requires Mr. Skibine eat at regular intervals. I have often said we have one life to live, and this is no dress rehearsal, and this is the life. He was not able to do that, to address his medical needs during that 7-hour deposition.
During Mr. Skibine's deposition, he was accused of taking orders on how to rule on this application by one of my colleagues on the other side of the aisle and of being—and was accused of being undemocratic. Undemocratic. For that, Mr. Skibine, I am truly sorry.
I think it is admirable that you joined the Department of the Interior more than 20 years ago because you were interested in Indian affairs and because of your Indian heritage, and you thought you could serve your country, serve your people, and do it with integrity and dignity. Throughout your 20-year career, this is the first and only time either publicly or privately that your integrity in applying the law and in performing your duties as a career servant has been challenged.
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I believe that you made your decision because you felt under the law and under the facts presented that it was right. I thank you again, and I yield back the time to Mr. Waxman.
Mr. WAXMAN. Thank you very much, Mr. Cummings.
Mr. Skibine, I am going to play——
Mr. SKIBINE. Good morning.
Mr. WAXMAN. Good morning. Thank you for being here.
I am going to play the role that Mr. Bennett, the counsel, played on the other side just to get some of the facts on the record, but I am also an elected Member of Congress and a member of this committee, and I want to get to the truth of the matter. That seems to me our only objective. It shouldn't be to badger you or try to pressure you to say something that is not accurate.
You have been with the Department of the Interior since what year?
Mr. SKIBINE. 1977.
Mr. WAXMAN. And you have been involved in Indian issues for much of that time; is that correct?
Mr. SKIBINE. Yeah, for all of it.
Mr. WAXMAN. And you have been with the Department for a little more than 20 years total, when we look at coming in 1997. You have served, therefore, both Democrats and Republicans. You are a career civil servant. You were not appointed as a political appointee, were you?
Mr. SKIBINE. No, I was not.
Mr. WAXMAN. Is it correct to say that during your career you have attempted in your various positions to improve the livelihood of the American Indian?
Mr. SKIBINE. Yes, that is part of the mission of the Bureau of Indian Affairs.
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Mr. WAXMAN. You were at the center of the Interior Department's consideration of the application by these three tribes, with Mr. Havenick, for the Department of the Interior, to take them on as a Federal—under Federal aegis so that they could open up a Las Vegas style casino?
Mr. SKIBINE. That's correct.
Mr. WAXMAN. In fact, you were the career civil servant at the Bureau of Indian Affairs responsible for making the final staff recommendation on this matter?
Mr. SKIBINE. That is correct, yes, in the Indian gaming office.
Mr. WAXMAN. OK. You also supervised the career staff at the central office who reviewed the application?
Mr. SKIBINE. That's correct.
Mr. WAXMAN. So if anyone is in a position to know of improper political influence, it is you?
Mr. SKIBINE. If there was improper political influence brought to bear on the Indian gaming office, yes.
Mr. WAXMAN. OK. And your judgment was this decision was made on the merits and only on the merits?
Mr. SKIBINE. My judgment is that my recommendation was made on the merits.
Mr. WAXMAN. OK. Was the decision to deny the application based on the recommendations of career staff, including yourself?
Mr. SKIBINE. I wrote my recommendation on June 29, 1995, and it was the blueprint or the basis that was used for the final decision issued July 14, 1995.
Mr. WAXMAN. Now, I asked the chairman of this committee to allow Hilda Manuel, sitting behind you, to testify. Is she your superior?
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Mr. SKIBINE. She was my supervisor when I was the Director of the Indian gaming office, yes.
Mr. WAXMAN. Her deposition was taken, and it is now part of the record, so people can read it, but had she been allowed to testify, she would have said that she had been in the Department since 1991, when Secretary Lujan was the head of the Department of the Interior, and she was not aware of any political contributions by the tribes opposed to the casino; and that she talked to Secretary Babbitt, and Secretary Babbitt did not take a position on the issue and did not want to be briefed on it. He said it was my responsibility, is the quote from Hilda Manuel. And the recommendation to reject the application was made by career civil servants. The decision was based on the record, and she agreed with it.
I think it would have been helpful for us to have that testimony. You have never talked to Secretary Babbitt, I assume?
Mr. SKIBINE. I have not.
Mr. WAXMAN. But she had, and, according to her testimony under oath, she said Secretary Babbitt said, you take care of it. You're the ones in charge.
Now, that story contradicts what the message the Republicans who run this committee want to get out. It may be the truth, but it is not the message they want out.
Now, we had Fred Havenick here yesterday, and he has been attacking the Department of the Interior for more than 2 years in an effort to overturn the Hudson decision and develop his casino. In all that time he never, at least to my knowledge, made any accusations about you. But yesterday at our hearing he described a December 3, 1995, meeting that he and several tribal officials had with you and other Interior Department officials at the Lac Courte Oreilles reservation in Wisconsin.
And according to Mr. Havenick, you said at that meeting that politics killed the application. I also understand that four tribal participants gave affidavits that say essentially the same thing.
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Now, Mr. Bennett asked you about it. I would like to give you a chance to respond. Did you ever say at that meeting that politics killed the application?
Mr. SKIBINE. No, I don't recall saying that.
Mr. WAXMAN. Did you say in any other way that politics was responsible for the Interior Department's rejection of the Hudson application?
Mr. SKIBINE. No, I—and I'm not accusing Mr. Havenick of lying. The only thing, as I said to the chairman, is that he may have misconstrued something I said, and if that happened, then, I'm very sorry.
Mr. WAXMAN. Well, you are being very kind. But let's face something, and I am not asking you a question, but let's face the fact that Mr. Havenick, and all the people that submitted affidavits that are contrary to your statement, all had a financial interest in overturning this decision by the Department of the Interior.
Now, at the meeting with you was Troy Woodward; is that correct?
Mr. SKIBINE. That is correct.
Mr. WAXMAN. And was Tim LaPointe there?
Mr. SKIBINE. That's correct.
Mr. WAXMAN. And Paula Hart?
Mr. SKIBINE. That is correct.
Mr. WAXMAN. Robert Jaeger?
Mr. SKIBINE. Right.
Mr. WAXMAN. Nancy Pierskalla?
Mr. SKIBINE. Correct.
Mr. WAXMAN. Now, I have affidavits from these people. Robert Jaeger said,
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I, Robert Jaeger, under penalty of perjury hereby declare the following to be true to the best of my knowledge and belief. I have read the affidavits dated January 16, 1998, executed by Arlyn Ackley, Sr., DuWayne Derickson, Mary Ann Polar, and Peter A. Liptak, collectively called the affidavits. The affidavits relate to this meeting on December 3. I attended the meeting with Diane Rosen until approximately 3 p.m. I do not recall a statement by George Skibine, or any other attendee from the Department of the Interior, to that effect; that politics was responsible for rejection by the Department of the application of the three Chippewa tribes in Wisconsin to take land in Hudson, Wisconsin, into trust for gaming purposes.
Same statement by Paula Hart:
I attended the meeting, and there was no statement by George Skibine or any other attendee from the Department of the Interior to the effect that politics was in any way responsible for rejection by the Department of the application.
Same thing with Tim LaPointe. He said there was no statement by George Skibine or any other attendee to the effect that politics was in any way responsible for the rejection of this application.
And Troy Woodward says the same thing, and Nancy Pierskalla says the same thing.
We have made these already a part of the record. This is what the chairman put to us a few minutes ago for a unanimous consent request.
These are people who are career civil servants. They were at that meeting, and they have all said that. Even though you have racked your brain, did you say something that was misconstrued? They were at that meeting, and they never heard you say what is now later being alleged that you said, as those people who are claiming it are trying to get the decision overturned on the basis that there was some kind of political interference.
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Mr. Havenick made another allegation yesterday never before heard. Apparently he and his publicist, or attorney, or whoever handles his strategies, kept quiet about it for 2 years during litigation on the Hudson casino matter and during the entire course of the Senate's investigation. He said he talked with Terry McAuliffe after the decision had been made, and Terry McAuliffe, not knowing that Mr. Havenick was behind the casino project, took credit for killing it.
Did you ever discuss the Hudson application with Terry McAuliffe?
Mr. SKIBINE. I do not know Terry McAuliffe, sir.
Mr. WAXMAN. Did you ever discuss it with anyone acting on Mr. McAuliffe's behalf?
Mr. SKIBINE. Not that I know.
Mr. WAXMAN. Don Fowler; do you know him? Did you ever talk to him?
Mr. SKIBINE. No, I do not know him, nor have I talked to him.
Mr. WAXMAN. Did you talk to anybody from the Democratic National Committee or the Clinton-Gore 1996 campaign on this issue?
Mr. SKIBINE. No, I have not.
Mr. WAXMAN. Do you have any reason to believe that Terry McAuliffe or any outside interest affected the decision in the Hudson casino matter?
Mr. SKIBINE. No, I have not.
Mr. WAXMAN. Now, there is political interference, and sometimes it is appropriate and sometimes not. I gather the delegation from Minnesota in the House of Representatives didn't like this request to have a casino a few 30 miles away from St. Paul, because they just thought it would interfere with the concerns of the local people. Did they raise an issue with you?
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Mr. SKIBINE. They raised this issue, yes.
Mr. WAXMAN. Now, these are elected officials raising concerns about their constituents.
Mr. SKIBINE. That's correct.
Mr. WAXMAN. Is that unusual?
Mr. SKIBINE. That is not unusual at all, no.
Mr. WAXMAN. Do you consider that political interference?
Mr. SKIBINE. No. I think that, in fact, since I have been in the Gaming Office after Hudson, well, I think that when an issue, an Indian gaming issue, arises, and especially relating to plans by an Indian tribe to build a casino on—close and on Indian communities in general, the local Representatives—the U.S. Representative in that district will contact us to discuss this issue. I think that——
Mr. WAXMAN. Now, when we make judgments as to what is appropriate political interference and what is not, there is a line to be drawn, because we represent our constituents. We represent points of view that we want people in the Government bureaucracy to know about.
But I have a report from the Roll Call newspaper, and the chairman of this committee was accused, after having gotten a contribution from a medical school called Ross Medical School, and after having gotten his daughter into the school, of calling in the head of the Department of Education—I may be wrong about whether his daughter got into the school or not.
Mr. BURTON. Will the gentleman yield, since you referred to my daughter? My daughter is married. She is a pharmaceutical representative. She did not go to that medical school, period.
Mr. WAXMAN. Then I am mistaken.
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Mr. BURTON. And in no——
Mr. WAXMAN. I am on my time, Mr. Chairman.
David Longanecker, the Clinton administration's Assistant Secretary for Postsecondary Education, said in an interview with Roll Call that he was summoned to a meeting with Burton and six other Members of Congress last July 18. The meeting was called to discuss all medical schools in Dominica, but Longanecker said Ross University was a prime topic of conversation. Burton confirmed that six other Members attended, but he didn't reveal their names.
The meeting occurred 6 days after Ross's wife, Ann, contributed $1,000 to Burton's campaign, according to the Federal Election Commission records. Ross had already contributed $1,000 to Burton's campaign in July 1995.
My point is this: If you want to make things look ugly, if you want to say things are wrong, that there is improper political interference, you can say it. Now, the chairman disagrees, but if he had been a member of the Clinton administration using his influence in this kind of circumstance, we would probably have a whole hearing on the matter, even though Mr. Burton would argue that it was appropriate for him, and it may well be, to interfere in the decision that is being made by the Department of Education, not on anything that had to do with his constituents, but on some campaign contributor's concern about an application before the Department of Education.
Mr. Skibine, your attorney made a statement about the poor treatment you received by this committee, and I think we ought to give him an opportunity to make his comments, and I want to call on your attorney who is sitting at the table if he wishes to make a statement in this regard.
Mr. ELLIOTT. Thank you for the opportunity, Mr. Waxman. I will be brief.
Mr. BURTON. The attorney is not a witness, and the attorney will not make a comment. It is up to Mr. Skibine. You have not been sworn. You are not a witness before this committee.
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Mr. WAXMAN. Mr. Chairman, yesterday Mr. Havenick's lawyer was permitted to give testimony before the committee, and he was not sworn.
Mr. SOUDER. Parliamentary inquiry. Parliamentary inquiry.
Mr. BURTON. Who is making the inquiry?
The gentleman from Indiana is recognized.
Mr. SOUDER. I was in the Chair when you left, and my understanding was that our precedent is that counsels can make supplementary statements, but to ask them direct questions and give the statements is going beyond where I think we were yesterday.
Mr. BURTON. One second, we will chat with our parliamentarian.
Mr. WAXMAN. Well, perhaps I can resolve it by simply asking questions rather than having him give statements.
Mr. BURTON. Just 1 second, we will check with our parliamentarian. We will not take away from your time, so relax.
The rules of the House according to our parliamentarian do not allow direct questioning of legal counsel. He is here to advise his client and his client is to respond.
Mr. WAXMAN. When we had David Wang before this committee, the chairman allowed Mr. Wang's attorney to make a lengthy statement about his client's rights, and we can look, I refer you to the record on that issue.
Mr. BURTON. If I did, I was in error. The rules of the House will be followed by this committee henceforth.
Mr. WAXMAN. It appears, Mr. Chairman, the rules are invoked when it is to our detriment but they are ignored when they are to your advantage. Mr. Skibine——
Mr. SOUDER. I would like to make a parliamentary point and not take it from Mr. Waxman's time. Yesterday it was not the Republicans who were asking the questions of the counsel. It was Mr. Waxman. If it was lenient, it was to his benefit.
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Mr. BURTON. The rules of the House will be followed.
Mr. WAXMAN. As I understand, Mr. Elliott wanted us to know that he has practiced law since 1964. He has been a career civil servant with the Department of Interior since 1974. Over the past 2 months he accompanied current and former employees of the Department to depositions in this and the Senate's investigation. And Mr. Skibine testified voluntarily at his depositions and he is fully prepared to do so here without a subpoena.
Despite the fact that your resolution for this investigation states that the investigation is being conducted to look into political fund-raising and possible violations of law, there has been a decided lack of interest in getting at the truth, of finding whether there may have been violations of law. Rather, from the manner of examination of the witnesses, the majority staff and at least one Member of Congress questioned deponents as if their conclusions were predetermined.
For example, Mr. Skibine testified for some 4 hours at his Senate deposition on these matters. Then he testified again for over 7 hours before the staff of this committee. Time and again his judgment and the recommendation he made was questioned. Once he stated the facts leading up to and involved in his recommendation, he was repeatedly asked why he did not do things differently. He was, in my view, according to his lawyer, badgered, but he continued to state he had exercised his best judgment. Despite representations to his lawyer that there was no intent to cover ground already covered in the Senate deposition, staff repeatedly questioned him on matters covered before the Senate.
Congressman Horn attended his deposition for the first 7 hours. Regrettably Mr. Horn impugned Mr. Skibine's integrity and made assertions about his testimony with no basis in fact for them. Mr. Skibine and I both resent the Congressman's statements.
It has been my experience and the research I have done bears out that in the courts of this country witnesses are provided copies of their prior testimony or depositions to use to prepare themselves for further testimony, yet we have had to beg and argue to the point of invoking principles of fundamental fairness to citizens of this country in our attempts to assure that the witnesses were afforded this right in this investigation. It should boggle the mind of every member of this committee that individuals are treated this way.
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Finally, I attempted to have another member of the Solicitor's Office more knowledgeable than I about our litigation accompany me to at least one deposition so as better to protect the position of the United States in our ongoing litigation. I intended to do so for witnesses who have filed affidavits in the litigation and will likely testify in the case. This was denied. I believe such added representation was appropriate, especially in light of representations by the staff that they had no intent to inquire about issues in litigation. I find it difficult to believe that the committee countenances a refusal to allow this added protection of a witness from potential perjury.
I trust it is the committee's intent to get at the truth rather than a predetermined result in this case. All of our witnesses today and next week are devoted to reiterating the truth as they have already related to the staff in their prior testimony.
This according to Mr. Timothy Elliott.
Mr. Skibine, you are a career civil servant. You have given us your testimony that you used your best judgment. I apologize to you if you are telling the truth, that you have been badgered, and I expect you are going to have to prepare yourself to be badgered for quite a while today because as this committee has operated in the past, Republican members have badgered witnesses unless they say exactly what they want them to say. That is to me inappropriate. It is unfair. It is not the way things should be done.
I want you to know that if your integrity is being called into question, you appropriately should feel concerned about it. But you should accept that what goes on in this committee is politics. Maybe not in the decisions that you made, but in this committee it is politics.
Your testimony, just so we understand it, it is very clear, you have said that as a public servant your integrity has never been called into question. Is that accurate?
Mr. SKIBINE. That is true.
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Mr. WAXMAN. And your testimony further is that your decision was made on the merits without any political interference. Is that accurate?
Mr. SKIBINE. That's correct.
Mr. WAXMAN. Well, that is the point of this hearing. That is what we are all here to discuss. Yesterday all the members on the other side and some maybe on our side said, ''Whoa, I am against gambling. This decision was absolutely right, but we think the decision was made for the wrong reasons.''
Yet they haven't been able to show it is for the wrong reasons except for those who didn't like the decision. That is what we are faced with, people who didn't like the decision now filing affidavits and making claims, sometimes quite late, because they didn't raise it earlier, about alleged political interference in this decisionmaking.
Now, I want to, in the time I have, yield to some of my colleagues. And I don't know how much I do have. May I inquire how much I do have, Mr. Chairman?
Mr. BURTON. Eight minutes.
Mr. WAXMAN. I have 8 minutes. I want to put something on the screen. This is an excerpt from your deposition, January 13, 1998.
Representative Horn: ''Isn't it a fact that no matter what question we raise, we are wasting our time because you were given an order as to how to come out on this?''
And your answer:
That is not true. That is not true. That is simply not true. I came up with my recommendation on June 29th. Those were my views at the time based on my examination of the record. No one told me, ''You are going to go and write this letter that way.'' That just didn't happen.
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Now, I must say for a Member of Congress to badger a witness because he is not getting the answer he wants is very, very disturbing to me. Maybe we can just say, like a lot of people say when they do not get the answer they want, it is politics. But I do not think that is the way Members of Congress ought to be conducting an examination or an investigation where they are presumably trying to get to the truth.
I have time to yield. Mr. Lantos, I want to yield to you now and let you pursue questions for 5 minutes, although it may well be then appropriate to let other Members——
Mr. SUNUNU. Would you yield for a moment, Mr. Waxman?
Mr. WAXMAN. Who is asking me to yield?
Mr. SUNUNU. I am.
Mr. WAXMAN. Yes.
Mr. SUNUNU. Just because of the testimony you have put on the screen, I think it is timely, I would just take a moment to call your attention to another part of the exhibit record which is 324, a memo dated July 6, the fourth paragraph of which states clearly, the upshot of the meeting attended by Mr. Anderson——
Mr. WAXMAN. Whose affidavit is this?
Mr. SUNUNU. This is not an affidavit. It is part of the record, exhibit 324.
Mr. WAXMAN. Can you identify that exhibit, what it is?
Mr. SUNUNU. It is a memo describing a meeting on the issue of the Hudson Dog Track attended by Mr. Duffy, someone named Heather, I guess that is Sibbison, Bob Anderson and Troy. It says, ''We discussed George's letter.''
The fourth paragraph: The upshot of the meeting was that ''Duffy wants the letter rewritten to include further reason for denying,'' et cetera. I would only present that as an indication that possibly there was a request to change the finding either on or after June 29th.
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Mr. WAXMAN. I appreciate what the gentleman is raising, and let us put that to the witness because you are the one who was in charge of this whole decision. Was this possibility accurate? Was there an interference by Mr. Duffy or somebody in politics, as the gentleman from New Hampshire suggests might be possible?
Mr. SKIBINE. There was no interference with my June 29th recommendation. And there were changes made after my June 29th recommendation before the final decision was signed by Mr. Anderson.
Mr. WAXMAN. Did those changes go to the decision or did they go to how the decision would be articulated?
Mr. SKIBINE. It goes to the reason for the decisions. It doesn't change the ultimate result not to take the land into trust. It really goes to whether the Department should rely on section 20 of the Indian Gaming Regulatory Act as well as refusing to take the land into trust under DIRA.
Mr. WAXMAN. I thank my colleague for raising this point so we can have it clarified. I hope the Members of the other side will see that we are willing to yield to them if they have a pertinent point. I have found that so far my experience is that the Republican Members have never been willing to yield to me, so I hope we will see that change.
Mr. SKIBINE. Can I make a comment before I forget on something, Mr. Waxman, that you said before? I want to point out that I do not feel that I was badgered by the chairman or by the counsel, and I certainly hope that the rest of these proceedings will not change in that sense and that we are not going to go as long as we did in my deposition.
Mr. WAXMAN. Well, you are a diabetic. If you have special needs, you ought to let the chairman know because I am sure he will be considerate of it.
Let me ask you one other question, because you are under oath, and let's get this pinned down: Do you have any knowledge of any cover-up in the Department of Interior about political interference that might have been brought to bear in this decision that was made?
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Mr. SKIBINE. No, I do not.
Mr. BURTON. If the gentleman requires a break after this series of questions, we will be happy to give him one.
Mr. SKIBINE. I am doing fine right now, thanks.
Mr. WAXMAN. I want to yield to Mr. Lantos if he wants to take time. Otherwise I will yield to other Members.
Mr. LANTOS. I would suggest, in deference to Mr. Skibine, that we take a break, and I would like to take my 5 minutes after.
Mr. WAXMAN. He doesn't want to break. Let me yield to other Members that may want to—Mr. Kanjorski? Mrs. Maloney? You will await your 5-minute time. Mr. Barrett?
Mr. BARRETT. Thank you, Mr. Chairman.
Mr. Skibine, how do you feel about being here?
Mr. SKIBINE. Well, as I stated in my opening statement, I think it is my duty as an American and as a civil servant to appear before this committee in its investigation of this matter, and I am here to give the record of my involvement and I hope it will be helpful.
Mr. BARRETT. You said you had trouble sleeping last night, you were tossing and turning because of your attempt to try to figure out how four or five people could file an affidavit saying something that you have testified today you didn't say. You haven't said whether you have sort of come up with a theory as to what they heard or what they thought they heard, because you seem to be very gracious to them in thinking that there may have been a mistake. Could you tell us maybe what your thoughts are?
Mr. SKIBINE. Well, as I started to explain with the majority counsel, what we were there for was to essentially give them technical advice on putting land into trust. But when we got there it became quite clear that they did not want to talk about that. They wanted to talk about Hudson, and we told them that we could not talk about Hudson because it was under litigation. And in fact we said that; we specifically had told the Lac Courte Oreilles Tribe that we were not going to discuss Hudson.
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So we proceeded to discuss the issue of putting land into trust. We were talking in terms of the hypothetical placement of land in trust, and I think they were essentially talking about Hudson without saying so. And of course they wouldn't be, Mr. Havenick was there not for the purpose of hearing about the tribe putting land into trust elsewhere.
So what I think one of the issues we told them is that look, if you want to take land into trust off reservation, I think that it is very important that you obtain the support of the local community. And without having local political support, you will—you know, the application will be in trouble.
And Mr. Havenick didn't—was very distraught by that because he said, well, we have—we know what the town of Troy thinks, and they haven't changed their mind. We know what the city council of Hudson thinks and they haven't changed their mind, so essentially we are not going to go anywhere.
And my comment was, you know, that without local political support there is going to be a problem.
Mr. BARRETT. Do you think that that is an accurate assessment of this type of proceeding? Do you think you were giving them good advice?
Mr. SKIBINE. Was I giving them good advice? I hope so. I was doing the best I can.
Mr. BARRETT. I would share your feeling that I think that the political input is always going to be part of this. Have you or your Department—do you know of any opposition that you have received on other attempts to put land into trust by other Members of Congress other than those in this case?
Mr. SKIBINE. Can you repeat the question?
Mr. BARRETT. In this case we have had opposition I think perhaps from the entire Minnesota delegation, at least those who have gone on the record; from all of those in the Wisconsin delegation who have gone on record, have been in opposition to this. Is that unusual, or in other States do you see opposition or support, for that matter, from Members of Congress?
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Mr. SKIBINE. We see both, yes.
Mr. WAXMAN. Because the time is up, I want to say one thing to add to the record.
Mr. BARRETT. Sure. Let me yield back to Mr. Waxman.
Mr. WAXMAN. Because if we had also had Hilda Manuel testify, she would have said the Washington office rejects the area office's recommendations quite frequently. There is no difference than the decisions under Secretary Lujan. That issue came up yesterday. People said this is extraordinary, that the local offices's decision was overturned. It is evidently not so remarkable.
Mr. Skibine, you are here as a career public employee. You have said to us you have made your decision on the merits without political interference. Is that your clear, unequivocal testimony?
Mr. SKIBINE. Yes, it is.
Mr. WAXMAN. Thank you. And thank you, Mr. Barrett.
Mr. BURTON. The gentleman's time has expired. Mr. Skibine, would you like to take a break right now? We are going to have questioning for some time, if you would like to have a break.
Mr. SKIBINE. A break right now is OK.
Mr. BURTON. OK, we will take 5 or 10 minutes.
We stand in recess until the fall of the gavel.
[Recess.]
Mr. BURTON. The committee will come to order. We will break at 12:15. Mr. Skibine, because of his health concerns, would like to have lunch at that time. So we will break at 12:15 and will be back promptly at 1. I would like to start at 1 because we have a lot left on the agenda.
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I am going to take the first 5 minutes, if I might.
Mr. Skibine, I want to direct your attention to a couple of memos, exhibit 324 and exhibit 326–A–1. My colleague brought to your attention a memo concerning a July 5, 1995, meeting that was attended by John Duffy, Heather Sibbison, Bob Anderson and Troy Woodward, I believe. The upshot of the meeting was that Duffy wanted the letter rewritten to include a further reason for denying to take the land into trust under section 20, because the consultation process resulted in vehement and widespread local government and nearby Indian tribes opposition to locating the casino at this site. Mr. Duffy was the counsel to Mr. Babbitt; correct?
[Exhibit 324 follows:]
INSERT OFFSET FOLIOS 95 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. That is right.
Mr. BURTON. And Mr. Duffy left the Interior Department and went to work for the Shakopee Tribes as a representative for them in a law firm; correct?
Mr. SKIBINE. My understanding is that he went to work with a law firm in Washington, Steptoe & Johnson.
Mr. BURTON. That is right, but he represents the Shakopee Tribes, as does Mr. Collier who was the chief of staff. They both left after all this took place and went to work for this law firm and they now represent the Shakopees. Is that correct?
Mr. SKIBINE. I am sure about Mr. Collier. I think that Mr. Duffy represents the Shakopee Tribes on some matters.
Mr. BURTON. OK. Well at this meeting, Mr. Duffy, who went to work for the Shakopees, wanted the letter rewritten. And at that meeting was Duffy, Heather Sibbison, Bob Anderson and Troy Woodward. Did you ever talk to any of those people about the letter, about the rewriting of the letter?
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Mr. SKIBINE. About the rewriting? No.
Mr. BURTON. You didn't talk to any of those people?
Mr. SKIBINE. No, let me tell you for the record, I drafted my recommendation on June 29, 1995. And that is in the record. I subsequently went on vacation and then I came back over the weekend. I came in the office. I did ministerial—incorporated some changes from my draft that were left, and I subsequently immediately left to go to Denver on another matter. And the only one I talked to during that time in Denver was Mike Anderson.
Mr. BURTON. OK. Now I would like to direct your attention to 326–A–1. This is a memo from you, George Skibine, dated 7/8. And I am not sure to whom it was sent but it says ''to Mr. Meisner.'' It said, ''You should get a redrafted version of the Hudson letter first thing Monday morning. I hope it meets Duffy's directions.'' What does that mean?
[Exhibit 326A–1 follows:]
INSERT OFFSET FOLIOS 96 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. What it means I think is that when I did come back from vacation I found in my box, in my in box, a corrected draft with a bunch of requirements, whatever, changes.
Mr. BURTON. From who?
Mr. SKIBINE. Who put it in my box?
Mr. BURTON. You said there was requirements or changes. Who——
Mr. SKIBINE. I think that it was from an e-mail that is in the record. I think those were Heather Sibbison's and John Duffy's suggested changes.
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Mr. BURTON. OK, John Duffy's suggestion. Mr. Duffy now works for the Shakopees and is making a lot of money at that law firm from the Shakopees. I believe he has helped facilitate campaign contributions to the DNC from the Shakopees which you may not be aware of, but you say in your memo, ''You should get a redrafted version of the Hudson letter first thing Monday morning. I hope it meets Duffy's direction.'' Mr. Duffy was a political appointee who now works for the Shakopees. He gave you direction. You say, ''I hope it meets Duffy's directions.'' So the letter—now, wait a minute, that is what your memo says.
I don't understand how this squares with no political influence was utilized, because Mr. Duffy went to work for the Shakopees, and was a major help to the DNC with contributions, Mr. Duffy gave you a direction and you said so in your memo, and you changed the letter because of what Mr. Duffy said.
Now, then there is a letter from Kevin. It says, ''This letter did not come up Monday morning. It was sent directly to Heather and changes were made.'' The letter we are talking about is the letter that you changed. ''This letter did not come up Monday morning. It was sent directly to Heather and changes were made.''
Who is Heather, and did she help rewrite the letter that you have put your signature on?
Mr. SKIBINE. This is Heather Sibbison you are referring to?
Mr. BURTON. Yes.
Mr. SKIBINE. And what is the rest of the question? Did she help rewrite——
Mr. BURTON. It says, ''This letter did not come up Monday morning. It was sent directly to Heather and changes were made.''
Mr. SKIBINE. Right.
Mr. BURTON. They are referring, I presume, to the same letter that you were rewriting, because Mr. Duffy wanted you to rewrite it including things he wanted in there.
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Mr. SKIBINE. That is—that e-mail is not from me. It is from someone else.
Mr. BURTON. I understand. But is that the same letter? I am talking about your——
Mr. SKIBINE. I don't know. You know, I can't speculate about that.
Mr. BURTON. My time has expired. But the point I am trying to make is that there was not supposedly any political interference. Mr. Duffy was a political appointee. Mr. Duffy went to work for the law firm. Mr. Duffy instructed you, because you said you hope it met with Duffy's directions. Mr. Duffy instructed you, directly or indirectly, to rewrite the letter. And you did it according to his directions and you said, ''I hope this meets with Mr. Duffy's requirements.'' If that doesn't smack of political influence, then I don't know what does.
Mr. Lantos, you have the time.
Mr. LANTOS. Let me clarify for the chairman his apparent confusion. The changes Mr. Duffy proposed related to legal reasons for the decision, not the substance of the decision. And your repeated emphasis of Mr. Duffy working for a law firm and having a lucrative position with a law firm conveniently forgets the chronology. Senator Dole is working for a law firm at a lucrative rate, and what his decisions were as a U.S. Senator preceded his work with the law firm.
I have grave reservations about the revolving door, but I think it is absurd to criticize an individual who is working for the U.S. Government for participating in the work of his Department while being on the Government payroll. Subsequently he went into the private sector. Many Members of this body and the Senate and many Presidential candidates do that. And I think it is an attempt to obfuscate the issue.
I would like to first, Mr. Skibine, identify myself with a statement of my good friend and distinguished colleague from Maryland, Mr. Cummings, when he indicated his respect both for you and for the Civil Service.
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I also want to express my regret that your counsel was not given an opportunity to make his statement. You are a quarter-century civil servant.
I would like to use my time, because I think the facts have been clearly established that you reached your decision on the merits of the case without any political interference. I would like to focus my remarks on the Republican counsel's feeble attempt to confuse the notion of what represents political interference. He referred to the meeting of the Minnesota congressional delegation which you attended presumably 3 days after you took this job. Well, the meeting took place 3 days after you took this job, so that is why you attended it 3 days after you took that job.
Apparently counsel does not understand that much of the work of Members of the Congress of the United States consists of representing their constituents and their communities. And it is preposterous, in my view, to deliberately attempt to confuse the work of Representatives on behalf of their constituents, which is clearly what Mr. Gunderson and Mr. Oberstar and other colleagues, both Republicans and Democrats, did in this instance, with what is the alleged purpose of these hearings; namely, the attempt to find out if improper campaign contributions influenced political decisions.
And since you were pressed on the notion as to whether your meeting with the Minnesota congressional delegation does not contradict your sworn statement that you did not reach your conclusion as a result of political pressure, I think it is important to delineate these two entirely different types of activities.
Every single member of this committee and every single Member of Congress represents and attempts to put pressure on the appropriate department of the administration with respect to his constituents and his district problems. We do that when we go before the Committee on Appropriations looking for funds to rebuild a washed-out highway in our district. This is represented by our attempt to obtain grants for our universities. This is not political pressure, this is the job of representative government.
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And what presumably the other side seems unable to prove, therefore they are shifting the ground, is that your decision was made without any interference whatsoever by the Democratic National Committee, by the White House, by any political arm of the Democratic party. Is that correct, Mr. Skibine?
Mr. SKIBINE. That is correct, yes.
Mr. LANTOS. So the political pressures that you were subjected to were the proper political pressures, i.e., statements by the Republican Governor of the State, the Republican Congressman of the district, the Republican State assembly person of the district, and these are the proper expressions of representative government in our society. Would you agree with that?
Mr. SKIBINE. I agree with that.
Mr. LANTOS. Thank you very much.
Mr. HASTERT. Mr. Skibine, I appreciate your being here today. I would like to just clarify a couple things. I certainly hope that you don't feel that you have been badgered, either here or any previous time.
You know, we have to go to defining what badgering is. I am not sure that—I mean, everybody would have a different defining. I happened to sit in this Congress 8 years in the minority and enjoyed sitting under my friend right here, Mr. Waxman, and sat under Mr. English and sat under Mr. Synar and sat under Mr. Dingell, and I can tell you, I don't think they ever badgered anybody but they certainly went to some extraordinary energy to make their points. And that happens in this business. So however we want to define that.
But I would like to get back just to the sequence that we talked about today. First of all, the major test that the applications for off-reservation gambling sites must meet is that there is no detriment to the surrounding community; is that correct?
Mr. SKIBINE. That is partly correct, partially correct. When an application is submitted to an area office and eventually to our offices for gaming, the following determinations have to happen. First, the Secretary has to make a decision on whether he wants to exercise his discretionary authority to take the land into trust, because the Indian Gaming Act is not a land acquisition authority. Land acquisition authority must be a congressional statute that authorizes the Secretary to take that land in trust for the Indians. In this particular case, the statutory authority to take the land into trust was section 5 of the 1934 Indian Reservation Act.
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Mr. HASTERT. So that would be one of the issues. I have only 5 minutes here.
Mr. SKIBINE. That is the first one. Then assuming that the Secretary determines that he does want to take the land into trust, to exercise that discretionary authority, he will then, if it is for gaming, have to comply with the requirements of the Indian Gaming Regulatory Act, in this case section 20, which requires if it is off reservation and none of the specific exceptions apply, it requires that gaming can only occur on the land if the Secretary determines, after consultation with nearby tribes and appropriate State and local officials, that the gaming establishment will be in the best interest of the tribe and not detrimental to the surrounding community and only if the Governor concurs in that determination.
Mr. HASTERT. So there has to be a concrete showing of detriment to actually—that either there is increased crime or increased traffic that the infrastructure for that area won't support; is that correct?
Mr. SKIBINE. Well, there has to be some reasons——
Mr. HASTERT. Is that generally correct?
Mr. SKIBINE. There has to be some reasons for the Secretary to make that finding.
Mr. HASTERT. You know, I come from an area, northern Illinois; there is gambling. It is not Indian gambling, but there is gambling. My good friends from Indiana will tell you that Indiana, northern Indiana, opened up gambling, and, boy, it really took the business away from Illinois, and it went to Indiana. I guess Indiana is a better place to go, but basically the population that was served was the greater Chicago area.
Now, that was made in a free market decision. People get the licenses from the States, and they go in and they apply, and the process goes forward. It is not a Federal agency that decides who gets this favor, who gets that favor. But when you apply this thing between Wisconsin and Minnesota, there was already Indian gaming or gaming sponsored by Indians controlled by the Federal Government in Minnesota; is that correct?
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Mr. SKIBINE. That is correct.
Mr. HASTERT. And when this thing in western Wisconsin, which is very close to Minnesota—it is a border of Minnesota—there was fear by one Indian tribe that their business would be taken away; is that correct?
Mr. SKIBINE. There were fears by many Indian tribes.
Mr. HASTERT. So in that fact then, there was a fear.
The Federal Government determines who gets these licenses and who doesn't; is that correct?
Mr. SKIBINE. No, there is no licensing involved.
Mr. HASTERT. Well, I mean who gets the trust to do this? You were a part of whether that site was going to become a site for gambling or not; is that right?
Mr. SKIBINE. That's right.
Mr. HASTERT. However you want to call it.
So the issue here is that there was extraordinary influence—we can call it political influence, you could call it economic influence—upon certain members of Government to decide whether this entity was going to take place as a gambling entity. In fact, the Ashland, WI, office of the Bureau of Indian Affairs said that there was no detriment and the Minneapolis Bureau of Indian Affairs office said that there was no detriment. And, in fact, this even went to Washington, and the area office recommendation was approved or said that there was no detriment, at least, it was moving forward.
But when the exhibit 317–A that says the staff recommends that the Secretary, based on the following, determine that the proposed acquisition would not be detrimental to the surrounding community—can we have that? That was basically saying that there was no detriment.
Then, all of a sudden, this comes to Washington and there are issues that happen, and one of the facts that we had testimony yesterday that there was a third of a million dollars as a contribution. Whether that is a political influence or not, I don't know, but it certainly lays that predicate that there could be.
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I know that you are just a person who has to make his decisions, but when somebody gives you a memo and says you have to change your report, that certainly leaves suspicion. I know you are innocent of that. You made your best judgment. But when a superior or your attorney tells you to do something, certainly that gives us an opening to ask questions.
My time is up. I would yield back my time.
Mr. SKIBINE. Can I respond?
Mr. HASTERT. Certainly.
Mr. SKIBINE. Well, what I want to say is that I made my recommendation on June 29th. That recommendation is a draft. It is my recommendation, and it goes up the chain of command and ultimately finds its way to the Assistant Secretary, in that case the Deputy Assistant Secretary, for his signature.
Any of the people who are reviewing the draft can make changes to it. If they don't like what I am saying, they can make changes to it. It is—it is not my decision. It is my recommendation. That obviously happened in this case. In the normal course of doing business, that will happen.
Mr. HASTERT. So this attorney did ask to change and make——
Mr. SKIBINE. I am sorry, counsel was speaking and I didn't hear what you said.
Mr. HASTERT. This attorney did ask to make a change, and it was made in your recommendation?
Mr. WAXMAN. Will the gentleman yield?
You are not saying the decision was changed. You are saying the draft of the decision was changed but the decision was the same?
Mr. SKIBINE. What happened essentially is that the ultimate outcome, which is not to take the land into trust, that was not changed, but the bases for coming to that conclusion were changed.
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Mr. HASTERT. Thank you.
I yield to whoever—Mr. Kanjorski—for 5 minutes.
Mr. KANJORSKI. I am going to give you one more opportunity, because I know you have been a public servant for 20 years. You came into the office just shortly before this application landed on your desk. You prepared, went through the process, made the recommendation, and the final decision of the Department followed your recommendation, your position or your analysis of the problem.
Now, do you want to satisfy the majority and tell them there was political influence so we can give them one last time to be happy, or are you satisfied that no political influence in any way was exercised to encourage you to arrive at a decision one way or another?
Mr. SKIBINE. There was no political pressure or improper influence borne on me, put on me, to come up with my June 29 recommendation.
Mr. KANJORSKI. OK. Now in all these instances Mr. Skibine, there are winners and losers; is that correct? If you issue a license to one group, somebody else will have an impact on a negative group.
Mr. SKIBINE. That is correct. But one thing in the press there was all these reports that the BIA issues gaming licenses. That is simply not the case, and I hate to see professionally this perpetuated in this hearing. The BIA does not issue licenses. One of their responsibilities is to take land in trust, to clarify that.
Mr. KANJORSKI. In other words, the license couldn't be granted unless the property was taken into trust. Other than that, there couldn't be a license offered on that property.
Mr. SKIBINE. There could be no gaming on that property unless it was in trust.
Mr. KANJORSKI. In your analysis, did you review the contractual arrangement, the finances of the non-Indian group and the three tribes and who would derive what, or did that not come to bear?
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Mr. SKIBINE. In our review of the section 20 determination, we have to review the best, whether the gaming establishment is in the best interest of the tribe, and to do that, we would go into an in-depth review of the financial arrangements for this deal to make sure that it is in the best interest of the tribes, yes.
Mr. KANJORSKI. Somewhere I read a document that indicated that the National Indian Gaming Commission was not satisfied with the terms and conditions of that agreement. Am I relatively correct in that interpretation?
Mr. SKIBINE. Yes, I think you are. Parallel to our examination of whether the deal is in the best interest of the tribe, if the gaming involved a management contractor, the Indian Gaming Regulatory Act, IGRA, requires management contracts to be submitted to the National Indian Gaming Commission, the NIGC, for their review and approval. So that is what the three tribes did, because they had a management contract in this case; they submitted the management contract to the NIGC for their review at the same time as the application was pending for the land transfer.
Mr. KANJORSKI. And in that review, the National Indian Gaming Commission was not satisfied with the terms and conditions of the agreement; is that correct?
Mr. SKIBINE. I recall that they did send the three tribes a letter informing them of—or the contractor; I don't know who received the letter actually—informing of deficiencies in the submission.
Mr. KANJORSKI. Off the purposes of this hearing—because, quite frankly, I am interested in it—are there a lot of these applications now going on across the country? Where people who have disappointed investments in dog tracks or other potential gaming properties are seeking out Indian tribes to justify putting their property in trust so that they can build casinos? Is that a wide experience that is occurring across the country?
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Mr. SKIBINE. I think it is occurring. What happens in a lot of cases where, in cases of gaming, a lot of the Indian tribes do not have the capital to essentially finance these acquisitions, so that they are approached or approach, or however that happened, non-Indian companies, gaming concerns, financing corporations, dog track owners, to enter into a partnership that will essentially be beneficial to both.
In a case where there is a dog track, let us say in Kansas, they will——
Mr. KANJORSKI. I understand, if you are a poor Indian tribe and you are getting nothing, when a gaming group comes by and offers you something, there is a gain to you and a benefit. What I am interested in: Is the law sufficiently examined now that there isn't advantage being taken of some of these Indian groups, that we couldn't do something better to see that the proceeds from gaming go to the Indian tribes more so than the private speculating market?
Mr. SKIBINE. The law provides—and that is not my area, but the law provides that in the management contract the contractor cannot get more than 30 percent of net revenues. And the tribe then gets 70 percent. In extreme cases, I think it allows up to 40 percent of net revenues. So the IGRA, the Indian Gaming Regulatory Act, addresses this issue to make sure that the tribes are the major benefactors of the venture.
Mr. KANJORSKI. Do you think we should spend some time on this committee, oversight, looking into some of these contracts and some of these propositions across the country?
Mr. SKIBINE. I don't want to speculate on that.
Mr. KANJORSKI. Thank you.
I yield back the balance of my time.
Mr. BURTON. The gentleman yields back the balance of his time.
Mr. Cox.
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Mr. COX. Thank you, Mr. Chairman.
Mr. Skibine, you are trained as a lawyer; is that right?
Mr. SKIBINE. I am, yes.
Mr. COX. And you spent over 20 years with the Department of Interior?
Mr. SKIBINE. That is correct.
Mr. COX. And you are head of the Gaming Office.
Mr. SKIBINE. I was the head of the Gaming Office.
Mr. COX. At all the times in question?
Mr. SKIBINE. Right.
Mr. COX. On your—in your May 17, 1995, meeting that we have discussed here, did you raise any concerns, that is to say, the meeting that took place——
Mr. SKIBINE. I don't think we discussed the May 17. We discussed the February 8, 1995, meeting with Congressman Oberstar and others.
Mr. COX. OK. Do you know the meeting to which I refer?
Mr. SKIBINE. No, not specifically. If you can be more——
Mr. COX. All right. There was a meeting that took place, and I believe the date is, in fact, May 17, 1995, at which you discussed the status of the application among the tribes, the members who were advancing the casino application in Hudson. Does that ring a bell?
Mr. SKIBINE. We have had several meetings with the tribes. If you can—if you can refer me to who was at the meeting, then perhaps I can be more specific.
Mr. COX. May 17, 1995, morning meeting; the Chippewa seeking casino approval; met with Interior officials including John Duffy, interior counselor, and George Skibine, head of the Department's Gaming Office. Does that now ring a bell?
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Mr. SKIBINE. Yes, it does; yes.
Mr. COX. All right. At that meeting, to the best of your recollection, did you raise any concerns with the application or give any indication to the Chippewa present that their application would be rejected?
Mr. SKIBINE. I don't have—you know, I don't really have any recollection of what transpired at the meeting, except for I think Chairman Newago was there, and I recollect that he made an impassioned plea on behalf of his tribe for taking the land into trust. I cannot recall in any particularity what Mr. Duffy may have said to them at that meeting.
Mr. COX. How about you?
Mr. SKIBINE. I don't recall that I said much at the meeting except that I was just there.
Mr. COX. If you didn't say much, we can infer you didn't tell them about any problems with their application at that meeting.
Mr. SKIBINE. At that particular meeting, I just don't recall.
Mr. COX. But you do recall you didn't say much.
Mr. SKIBINE. I don't think I said that much, because the meeting was principally with the counselor.
Mr. COX. And therefore, if you didn't say much, you probably didn't say much about any particular subject.
Mr. SKIBINE. But I don't remember that.
Mr. COX. OK. Did you talk to Heather Sibbison after that meeting?
Mr. SKIBINE. I don't recall whether I talked to Heather Sibbison.
Mr. COX. We now know that Heather Sibbison rather rapidly after that meeting reported back to Harold Ickes through his assistant at the White House, and you are now aware of that; is that right?
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Mr. SKIBINE. I am aware of that, because it has been in a lot of the documents that were submitted. I think it was shown to me in my depositions.
Mr. COX. When did you first learn about that, that what went on in that meeting was communicated to Ickes in the White House?
Mr. SKIBINE. I don't know. I certainly didn't know anything about it by July—I didn't know anything about that by July 14th.
Mr. COX. Are you in the habit of discussing meetings such as that with Heather Sibbison?
Mr. SKIBINE. Meetings with the White House?
Mr. COX. No; meetings such as the one that you had on May 17.
Mr. SKIBINE. Sometimes, sometimes not.
Mr. COX. So you may have been the source of her information?
Mr. SKIBINE. Her information for what?
Mr. COX. That she communicated then to the White House?
Mr. SKIBINE. I don't know. I don't know that she communicated anything to the White House.
Mr. COX. You just told me you did.
Mr. SKIBINE. No, I didn't know at the time.
Mr. COX. You told me you now know.
Mr. SKIBINE. You are referring to this.
Mr. COX. Right now, you now are aware that she communicated the next day with the White House; right?
Mr. SKIBINE. If you can show me the e-mail or the document you are referring to——
Mr. COX. I would just as soon stand on your earlier testimony of about three sentences ago under oath.
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Mr. SKIBINE. Yes, I think I heard, I have—I think that somehow in the record that was shown to me so that I would know about it now.
Mr. COX. Now, you wrote a memo——
Mr. SKIBINE. I would much prefer having the memo or whatever you are referring to before me.
Mr. COX. I am going to begin something now that I have to finish on the next round because, as you know, we have a limited amount of time here. But I want to bring to your attention exhibit 321 and alert you to the fact that I am going to be asking you further questions about exhibit 321. It is a memo that you wrote to Heather Sibbison. And in that memo, dated June 30, which is then after the May 17 meeting and after her communication to Ickes through his assistant, you tell her that under section 20 your tentative conclusion is that the gambling establishment at Hudson is not going to be detrimental to the surrounding community, so instead you are going to go on a different legal ground, section 465.
I want to ask you this question: As the head of the office, the Gaming office, which you then were, and with your 20 years at Interior, can you give me today any examples in which an application was rejected not under section 20 but under section 465?
Mr. SKIBINE. I cannot—I cannot really talk about matters that occurred before I became the Gaming Director. So I can't answer that question. There may be some; there may not be.
Mr. COX. Do you know of any?
Mr. SKIBINE. Specifically, I can't recall of any.
Mr. COX. In connection with preparing this, did you find any precedent?
Mr. SKIBINE. No. This decision was made on the merits of this application.
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Mr. COX. My time has expired.
Mr. BURTON. The committee will stand in recess until 1. Please come back promptly at 1.
[Whereupon, at 12:15 p.m., the committee was recessed, to reconvene at 1 p.m., the same day.]
Mr. BURTON. The committee will come to order.
Mrs. MALONEY. I'm next.
Mrs. MALONEY. Mrs. Maloney is recognized for 5 minutes.
Mrs. MALONEY. Thank you, Mr. Chairman.
Mr. Skibine, as a 20-year civil servant, you had the occasion to serve under both Democratic and Republican administrations?
Mr. SKIBINE. That is correct.
Mrs. MALONEY. During Secretary Babbitt's tenure, what was the Interior Department's policy with respect to off-reservation gaming establishments? What was their policy? Did they look at community support? Was community support important?
Mr. SKIBINE. Yes.
Mrs. MALONEY. Was it more important than on-reservation applications?
Mr. SKIBINE. I think that the determinations are made on a case-by-case basis and we'd have to look at the requirements of the Indian—the land acquisition authority and the requirements of the Indian Gaming Regulatory Act for off-reservation acquisitions. Section 20 requires that the opposition, the detriment to the surrounding community, be considered.
Mrs. MALONEY. Have you looked at many applications since in your tenure in your position? About how many applications have you had the occasion to review?
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Mr. SKIBINE. On section 20?
Mrs. MALONEY. Yes.
Mr. SKIBINE. Not many, maybe three or four. Those don't—there are applications to take land into trust for gaming. But if the acquisitions on the reservation are contiguous to the reservation, then the two-part determination doesn't get triggered. If there's another section that applies under section 20, it doesn't get triggered. It is only if nothing applies that section 20 applies.
Mrs. MALONEY. Have you ever seen in the applications you have reviewed opposition to the extreme that you saw in this particular case?
Mr. SKIBINE. No. In the applications that I have reviewed under the two-part determination, essentially the surrounding community was in support of the gaming establishment.
Mrs. MALONEY. Well, I must say that the amount of opposition is almost staggering. The mayor was recalled by the voters after he supported the casino. The city council people who favored the casino chose not to run again because of the feelings in the town against it were so high. Isn't it true that the city council voted against it by 4 to 2?
Mr. SKIBINE. That's correct, the city council of Hudson.
Mrs. MALONEY. And isn't it true that 71 percent of the people in the neighboring town of Troy voted against it?
Mr. SKIBINE. Thirty-one percent of the people?
Mrs. MALONEY. Seventy-one percent in a town vote in the city of Troy voted against it?
Mr. SKIBINE. On this establishment?
Mrs. MALONEY. Yes.
Mr. SKIBINE. I don't recall that.
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Mrs. MALONEY. You don't recall that. And isn't it true that the representative, the Republican-elected Congressman, was opposed to it?
Mr. SKIBINE. Yes. Congressman Gunderson, whose district this is, was opposed to this acquisition.
Mrs. MALONEY. And the State Representative, the State Senator, the entire Minnesota delegation, those Members of Congress in Wisconsin who came out came out in opposition, the Governor came out in opposition. Quite frankly, Mr. Chairman, I would have been surprised if there was a decision in the opposite direction given the large amount of community opposition.
I'd like to ask you also about the National Scenic Riverway. Isn't it true that the Hudson Greyhound Race Track on which the casino was to be built was located one-half mile from the National Scenic Riverway and the Department had received many complaints about the environmental impact on the riverway?
Mr. SKIBINE. That is correct.
Mrs. MALONEY. And isn't it true that the local business people, many who had no financial interest, were also opposed to the application?
Mr. SKIBINE. We have on the record there was substantial opposition from a number of businesses in the area, yes.
Mrs. MALONEY. And isn't it true that the St. Croix tribe, which had an on-reservation gaming establishment within 50 miles of Hudson, opposed the application?
Mr. SKIBINE. The St. Croix tribe did oppose the application, yes.
Mrs. MALONEY. Yet, the tribe that was applying, they lived either 85 miles away or 188 miles away. That's as far as D.C. to Pittsburgh. What I find troubling with this, Mr. Chairman, is yesterday we heard from the tribes and the developer from Florida that they had their lobbyists meet with Secretary Babbitt. Now, if Secretary Babbitt or Mr. Skibine had decided in favor of the tribes 85 miles away, we would be having a hearing on that terrible decision. And here most of us believe that localities should have input into what happens in their localities.
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The decision that was sent up by Mr. Anderson, and I'd like to put it in the record, says, ''to substitute our judgment'' and I quote, ''for that of local communities directly impacted by this proposed off-reservation gaming acquisition we did not intend to go against the local government.''
I thought that's what the Republican party was about, that they didn't want bureaucrats like Mr. Skibine, career bureaucrats, making decisions that overruled localities. And I just feel that I guess what we should have really are hearings on banning soft money. There would be no appearance of impropriety if there had not been contributions, as there were on both sides, both the Indians 85 miles and 188 miles away and the other aside, we would not be having hearings, we would not be looking at this now. We should be having hearings on banning soft money and focusing on that.
Mr. BURTON. Mrs. Maloney, did you want that submitted for the record?
Mrs. MALONEY. Absolutely.
Mr. BURTON. Without objection.
[Note.—The document referred to is exhibit 328–1 and may be found on p. 231.]
Mrs. MALONEY. Absolutely. Quite frankly, Mr. Chairman——
Mr. BURTON. Your time has expired. Without objection.
Mrs. MALONEY. Mr. Chairman, if it had been my district——
Mr. BURTON. Ma'am, your time has expired.
Mr. COX. Regular order, Mr. Chairman.
Mrs. MALONEY. And every elected official he opposed, I would have gone to Congress to reverse.
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Mr. BURTON. Can you hear me?
Mrs. MALONEY. Mr. Chairman, what I'm trying to say is, what is the fuss about? We are supporting a local community's position.
Mr. BURTON. Mrs. Maloney, your time has expired. Mrs. Maloney, if you want to submit that for the record, it will be accepted.
Mrs. MALONEY. I would like very much to submit it for the record.
Mr. BURTON. Mr. Sununu, you are recognized.
Mr. SUNUNU. Thank you, Mr. Chairman.
I want to re-emphasize that we are not here because of a decision that was made. We're here because the reasons that were provided for that decision, or weren't provided, as is the case, are very troubling; that there was no notification, no communication throughout this whole process.
With regard to the community concern, let me begin by focusing on exhibit 324, paragraph 2. It states in this description of a meeting that look place, ''The opinion advocated by George,'' you, ''and which we have used to evaluate objections in the past that the consultation process does not provide for an absolute veto by mere objection.'' In other words, mere opposition isn't enough. It ''requires the objection be accompanied by evidence with the gaming establishment that would have detrimental impact.''
Has that been the position typically of the gaming staff at Interior, that it requires to be shown detrimental impact, as well?
Mr. SKIBINE. I'm sorry? I was trying to read, sir. I'm sorry, what are you quoting from?
Mr. SUNUNU. Is mere political objection enough to find that this was detrimental impact or would be detrimental impact?
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Mr. SKIBINE. Under section 20?
Mr. SUNUNU. Yes.
Mr. SKIBINE. I think that wasn't the case here. I think that it was——
Mr. SUNUNU. OK, that wasn't the case here.
Mr. SKIBINE. Yes.
Mr. SUNUNU. In exhibit 321, your own memo, you point out that, ''Even if the Town of Hudson and the Town of Troy were to embrace this proposal, we may still not change our position because of political opposition on the Hill.''
So even if this had been unanimous in the towns, unanimous support, you're saying that you still may have found against; is that correct?
[Attorney-client conference].
Mr. SKIBINE. What I wrote in this e-mail is that, for purposes of the IGRA and the unfettered discretion of the Secretary, I think that the opposition of the Minnesota tribes and the opposition of—and for the reasons stated by the Minnesota delegation, may still be a factor in deciding not to take the land into trust. That's with respect to my recommendation on June 29th.
Mr. SUNUNU. But would it support a finding of no detriment to the community in and of itself?
Mr. SKIBINE. No. Under section 20, that was not the idea about section 20.
Mr. SUNUNU. In fact, there was no notification—let me back up. There was constant feeling within the career staff that there was no detriment to the surrounding community. Exhibit 303A–9. This is written by career staff. This was drafted on April 20, 1995, bold type, middle of the page finding by your staff, ''Not Detrimental To The Surrounding Community.'' Are you familiar with this document that came from the local area staff?
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Mr. SKIBINE. Are you referring to the June 8, 1995, memo from Tom Hartman?
Mr. SUNUNU. No. I'm referring to exhibit 303A. It is written by Office of the Area Director, April 20, 1995.
Mr. SKIBINE. I'm sorry, my counsel gave me the wrong document.
Mr. SUNUNU. Mr. Chairman, I hope that the delay in consultation with the counsel wouldn't be taken from my time.
Mr. ELLIOTT. Mr. Sununu, what's the number of that one?
Mr. SUNUNU. Exhibit 303A–1 through—it is a multiple page document, specifically page 9, bold type from the local office, ''Not Detrimental To The Surrounding Community.''
I just want to verify that you're familiar with the document, that it did indeed come from the local Office of Bureau of Indian Affairs, April 20, 1995.
Mr. ELLIOTT. Mr. Sununu, we have 303A, which goes through a dash 7. We've got a dash 8, which is the Hartman memorandum, not from the area director.
Mr. BURTON. What's the number that they are missing?
Mr. SUNUNU. You're correct on the date. That is June 8th, it's 303A–8, ''Not Detrimental To The Surrounding Community.'' You're familiar with that memo?
[Exhibit 303A 1–24 follows:]
INSERT OFFSET FOLIOS 97 TO 120 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. Yes, I am.
Mr. SUNUNU. Thank you.
Now, it was typical in this process that the office would communicate with the local tribes that, if there were problems with the application, you would notify them, give them an opportunity to cure defects, correct?
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Mr. SKIBINE. There were meetings and there were telephone calls, as I testified before, with the three applicant tribes, yes.
Mr. SUNUNU. Not communications, but communications specifically to identify defects and give them an opportunity to cure defects. Are you suggesting that there was communication from your office about specific problems with their application?
Mr. SKIBINE. In writing, I don't think there were.
Mr. SUNUNU. There was not? Thank you. Is that unusual? Well, that is not unusual. Let me back up.
March 27th, was there not a memo to Chairman Ackley, exhibit 302 stating, last sentence, ''Should areas of concerns with the application be identified, you will be so notified''? Are you familiar with that memorandum?
Mr. SKIBINE. Counsel is looking for it.
Mr. SUNUNU. That's exhibit 302. I simply want to bring it to your attention that not only was that normal policy, there was in writing a commitment to provide them with notification of defects and problems with the application.
Mr. SKIBINE. This is a letter to Arlyn Ackley from John Duffy. What we meant by this is that if we found some problems with the best interest part of the section 20 determination, we would bring it to their attention.
Mr. SUNUNU. Well, I don't think it is fair to embellish to any great extent here. I think what you meant is should areas of concern with the application be identified that they will be so notified.
I don't have much time, so let me just conclude here by emphasizing that throughout this process of communication that there would be no detriment to the community within the internal staff, there was no notification of specific defects in their application. And I think on that basis, there was a great reluctance to focus on section 20 and the detriment to the community operative part of the decision in rendering the final decision.
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Would you disagree with that?
Mr. SKIBINE. Let me just say that it is true that my June 29th recommendation relied solely on a refusal to exercise discretionary authority and that I was familiar with Mr. Hartman's June 8th memo and that I think he raised some concerns with relying on section 20 and, that that was one of the reasons that I chose to confine my decision to a reliance on the Indian Reorganization Act's authority.
Mr. SUNUNU. Well, let me bring to the committee's attention exhibit 316, and maybe you can elaborate in looking at that. It is your e-mail of June 6th, the last sentence of which you state, ''Are
you aware of any cases addressing the Secretary's authority to refuse to take land into trust? The acquisition is for gaming purposes, but we want to avoid making a determination under Section 20 of IGRA.''
Why did you want to avoid invoking section 20?
[Exhibit 316 follows:]
INSERT OFFSET FOLIOS 121 HERE
[The official committee record contains additional material here.]
Mr. SKIBINE. I wanted to avoid invoking section 20 because of, as I just stated, the concerns that Mr. Hartman brought to my attention. And in addition, I thought that the standard under section 20 for detriment is higher and I was concerned about setting a precedent.
Mr. SUNUNU. But despite your concerns, despite the concerns of the staff, despite the constant communication that there was no detriment to the community, in the final rejection letter you did cite section 20.
Mr. SKIBINE. The final rejection letter did cite section 20, yes.
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Mr. SUNUNU. Exhibit 328, page 2: ''Thus, we believe the proposed acquisition would be detrimental within the meaning of Section 20.''
Why, after all the better judgment of you and your staff over a 4-week period, did you change your mind and suddenly decide to invoke section 20?
Mr. SKIBINE. As I've testified before, I was not involved in the conversations that took place between staff after June 29th on this issue. I think that clearly there were some in the Department that felt that the record justified a decision under section 20——
Mr. SUNUNU. And who would they be?
Mr. SKIBINE. There would be the——
[Attorney-client conference.]
Mr. SKIBINE. Well, I can only speculate.
Mr. SUNUNU. You stated clearly that there were others that thought it was the right decision. Who would they be?
Mr. SKIBINE. They would be the ones that were up from the chain of command. But I was not in those discussions, so essentially under oath here I'm not going to tell you who they are because I don't know. I wasn't there.
Mr. BURTON. The gentleman's time has expired. We'll give the gentleman some more time later.
Mr. Barrett.
Mr. BARRETT. Mr. Skibine, I'd like to continue along that very same line of questioning. As you stated, you were pushing for a review under 465; is that correct?
Mr. SKIBINE. That's correct, yes.
Mr. BARRETT. What was the standard of review at that time for a 465 decision?
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Mr. SKIBINE. At that time it was my understanding that the Secretary, had the unfettered discretion not to take land into trust, that the factors that are listed in 151 were essentially factors and that the Secretary could rely on any additional information for his decision; that there was essentially unfettered discretion.
Mr. BARRETT. So that, if one were to challenge a 465 decision, it would be difficult to do?
Mr. SKIBINE. I think if—let me just say that if one were to challenge in 1995 a decision to take land into trust under 465, it would have been impossible to do because at the time the U.S.'s position, which was—the court's position was that the act did not provide for a waiver of the U.S. sovereign immunity to challenge these decisions, these determinations.
Mr. BARRETT. So those arguing, which included Michael Anderson, who will be here later this afternoon, the Solicitor General's Office, and Mr. Duffy, I understand those were among those arguing for a concurrent section 20 decision as well. That was really the crack in the door that allowed legal challenge to this case, wasn't it?
Mr. SKIBINE. I don't really want to speculate on that.
Mr. BARRETT. Well, there certainly is a challenge available, is there not, under section 20?
Mr. SKIBINE. That's right there is, yes.
Mr. BARRETT. So clearly, if there was no challenge under 465 and there was a challenge under section 20, the Department was opening itself up for a lawsuit by including section 20?
Mr. SKIBINE. One can argue that.
Mr. BARRETT. I wanted to make sure. Because I think my point is it seems that, by including section 20, if one wanted to have a denial of the aggrieved party's ability to bring an action that you would have stayed under section 465, as you were advocating.
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I'd also like to talk a little bit about Heather Sibbison because her name has been brought in here. And frankly, if I were handing out roses for actions that were definitely consistent with the public interest, I would give her one. And I've never met this woman. But I'm looking at her memo, and this is among the e-mails going back and forth on June 30th. And you've been asked a lot of questions about your 7:04 p.m., response. But let's go to the initial e-mail that she started with, which was at 10:50 a.m.
And she stated, ''We may not want to include in our rationale the opposition of the other tribes. Because I think it is possible that if the three tribes,'' here I think she is referring to the three Wisconsin tribes, ''came back with stellar support from their local towns and Congressmen, we might look at this proposition in a new light. But even in that case, the Minnesota tribes will still be against it.'' And also, ''I agree with Collier's uneasiness about some tribes getting all the goodies at the expense of the other tribes. Theoretically, they should all have equal opportunities.''
So she seems to me more than anyone to be the local support person in this. Is that accurate?
Mr. SKIBINE. That's accurate. But you know, I think that Ms. Sibbison is sitting behind here and if you want to ask her about her e-mails. I certainly don't feel comfortable talking about what she might or might not think.
Mr. BARRETT. But would you agree with me that she is certainly implying, if not stating directly, that this group, if they came back with the support from Hudson and St. Croix County and the township of Troy, that the Department might look at that in a different way? You seem to disagree with it a little bit. That seems to be her position.
Mr. SKIBINE. That's her position in this e-mail.
Mr. BARRETT. Under the statutes now, could this group come back in today with another application for the same site?
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Mr. SKIBINE. Of course, yes.
Mr. BARRETT. If they did so, with the support of the community, do you think that your office may look at it differently?
Mr. SKIBINE. Of course, yes.
Mr. BARRETT. Has there been any indication to you that the local support has changed on this issue at all?
Mr. SKIBINE. I don't know that.
Mr. BARRETT. I mean, do you know that it has?
Mr. SKIBINE. No, I do not know that it has.
Mr. BARRETT. I guess my point is that we're spending a lot of time here today. There's a lot of money being spent on legal challenges, but if this decision was wrong, is there a mechanism for a motion to reconsider in your office? Maybe there isn't. I don't know.
Mr. SKIBINE. Yes, there is. In fact, the three tribes did file a motion for reconsideration after the decision was handed down. And we never got to respond to that because they also filed the lawsuit in Sokaogon Indian Tribe v. Babbitt and our attorneys advised us not at that point to respond to that.
Mr. BARRETT. In their motion to reconsider, did they include any signed of local support?
Mr. SKIBINE. I don't recall.
Mr. BARRETT. And were there any Members of Congress coming out in favor of this?
Mr. SKIBINE. Well, I think there was a lot of opposition from Members of Congress.
Mr. BARRETT. I was one of those.
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Mr. SKIBINE. It is possible, however, that in the record there may be a letter from the local Congressman from where the three tribes are located.
Mr. BARRETT. That would have been Congressman Obey who came out against it.
Mr. SKIBINE. Yeah, Congressman Obey was against it, I mean representatives in the districts where the three tribes are located.
Mr. BARRETT. I think that would be Congressman Obey's direct. From northern Wisconsin at that time it was Congressman Gunderson, the western edge of the State, Congressman Obey, Congressman Roth. That covers the northern half of the State where these tribes are located. All three of those Congressmen came out against it. So you don't know of any support from any Members of Congress?
Mr. SKIBINE. No, I don't.
Mr. BARRETT. Thank you very much. I have nothing further.
Mr. BURTON. Gentleman's time has expired. Gentleman from Indiana.
Mr. SOUDER. Of course, the State legislator from Wisconsin who represents the tribes is on record, and we have in the record. And given the money that was flowing around in the case of Minnesota and other places, that's not necessarily a badge of honor. It's not necessarily a badge of dishonor.
Mr. BARRETT. Point of personal privilege, Mr. Chairman. You have the implication that Members who came out against this were doing it for money. I have not received any money from any Indian tribes, and I'm offended by the gentleman's insinuation.
Mr. COX. Mr. Chairman, regular order.
Mr. BURTON. Regular order has been called for. The gentleman will proceed.
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Mr. BARRETT. Mr. Souder, I do not impugn your integrity, and I would appreciate it if you do not impugn mine.
Mr. SOUDER. Mr. Barrett, I was going to say on the record that you clearly explained a logical reason for your position the other day. We do not have that information from all the others. And Mr. Burton, the chairman of our committee, has been impugned by your side.
Mr. BARRETT. And they are not here to defend themselves. Mr. Gunderson is not here to defend himself.
Mr. BURTON. The gentleman from Indiana has the time. If the gentlemen wants to discuss this and argue about it, you can take it off the floor.
Mr. SOUDER. I have been very disturbed by the information we've heard today. But I want to yield to Mr. Cox to proceed with his line of questioning.
Mr. COX. I thank the gentleman.
Mr. Skibine, I'd like to return to the document that you and I were discussing before the break. It is exhibit 321.
The date of that memo that you wrote is June 30 and it says, ''Our tentative conclusion is that the record permits us to make a finding that a gaming establishment at that location will not be detrimental to the surrounding community.''
So, at June 30, your tentative conclusion was that the record permits a finding that a gaming establishment, the dog track at Hudson, the casino, would not be detrimental to the surrounding community.
As a result, you state in the same memo, you're going to be using a different legal ground to deny the application. And that is section 465, not section 20. Section 465, because it, as you've just testified, gives the Secretary of the Interior unfettered discretion, it doesn't really require much explanation and it specifically does not require that you find one way or the other on the issue of any detriment to the community.
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Are you aware, as we sit here today, that that sort of state of play of things was communicated to the White House?
Mr. SKIBINE. No.
Mr. COX. Even as we sit here today, you have no way of knowing, you have not heard it said that there was a report back, for example, by Heather Sibbison to the White House?
Mr. SKIBINE. No.
Mr. COX. Are you aware of any contacts between Heather Sibbison and the White House involving this matter?
Mr. SKIBINE. I was not aware of any such contacts.
Mr. COX. Are you now?
Mr. SKIBINE. Well, I think that there were some e-mails, or whatever they were.
Mr. COX. And those would be contacts, right?
Mr. SKIBINE. But unless you can show me the document.
Mr. COX. No. No. I'm asking you whether you're aware that Heather Sibbison was contacting the White House on this matter, specifically an assistant to Harold Ickes?
Mr. SKIBINE. I was not aware of it at the time.
Mr. COX. Are you aware now?
Mr. SKIBINE. Not necessarily unless I see the documents.
Mr. COX. Are you aware of any contacts?
Mr. SKIBINE. I think there were some documents shown to me during my depositions, and there were many documents shown to me, that would have indicated such. But again, Mr. Cox, I think Ms. Sibbison is sitting back here if you have any questions.
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Mr. COX. I am asking a question about what you know.
Mr. SKIBINE. I certainly did not have any knowledge at that time.
Mr. COX. I'm asking a different question than what you are asking. I'm asking if you know as a witness sitting here under oath.
Mr. SKIBINE. I think if you want to show me a document and ask me whether I've seen this document during my deposition and it was presented to me by counsel——
Mr. COX. But it is your testimony here, under oath, that you do not know as we sit here today that Heather Sibbison was at any time in the course of——
Mr. ELLIOTT. Mr. Cox, he has testified.
Mr. COX. Counsel, I'm in the process of putting a question.
Mr. ELLIOTT. Mr. Cox, you have put the question already.
Mr. BURTON. The counsel will let the gentleman answer the question. You can confer with your client at any time you want to. But he's the one testifying here today, not you. You're not under oath, sir.
Mr. ELLIOTT. I understand that, Mr. Chairman. But he has some rights not to have these questions continually put to him.
Mr. BURTON. You can confer with your client, but your client is the one that's testifying. And I'll be the judge of whether or not the gentleman is being badgered. Now, it appears to the Chair that he is not trying to answer the question and what Mr. Cox is trying to do is get him to give a direct answer. That's all he is asking.
Mr. WAXMAN. Point of order, Mr. Chairman.
Mr. BURTON. The gentleman will state his point of order.
Mr. WAXMAN. As I recall, the precedent of the Ollie North hearing, the attorney, was not required to be a potted plant when his client's interests were at stake. And I think that if the attorney has something to say with respect to his client's rights, he is here for that purpose and we ought to respect that fact.
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Mr. COX. Mr. Chairman, if I may.
Mr. BURTON. Just 1 second. According to our counsel, House Rule XI 2.(k)(3) of the House rules states clearly that he can confer with his counsel but he's the one that should answer. And I don't know what they did in the Ollie North case. And I'm not sure the rules of the Senate or the rules of the independent counsel at that time were the same as what we have in the House. But we're going to adhere to the House rules, Mr. Waxman.
Mr. WAXMAN. The House rules were in effect when you allowed David Wang's attorney to testify on behalf of his client's interests.
Mr. BURTON. The Chair has ruled.
Mr. Cox, you may continue.
Mr. COX. I thank you. And with respect to counsel, if you have an objection to a question I put, I'm certain the Chair is willing to entertain it and I'm personally willing to withdraw or restate the question. I only ask of you that you permit me to finish asking the question before you interpose an objection. Is that fair? Thank you.
Mr. Skibine, I'm just trying to, having had this conversation with you, understand what is your testimony today as you appear before us under oath. Is it your testimony today that you are unaware of any contacts between Heather Sibbison and the White House, in particular Assistant Harold Ickes, in the course of this matter?
[Attorney-client conference.]
Mr. SKIBINE. As I've stated before, I recall seeing during my two depositions, which went together for close to 13 hours, numerous documents that were submitted to Congress. Some of them may have been documentation between the White House and the Secretary's office. But because I'm under oath, I would like to be able to be presented with the document to see if I have seen it, and I've seen thousands of documents here, if I've seen that at some point.
The only thing I can testify today is that I did not see any such documents at the time of the Hudson Dog Track application.
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Mr. COX. I'm trying to get at what you know today. And let's, in the brief time we have, and I can come back in a subsequent round and pick up with exhibit 317.
Mr. SKIBINE. 317?
Mr. COX. Exhibit 317 is a White House memorandum and it recounts what Heather Sibbison told the White House. It says, ''I spoke with Heather Sibbison regarding the status of the Wisconsin dog track announcement. Interior will make an announcement in the next 2 weeks. At that time they are 95 percent certain that the application will be turned down.'' The memo also says, ''She stated that they will probably decline without offering much explanation because of their discretion in this matter.''
And I want to get your understanding of the way that the law works, section 465. Is it true that if you use section 465 and not section 20 you don't have to explain as much about what you're doing?
Mr. SKIBINE. I think that's correct.
Mr. COX. My time has expired. I thank you.
Mr. BURTON. The gentleman's time has expired.
Mr. SKIBINE. Mr. Chairman.
Mr. BURTON. Do you need a break right now?
Mr. ELLIOTT. Mr. Skibine needs a short break.
Mr. BURTON. The committee will break for 5 minutes, stand in recess for 5 minutes.
[Brief recess.]
Mr. BURTON. The committee will come to order.
Ms. Norton, you're recognized for 5 minutes.
Ms. NORTON. Thank you, Mr. Chairman.
There are two kinds of contacts that have been discussed here, and the mixture could prove very confusing. One is, of course, congressional contacts. You can call them political. And then there are White House contacts. You can call them political. I want to associate myself with the remarks of Mr. Lantos that the congressional contacts, the political contacts ought to be understood as the usual way in which Members of Congress do business. If they hadn't given the community uproar in this case, they would, it seems to me, have been guilty of either ignorance or representational malpractice.
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No one has alleged that those contacts were improper. They certainly didn't involve campaign contributions, and that of course is what the subject matter of this hearing is. Now, I have the deposition of Ms. Sibbison, who I believe is here. And since on the other side you have been repeatedly questioned about White House inquiries, I note that at this Ms. Sibbison's deposition she was specifically asked about this.
''Is it your recollection that Jennifer O'Connor was merely making a status inquiry into the application?'' ''That was my understanding, yes.'' ''And it wasn't that the White House was giving its opinion on the application?'' ''Correct.'' ''Or dictating the outcome?'' ''She expressed no opinion as to the outcome and made no requests regarding the outcome.''
Mr. Chairman, I would ask unanimous consent that Ms. Sibbison be invited to testify so that we can really explore what the White House contacts were at this time or at a later time since that has tended to be of special interest to the Members who are here today?
Mr. BURTON. Ms. Norton, are you making an inquiry of the Chair?
Ms. NORTON. Yes, I am making an inquiry.
Mr. BURTON. We have the deposition of the lady in question and we already have our schedule set for the day, so we won't be able to do that. But we do have her deposition, which has been entered into the record.
Ms. NORTON. Thank you, Mr. Chairman.
I raise it only because this witness, who has testified that no contacts were made to him, has been repeatedly asked about such contacts and I'm trying to break through that. My line of questions really goes to how these decisions are made and whether they are made on basis of precedent, because while the concern here has been about off-reservations and how it affects a particular state involved, as a Member of Congress, I'm interested in how the precedent here would apply to the rest of the country.
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First of all, are you required to follow precedence or can you make these decisions as you see fit on the basis of whatever information you have before you? Does what the information—does the decision you make with respect to a particular state have any relevance if a similar issue comes up with respect to another jurisdiction?
Mr. SKIBINE. The determinations on land acquisition in trust are made on a case-by-case basis.
Ms. NORTON. Sorry?
Mr. SKIBINE. The determinations on land acquisition in trust for gaming are made on a case-by-case basis.
Ms. NORTON. Well, I'm sure. If, in fact—or let me ask you this. Has off-reservation gaming generally been approved?
Mr. SKIBINE. There has been to my knowledge only one off-reservation gaming acquisition that has gone through the whole process, including the Governor's concurrence; and that is the acquisition of a site in Milwaukee, WI, for the Forest County Potawatomie Indian Tribe in 1990.
Ms. NORTON. So it would be very unusual for a reservation to be able to find some place somewhere and say, I want to go there even though it is many miles from my reservation; that would be very unusual in your experience and in the experience of the Interior Department?
Mr. SKIBINE. That's right. It is not—I think we have had overall with Hudson a total of 9 other proposals that have come to Washington.
Ms. NORTON. And there's a reason why it would be very unusual. Because, essentially, what you're doing is not operating on your reservation, but if I may use a metaphor, on the reservation of some other community that is not even close to your community in this case. And so, since this territory goes into trust, it would be taken off of the tax roles, except insofar as you were able to negotiate taxes, it would be taken off; it could not be used for residential purposes, for industrial purposes, for community development purposes. You can go some place many miles away and say to this community, hey, I choose you. You are nowhere near where my reservation is where I have a right to be, and I want to be where you are because you got some folks who would come in order to enrich my community. Is the result there that this community would lose access to this land for its own uses and its own purposes?
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Mr. SKIBINE. That's correct.
Ms. NORTON. As somebody who has had to live with a payment in lieu of taxes, I am interested in the notion that at one point this negotiated PILT, payment in lieu of taxes, was negotiated at $5 million and thereafter was negotiated at $1 million. Does that mean that a community has to simply take whatever it can get in the negotiating process and is not entitled to be fully reimbursed for whatever land is taken off the tax roles?
Mr. SKIBINE. The tribes negotiate with their communities on these matters. We're not involved in those negotiations.
Ms. NORTON. So that's a matter of negotiation only?
Mr. SKIBINE. Right.
Ms. NORTON. Thank you, Mr. Chairman.
Mr. BURTON. The gentlelady's time has expired.
Mr. Snowbarger.
Mr. SNOWBARGER. Thank you, Mr. Chairman.
In regards to my colleague's questionings about precedence, obviously it must have been important to you. In exhibit 316, you were asking—I believe you were asking David Etheridge, Kevin Meisner and Troy Woodward, ''Are you aware of any cases addressing the Secretary's authority to refuse to take land into trust? We want to avoid making the determination under Section 20.''
That's been called to your attention before, and I don't want to focus on that. But obviously you were concerned about precedence as well or you wouldn't have asked that question, I presume.
Now, my understanding from your testimony is that you are a supporter of Indian gaming for economic development; is that correct?
Mr. SKIBINE. Yes, that's correct.
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Mr. SNOWBARGER. And you think it will give Indian tribes an opportunity to better their economic circumstances, right?
Mr. SKIBINE. That's correct.
Mr. SNOWBARGER. We've seen through a number of different exhibits today that Mr. Hartman and other members of the IGMS, as well as members of the Solicitor's Office, had made a determination that there was not a detriment and that there was a best interest. In other words, under section 20, that case could be made that the Secretary should take this land into trust. Is that correct?
Mr. SKIBINE. No, that's incorrect. I think that the best interest determination was not made. And you can question Mr. Hartman from the next panel on that.
Mr. SNOWBARGER. Can I ask you a question?
Mr. SKIBINE. Sure.
Mr. SNOWBARGER. Who made the final decision?
Mr. SKIBINE. The final decision was made by Michael Anderson, Deputy Assistant Secretary for Indian Affairs.
Mr. SNOWBARGER. He signed the letter, so he is the one that made the final decision?
Mr. SKIBINE. That is correct.
Mr. SNOWBARGER. Let me get into a little different angle on this. When did you decide to use section 151 or section 465, depending on which one we're referring to, at the Secretary's discretion? When did you decide to use that argument?
Mr. SKIBINE. I cannot recall precisely when I formulated my final views on it. It was sometime in late May, early June, sometime in June, so that by June 29th my recommendation was made.
Mr. SNOWBARGER. OK. Now, it is my understanding of the procedure that the Department used before that you would first go through a section 20 analysis and determine whether the two-prong test was met. Wasn't it then the Department's standard procedure once that two-prong test was met to ask for the Governor's concurrence and then go through the section 151?
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Mr. SKIBINE. No, I don't think so. I think that when I came to the Gaming Office that's one of the questions that I asked, and I asked Larry Scrivner on my staff at the time, well, do you do the 151 before or section 20 before. And my understanding was that they are done concurrently. But to the extent that there was some confusion about that in the field, I think that my view that was formulated is that it would be nonsensical to do a section 20 before you do a section 151.
Mr. SNOWBARGER. OK. Then, Mr. Chairman, I would like to have this introduced into the record. It is a letter to the Honorable Steve Gunderson, one of our former colleagues, and it is a letter from Hilda Manuel that's dated March 2, 1995.
Mr. BURTON. Without objection.
[The information referred to follows:]
INSERT OFFSET FOLIOS 122 TO 124 HERE
[The official committee record contains additional material here.]
Mr. SNOWBARGER. I believe you're having a copy handed to you, and I'd call your attention to the second page of that document. First of all, on the third page it shows that a blind carbon copy went to you; is that correct?
Mr. SKIBINE. That's my name on there, yes.
Mr. SNOWBARGER. So you've seen this letter before. If you go back to page 2, I want to start with the second full paragraph on that page and just read through this. It says,
The review is conducted by the IGMS office and Office of the Solicitor. The purpose of the review is to determine whether the requirements of section 20 of IGRA have been adequately addressed. If the application is found to be factually documented to support a favorable determination by the Secretary, positive findings-of-fact on the two-part determination are prepared along with a letter to the Governor of the State seeking concurrence with the Secretary's determination.
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The Secretary's determination does not constitute a final decision to acquire the land in trust, under 25 CFR, Part 151. The decision is made after the application is found to be in compliance with 25 CFR, Part 151.
If Gubernatorial concurrence is provided, the land may be taken into trust for gaming purposes. At this point the tribe's application is then reviewed to determine whether the criteria of 25 CFR, Part 151, have been adequately addressed.
To me that letter, signed again by Hilda Manuel, indicates that the regular procedure is to go through section 20 analysis, Governor's concurrence, then section 151. In this case, you jump from section 20 immediately to 151, without getting the Governor's concurrence or not, and it seems to me that we have another irregularity in the procedure here. And I'd like for you to explain to me why you did not follow Departmental procedure that had been set out in a letter March 1995, in response to a congressional inquiry.
Mr. SKIBINE. I think that my views, as I said before, when I came to the Gaming Office is that it would not make much sense to go through the section 20 process before you do the 151. So I don't really know what happened before I was the Director of the Gaming Office. And frankly, if it was done that way, then it was wrong.
When I came in there, to me it seemed that we would not want that Indian tribes go through the section 20 process, which essentially includes a lot of consultation, a lot of studies and is very lengthy and get a Governor's concurrence and then having the Secretary decide first. What he should have done, first of all, is decide whether he actually wants to take this land into trust to exercise this discretion. If you're going to do that and if the Secretary says no, then it makes a mockery——
Mr. SNOWBARGER. Well, I don't want to be argumentative.
Mr. SKIBINE. That is the point, though.
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Mr. SNOWBARGER. But you took that position in February 1995. This is a letter, which you received a copy of, in March 1995. And you say the reason you do not want to go through the section 20 analysis is all the time and effort that would be involved in doing that. That time and effort had been put in and the determinations had been made by local offices. In fact, you have a draft of an opinion, and again it is at your request, a draft of an opinion that would allow the Secretary to determine that under section 20 it was in the best interest of the tribe and that it was not detrimental to the community.
[Attorney-client conference.]
Mr. SNOWBARGER. My time has expired, Mr. Chairman.
Mr. BURTON. I will let the witness answer and then we will move on.
Mr. SKIBINE. First of all, let me say that the March 8th Department memo does not say—the June 8th does not say that the application is in the best interest of the tribe. And then the Gunderson letter is March 2, 1995. My determination was made in 1995. This is much later. It is approximately a month after I had been in the office. I'm not sure that I saw this letter or it was showed to me at the time it was being prepared for Hilda Manuel's signature.
But definitely by the time I formulated my views in June, it is my position, and it is my position now, that the section 151 analysis has to be done before. And subsequently we designed a checklist to guide—inform the field on how to process land acquisitions and section 20. And it is clear from that that the section 151 process has to be done before.
Last February I had a conference of all gaming coordinators throughout the country in the middle of February, and I think my direction to them was that when you process section 20 and 151 land acquisition applications you have to do the 151 first.
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Now there is a part of 151 that you have to do at the end and that is technical items relating to the Solicitor's Office work on titles. So there are technical features of 151 that cannot be processed before the application is actually ready to be taken into trust. But as far as the determining that the Secretary—well, the Secretary, determining whether he wants to take the land into trust, I think that that decision is—fundamentally has to be made at the beginning.
Mr. SNOWBARGER. Mr. Chairman, I am just suggesting that 1 month after taking this position, Mr. Skibine violated basically the policies set out by Hilda Manuel in a letter to one of our colleagues, Honorable Steven Gunderson, in March 1995. Whether that was his understanding or not, he was copied with that letter. He did not follow that procedure.
Mr. BURTON. Mr. Kucinich.
Mr. KUCINICH. Thank you, Mr. Chairman.
To the witness, how do you pronounce your name?
Mr. SKIBINE. Skibine.
Mr. KUCINICH. Mr. Chairman, I want to take the questioning back to what I think is one of the central points of this whole discussion we have been having this last couple of days.
Mr. Skibine, we have heard some testimony from you today about Mr. Havenick's statement yesterday that you said that political people were the ones that turned down the application. I believe you testified that you did not say that; is that correct?
Mr. SKIBINE. That's correct.
Mr. KUCINICH. Let me read to you Mr. Havenick's full statement, which I believe goes even further than that. As quoted in the Washington Post article today, Mr. Havenick said that you told him, ''Look, don't blame me. We''—and that's the career employees—''would have given it to you. It was the political people that turned you down.''
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Now, Mr. Havenick said that you told him not only that the political people made the decision, but that you, yourself, would have approved the application if it weren't for the involvement of the so-called political people.
Now, his assertion that you would have approved the application or that you wanted to approve the application, did you say that to Mr. Havenick?
Mr. SKIBINE. No, that would have been incorrect.
Mr. KUCINICH. So the sworn testimony we received yesterday from Mr. Havenick who said that you would have approved the application is simply incorrect?
Mr. SKIBINE. That's correct. I think the record stands for itself on this issue.
Mr. KUCINICH. I want to make sure I am clear on this now, Mr. Skibine. Mr. Havenick's testimony yesterday on this issue wasn't true? Was it true or not?
Mr. SKIBINE. Well, as I've said this morning, I think that Mr. Havenick may have misconstrued something I said. I don't want to accuse anyone.
Mr. KUCINICH. OK. I understand. I understand. I am just trying to get to a point here.
Now, Mr. Havenick also told us yesterday that you said it was not just you who would have approved the application if it hadn't been for the so-called political people, but that you were speaking, in effect, for all career employees present at the meeting.
Now, let me repeat again what he told us, with an emphasis on this new point. He told us that you said, quote, Look, don't blame me. We would have given it to you. It was the political people that turned you down, end of quote.
We have already discussed now that Mr. Havenick's testimony, as to your feelings, was not true. Now let me ask you about his assertion that you were speaking for other career employees at the Department. Did you tell Mr. Havenick that other career employees would have approved the application if it hadn't been for political interference?
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Mr. SKIBINE. No, that—that's not true.
Mr. KUCINICH. So on this point Mr. Havenick was incorrect?
Mr. SKIBINE. That's correct.
Mr. KUCINICH. So to sum all of this up, Mr. Havenick was incorrect about three things: First, he was incorrect when you said that the final decision was made because of politics; second, he was incorrect that you said that you, yourself, would have recommended approval of the application; and third, he was incorrect that you said that other career people on the staff would have recommended approval of the application; is that right?
Mr. SKIBINE. That's right.
Mr. KUCINICH. And with regard to all these points, it is remarkable but you haven't said that Mr. Havenick was lying or whether he was just mistaken. But you know he was incorrect? Is that——
Mr. SKIBINE. Yes.
Mr. KUCINICH. Thank you. Thank you. No further questions. I will yield back the balance of my time—excuse me, I yield to Mr. Barrett.
Mr. SKIBINE. Can I make one point? Maybe he didn't understand what I was saying. Maybe my thick Osage Oklahoma accent was more than he could get to it. I don't know. There has got to be a reason.
Mr. WAXMAN. Well, you are being very generous.
Mr. KUCINICH. It is also ''il n'y a pas de quoi.''
Mr. BARRETT. Very quickly, if I could, it is unfortunate that Hilda Manuel is not here to talk about her letter. We should note for the record that we did request that you be able to testify here. That request was denied.
I would also note, however, that the January 23, 1992, denial of the Santee Sioux tribal counsel's application appears to me at least to be a denial based on section 465 and section 20, both. And I would infer——
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Mr. SNOWBARGER. Will the gentleman yield? Will the gentleman yield?
Mr. BARRETT. I don't have the time right now, but if the Chair would give me more time, I would be happy to.
Mr. SNOWBARGER. If I am recalling correctly, the Governor did give a nonconcurrence in that situation that you are talking about.
Mr. BARRETT. But what I am saying is that in the letter, I am looking at the letter here, and the language appears to me to be both 465 language and——
Mr. SNOWBARGER. And the language of the letter also indicates the Governor's nonconcurrence with taking the land into trust.
Mr. BARRETT. The Governor of Iowa.
Mr. SNOWBARGER. I understand. That is the State in which the land was located in.
Mr. BARRETT. The other point, very quickly, as we look at Hilda Manuel's letter, she is talking about the decision to acquire the land into trust. She doesn't talk about it being a three-step process if it is a denial. I certainly understand if it is an approval you may want to have the first decision, then the Governor's decision, then the taking into trust decision. Of course, we will never know the answer to that because she is unable to testify. Thank you.
Mr. SKIBINE. I want to make one point. I want to make one point that the—with respect to the 151 process that the area director's transmittal of the 151 part on April 20, 1995, to us indicates that the tribes, three tribes specifically requested that the 151 process be completed at that point. So we——
Mr. BARRETT. Could you repeat that, please? I missed that, if you could just repeat it.
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Mr. SKIBINE. I think that the area office's 151 determination was transmitted to our office on April 20, 1995. And I think it was at the tribes' request.
Mr. BARRETT. The tribes requested that both decisions be made simultaneously?
Mr. SKIBINE. Yes.
Mr. BURTON. Mr. Mica.
Mr. MICA. Mr. Chairman, I would like to yield to Mr. Shadegg.
Mr. SHADEGG. I thank my colleague and I thank the chairman.
Mr. Skibine, your prepared statement here before the committee today indicates that you did discuss this decision—this subject with civil servants in the BIA and the Solicitor's Office as well as with Secretarial appointees. Those Secretarial appointees would include both John Duffy and Heather Sibbison; is that correct?
Mr. SKIBINE. Yes, that's correct.
Mr. SHADEGG. Your statement goes on to say that you didn't have any contact with various people, including the White House. And you did not, is that correct?
Mr. SKIBINE. That's correct.
Mr. SHADEGG. You do not know what contact they had with the White House; do you?
Mr. SKIBINE. No, I don't.
Mr. SHADEGG. You, for example, don't know that the White House appeared to know of your decision and of the basis of your decision the exact same day that you made it?
Mr. SKIBINE. At the time of the Hudson Dog Track application, I was not aware of White House contacts.
Mr. SHADEGG. So you didn't know that the White House knew of that decision the same day you made it. You referred to June 29th as being the day that you made your decision.
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Mr. SKIBINE. I made my recommendation.
Mr. SHADEGG. Your recommendation, OK. But, in fact, you had already made a decision as of June 6th; hadn't you? I refer you to exhibit 316, which is an e-mail from you to Dave Ethridge, Kevin Meisner and Troy Woodward, in which you say the letter will decline to take the land into trust, and then you say pursuant to part 151, which is the discretionary authority. So in that sentence you had already said the letter will decline. The decision in your mind had been made, right?
Mr. SKIBINE. Yes, as I testified earlier today, I think it was either in late May, early June at some point.
Mr. SHADEGG. You go on in that e-mail to say, We want to avoid making the determination under section 20 of IGRA. You wanted to avoid making the decision under section 20 of IGRA because you and the other professionals at BIA had already decided that you couldn't sustain a decision turning down this application under IGRA; hadn't you?
Mr. SKIBINE. Not necessarily.
Mr. SHADEGG. It is pretty evident through all of these e-mails that every single professional staffer at the Department of Interior said we can't turn this down under section 20 of IGRA, and I can walk you though that and show it to you if we need to and that every single political appointee said no, we have got to turn it down on that basis.
Mr. SKIBINE. I think that the Hartman memo was signed on June 8, 1995.
Mr. SHADEGG. Two days later the Hartman memo comes out and says, We can't turn this down. Indeed, we can't find there is a detriment to the community under IGRA in this particular instance and therefore we ought to approve it. That is 2 days later. That is one memo that says, We can't turn this down under section 20 of IGRA, at least not on detriment to the community, right?
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Mr. SKIBINE. The Hartman memo, I think—and he can testify to that—essentially concluded that there was not enough, in his opinion, evidence of detriment to justify a finding of detriment under section 20.
Mr. SHADEGG. Therefore you couldn't turn it down?
Mr. SKIBINE. Excuse me?
Mr. SHADEGG. Therefore you could not turn it down under section 20?
Mr. SKIBINE. We wouldn't be able to make that determination.
Mr. SHADEGG. Why did you write, we want to avoid making the determination under section 20?
Mr. SKIBINE. Well, I did not want to use section 20 because I did not want to set a precedent, I guess, at the time. I didn't think that we should use section 20. And I think that the—the Hartman memo gave me concerns about reliance on section 20, as I've testified before.
Mr. SHADEGG. Well, on June 30, you had sent your first draft to Heather Sibbison, and she sent you an e-mail and it looks like at 11:50 a.m., that is exhibit 322, in which she says, we may not want to include in our rationale the opposition of other tribes.
If you look then at exhibit 321, you respond by e-mail saying that you can defend the reference to other tribes in the context of a discretionary decision. At that point in time you still wanted to base it on the Director's discretion and not on section 20 of IGRA.
Mr. SKIBINE. You know, I'm at a loss here in the sequence of these e-mails. I'm sorry.
Mr. SHADEGG. I have just given you the number of them. June 30th, exhibit 322.
Mr. BARRETT. They do go backward; 322 was sent earlier than 321. I think that that might be helpful.
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Mr. SHADEGG. They are both sent the same day; one sent earlier in the day and one sent later in the day.
Mr. SKIBINE. I can't even read this. OK. That's 704.
Mr. SHADEGG. I am going to run out of time.
You clearly at that point still wanted to defend it based on the Director's discretion.
There are two more exhibits, exhibit 326 and 327–1 and 327–2. In every single one of those—and unfortunately I am not going to get the time—every single professional within the Department of Interior says we cannot sustain this decision based on section 20 of IGRA. We don't have the basis to do it. And in the final one, it says that, No. 1, you rewrite the memo based on instructions from Heather Sibbison and John Duffy, the two political ones, and then you write a separate e-mail that said you hope when you rewrote it you met their desire. The rewriting added back into the decision IGRA. And then I believe Kevin Meisner writes you and says, there's no way, in exhibit 327–2, that we can sustain this decision based on IGRA, and, therefore, we have to base it on the discretion of the Secretary.
If you can find in there a single shred of evidence that shows to me that any line-level officer in the Department of the Interior said, we could sustain it under section 20, I wish you would do that. And alternatively, if you can point out the pressure that was being brought to bear on you to change the decision and to base it in part on IGRA, rather than solely on the Director's discretion,
I don't think you can find a shred of documentation in that anywhere in what you have found, in anywhere in these e-mails. It is very clear that everyone down the line said, we can't sustain this decision under IGRA, and everyone down the line said, we can't base it solely on the Director's discretion. Why is that?
[Exhibits 326 and 327 follow:]
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INSERT OFFSET FOLIOS 125 TO 127 HERE
[The official committee record contains additional material here.]
Mr. BURTON. The gentleman from California?
Mr. SKIBINE. Can I respond?
Mr. WAXMAN. I am going to ask unanimous consent that Mr. Shadegg, who would otherwise get 5 more minutes, but he has a little bit over, that he have 3 more minutes so that we could conclude if the gentleman would like more time?
Mr. SHADEGG. I am on Mr. Mica's time.
Mr. WAXMAN. I know that. Do you want 5 more minutes?
Mr. SHADEGG. Sure.
Mr. WAXMAN. I am suggesting that rather than have an interruption, that you be given 3 more minutes now and not take your 5 minutes after we go.
Mr. SHADEGG. I don't mind the interruption. I will take the 5 later.
Mr. BURTON. Let's proceed under the order. You have the time, Mr. Waxman, 5 minutes.
Mr. WAXMAN. I pass right now and reserve my time.
Mr. BURTON. Mr. Shadegg.
Mr. SHADEGG. Here we are. Now I have 5 minutes. Thank you.
Mr. WAXMAN. And we left it with Mr. Skibine wanting to respond, so give him a chance.
Mr. SHADEGG. I think Mr. Skibine never had a chance to respond to my last question.
Mr. BURTON. This will not come out of Mr. Shadegg's time. Mr. Skibine, you may respond, and we will start Mr. Shadegg's time, because we said we would let him respond at the end.
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Mr. SKIBINE. I think to decide why those above me changed the decision in the way they did—changed the recommendation in the way that they did, you would have to ask them. The reasons for the change—I want to point out that the ultimate conclusion, the ultimate outcome not to take the land into trust was not changed, but the reasons for the decision, the rationale, were changed, and I'm not prepared to discuss the reasons that others thought should go in there.
Mr. SHADEGG. Well, you have called this clearly your decision. And in point of fact, you have just pretty well acknowledged that they changed the basis of the decision. And if you have trouble with that, let's look at exhibit 326.
[Note.—Exhibit 326 may be found on p. 333.]
Mr. ELLIOTT. Mr. Shadegg if your question is premised on his having said it was his decision, I'm going to object to the question. He has not testified it was his decision. It was his recommendation.
Mr. SHADEGG. OK. It was his recommendation. I think, quite frankly, he has been quoted in the common press as saying that he was the bureaucrat that made this decision.
Mr. SKIBINE. If that's the case, I want to clarify the record. I, as a GS–15 civil servant, did not have the authority to make the final decision. And what I did is simply make a recommendation to my superiors.
Mr. SHADEGG. Let us look at exhibit 326, if we could. It is an e-mail from you to a series of people, but it says: ''I have left on Tona's desk the redrafted version of the Hudson letter, per Duffy and Heather's instructions.''
So you redrafted the decision on or about July 8th per instructions from John Duffy and Heather Sibbison; is that correct?
Mr. SKIBINE. That's right. I think I came back from vacation, and I went to gather my documents for my Denver trip, and I found in my box a marked up—an edited version of my draft, and I ministerially incorporated those changes in there and then left them for Tona, my secretary.
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Mr. SHADEGG. And then if you would refer to exhibit 327–1. On that date, in that particular document, you are sending an e-mail to Kevin Meisner with a carbon copy to Troy Woodward, and in it you say, I hope it—meaning the redrafted decision letter—meets Duffy's directions; is that right?
Mr. SKIBINE. That's right. That's what it says here.
Mr. SHADEGG. And then on the bottom half of that same exhibit, there is an e-mail from Kevin Meisner, I believe, back to you, in which this whole discussion of the basis of the decision goes on. And reading the bottom half of that he says,
Why are we changing our analysis to deny gaming under section 20? I thought after the Friday meeting that everyone, except Duffy who was not yet consulted, agreed that there was not enough evidence supporting a finding of ''detriment'' to the surrounding communities under section 20, and, therefore, we would decline to acquire the land under section 151.
Once again we have another level person in your office, a lawyer, I guess, at Solicitor's Office, saying, we can't do this under section 20. We've got to do it under just the Secretary's discretion; is that right?
Mr. SKIBINE. I think that the e-mail is not directed to me. It's directed to Troy Woodward.
Mr. SHADEGG. OK.
Mr. SKIBINE. But you read it.
Mr. SHADEGG. Thank you. Let's talk about Troy Woodward.
We go to the next exhibit, which is exhibit 327–2, and in that Troy Woodward expresses his shock and disappointment in an e-mail that I guess was back to—back to Troy Woodward.
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Apparently Bob Anderson did review the letter late Monday. I checked with him Tuesday, and he thought that since Duffy wanted the section 20 finding so badly, that we would let the letter go through. I still think that there was not enough evidence for a section 20 finding of detriment.
It seems to me that every single person who touched this, other than John Duffy and Heather Sibbison, said, we cannot sustain this decision under IGRA, so we better do it based on the Secretary's discretion. And here they respond that John Duffy desperately wanted to have IGRA back in there, and not base it solely on the Secretary's discretion. That's pretty evident, isn't it?
Mr. SKIBINE. I mean, you know, you make whatever inferences you want from this e-mail. This is not my e-mail. I want to point out though——
Mr. SHADEGG. I asked you at the outset if, in fact, you believed the decision could be sustained based on IGRA and asked you if isn't it true that the e-mails document that all of the Department people, other than the political appointees, said, we cannot sustain this decision based on IGRA, and therefore we should do it based on the Secretary's discretion. And it was John Duffy and Heather Sibbison, but principally John Duffy, who said, we cannot base it solely on the Secretary's discretion; we have to base it on IGRA, and a compromise was struck, and both were put into the letter, weren't they?
Mr. SKIBINE. I think that Bob Anderson, who was the Associate Solicitor for Indian Affairs, should also be asked about his legal opinion. The issue here is whether, legally, there was enough evidence of detriment under section 20, and obviously Mr. Duffy and Mr. Anderson thought that there was.
Mr. SHADEGG. I want to get one last question. I find it fascinating that on the day that you wrote to your lawyers saying, we do not want to base it on IGRA, you asked them if there was any basis for basing it on—or any case law that would support basing it on the Secretary's discretion. That was June 6, 1995. I find it fascinating that on that same day, David Meyers, an employee of Mr. Ickes, writes a memo to Jennifer O'Connor, also an employee of Mr. Ickes, or who worked for Mr. Ickes, and says that you, in fact, turn it down, and you would turn it down based on the Secretary's discretion, the exact same reason found in your e-mail to your two lawyers. Do you have any comment on that?
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Mr. SKIBINE. No, I have no comment on that.
Mr. SHADEGG. Thank you, Mr. Chairman. My time has expired.
Mr. BURTON. The gentleman's time has expired.
Mr. Waxman.
Mr. WAXMAN. Thank you, Mr. Chairman.
Mr. Skibine, all the people here are Members of Congress. We ask our staffs to do drafts for us, perhaps it is to respond to a constituent letter, and the recommendation would be to take a position with the following arguments. It could then often—the draft would come to me or my administrative assistant, and he might say, well, change the backup arguments for the conclusion, but keep the conclusion.
All you have been asked about is the same circumstance. You came up with a recommendation. You would have based it on different arguments. It was a recommendation that went on up the chain of command, and they came back and suggested a different argument that you thought was too confining, but nevertheless that was what they were suggesting. Is this the situation that we are talking about here?
Mr. SKIBINE. Yes, that's correct.
Mr. WAXMAN. I find it sort of amazing that we are going over and over and over on this issue, since, as the chairman pointed out, the reason we are holding these hearings is to see whether there was any kind of political corruption in the decision. The decision that you recommended was a decision that was the final result. There was no change. All we had were some arguments for different basis for the very same decision.
Yesterday, we spent a lot of time with Members arguing this was the right decision, but there is something wrong with Interior reaching that decision. Today, no one is arguing with your decision; they seem to be arguing with the basis for your decision.
The fact of the matter is a decision was made. It appears to most of us that it was made conscientiously by you as a civil servant on the merits, and they keep on asking you questions about e-mails and documents by Heather Sibbison and Hilda Manuel, when you keep on saying that they ought to ask them.
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The fact of the matter is that both of those individuals gave a deposition, and the committee didn't like the depositions because it didn't corroborate their point of view. So even though we thought they ought to testify directly on what they meant when they wrote these different e-mails or memos, we are being denied the opportunity to ask them those questions.
But I gather when all is said and done, what they were suggesting to you, or others were suggesting to you, was a different way to frame the same decision, not a different basis for it, but the same decision nevertheless. Is that where we are?
Mr. SKIBINE. Yes. I think that, first of all, my June 29th memorandum was a recommendation letter, a recommendation. What I do find amazing is that I'm asked to comment about others' e-mails and views, and I certainly would prefer sitting over here and having these people who wrote these e-mails and made those statements should be here answering your questions.
Mr. WAXMAN. We thought that would have made a lot more sense, and we asked that they be permitted to testify, but we were turned down, even though Hilda Manuel is the one who could answer not only the question on the merits, but the very question about whether the Secretary had exerted any political influence. In fact, she could clarify the fact from her deposition that there was no political influence by the Secretary. The Secretary said, let the career people decide it. I guess when the decision was finally made, it's under the aegis of the Secretary.
Mr. SKIBINE. The decision was made by Deputy Assistant Secretary Michael Anderson.
Mr. WAXMAN. But when it is signed off on, it is the Secretary's decision, just like it's the President's administration, even though he didn't decide everything within his administration.
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Mr. SKIBINE. Oh, yes, that's right. Yes.
Mr. WAXMAN. I want to yield to Mr. Barrett.
Mr. BARRETT. Just we are getting near the end. I want to make sure I understand this. Fortunately for you we are getting near the end. You mentioned earlier, I thought, that the Department—the Secretary had approved an off-reservation gaming site for the Potawatomi in Milwaukee in my district; is that correct?
Mr. SKIBINE. That is correct.
Mr. BARRETT. Aside from that one, where else has the Secretary approved an offsite—off-reservation gaming facility in the United States?
Mr. SKIBINE. Aside from that, and that also would be better answered by Ms. Manuel who was my predecessor as the Indian gaming director, but before my watch, I think the Secretary had approved an acquisition for the Sault St. Marie tribe in downtown Detroit, MI, but the Governor of the State of Michigan didn't concur in that determination.
On my watch, we forwarded a positive section 20 determination to the Governor of the State of Washington on a piece of land owned by the Kalispell tribe of Indians in Airway Heights, WA, and that determination is still pending with the Governor.
There may be others where the Secretary made a positive determination. I can't recall it offhand. But in any case, the Forest County Potawatomi one was the only one where the Governor actually concurred.
Mr. BARRETT. Thank you very much.
Mr. BURTON. Secretary Babbitt indicated that the decision was made by an 18-year career veteran. And Michael Anderson, I believe, is a political appointee. And the only other one that fits the description is you and you are saying you are not the one who made the final decision?
Mr. SKIBINE. Well, the final decision was signed by Michael Anderson.
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Mr. BURTON. But Secretary Babbitt said it was an 18-year career employee who made the final decision.
Mr. SKIBINE. I made the recommendation, the initial recommendation.
Mr. BURTON. Under section 151, Secretary Babbitt or his designee is the one who has to make the final decision; isn't that correct? Under section 151?
Mr. SKIBINE. That's right.
Mr. BURTON. OK. Now, the thing from my perspective, and I am trying to clarify this in my mind, when you cut through all of this, Mr. Duffy and Ms. Sibbison and others were involved in the process. Mr. Duffy was the chief counsel to the Secretary.
Mr. SKIBINE. He was the counsel to the Secretary.
Mr. BURTON. Counsel to the Secretary. And therefore he had some influence in the decisionmaking process with the Secretary because he advised him on legal matters. Mr. Collier was the chief of staff.
Now, through all of this everyone has been saying there was no political influence or chicanery, but shortly after this both Mr. Duffy and Mr. Collier—I want to go back to this—left and went to work for a law firm and represent the tribe that benefited from the decision. That same tribe and the other tribes that were interested have contributed somewhere between $300,000 and $350,000. And Mr. Collier who was the chief of staff personally delivered a check from the Shakopee to the Democratic National Committee somewhere between $50,000 and $100,000.
Now, you know, maybe there was no political influence. But it sure stinks. It sure smells like it. I don't understand it. No political influence? All the e-mails and everything go out the window. You make all kinds of excuses and reasons why this was disapproved even though those people who were making $6,000 a year for every man, woman, and child while the tribe that is making $400,000 a year for every man, woman, and child makes big contributions and continues to benefit and you say that there was no political influence?
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We do know this: There was between $300,000 and $350,000 maybe even a half a million dollars, given from the tribes that benefited to the DNC. We do know that Mr. Duffy and Mr. Collier, both leaders in the Department of the Interior, have nice, cushy jobs with a law firm and they both represent the Shakopee Indian tribes and maybe those other tribes.
We also know that Mr. Collier, the chief of staff, with the Secretary of Interior, personally delivered a check from the Shakopees between $50,000 to $100,000. Now, maybe there wasn't any political influence. Maybe they just gave that money out of the goodness of their hearts. Maybe they just gave those jobs to those people because they liked them, not because they had influence at the Department of Interior when the decision was made. But you know, it sure does smell.
I yield back the balance of my time. Do you have any more time you would like to have?
Mr. KANJORSKI. If I could take a few moments, Mr. Chairman.
Mr. BURTON. The gentleman is recognized.
Mr. KANJORSKI. To followup on what the chairman has just said, we are concentrating on the people that were involved who eventually went out to the law firms and got jobs. But I think the public should know and the record should reflect that Mr. Havenick contributed sizable amounts of money to candidates, and the Governor. He retained one of the most prestigious lobbyists, who was a law school classmate of the Secretary, and had three occasions to meet with the Secretary, Mr. Eckstein, who obviously didn't come cheaply. He partook with individuals in Florida; Mr. Berlin, who was one of the most sizable campaign raisers for the Democratic party in Florida.
And so I seem to read this that, yes, there were campaign funds made on both sides; there were jobs obtained by people who were connected either through school ties with the Secretary or eventually went off to law firms that represented well-to-do clients, but the best way I read it is, Mr. Burton would like us to assume the post hocs fallacy: After this therefore because of this. And I don't think the facts in this case do support that.
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I think the facts support that an 18-year professional was charged with making the final recommendation and conclusion, and as you testified you wrote that up. The only input of Mr. Duffy was to clean up some legal questions in your recommendation, not changing the substance of it. And then as a matter of process, inform—a Deputy Secretary put his signature to the decision but basically the decision was prepared to your analysis and your recommendation and that is the major party of the decision and your testimony that you, having prepared that several weeks before any of these contributions occurred or any activities occurred, went on vacation and came back, polished the final decision, sent it up, and that was the decision, and that if they wanted to exclude for total purposes they would have used section 465 which would have denied the right of appeal, the court case or any other methodology, just the full discretion of the Secretary to say no.
But you, in fact, relied on a different section, section 20, and the aggrieved parties have exercised their right for reappeal and a court matter to have the issue tried and that is where the process is. And for all intents and purposes, the Department acted as it should have acted and came up with a decision, but there are always winners and losers and the losers aren't happy with the decision. Thank you very much.
Mr. WAXMAN. Will the gentleman yield to me?
Mr. KANJORSKI. Yes.
Mr. WAXMAN. Now, the chairman may say this all stinks because he wants it to stink, but it is hard to understand why we have hearings when you have sat here patiently answering the questions over and over and over again that your recommendation was based on the merits without political inference. And those who could give further information that would confirm that same point of view weren't permitted to testify.
I know the chairman wants a scandal because that is the purpose of this committee at this point. It is not to get truth. It is to scandalize people in the Democratic administration. But when you have witnesses the chairman calls and the witnesses don't corroborate what he wants, his preconfirmed conclusion, I don't see why we spent all this time in these hearings and why your time has been taken up from other responsibilities. But I very much thank you for your participation.
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I do want to ask you one question. I guess because we talked about—your attorney raised the issue as well, about your being badgered in the deposition. Was today's hearing much better for you than the deposition that you faced by our committee prior to this meeting today?
Mr. SKIBINE. I have no complaints with today's hearing.
Can I make a statement? I think that what I've testified to is that as far as my recommendation and the work of the Indian Gaming Management Staff is concerned, those recommendations were made on the record and there was no undue influence or political shenanigans that we knew about.
As far as the motives or the beliefs of others above me, I cannot really address that. The only thing I can say is that to my knowledge it seemed that the opinions of Mr. Anderson, Mr. Duffy, and Ms. Sibbison and others were essentially stemming from their analysis of the merits.
Mr. WAXMAN. All you can tell us is what you know from your own experience. That is why we have you as a witness. It strikes me also how important it is that we have public hearings so that the questions are asked in public rather than these backroom private depositions where witnesses can be hounded and harassed and badgered and told by Members of Congress we can't get an honest answer from you when the answer is not what they want, even though it may be the truth. Better to let the world see a hearing and a witness answer the questions as honestly and as truthfully as you did. And you were very convincing. You said what you had to say from your knowledge. You don't know about what other people might have done or thought, and no one else has given us any evidence that the decision was other than as you say it was. Thank you.
Mr. BURTON. Mr. Mica.
Mr. MICA. Thank you, Mr. Chairman.
I wanted to comment, sort of, in closing. I don't know if this is really a question, but I haven't had a chance to participate today. I just heard one of my colleagues from the other side say, though, that this was an example or these were examples of contribution of funds by Mr. Havenick in the Governor's race; and he cited that, I guess, to blur the issue at hand. And I recall quite vividly yesterday Mr. Havenick outlining for the committee that his contributions—the bulk of his contributions to Mr. Thompson, Governor Thompson—were actually long before any of this even came to light.
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We are not talking about a period in which any funds changed hands at a time when a decision was being made. It was long before any of this was even conceived as a project, and it was based on his support of Mr. Thompson as a candidate.
Then we heard the ranking member try to close and question, the need for this hearing? The need for this hearing is the continual stonewalling by the administration and just about every Department, including this agency, of this committee. This is a committee of investigation and oversight, and I have a list I would like to make a part of the record, Mr. Chairman, of document production requests to the Department. In fact, documents were received, almost all of them, after the Senate concluded its business and only after we subpoenaed documents in December that we found lacking—December 12, 1997, and the compliance due date was January 2, 1998. Many of those documents did not come to us until just prior to this hearing. And here is a list of the documents that were not provided to this committee and the subsequent stonewalling of this investigation and oversight committee by another agency of the Federal Government.
So these are not accusations that we raise. These are accusations that have come about as a result of the discrepancy between the Secretary of the Interior and another witness and we need to get to the bottom of what took place.
We also have public statements by the Secretary saying that the decision to reject the permit was made by a bureaucrat who worked in Indian Affairs for 18 years based on the Department's policy that casinos should not be allowed in communities that did not want them. We have identified only one person that fits that description and that is our witness here today. I thank you, Mr. Chairman.
Mr. ELLIOTT. Mr. Chairman? Is Mr. Mica's list a list of documents that we, the Department of the Interior, have not yet provided?
Mr. BURTON. I think that is the list of the documents we requested, and those documents were not received until just recently.
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Mr. ELLIOTT. I misunderstood him. I thought he said he had a list of documents that we had not yet provided.
Mr. BURTON. No, I believe the documents were received, but we didn't receive them until just recently, and that is one of the reasons we are holding this hearing.
Mr. MICA. And I ask that this list be made a part of the record.
Mr. BURTON. Without objection.
[The information referred to follows:]
INSERT OFFSET FOLIOS 128 TO 129 HERE
[The official committee record contains additional material here.]
Mr. BURTON. Does anyone else seek recognition for this panel?
Mr. Skibine, we thank you for being here and we appreciate your cooperation. Thank you.
Mr. SKIBINE. Thank you very much. Mr. Chairman.
Mr. BURTON. The next panel I invite to come to the table, Robin Jaeger, Michael Anderson and Tom Hartman. We will wait 5 minutes so that everybody gets organized. Will the reporters please let Mr. Skibine and his friends leave the table before they start talking to them?
[Brief Recess.]
Mr. BURTON. Gentlemen, if you are prepared, we will have you stand and be sworn. Raise your right hands.
[Witnesses sworn.]
Mr. BURTON. On behalf of the committee, I welcome you here today. You are recognized, each and every one of you, to make an opening statement. We would like for you, if you could, to limit it to 5 minutes. If it is longer than that, we will take the remainder for the record. We will submit it for the record. Who would like to start? Mr. Anderson? You are recognized for 5 minutes.
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STATEMENTS OF MICHAEL ANDERSON, DEPUTY ASSISTANT SECRETARY, BUREAU OF INDIAN AFFAIRS; THOMAS H. HARTMAN, FINANCIAL ANALYST, INDIAN GAMING MANAGEMENT STAFF; AND ROBERT R. JAEGER, SUPERINTENDENT, BUREAU OF INDIAN AFFAIRS, GREAT LAKES AGENCY
Mr. ANDERSON. Thank you, Mr. Chairman.
Good afternoon, Mr. Chairman and members of the House Government Reform and Oversight Committee. My name is Michael Anderson and I serve as Deputy Assistant Secretary for Indian Affairs at the U.S. Department of the Interior.
I was born in Okmulgee, OK, in 1958 and was a resident of Oklahoma City and Norman, OK, until 1980. I am a tribal member of the Muskogee Nation. I received a degree in political science from the University of Oklahoma in 1980, and a law degree from Georgetown University Law Center in 1984. I am a member of the District of Columbia Bar. From 1984 to 1992, I practiced law in Colorado and the District of Columbia.
In 1989, I took a 1-year leave of absence from the law firm of McKenna & Cuneo to serve as associate counsel and later general counsel of the U.S. Senate Special Committee on Investigations, Senate Committee on Indian Affairs, which at that time was examining allegations of waste, fraud, and abuse in the Bush Interior Department.
I left McKenna & Cuneo in 1992 to become executive director of the National Congress of American Indians. I left NCAI in 1993, when I was appointed by the Clinton administration to serve as Associate Solicitor for Indian Affairs. I served in this position until April 1995, when I became Deputy Assistant Secretary for Indian Affairs.
I am here to present testimony on the Department's decision to deny the application of three Indian tribes in Wisconsin to take land into trust for gaming purposes off of their reservations. Accompanying me is Timothy Elliott, Deputy Associate Solicitor for General Law at the Department of the Interior.
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I am pleased to present facts on this matter, particularly in light of the widely misreported information on the Department's processes in reaching its decision, which in my view was correct and appropriate and without any improper political influence.
As an attorney and as a former general counsel of the Senate Investigations Committee, I am acutely aware of the need to protect Government decisions from improper activities. I respect and honor the role of Congress in investigating allegations of improper activities and only ask in return that congressional committees accord fairness to those from whom they seek information.
The subject of this hearing is a letter I signed as Deputy Assistant Secretary on July 14, 1995, to the tribal chairs of the Red Cliff Band of Lake Superior Chippewas, Lac Courte Oreilles Band of Lake Superior Chippewas, and the Sokaogan Chippewa community, respectively. That letter contained the statutory and policy bases for denying the joint application of these three Chippewa tribes to take land into trust for gaming off of their reservations.
I have already testified in deposition before the Senate Governmental Affairs Committee and this committee and wish to re-emphasize here that I have no knowledge of any improper political influence, or knowledge of even rumors or suggestions that campaign contributions played any role in this decision. I never had a conversation with Secretary Babbitt about the Hudson matter, nor did anyone present to me his views on how the Hudson matter should be decided. The then-director of the Indian Gaming Management Staff, George Skibine, who has just testified, supported denial of the application. I know of no staff in Washington, DC, who believed the application should be granted outright.
The application, if granted, would have caused detriment to the surrounding community, including the city of Hudson, WI, the town of Troy, WI, and the St. Croix Indian tribe. Moreover, it did not adequately address the environmental impacts to the St. Croix Scenic Riverway.
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In closing, I want to add that I am greatly concerned that these hearings without being kept in proper context may lead to the perception that American Indian and Alaska Native governments and individuals should not participate in the political process because their support for Federal and congressional candidates may somehow taint executive branch decisions affecting them. Members of the committee, that would be a tragedy.
As a member of the Muskogee Creek Nation, I know American Indian and Alaska Native veterans have honorably served America in combat as well as peacetime. Their efforts to defend the American way of life include the right of American Indians to vote, and like all other citizens, to make financial contributions to those candidates that they support. No one doubts that this must be done in a legal and ethical way, but neither should a double standard be applied that would prevent American Indians from participating in the political process. I look forward to answering any questions you have on this matter. Thank you.
[The prepared statement of Mr. Anderson follows:]
INSERT OFFSET FOLIOS 130 TO 131 HERE
[The official committee record contains additional material here.]
Mr. HARTMAN. Good afternoon, Mr. Chairman, and members of the House Government Reform and Oversight Committee. My name is Tom Hartman and I am a financial analyst on the Indian Gaming Management Staff of the Bureau of Indian Affairs of the Department of the Interior. I am currently the Acting Director of the office, pending the selection of a new Director. I am a career civil servant and have worked at the Department since September 1994, over 3 years. Accompanying me is Mr. Tim Elliott, Deputy Associate Solicitor for General Law at the Department of the Interior.
I am here to provide testimony on my role in reviewing the application of three Chippewa tribes to acquire the St. Croix Meadows Greyhound Racetrack in trust for use in gaming. As an opening statement, I would like to correct a persistent misstatement about my analysis of the record of the application that has bothered me a great deal. I have been widely quoted in the press as recommending the approval of the application. As a professional, I think it is important to remain impartial about the final outcome of any review I perform, even as I make critical observations, some favorable, some unfavorable, on the facts under review.
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My recommendation to the office Director in a June 8, 1995, draft memorandum was to complete the other half of a two-part determination, the consideration of whether the application was in the best interest of the tribe and its members. I did not recommend approval of the application and would not have done so until the entire review had been completed. After a complete review, I would have recommended approval only if I believed the facts supported such a recommendation.
The implication that I would make a recommendation before a complete and thorough review of all the factors in a determination impugns my professionalism and impartiality. As a member of the Cherokee Nation of Oklahoma, I am keenly aware of the important role the Bureau of Indian Affairs plays in tribal governments and in individual Indian lives. I believe that I can best support strong tribal governments by professionally performing my job in a manner that conforms to Federal law, and preserves the integrity of the process at the Bureau. I believe I have done so in the matter now before this committee and will continue to do so in the future. I hope my answers during this hearing will add to your understanding of the review of the application of the three affiliated tribes.
[The prepared statement of Mr. Hartman follows:]
INSERT OFFSET FOLIOS 132 HERE
[The official committee record contains additional material here.]
Mr. JAEGER. Good afternoon, Mr. Chairman, members of the committee. My name is Robin Jaeger. I'm the Superintendent for the Bureau of Indian Affairs, Great Lakes Agency located in Ashland, WI. On October 12, 1993, three Wisconsin Indian tribes submitted a request to the Bureau of Indian Affairs Minneapolis area office to take land known as the St. Croix Meadows Greyhound Racing Park located in Hudson, WI, for Class III gaming purposes. The three tribes were the Red Cliff Band of Lake Superior Chippewa Indians, the Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin and the Sokaogon Chippewa community of Wisconsin.
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By letter dated October 13, 1993, to the tribes, the acting Minneapolis area Director acknowledged receipt of their request for approval of off-reservation land for gaming purposes. The tribes were advised of the requirements of section 20 of the Indian Gaming Regulatory Act, which required the Secretary of the Interior to consult with nearby tribes and the Governor of Wisconsin.
The Secretary was required to determine if gaming was in the best interest of the tribes and not a detriment to the surrounding community. The letter concluded by stating that the Minneapolis area office would begin the consultation process with other tribes.
In a followup letter on December 30, 1993, the area Director wrote to the tribes stating that prior to taking off-reservation land into trust for gaming purposes, the Secretary must complete the two-part determination required by the Indian Gaming Regulatory Act. Part 1, will a gaming establishment on newly acquired land be in the best interest of the tribes? Part 2, will a gaming establishment on newly acquired land be detrimental to the surrounding community?
The area Director requested that the tribes furnish additional information, including findings and supporting data on a variety of questions and issues. The tribes were to address whether the proposed gaming establishment would be in the best interest of the tribes, and if it would be detrimental to the surrounding community. The tribes were also advised that the Minneapolis area office would be responsible for contacting the appropriate State and local officials, including officials of other nearby Indian tribes, for their opinions on the same questions and issues. The responses would be used by the area Director to develop findings of fact and a recommendation to the Assistant Secretary Indian Affairs of the Department of the Interior.
As the Superintendent of the Bureau of Indian Affairs Great Lakes Agency, I was formally requested by the area Director on June 3, 1994, to begin the environmental compliance review for the trust acquisition of and the addition of Class III gaming to the existing St. Croix Meadows Greyhound Racing Park. It was my understanding that the Minneapolis area office would continue to be the lead office for all facets called for by the two-part determination. The agency's only role would be to determine compliance with the National Historic Preservation Act and the National Environmental Policy Act.
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Following this request, the agency complied with Secretarial Order 3127, which is a hazardous materials inspection of the property. We also coordinated with the State historic preservation officer to determine compliance with the requirements of the National Historic Preservation Act. And to comply with NEPA, the agency staff reviewed a comprehensive environmental assessment and supporting documents.
We placed a public notice of availability for the environmental documents and allowed a 30-day public review so that all interested parties could comment. When the comment period ended, the agency was to prepare either a finding of no significant impact, or recommend the completion of an environmental impact statement. At that point, it was the responsibility of the Minneapolis area Director to make the decision either to accept the FONSI or to request an environmental impact statement.
The agency performed the actions necessary to consider the environmental consequences of the proposed project. Our review indicated there would be no significant negative environmental impact caused by adding Class III gaming to a facility already engaged in a gaming operation. This review resulted in the issuance of a FONSI, dated September 14, 1994. The FONSI was submitted to the Minneapolis area office and was included as part of the area Director's review and analysis of the tribes' application.
The area Director's finding and recommendation concerning the application was subsequently sent on for consideration to the Assistant Secretary Indian Affairs on November 15, 1994. In April 1995, the area Director sent to the Assistant Secretary a recommendation to take the land into trust under 25 CFR, part 151 land acquisitions.
Generally, the agency, the Great Lakes agency, is not involved with the two-part determination process on an application to take off-reservation land into trust for gaming purposes. That process is the responsibility of the area Director. In the case of the tribes's Hudson application, the agency was asked to share a portion of the area office's workload and conduct the environmental compliance review. This was because agency staff were familiar with the review process due to their routine involvement with a variety of nongaming projects which required NEPA compliance also. It was felt that this assistance would enable the Minneapolis area office to complete the overall review of the politics in a more timely manner. Thank you, Mr. Chairman.
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[The prepared statement of Mr. Jaeger follows:]
INSERT OFFSET FOLIOS 133 TO 134 HERE
[The official committee record contains additional material here.]
Mr. BURTON. Thank you, we will yield to our counsel for 30 minutes and I will take a brief part of that.
Mr. Jaeger, am I pronouncing your name right?
Mr. JAEGER. Jaeger.
Mr. BURTON. Pardon me. Jaeger. It is my understanding from your testimony that they didn't see any environmental problems because you already had a dog track there; is that correct?
Mr. JAEGER. That's correct. As far as my office is concerned.
Mr. BURTON. As far as your office is concerned. And on up the chain they didn't find any problems from an environmental standpoint; is that correct?
Mr. JAEGER. I believe there is a mention of some concern in Mr. Anderson's letter, his decision letter.
Mr. BURTON. Mr. Anderson mentioned some concerns about the environmental problems?
Mr. JAEGER. Relating to the St. Croix Scenic Riverway that was part of the——
Mr. BURTON. But your office found no problems?
Mr. JAEGER. That's correct.
Mr. BURTON. Mr. Anderson, what problems did you find?
Mr. ANDERSON. The major effect that we found was the environmental assessment didn't measure the impact to the St. Croix National Scenic Riverway, which is a half mile from the casino. That information came from the Indian Gaming Management Staff and I believe in the record is a memorandum from Ned Slagle, who is the environmental protection specialist in that office who made that conclusion. If I could cite just one sentence of his——
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Mr. BURTON. Sure.
Mr. ANDERSON. He says, ''The fact that the nearby riverway has received a special designation was not revealed in the environmental document which had been submitted in connection with other documents in support of the proposed casino.''
So he basically found that that had not been identified as a problem.
Mr. BURTON. I guess you have the environmental experts at the local level saying that it met the criterion that they thought it should. And then when it went up to the level that you were talking about it was turned down, but you already had a dog track there with a big parking lot with a lot of people coming in and out. They already had a gambling facility there. What is the difference between the environmental impact of a dog track with a big parking lot and a casino with a big parking lot? You still have a lot of people going in and out?
Mr. ANDERSON. The information that was reviewed at the office was, I think, from 1988. So they measured the impacts of the casino, or actually the dog track at that point. But this casino was going to lead to a lot more traffic, maybe 4,000 or 5,000 cars per day in the area. The volume alone would be a different impact. This, as you know, was a failing dog track, so attendance was low and this new impact would cause much greater environmental concern.
Mr. BURTON. But it had been approved at the lower level.
Mr. ANDERSON. The recommendation had been, and the FONSI had been prepared at the local level. That's correct.
Mr. BURTON. It was reversed at an upper level.
Mr. ANDERSON. Yes, frequently expertise, whether it's in the financial area or the environmental area, is not as strong at the local levels as it is in Washington. That's why Secretary Lujan put forward his policy that it be reviewed by the Indian Gaming Management Staff in Washington, particularly where they are used to reviewing other applications that came forward.
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Mr. BURTON. It's interesting to me that at the lower level, the gambling casino project appeared to be approved and on its way. And at the lower level the environmental concerns didn't seem to be a problem. But as they moved up the chain, all kinds of problems started occurring. And that just concerns me. I'm making an observation. I'm not asking a question.
Let me ask you another question that nobody has asked so far. You had a gambling facility there. There was a gambling facility there, and everybody keeps talking about the impact on the community who didn't want gambling. But they had gambling. The gambling was already there with the dog track.
Now, understandably the casino would draw more people there. There would be more traffic, jobs, and more money. But the fact is, if the gambling was a concern, they already had it. Did anybody ever ask that question?
Mr. ANDERSON. Sure, it was reviewed extensively. The increased traffic is very significant in finding local detriment to a community. So traffic, which you mentioned would be increased, is certainly a reason that we would look at assessing the evidence for detriment. So a failing dog track versus something that would lead to mega attendance from all over the various counties is a true——
Mr. BURTON. Mr. Anderson, we had the people here yesterday who were from Hudson. They, to my knowledge, didn't mention anything about the traffic problems. They were concerned about the moral problems and the gambling problems and the crime problems that were going to be created by having a gambling casino there. I don't remember anybody saying anything about infrastructure problems or about——
Mr. BARRETT. Mr. Chairman, if I may. We only had the county supervisors. The other individuals that Mr. Lantos read I believe did talk about her husband driving past there. So maybe we could check that. But we only had one person testified.
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Mr. ANDERSON. Well, actually the resolutions and questions and answers from the community itself discussed traffic problems, wastewater treatment problems, the fact that the environmental issues——
Mr. BURTON. Let's address that. Did not the tribes in question negotiate with the cities about giving funds from the enterprise to the city in lieu of property taxes so that there would be enough money to take care of the additional infrastructure and other problems such as sewage and so forth?
Mr. ANDERSON. Yes, a year prior to, I believe it was the spring of 1994, the city and the tribe had basically entered an agreement for offset of at least costs that the city would incur. That was while the city—the council supported the application. The year later when the council reversed itself and decided to oppose this application it was a real question as to whether that agreement was binding or not. The city attorney looked at that issue. But notwithstanding that, the council still opposed it. There was a real question as to whether that was void or not or whether that would be challenged.
Mr. BURTON. I know that the political issue is a muddy one because there was a referendum that passed very slightly 52 1/2 to 47 1/2 or 51 1/2, something like that. And then the council was 4 to 2 the other way and the mayor was recalled.
Mr. ANDERSON. It was not that muddy to us.
Mr. BURTON. It was not that muddy to you?
Mr. ANDERSON. No.
Mr. BURTON. But at lower levels it had been approved hadn't it? Recommended for approval?
Mr. ANDERSON. At the BIA? Yes, certainly——
Mr. BURTON. And at the lower levels the environmental people saw no problem.
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Mr. ANDERSON. That's correct. As Mr. Slagle said, though, those environmental problems and assessment of St. Croix were not addressed.
Mr. BURTON. There was no political reason for that? There was no political pressure whatsoever?
Mr. ANDERSON. Right. Mr. Slagle is a career professional who does these environmental assessments regularly.
Mr. BURTON. The gentleman we just had before us was a career professional as well.
Mr. ANDERSON. He was at the local level, though, and that was at the superintendent level.
Mr. BURTON. Counsel?
Mr. WILSON. Mr. Hartman and Mr. Jaeger, we again meet under less than optimal circumstances. Hopefully, this afternoon will not be terribly long.
Mr. Anderson, I recognize you were deposed before the committee last week and again thank you very much for being here.
I'll try to shorten my questions as much as possible by trying to get to one of the central points here.
Mr. Anderson, my understanding is that this proposal to take land into trust was not an adversarial process, was it?
Mr. ANDERSON. I think it was a contentious process. It wasn't an adjudicatory process. But there are certainly strong feelings on both sides of the issue.
Mr. WILSON. Certainly amongst supporters and opponents, but between the applicants and the Department of the Interior, was this designed to be an adversarial process?
Mr. ANDERSON. No, this was designed to be a cooperative process.
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Mr. WILSON. Where, in the record, can we look to find a communication with the applicants telling them that if they didn't cure a certain problem by a certain time, the application would be denied?
Mr. ANDERSON. The central point in consultations at the end appeared to me to be from, as Mr. Skibine testified, from Mr. Moody, Mr. Havenick, Mr. Eckstein. That is where I would expect—and don't have knowledge because I wasn't in those meetings, where the consultation process would have occurred and where clearly would have been expressed you've got to get the local support of the community. It would be naive for the applicant tribes to assume that they didn't need local support of the community. They clearly needed that and they also needed to show there was not a finding of detriment.
Mr. WILSON. But, Mr. Anderson, you come here today as the ultimate decisionmaker. You testified that you signed the July 14th letter that rejected the application. And what we are really trying to get to here is some tangible representation or some tangible evidence of the Department of the Interior consulting in a meaningful fashion with the applicants and telling them there is a serious problem and if you don't make an attempt to cure this particular problem, then we will not be able to accept your application. Is there such a communication in the record?
Mr. ANDERSON. I believe the meetings would be the substance of the communication. I would accept the statement that there could always be more consultation or better consultation. Clearly, in any of our processes there can always be more done. But I can't accept that the applicant tribes didn't know they needed the local support of the community, particularly as to the evidence of detriment and to minimize that, when that was in the standard. That was in the standard that was passed in IGRA.
Mr. WILSON. I recognize your contention that the support of the local community must be given. I wanted to return to something you said in your opening statement. You said if the application were to have been approved, it would have caused detriment to Hudson. What detriment are you referring to?
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Mr. ANDERSON. The detriment is contained in the letter that I signed on July 14th and it is particularly geared to the potential growth in traffic, congestion, and the adverse affect on the community's future residential, industrial and commercial development plans. That was the core of the problem.
Mr. WILSON. Are those problems that can be cured?
Mr. ANDERSON. They cannot be cured, but they can be paid for. I mean traffic——
Mr. WILSON. I'm noticing a distinction there. You are telling me they cannot be cured, but they can be paid for.
Mr. ANDERSON. Right. Just as an example, traffic congestion. You can't cure that because there is going to be traffic coming into the community. And can the offsets be paid for where there is more police? Yes.
Mr. BURTON. I guess the point that we would like to illuminate is that did you discuss with the tribes in question who were applying for the ability to build the casino, did you talk to them about these problems before denial?
Mr. ANDERSON. No, I didn't. The Department was in communication, but as an individual, I did not.
Mr. BURTON. Were there any meetings or any correspondence that was sent? Was there correspondence enumerating the problems that had to be met?
Mr. ANDERSON. I would have to examine the record. I believe that——
Mr. BURTON. You signed the final denial. Did you not check that out?
Mr. ANDERSON. I relied on the career staff to provide a record for the decision. I was briefed on the record, but I don't know the details.
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Mr. BURTON. Who in the career staff made that recommendation to you that you go ahead and sign it, because you said you didn't check everything out?
Mr. ANDERSON. We had meetings and I said I was briefed on the documents and the issues involved.
Mr. BURTON. But from what I've been able to discern at these meetings, the tribes that were applying for the license and to put the land in trust, they were not notified in writing of the problems. And the tribes that opposed it, the very wealthy tribes, had a meeting with the Department officials including their lobbyists before this decision was made, and they were not notified in writing about the problems until after the decision was made.
Mr. ANDERSON. Oh, that's not correct. They were notified the consultation period had been extended. They were notified late, but they were notified that information would be coming in. And they also had——
Mr. BURTON. Was this after the meeting with the larger tribes, the tribes that had the most to gain by stopping them financially?
Mr. ANDERSON. Yes, as I understand the record, after the meeting with the tribes who were opposing the application, and there was time allowed to have more commentary on the application, they were notified. The applicant tribes were notified 6 weeks later. So they did know there was new information being considered.
Mr. BURTON. Is it common practice to your knowledge when there is a difference of opinion on whether or not there should be a casino that the tribes who are trying to get the license and get the land in trust like the ones that we are talking about, that they not be notified of a meeting that is going to take place involving the opponents, particularly the other tribes that were making a lot of money and didn't want the competition? I mean it seems to me kind of unfair that they weren't even notified about that meeting until after it took place.
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Mr. ANDERSON. Well, typically—typically, in a consultation process—and we have a government-to-government relationship with each tribe—we don't invite or sometimes even notify other tribes that we're having meetings. We don't know what the meetings are about.
In this particular case, I believe the Minnesota delegation arranged the meeting. At least that's what I understand from the record.
Mr. BURTON. Mr. O'Connor, who I——
Mr. ANDERSON. Well, I think the invitation was actually held by Congress.
Mr. BURTON. I understand, but, it just seems strange.
Go ahead, Counsel.
Mr. WILSON. Obviously, we can speak about problems right now for quite a long period of time, but they are not germane to the application process unless they are communicated to the applicants.
I would like to try to cut through some of the sophistry here and deal directly with one of the things you mentioned in your opening statement. You talked about the environmental assessment not being adequate. The question, simply put then, is, if the environmental assessment wasn't adequate, why didn't you send your career employees back to adequately complete the environmental assessment?
Mr. ANDERSON. Well, that's a fair question, and perhaps that should have been done.
Mr. WILSON. Well, no——
Mr. ANDERSON. I think, given the other compelling reasons for denial of the application—which were the congestion, the local community's opposition—there was certainly time, even after the decision was made and denied, for them to come forward and to cure those problems or at least to make the attempt to cure those problems.
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Mr. WILSON. There is a shell game going on here and I'm going to be going at a moving target all afternoon, but you mentioned one of the reasons for denying the application as being an environmental assessment not being adequate. For us to try to understand this process, it is very important for us to understand why, if you are going to identify that as a fatal problem with this application, that you wouldn't simply go back and do—that is essentially your part of the work; correct?
Mr. ANDERSON. That was just one of the many fatal problems with this application.
Mr. WILSON. Well, again you are defining them as fatal problems now, but it goes back to the beginning, when we were talking about whether this was an adversarial process. If it was a cooperative process between the Department of the Interior and Indian tribes, with the Interior and the tribes working for presumably a common goal, then common fairness suggests that you would at least have gone back and said, if you can't fix problem X by date Y, we will not be able to cure or to approve your application.
Let me just ask, was there not information on the record that indicated to the applicants that they were proceeding in the right direction with their applications?
Mr. ANDERSON. I believe the indication clearly from the area level was that it was moving along just fine.
Mr. WILSON. Is it correct to say there was a November 15, 1994, communication from the area office in Minneapolis that indicated that the application was not deficient?
Mr. ANDERSON. That's correct.
Mr. WILSON. Is it correct to say that on April 30, 1995, there was another communication from the area office indicating that the application was not deficient?
Mr. ANDERSON. I'm not familiar with the April 30th. By that time, though, the central office in the Indian Gaming Management Staff, pursuant to the policy that Secretary Lujan had adopted, assumed jurisdiction of this area, just as they have for all gaming acquisitions off the reservation.
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So I'm not sure how current the area office's information was. Certainly by that time the information about the council's opposition, the town's opposition, is something that is not reflected in that later document. So I'm not sure how up-to-date they were at that point.
Mr. WILSON. I understand.
Mr. ELLIOTT. Counsel, when you say April 30th communication from the area office, are you referring to an April 20th communication?
Mr. WILSON. I stand corrected.
I don't want to spend too much time shooting at moving targets here, but one of the other things you mentioned was the traffic. And you mentioned that you were working on information obtained in 1988; is that correct?
Mr. ANDERSON. As I understand, the area office and the superintendent's office were looking at environmental issues from 1988, when they made their FONSI determination on the dog track at that point.
Mr. WILSON. Mr. Anderson, do you know when the dog track was built?
Mr. ANDERSON. Well, the dog track was built in 1990, but they had to do an environmental assessment in advance of that. So I believe 1988 was the time they actually did the assessment.
Mr. WILSON. And how many cars was the dog track built to accommodate within its traffic patterns?
Mr. ANDERSON. I believe—I don't know the answer to that. I just know the dog track at that time was failing in 1994. So I'm not sure of the scope.
Mr. WILSON. And in the materials you had submitted to you, how many cars was it anticipated that would go into the casino?
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Mr. ANDERSON. The figures I have seen are around 4,000 a day, and that's probably an initial opening, and when they build a market, there would be even more.
Mr. WILSON. Which is less than half the number the dog track was built to accommodate; correct?
Mr. ANDERSON. I'm not sure of the facts of how much they accommodated.
Mr. WILSON. Well, you can understand our problems when you give us reasons for the denial of the application and then you're not certain of the points which underlie——
Mr. ANDERSON. I can certainly provide that for the record.
Mr. BURTON. This is very significant, because I would have presumed that you would have sent a letter enumerating all the problems, environmental, traffic and everything else, to the applicants so that they could see if they could solve those problems. That wasn't done in a timely fashion.
And the dog track would accommodate 8,000 cars at the time it was built in 1990. There was no environmental problem. The people at the local level didn't see any environmental problem. Now you are talking about a casino that is going to usually have half that number of cars there, not 8,000 but 4,000, and you find an environmental problem. The amount of traffic is cut in half, the amount of people that you anticipated was going to be gambling there at the dog track or the casino was cut in half, in all probability, and yet now you see an environmental problem that wasn't there when it was double that number.
I don't understand that. Can you explain that?
Mr. ANDERSON. Well, the town certainly saw an environmental problem and that was communicated to us. Moreover, they cited other reasons, like a wastewater facility that was closed, which would cause more problems in that environmental—in that area as well. They may have to construct a new facility to accommodate the casino.
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Mr. BURTON. You mean the local people who were examining this from an environmental standpoint would know anything about that?
Mr. ANDERSON. They provided us with the information that they had a problem with the congestion and the wastewater facilities.
Mr. BURTON. The local environmental people?
Mr. ANDERSON. No; the local towns did.
Mr. BURTON. But the local environmental people didn't see any problem?
Mr. ANDERSON. Yes, they did. The Izaak Walton League sent us a letter.
Mr. BURTON. No, no, no, not the Izaak Walton people; I am talking about the people that made the recommendations.
Mr. ANDERSON. You mean the local people here?
Mr. BURTON. Right.
Mr. ANDERSON. No, they didn't. They reach their final——
Mr. BURTON. And they are supposed to have some environmental common sense, because they work for the Government and they work in the area of the environment.
Mr. ANDERSON. Well, they're very valuable employees, and they have a lot of expertise. But they would even acknowledge—I think Mr. Jaeger would acknowledge that Washington is a place that sometimes, in other areas, has more expertise. Mr. Slagle has reviewed many of these.
Mr. BURTON. But the question is, for what reason is there more expertise?
Mr. ANDERSON. Well, you know, I have been very calm about the comments about the shell game and everything else, which I think are out of line, but to suggest that Mr. Slagle again has now joined this massive conspiracy of career people opposing that is beyond the pale. I'm referring to the counsel's comments.
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Mr. BURTON. We are wondering if proper procedures were followed according to the law. And you said this was supposed to be a cooperative procedure. These people, who had made the application, weren't notified of all the problems in a timely manner. There wasn't any meeting; there wasn't any letter enumerating the problems.
Mr. ANDERSON. There were meetings, and I don't—I would just refer again to what Mr. Skibine said. I don't know the Democratic context of those meetings. I don't know if you asked Mr. Skibine about the nature of the opposition or the nature of the evidence that was needed there. I expect the problems were communicated in those meetings.
Mr. BURTON. Go ahead.
Mr. WILSON. Mr. Anderson, did Mr. Slagle ever go to Hudson, WI, to look at the environmental situation?
Mr. ANDERSON. You would have to ask Mr. Skibine, who is his staff director. I don't know whether he did or not.
Mr. WILSON. I have asked this question in depositions, and my understanding thus far is that you did not bother to send, or you did not—I won't characterize it in any way, but you did not send anybody to Hudson to do any analysis of the environmental situation; is that correct?
Mr. ANDERSON. I'm not sure what the career staff did in terms of their examination of the site or not. I just wouldn't know the answer to that.
Mr. BURTON. Mr. Anderson, one of the things that troubles me is that you signed the letter, and the letter had the conclusions drawn, but as far as the background information and a lot of the things that are necessary to draw that conclusion, I have asked you about some documents, you said those were handled by people below you, like Mr. Skibine and so forth, that you didn't see those.
Don't you find it troubling that you were signing a letter of declination without having reviewed all the relevant material so that you could make that determination?
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Mr. ANDERSON. No.
Mr. BURTON. You are the man that is held accountable. Your name is on the letter.
Mr. ANDERSON. Yes, it is, and I think in those situations one does have to invest in the Government career people and the people with expertise to make those decisions.
To give you an example, sometimes we will have people write in about their genealogy; they want to become a member of a tribe or their tribe itself should be recognized. I don't go back in those decisions and examine the genealogical records myself or examine all the evidence as submitted by historians and anthropologists. We have a career staff that looks at those issues, and I basically invest in them to give me proper advice, which I think was done in this case.
Mr. BURTON. What if the career staff was influenced by political considerations other than the normal procedures?
Mr. ANDERSON. I'm not aware of that case ever occurring.
Mr. BURTON. I know, but what if it were?
Mr. ANDERSON. Influenced by improper political influence? Clearly, their credibility——
Mr. BURTON. You would have just gone ahead and signed the letter based upon their recommendation anyhow?
Mr. ANDERSON. No, I don't think anybody—I mean, if there was evidence that someone had improperly—because of political influence or bribes or some violation of the Federal criminal law, was making a recommendation, as a public official myself, I certainly couldn't sign on to that.
Mr. BURTON. How would you know?
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Mr. ANDERSON. Well, I think you have to look at the evidence they are presenting.
Mr. BURTON. But you said you were relying upon the career people. We have asked you about some questions here today that you simply didn't have the answers for. You said you relied upon Skibine and others.
Mr. ANDERSON. I have heard it both ways today now: One, don't rely on the career people; and now, that you should rely on the career people, so—I mean, I invest in them to give me proper information. Do I know whether it is—that they have been somehow improperly influenced? I don't know that in every case. I don't expect that happened here.
Mr. BURTON. You don't expect that, but you are not sure.
Mr. ANDERSON. I have a high degree of confidence in the gentlemen sitting here and elsewhere.
Mr. WILSON. Mr. Hartman, we don't want to leave you out of the mix mere. If you could, I think you have your deposition testimony here, the document marked as exhibit 346–A. And if you could just, if you would, please refer to page 37 of the deposition.
Mr. HARTMAN. I don't. Counsel may have it; I don't currently have it.
Mr. ELLIOTT. Page 346–A?
Mr. WILSON. It is exhibit 346–A.
Mr. ELLIOTT. Right.
Mr. HARTMAN. I'm sorry, which page?
Mr. WILSON. It is page No. 37. Let me just read you this, and then I will ask.
Mr. HARTMAN. I'm sorry, I go from page 36 to—oh, 37, yes.
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Mr. WILSON. I'll just read. There is a question:
Do you know, under IGRA . . . if there was a policy with regard to competing tribes in the area?
And your answer was:
The only policy I was aware of, and it was articulated verbally by the Deputy Commissioner of Indian Affairs, was that economic competition was not detrimental, that we couldn't pick one tribe out over another. And even from a business standpoint, the reason you have a McDonald's on one corner and a Burger King on the other and a Wendy's on the third corner is because there are synergisms in a lot of these. So you can't—it's very difficult from an econometric standpoint, to say when you add another casino that it ruins everybody else's business. If that was the case, the second person moving into Las Vegas would have ruined it for everybody, and I think we know that is not the case.
Do you remember making that statement in the deposition?
Mr. HARTMAN. Yes.
Mr. WILSON. And did you provide advice during the decisionmaking period about the economic impact on competing tribes?
Mr. HARTMAN. I did. We had two original studies that were done for the applicant tribes. And in the spring of 1995, we received studies from the St. Croix Chippewa and the Minnesota Indian Gaming Association.
Mr. WILSON. Is it fair to say that you were not convinced that the Hudson casino would necessarily have had an adverse impact on surrounding casinos?
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Mr. HARTMAN. I didn't believe there was one, no.
Mr. WILSON. And did anybody above you in the Department of the Interior decisionmaking process discuss their objections with your viewpoint?
Mr. HARTMAN. No. There was an assertion made in one of the studies, and I have forgotten if it was the MIGA study or the St. Croix study, but they pointed out that the language says ''not detrimental to the surrounding community,'' as opposed to a standard of ''not devastating to the local community,'' which included the nearby Indian tribes.
And we did discuss whether or not the standard was devastation or detrimental and what criteria we should use. And my recollection is that we adopted the—that we didn't say that the—a small amount of detriment from competition would be the standard, that we were looking at something more than pure economic competition between two Indian tribes.
Mr. WILSON. But it is fair to say you were not advising those above you in the decisionmaking process that there was necessarily detriment to the surrounding Indian casinos; is that correct?
Mr. HARTMAN. Correct.
Mr. WILSON. Just one last thing. I'm coming down to the end of my time here. If you could turn to page 54 of your deposition, please. You made a statement, and I will read the statement in full.
You stated:
In the meetings I had been in, the negatives of taking land into trust had certainly been discussed. A concept that had been tossed out was that in a Democratic administration and a Republican Governor, to ignore the local input and impose a casino on an unwilling community, and then have the Republican Governor say, well, look at those ridiculous Democrats doing this again, was not viewed as being the best position to be in.
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Now, that appears to me that there was some consideration of political factor; is that correct?
Mr. HARTMAN. Yes.
Mr. WILSON. And is it correct to say that that factor is not founded either in the Indian Gaming Regulatory Act or the Indian Reorganization Act?
Mr. HARTMAN. No, I don't think that's a fair characterization, because I think the turmoil that you create with any decision you make to take land into trust, especially for gaming, is certainly a basis to be considered in exercising Secretarial discretion under part 151.
Mr. WILSON. I understand that, but that seems to be inconsistent with the statement you have made, which is that there was a concern that the Democratic administration might approve the casino and the Republican Governor, then in his legitimate veil of authority, through the statute, would reject the casino and thus there would be political points to be obtained from that.
Mr. HARTMAN. It was a concept that was the situation of the reality at the time. We did not have any kind of definitive statement from the Governor of Wisconsin that he would concur. As a matter of fact, probably the bulk of the indications we had were that the Governor would not concur in a determination. And I think it's quite valid to examine how the Federal Government then becomes regarded by a local community if the end result is imposing an Indian gaming facility on a community that is not willing to have it.
Mr. WILSON. I think, Mr. Hartman, my time is up.
Mr. BURTON. Mr. Kanjorski, I presume you will control the time on your side. You are recognized for 30 minutes.
Mr. KANJORSKI. Thank you, Mr. Chairman.
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Mr. Anderson, you testified in your opening statement that you are an American Indian; is that correct?
Mr. ANDERSON. That's correct. I'm very proud of that.
Mr. KANJORSKI. And you have worked in the American Indian Movement over a number of years prior to becoming an official of the U.S. Government.
Mr. ANDERSON. Yes, but not the official American Indian Movement.
Mr. KANJORSKI. And you have been with the Government since 1993; is that correct?
Mr. ANDERSON. That's right. I have also worked for the Government on the Senate side as well.
Mr. KANJORSKI. And you, obviously, left the private law practice because of the tremendous salary boost going into the Government; is that correct?
Mr. ANDERSON. Well, that would be psychic value, I would think.
Mr. KANJORSKI. And as we all know, particularly those Members of Congress, that the 500 or 1,000 letters a day we send out to our constituents in response to particular inquiries, that we do all the investigation, we make all the studies ourselves, and we just use our staffs to do the typing of this material, and that we produce these 1,000 letters a day because we are so brilliant and capable of making that analysis in about 1 minute, I think it would be, or something like that.
Mr. ANDERSON. Your standard is one we should emulate. In this case, the record was 14 volumes.
Mr. KANJORSKI. The fact of the matter is that there is a hierarchy in the system for a filtering process and that when it gets up to your level of decision, you call in your staff, you get briefed, and you accept that they have made the analysis, or in the meantime someone has checked that the analysis hasn't been made, and that is called to attention, and then there is a re-examination.
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And the best possible scenario under this process is, the proper analysis is made. You rely on the honesty and truthfulness and integrity of your staff; is that correct?
Mr. ANDERSON. Yes, I thought that was well understood until today.
Mr. KANJORSKI. Well, sometimes Members of Congress don't operate that way, and so they don't understand how that process works in government.
I just want to make it a point, maybe not only to you and not only for the chairman, but for the audience, that the many issues that all of us in government have to handle does not mean that we individually search every fact, every analysis; that that is the reason we have the involved staffs that we have. And we could not possibly respond to all these questions if we personally handled all the investigative work and all the analysis and all the conclusions.
Mr. ANDERSON. Yes. And, Mr. Congressmen, we have 11,000 employees in the Bureau, so to review each of their work would be difficult.
Mr. KANJORSKI. I think we could really get rid of 10,999 and just keep Babbitt and he could do all of it.
Mr. ANDERSON. It's very hard work, but I don't think he could do it all.
Mr. KANJORSKI. I take it, then, you have some strong feelings on trying to provide benefits for the American Indian and to increase their economic viability in our system, so that you are rather sympathetic to the gaming laws and the allowing gaming on reservations and, in some instances, on trust land off reservation; is that correct?
Mr. ANDERSON. Yes. I'm personally sympathetic to these tribes as well.
Mr. KANJORSKI. As a matter of fact, on that issue, did anyone in your office, or any of the members of the panel can examine this—I was struck yesterday that the original partnership that was going to be put together was with another tribe and they ultimately were dropped. And it is the St. Croix Chippewa Tribe.
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Mr. ANDERSON. That's correct.
Mr. KANJORSKI. Was there any examination made as to why they were dropped as a partner, or do you get involved in that?
Mr. ANDERSON. I wasn't involved in that.
Mr. KANJORSKI. They do handle other gaming operations, however. They have a license for a casino.
Mr. ANDERSON. Yes, they operate, and I believe they took over the management of their own operations around that time period as well.
Mr. KANJORSKI. The owner of the racetrack seemed to indicate yesterday that they had a questionable reputation and that is why he did not partnership with them.
Is there any information that you know about this tribe that would lend itself to be disqualified as a legitimate partner, since they are only 50 miles away from this location compared to 200 miles from the other tribes?
Mr. ANDERSON. No. That was certainly a surprise to me.
Mr. KANJORSKI. Has there been any complaint made to the Indian Gaming Commission in regard to that by this track owner?
Mr. ANDERSON. I'm not aware of any.
Mr. KANJORSKI. Now, as an Interior official, you had the final say on this application. You were the party that was charged; is that correct?
Mr. ANDERSON. Yes.
Mr. KANJORSKI. And you signed the letter of rejection. But as I understand it, what happened is that originally this would be the assistant's—or the Secretary would have the authority under the law. The Secretary delegates that authority to the Assistant Director of Indian affairs, and that is Ada Deer. But apparently she recused herself because she has associations in Wisconsin and knows the parties involved, and that is how it came down to your level of decisionmaking; is that correct?
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Mr. ANDERSON. That's correct.
Mr. KANJORSKI. And in your capacity you are what, now, Deputy?
Mr. ANDERSON. Deputy Assistant Secretary for Indian Affairs.
Mr. KANJORSKI. So you are right under her, and she was blanked out of the picture and passed over.
Mr. ANDERSON. Right. And when she is out of town, at that time, when she was Assistant Secretary, I would serve as Acting Assistant Secretary when she was gone.
Mr. KANJORSKI. Did you follow the Gaming Staff analysis in your process? Were you briefed on their analysis? Is that the basis for your rejection letter?
Mr. ANDERSON. Yes. To clarify some of the discussion this morning, I found the 151 analysis by the career staff wholly supportable. I thought it was a good analysis. I was briefed on it. I found that the evidence that supported the financial under 151 would also basically apply in whole part to section 20 as well.
So in making a policy choice as to the evidence as presented by the Gaming Management Staff, I felt that we could use the basis for 20 as well.
Mr. KANJORSKI. And are you aware of the concerns in the Secretary's office about the effect this decision would have on the future of Indian gaming? Was there a question raised here of what impact this would have on future gaming?
Mr. ANDERSON. Yes, there were certainly policy concerns expressed. In my actual decision letter, I did not rely on that as a rationale, that Congress might take action in this area, but those factors were discussed extensively.
Mr. KANJORSKI. Now, you were in the position to know, then, whether or not there was any political influence involved. Was there? And if so, what kind? Or how should this committee respond, if there was not—how could you explain that there was political influence here?
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Mr. ANDERSON. I have absolutely no knowledge of any improper political influence or even, for that matter, from the DNC any rumors or suggestions that there was political corruption going on in this decision.
Clearly, the Minnesota delegation expressed a view on the application. And as I understand now, Congressman Gunderson did as well. But I wouldn't consider that improper political influence. Certainly Members of Congress can write in and ask for the views of the Department on these issues. But with regard to improper political influence? None whatsoever.
Mr. KANJORSKI. But it was rather uniform with all the elected public officials, the Members of Congress, the U.S. Senator, the Governor, the town council, they were all opposed to this; is that correct?
Mr. ANDERSON. My understanding from the record is that they were almost uniformly opposed. I understand that perhaps the Congressman from the area where the tribes came from, at least adjoining to the area, may have supported this. And the Governor's position, in my mind, was not clear.
Mr. KANJORSKI. Of course, I am not from Wisconsin, so I don't know what kind of impact that would be, that uniformality of opposition, but in Pennsylvania that would be pretty clear that something wasn't going to happen, because the political representatives of the people certainly understand the feelings of the people. They don't very often run in opposition to them.
Why should the owner of the track be so surprised that this was on the wrong track and wasn't going anywhere? That is what strikes me. It would seem to me, if I were in his position, I would say, wow, we have the towns against us, we have the legislators against us, we have the Congressmen against us, we have the Governor against us; this is a dead tootsie unless I can turn this around.
Mr. ANDERSON. I think it was naive to think that this was smooth sailing all the way, because there was extensive local governmental opposition. And I wouldn't rely so much on the individuals at all, but as far as the towns, that was really critical. They provided information and evidence that this was—this would cause a detriment to their community.
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Mr. KANJORSKI. Now, to your knowledge, was Secretary Babbitt directly involved in this application in any way?
Mr. ANDERSON. No, I wasn't aware that Secretary Babbitt had a view on this at all. Certainly he didn't direct me in any way to make a decision.
The Secretary did attend one meeting I'm aware of in Wisconsin, where the tribes basically discussed and disagreed on this issue. I don't know what his views were expressed, if any, there. But certainly as far as someone or anyone directing me to say, ''This is what the Secretary wants'' or ''This is how you should decide,'' that never happened.
Mr. KANJORSKI. There have been statements made, and I'm not aware of the exact amounts, but obviously a political contribution was made by opposing tribes to either the Democratic National Committee or the Clinton-Gore campaign, in a sizable amount. Several hundreds of thousands of dollars. And in some analysis heard from the other side they would like both this committee and the Congress and the American people to believe, therefore, that by virtue of the fact this political contribution occurred, somewhat almost within a very short period of time after the decision was constructed, that that was a payment or a driving force for the decision.
And the only thing I would say is that that type of logic is somewhat frightening, because it means you're damned if you do or damned if you don't if you are in politics. And all I can say is we could look at the record on this dog track, and shortly after the State Racing Commission granted this dog track in the middle part of 1989, immediately in the 1990 election, the Governor's campaign, we see the trifecta. In 2 days, received from the track owner, a political contribution from both he and his wife. Something like $13,500.
Using the type of logic that's being used on the other side, we would have to say so, therefore, or because of the decision of issuing the license, this is some sort of a political payback in the contribution. And that wouldn't be reasonable; would it?
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Mr. ANDERSON. No.
Mr. KANJORSKI. The fact of the matter is Governor Thompson entertains a rather progressive reputation of being a rather forceful Governor, a successful Governor, and the dog track owner said he was impressed with him. He's a businessman, deals in Wisconsin, knows the Governor, and he wanted to support a Governor that he felt was doing something progressive for the State of Wisconsin. And we shouldn't attribute to that contribution something venal.
Mr. ANDERSON. Right. I have heard the chairman's theory on that and, with all due respect, I think there are just giant holes in it. The idea that there was some type of politically driven decision based on corrupt money given by tribes, when in fact, as I understand from the press reports, those were given 6 months or a year later; that Mr. Skibine and others in our Department, Mr. Slagle now, as our environmental specialist, somehow got this sign or direction, maybe from osmosis, that lobbyists were meeting with others and that somehow that would affect our decision.
I, frankly, am offended by that notion or that suggestion, and I don't know what we can do about it in this type of investigation. The investigations I'm familiar with, and I worked in the Senate, where—and maybe it was a different time. But we had Chairman Dennis DeConcini and Vice Chairman John McCain, where the committees worked together. They even prepared joint questions together as staff counsel. Our committee led to referrals to the Justice Department, to prosecution and incarceration of people involved in that.
From this perspective I have seen nothing to suggest that that's the kind of evidence or suggestion we have of improper influence. So I'm just astounded by this whole situation.
Mr. BARRETT. Will the gentleman yield?
Mr. KANJORSKI. Yes.
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Mr. BARRETT. I have to weigh in on this at this time, too.
I frankly don't like the fact that there's this money floating around. I'm uncomfortable with it. And if I had my preference, everybody would be running like Bill Proxmire from the State of Wisconsin and they wouldn't be raising any money. The reality is we're in a system where people are raising money.
And I understand how the chairman can say, well, look, in the year after this decision was made the Democratic National Committee raised $300 or $400,000. But if anybody is making that statement, I think, at least in the State of Wisconsin, they have to make the identical statement about Mr. Havenick and his relationship with the Governor.
Because in 1989, the State Racing Commission permitted Mr. Havenick to build the racetrack. A nice monopoly in western Wisconsin. On July 6, 1990, he gave $3,500, his wife gave $5,000, his mother-in-law gave $5,000 to Governor Thompson's re-election campaign, $13,500 in one day. And that doesn't count probably $2,000 or $3,000 that came in a little bit before, a little bit after.
So if we're going to be critical of the system, and some can be critical of the system, it better be critical of Governor Thompson. But what we have here is, frankly, the very same individual and organization who could have written the book on this in 1989 and 1990. And I'm not accusing any quid pro quo here.
A decision was made where he received the dog track license. Thirteen months later he gave $13,500 to Governor Thompson. Now, that may not sound like a lot of money in Washington, but in the State of Wisconsin, $13,000, $13,500 in one day, as Mr. Kanjorski said, that's like hitting the trifecta. That's a lot of money.
And so if we're going to be throwing this mud back and forth, then there's plenty of mud to go around here. The only difference is the people who did not get that license in Wisconsin didn't file a lawsuit. That's the difference.
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So as we sit here today, yes, the system is bad. We should not have this money in the system. Democrats shouldn't receive this type of money, Republicans shouldn't receive this type of money. Any attempt, though, to change the system would never in a zillion years move through this committee. It would never move through this committee. You would have to be on planet Mars to think that this committee would try to clean the system up.
So when I hear people, and I heard Mr. Souder earlier today, who said that he was against gambling, and that was OK. Then there's others of us who are against gambling, and we came out against it, but somehow we were tainted because we came out. I don't buy this. I don't buy this for a second.
And the hypocrisy of this committee boggles my mind, because I hear Member after Member saying how bad this is. But there has not been a single Member from that side of the aisle who has said publicly we should look into the biggest embarrassment that has happened in this Congress in the last decade, and that is that unbelievable provision that was inserted in the budget last summer that gave the tobacco industry a $50 billion, not $50 million, not $500,000, not $500, but a $50 billion tax break. And that was done, coincidentally, for the same group where you have the three largest contributors to the Republican party who are in favor of that.
Now, people can say, well, those things happen. What's even more amusing is that when the provision came out in the U.S. Senate, I think there was a recorded vote. Not a single person voted against that. In the House of Representatives they didn't even want to vote. It came out on a voice vote. So you have a $50 billion tax break that was inserted into a budget bill and there was not a single, not a single Member of Congress who would stand up and say that was a good deal.
Now, I think that that's a scandal, and I would think that there would be many self-righteous Republicans who would say, ''Wait a minute, we want to look at this.'' Not a one. Not a one.
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So I think we are correct in holding these hearings, and in some ways I disagree with my colleagues, some of my colleagues on this side, because I think there is a legitimate question. I think there's a legitimate question as to whether Mr. Babbitt gave truthful testimony. That question has been raised. That's something that a special prosecutor will consider, and so it's important that we flush this out.
But I have looked through this testimony, and I have looked through this and, yeah, I think that there are some questions, maybe even some problems with the procedure, but what I have heard from the testimony of the career people, and I find it ironic that the chairman was asking you whether you trusted the career people, and then he's asking the career people whether they trust you. I can't think of a more paranoid situation if you can't have people trust each other. But we're sitting here with a situation where we are playing this, and I said this yesterday, you had big guns fighting big guns. And when that happens, someone's going to get shot with a big gun, and that's exactly what happened here.
Now, I would like to go on a little bit, if I could, and look at exhibit 302–A. This is a letter from the Lac Courte Oreilles, Red Cliff, and I think the Mole Lake-Sokaogon—I would mispronounce the, Sokaogon I think is the pronunciation—to Bruce Babbitt. Do you have a copy of that letter?
Mr. ANDERSON. Yes, I do.
Mr. BARRETT. It starts out:
Dear Secretary Babbitt: We have now had an opportunity to review the comments submitted through May 17, 1995, on our application to have the St. Croix Meadows site placed in trust for gaming purposes. There are two points we feel it is necessary to address in response to objections by other tribes to this project.
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We have heard now for 2 days the argument that there was sort of a blind-sided to this, that the aggrieved tribes felt blind-sided to this decision. Can you tell me what this letter refers to?
Mr. ANDERSON. Let me make sure I have the right document. 302–A–3.
Mr. BARRETT. I'm sorry, 302–A–7. I apologize. It's a letter dated June 7, 1995, to Bruce Babbitt.
[Exhibits 302A–7 and 302A–8 follow:]
INSERT OFFSET FOLIOS 135 TO 136 HERE
[The official committee record contains additional material here.]
Mr. ANDERSON. Yes, it looks like they're communicating to the Secretary, at least the Secretary's office, their disagreement with the tribes who have opposed their application.
Mr. BARRETT. So they did comment, obviously. This is a letter commenting on the application; is that correct?
Mr. ANDERSON. Yes.
Mr. BARRETT. I just—again, I want to make sure we understand that there was a response filed. It may not have been to the community response, and I don't know exactly if they had the opportunity to do that, but it appears there was something here.
May I continue, Mr. Chairman?
I also, Mr. Anderson——
Mr. ANDERSON. And, Congressman, I don't think this was the only, the first time they became aware. I think they knew of the St. Croix opposition throughout this process. This probably memorialized their analysis, disagreement, but they certainly knew about it throughout.
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Mr. BARRETT. OK. You had been questioned earlier about consultation with you and the department. And the allegations, of course, have been that there was some sort of unfair access here. Let's just sort of review that for a second.
Who is the only lobbyist to meet with Mr. Babbitt?
Mr. ANDERSON. The only one I'm aware of was Mr. Eckstein, hired by the applicant tribes. Actually, not by the tribes; by Galaxy Gaming Co., was his actual employer.
Mr. BARRETT. So no lobbyist, as far as you know, met—for the anti-casino tribes met with him?
Mr. ANDERSON. Yes, that's my understanding.
Mr. BARRETT. Are you aware that they also had several phone, I think two phone conversations between Mr. Babbitt and Mr. Eckstein on this matter?
Mr. ANDERSON. I have heard the Secretary testify to that fact.
Mr. BARRETT. Do you know whether Mr. Eckstein also had the opportunity to meet with Mr. Duffy or Mr. Skibine?
Mr. ANDERSON. My understanding is he did meet with both as well.
Mr. BARRETT. Once, twice?
Mr. ANDERSON. I believe it was twice with Mr. Duffy, maybe once with Mr. Skibine.
Mr. BARRETT. Mr. Havenick, did he get an opportunity to meet with him?
Mr. ANDERSON. Yes, he met with both Mr. Duffy and Mr. Skibine, and Mr. Hartman, I believe, too.
Mr. BARRETT. And the sides who were opposing it, did they also get a chance to meet with Mr. Duffy and Mr. Skibine?
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Mr. ANDERSON. Yes, they met with him also.
Mr. BARRETT. So is it fair to say that there was a level playing field there, in terms of both the opponents and the proponents of this got to meet with Mr. Skibine and Mr. Duffy?
Mr. ANDERSON. Yes. I suppose one could even argue, given the last meeting there with Mr. Eckstein, they even had a greater advantage in trying to persuade the top person to change his mind. Although, as I started to say, he didn't have a role in this decision.
Mr. BARRETT. OK. I want to turn now to Mr. Hartman, if I may, for a moment, because one of the more intriguing parts of this hearing for me, as a resident of the State of Wisconsin, is the Governor's role and the Governor's position on this.
Before this hearing began, I was under the impression that there was no question the Governor was opposed to this, and I quoted yesterday from a letter that he sent out in June 1995. At the end of the hearing yesterday I looked over at the board. As I was reading the board, I saw a letter dated December 1994, with essentially the identical language to another resident. In both instances the residents were residents of Hudson, WI. So in my mind, and maybe I should go back to the letter here, there was no question as to what the Governor's position was. Just take a moment here, if I could.
It was a June 1995, letter. It was written to a gentleman in Hudson, WI: ''Thank you for your recent letter regarding the expansion of Indian gaming to off-reservation sites in Wisconsin. I appreciate the time you took to write. My position continues to be clear. I do not support an expansion of Indian gaming in Wisconsin.''
I take the Governor at his word. He says his position is clear. The people here yesterday from Hudson felt that his position was clear. Again, he states his position is clear. Ironically, the people who are saying his position wasn't clear are the Republicans and the proponents of the dog track, questioning my Governor, which—but I look at that and then I look at your comments during your deposition when you were concerned. You were concerned about what would happen if—well, you tell me. You tell me what that concern was, please.
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Mr. HARTMAN. I don't remember every page of the administrative record, but I think there were some newspaper articles submitted that had quotations in them from Governor Thompson that indicated he would concur in a positive two-part determination. Certainly the major body of the written materials that we had, indicated—were like that, where he doesn't say ''I won't concur in the determination,'' he says ''I'm opposed to the expansion of gaming in Wisconsin.''
If you are a skeptical staffer trying to analyze actual facts, I think there's wiggle room in there from a political standpoint. He didn't say, ''No, not till hell freezes over will I ever concur in the determination.'' So I basically had to look, I personally looked at all the information that was in the record, and I couldn't see a clear indication on what the Governor would do.
The Minneapolis area office, in sending out consultation letters under section 20 to appropriate local government officials, nearby Indian tribes, had not sent a letter to the Governor asking for State comment on the factors there in that letter. So we did not have a response back from the Governor of the State of Wisconsin in the consultation process that might have clarified it, although experience has told us that lots of times Governors simply don't respond to that consultation letter; that they save their remarks for later on.
Mr. BARRETT. But what was your concern, if you had come out one way or the other; a political concern, frankly?
Mr. HARTMAN. It was not—the tribes were also telling us, ''Don't worry about what he says in public, because there are so many voters in Wisconsin that he has to maintain the support of, but we've been assured through private channels that he's in favor of this and will approve it,'' which of course you also have to take with a grain of salt and maintain a little bit of skepticism about.
I, to this day, I think it's quite unclear what the Governor would have done. Certainly the written record indicated he would not concur.
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Mr. BARRETT. Do you know if anyone recently has asked the Governor his position on this issue? Have there been any public pronouncements from Governor Thompson on this?
Mr. HARTMAN. I don't know. I can't recall any recent ones.
Mr. BARRETT. I will yield back to Mr. Kanjorski at this time.
Mr. KANJORSKI. I will yield.
Mr. WAXMAN. I will pursue a few questions and then might go on my own 5-minute round.
Let me ask each of the three of you. The name Terry McAuliffe was raised yesterday by Mr. Havenick. Do any of you know of any interaction with Mr. McAuliffe and any of you or anybody else at the Department of the Interior, and did he influence the decision?
Mr. Anderson.
Mr. ANDERSON. No. I do know Terry McAuliffe. He was a classmate of mine at Georgetown. But he had no contact with me throughout this process.
Mr. WAXMAN. And do you know whether he had contact with anybody else?
Mr. ANDERSON. No.
Mr. WAXMAN. Mr. Hartman.
Mr. HARTMAN. I don't recognize the name and I have never had any contact, that I know of, with Mr. McAuliffe.
Mr. WAXMAN. Mr. Jaeger.
Mr. JAEGER. No, I don't know him.
Mr. WAXMAN. Now, we had testimony by Mr. Skibine, who said flat out the decision was based on the merits and not due to any political influence. Do you concur in that statement, Mr. Anderson?
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Mr. ANDERSON. Yes, emphatically.
Mr. WAXMAN. Mr. Hartman.
Mr. HARTMAN. Yes, I concur.
Mr. WAXMAN. Mr. Jaeger.
Mr. JAEGER. I'm not able to concur with that because I was not involved with the review at the central office level. So I don't have the access to the rationale of that decision being made.
Mr. WAXMAN. You don't know whether it's incorrect; you just don't know whether it's correct one way or the other because you haven't been involved?
Mr. JAEGER. That's right.
Mr. WAXMAN. Mr. Hartman, there has been some discussion about the two memos being different versions of the same memo that addressed the subject of detriment to the surrounding community. The first is purportedly from the Indian Gaming staff to Mr. George Skibine, and the second is purportedly from Mr. Skibine to the Assistant Secretary for Indian Affairs. Did you write those memos?
Mr. HARTMAN. I did the original writing and did the printout on both those memos.
Mr. WAXMAN. Did anyone else write those memos?
Mr. HARTMAN. The basic work for both of those memos was done by several members of the staff at the Lakewood office that the Indian Gaming Management Staff had at the time. So early editions of that particular memorandum on both the issue of best interests and not detrimental had contributions from most of the staff members.
Mr. WAXMAN. They were labeled ''draft''. I'm wondering why they were so labeled. Does the draft labeling also indicate that the memos were not yet the views of either the entire staff or Mr. Skibine?
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Mr. HARTMAN. That's correct. And even in that June 8th memorandum, which is, for lack of a better word, a final draft of a draft, careful reading of it—there are open issues, which a final findings of fact would not have in it. The one that springs to mind is on problem gambling. We had identified the mitigation was inadequate. We had strong reason to believe that it could have been made adequate with a little bit of work, but it would certainly not come out of draft form until it was polished up.
Mr. WAXMAN. I want to ask this last question to Mr. Anderson, if I might. Mr. McAuliffe, you have said, was a classmate of yours. This is the first time I have learned this. But notwithstanding the fact he was a classmate of yours, your testimony is he never contacted you, even though you were the official decisionmaker on the Hudson application?
Mr. ANDERSON. That's correct.
Mr. WAXMAN. Thank you.
Mr. BURTON. Mr. Anderson, you made some comments that indicated that you were incredulous, or words to that effect, that we would impugn the integrity of anybody in this Department.
Mr. ANDERSON. I have heard that regularly for the last 2 days, sir.
Mr. BURTON. One of the reasons why we have that concern is that of the tribes that benefited from this decision in the 1994 to 1996 cycle, only one gave any kind of a contribution, and that was the Lower Sioux Tribal Council that gave $500 to the Minnesota Democratic party. None to the national Democratic party. They gave $500. After this decision was made, there was a contribution of $356,000.
Now, I understand that you may not think that means anything, but it does raise some questions. Up until that time they only gave minimal amounts of money politically. Almost none. And then, after the decision was made, after all these meetings took place, they gave $356,000. That does cause some consternation.
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I want to also read into the record a memo that's dated 1 year after the decision was made. It is from Mr. Skibine and I wish I had known of this memo before. We had such a volume of documents that I didn't have a chance to go through all of them along with my counsel before. But this is on——
Mr. ANDERSON. Do you have a copy of that, Mr. Chairman?
Mr. BURTON. I will be glad to give you a copy. Can you give him a copy?
Mr. BARRETT. Mr. Chairman, can you identify it for us?
Mr. BURTON. It's exhibit 337. You should have it there. Exhibit 337.
[Exhibit 337 follows:]
INSERT OFFSET FOLIOS 137 TO 144 HERE
[The official committee record contains additional material here.]
Mr. BURTON. That on August 5, 1996, a year after this decision was made, in section 4, on page 26, Mr. Skibine says: ''It is true that extensive factual findings supporting the local communities' objections are nowhere to be found.'' And then he says ''DOI's position is that extensive factual findings are not required under Section 20 of IGRA.'' Then he says, ''See comments under No. 3 above.''
Then you go to No. 3 and he says: ''The point here, and a very crucial one, is that the Department has to rely on the record, and the opposition of local communities in the record is the evidence relied upon. The Department,'' and then he puts in parentheses, ''(Duffy), made a decision that the opposition of the local communities was evidence per se of detriment, and that the Department was not going to require the communities for detailed evidence to back up their opposition. Duffy's position, as I recall, was that the Department should not interpret section 20 of IGRA to require local communities to do more than have general objections to the gaming establishment. If that is insufficient, he thought we should have the courts tell us so.''
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But Mr. Duffy was the one who was making that decision. Mr. Duffy is the one who benefited from this decision when he left the Department of the Interior. Now, I don't know how high up this goes, but Mr. Skibine says very clearly it is true that extensive factual findings supporting the local community's objections are nowhere to be found. Then he refers to Mr. Duffy's evidence per se of detriment. But it was Mr. Duffy's decision or interpretation. It's there in his memo. You may read it if you like.
Mr. Duffy then goes to work for a law firm and starts representing the Indian tribes that he helped while he was at the Department of the Interior. Now, this may all be circumstantial. It may all be hyperbole. But the fact is these tribes gave little money, $500, in the 1994 to 1996 cycle. After the decision was made, they made $350,000 in contributions. After the decision was made, both Mr. Duffy, the counsel to Mr. Babbitt, and Mr. Collier, the chief counsel, leave and go to work for a law firm and now they represent the Shakopee Tribe and those other tribes.
Now you can interpret that any way you want, and you may say this is all baloney.
Mr. ANDERSON. It is.
Mr. BURTON. But I don't agree with that, and I think the people who might be paying attention to this might have some questions themselves.
And with that I will be happy to yield the balance of my time to my colleague.
Mr. ELLIOTT. Mr. Chairman, I want to register an objection.
Mr. BURTON. You may register the objection, but you are not under oath and you are only here as counsel.
Mr. ELLIOTT. I understand that, but I am asserting a privilege on the part of the United States in this litigation position.
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Mr. BURTON. All right. You may.
Mr. ELLIOTT. This is a document from client to counsel relating to that litigation. It was done after the decision was made, and this is a privilege we——
Mr. BURTON. This was a document given to us by the Department and, as such, we have felt that it could be put in part of the Congressional Record and referred to in testimony and we have so done.
Mr. ELLIOTT. I understand that, sir. But every document——
Mr. BURTON. You have raised your objection. I yield the balance of my time to my colleague.
Mr. SNOWBARGER. Just quickly, Mr. Chairman. I understand I will have 5 minutes later on?
Mr. BURTON. You will.
Mr. SNOWBARGER. I want to ask Mr. Anderson some questions here, because it concerns me a little, some of the discrepancies here.
You indicated in your testimony under questioning that you signed the July 14th letter, frankly, based on review of career staff and their determinations; that you didn't go through making a separate determination of your own; is that a fair statement?
Mr. ANDERSON. That is not a fair statement. I basically relied on the evidence that was provided to support both the findings under section 5 of the Indian Reorganization Act and also section 20 of IGRA.
In deferring to their factual determinations of whether there are impacts on local communities and traffic problems, I don't surrender my policy review as to how I'm going to apply those facts. And in this case I thought it was proper to apply it to section 20.
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Mr. SNOWBARGER. Mr. Chairman, I think the time has expired.
Mr. BURTON. The gentleman's time has expired. You will get your 5 minutes later.
Mr. Kanjorski.
Mr. KANJORSKI. Yesterday when Mr. Havenick testified, I was rather harsh on the agreement. I am still harsh on the agreement. It wasn't directed necessarily at him. It could be directed at the Department, however, or the Congress and how we structured this. It seems to me the only reason why the Indian tribes, who have a necessity for this money, and I think that is conceded, are dealing with nontribal gambling interests, whether they be from Florida, Las Vegas, Atlantic City, very professional gaming people, contrary to what I think was the intent of Congress when we wanted to help the Indian tribes out, earn money here, we have these people that come in and put these deals together. Why hasn't the Department been a little stricter in looking at the contracts and the arrangements, the fees to be made, the sale prices, the rental prices?
And I heard the comment earlier made that the reason these non-Indian tribe participants are out there is the Indian tribes don't have the equity. Why don't they establish or ask the Congress to establish mechanisms by which they can get the equity, whether it be a small business investment corporation or other type entities that exist under Federal law? If we are really trying to help the Indians earn money, why are we subjecting them to rather draconian negotiations with very experienced, one-sided experience gaming people?
Mr. ANDERSON. Well, initially those were the only sources available to tribes for funds. But many tribes now, when they get the initial startup funds, have taken on the management themselves. And I think that is definitely preferable so that the tribe gets all the funding.
The Department in its resources can do a better job in examining these leases. There has been criticism, I think it was referred to yesterday, in an IG report that we needed to scrutinize the leases more carefully. We have been attempting to do that and review them, but certainly the tribes, not having a lot of money, have sometimes had to go to these operations. That is why the National Indian Gaming Commission regulates this so carefully.
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Mr. KANJORSKI. Well, we wouldn't have this problem here of people contributing money and trying to work, it would be a straight arm's-length deal that either the three tribes involved here would have come in and tried to buy a losing race track, or some other offsite opportunity where 100 percent of the profits and proceeds would have gone to the tribe instead of these convoluted agreements of purchasing part of the property, leasing the parking lot and doing things that appear to me to be with the intention of gaining an ultimately higher profit by individuals who were never intended to be helped by Congress.
And it is sort of a criticism on my part that it just seems to me that we can find mechanisms to help finance. I know for a fact that the Eskimo tribes in Alaska, there are at least three successful multibillion-dollar investment corporations up there. Why do they have to go to Florida gambling interests or Las Vegas gambling interests or Atlantic City gambling interests to put a casino together? Unless are casinos losers? Maybe I haven't—I have been traveling around the country. In the middle of deserts, see these thousands of cars and very successful casinos, so it is almost a God-given determination. If I get a license for a casino, I have got gold. Now, why are we encouraging such an inordinate amount of the share of those profits to go to non-Indians when the intent of this act is to help some of these economically distressed Native American tribes?
Mr. ANDERSON. The idea of some kind of development fund is certainly an interesting one. Congress did in IGRA say that management companies could receive up to 40 percent of the proceeds of the net revenues, so they did cut on that issue in 1988.
Mr. KANJORSKI. If the management company is owned by the tribes, that is OK, but I quite frankly don't sympathize with, when you have got gold, why you are handing it a way to the professional gambling interests of this country.
Mr. ANDERSON. In some cases it has been to the advantage of the tribe to go to reputable companies like Harrah's or other large companies and use their expertise, but the tribe, frankly, doesn't have the experience to run it. And then eventually the idea is to have them take it over directly.
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Mr. KANJORSKI. There are no Native American entrepreneurs that have the capacity to run casinos profitably?
Mr. ANDERSON. There are very few. There are very few.
Mr. KANJORSKI. Maybe the reason why to have more of them sent off to the schools that would equip them or to the business places that would equip them. It just seems to me that this is almost a license to gain an inordinate amount of wealth; 30 percent of a gambling casino is quite a profit, quite a profit.
I yield back, Mr. Waxman.
Mr. BURTON. The gentleman yields back the balance of his time.
Mr. Snowbarger.
Mr. SNOWBARGER. Thank you, Mr. Chairman. Rather than go through this in questioning, the concern I have, Mr. Anderson, is your statement both in your testimony and in the final determination letter that indicates the application, if granted, would have caused detriment, destroying the community. And we have got at least three exhibits or four exhibits, maybe more, in the information provided to us that indicate from staff, from a staff level, there is not enough evidence to say that there is detriment to the community under a section 20 analysis. We have at least four different places where it says that. Mr. Hartman——
Mr. ANDERSON. Could I address that?
Mr. SNOWBARGER. It was not a question, thank you.
Mr. Hartman, if I could ask you a question, I have looked at your June 8 memo. What was your opinion; having reviewed the application, what was your opinion about whether or not this was going to be detrimental to the community?
Mr. HARTMAN. Well, throughout this process and all similar processes, I see strongly held opinion. And part of my job as a staffer is to try to penetrate through that opinion and look at objective factors that might lie behind it, such as a gridlock——
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Mr. SNOWBARGER. And your ultimate conclusion of that process was what?
Mr. HARTMAN. I couldn't find identifiable detriment on which these objections were based.
Mr. SNOWBARGER. It is my understanding that you were, you may have been, the final author of that memo, but you were not the only author of that memo. Would that be correct?
Mr. HARTMAN. That is correct. I was final author of portions of that memo and sole author of portions of that memo.
Mr. SNOWBARGER. Also involved in that, though, were, I believe, Emily Ramirez and Ned Slagle, and Ned Slagle is the environmental person on staff; is that accurate?
Mr. HARTMAN. That is correct.
Mr. SNOWBARGER. You also had an opportunity, I think, to review the area Director's memo. It was about a 32-page memo that addressed a lot of these questions at that level. First of all, did you have an opportunity to review that?
Mr. HARTMAN. Yes, I did.
Mr. SNOWBARGER. Were you satisfied that they had done everything they needed to substantiate their recommendation in favor of the track application?
Mr. HARTMAN. The analysis, as we approached it, was a little different than that. We decided that we would do in effect a de novo review going back to the source documents that they had attached to the——
Mr. SNOWBARGER. Can I call your attention to page 67 of your deposition? Let me just read it for you real quickly.
Did you have the opportunity to review the 32-page recommendation from the area Director?
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Mr. HARTMAN. Yes.
In your opinion, did the area office address the necessary areas for a recommendation of this sort?
Mr. HARTMAN. Yes.
Mr. SNOWBARGER. So I presume your answer would be the same today?
Mr. HARTMAN. It is. They addressed all the areas.
Mr. SNOWBARGER. OK. Had you been advised prior to finishing this June 8 memo that the decision had already been made based on other grounds, based on part 151?
Mr. HARTMAN. I don't believe I had been advised that a decision had been made, but the discussions in certainly the June time period, possibly the May time period, indicated that the application was not being looked at positively. From the fact that nobody came around and said, well, let us finalize this not detrimental and get on to the best interest of the tribe is an implicit indication that we weren't headed toward approval.
Mr. SNOWBARGER. Do you think anybody paid attention to your memo about not detrimental in the discussions about how we justify our final decision?
Mr. HARTMAN. Yes.
Mr. SNOWBARGER. Do you know that for a fact?
Mr. HARTMAN. I believe George Skibine testified here earlier that it was based upon my memo that he made the recommendation that the decision be based on part 151 as opposed to a section 20 determination.
Mr. SNOWBARGER. Yet the final decision was based on section 20 and not on part 151, is that——
Mr. HARTMAN. It referred to section 20. It wasn't based upon that. It was the same ultimate decision, but words were crafted to include additional references.
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Mr. SNOWBARGER. In another document that we have, it indicates that some of the discussion that was going on within the Department was actually the work of one of the career staff members playing devil's advocate. It doesn't identify that devil's advocate. Are you that devil's advocate?
Mr. HARTMAN. That is me.
Mr. SNOWBARGER. And June 8 is the devil's advocate memo?
Mr. HARTMAN. Yes, I was trying to make as strong a case as I could in analyzing not detrimental to the surrounding community, looking at all the factors and seeing if it was——
Mr. SNOWBARGER. You were joined in devil's advocate, though, then by Emily Ramirez and Ned Slagle as well. This was not your professional opinion, but just sort of a devil's advocate kind of position, saying here is what we think, if you really analyze this, someone else is going to be able to show.
Mr. HARTMAN. The early parts of that memo were written by those other two staffers in part, but the changes from a draft that existed in the February/March timeframe that were written by those was added to by me, and the new editions were entirely mine.
Mr. SNOWBARGER. Did Ms. Ramirez or Mr. Slagle indicate to you their dissatisfaction with your changing of their portions?
Mr. HARTMAN. No, because I didn't change their portions. I believe Ms. Ramirez had retired, and the portions that Ned had worked on had remained unchanged. He reviewed——
Mr. SNOWBARGER. So really you were only changing your portions of the memo anyway.
Mr. HARTMAN. That is correct.
Mr. SNOWBARGER. Did Mr. Anderson, prior to July 14th, ever consult you about that analysis and about your conclusion that there was no detriment to the community?
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Mr. HARTMAN. I really don't recall. I have a vague memory of a meeting I was in that he was in where we discussed it, but I just can't tell you for sure.
Mr. SNOWBARGER. Well, his conclusion in the letter and in his testimony today is 180 degrees away from what your decision was as well as that decision joined in by Emily Ramirez and Ned Slagle. You don't remember a conversation with Mr. Anderson saying that despite what you had to say, he was going to rule a different way——
Mr. HARTMAN. No.
Mr. SNOWBARGER [continuing]. On the section 20 analysis?
Mr. HARTMAN. If we met together, obviously I didn't convince him.
Mr. SNOWBARGER. Mr. Chairman, my time has expired.
Mr. BURTON. The gentleman's time has expired.
Mr. Barrett.
Mr. BARRETT. Thank you, Mr. Chairman. I would like to stay with that document, if I could, Mr. Hartman. I, frankly, have never heard of a devil's advocate draft. Is that something that is done on occasion, or was this unusual to do a devil's advocate?
Mr. HARTMAN. I think was probably just a vernacular that we tossed out at that time.
Mr. BARRETT. What was going to be the purpose of this?
Mr. HARTMAN. To see whether or not the additional information that had been supplied up to that April 30th date brought forth new information that indicated detriment.
Mr. BARRETT. It seems throughout this entire process that the assumption that the Department was making was that this matter was going to end up in litigation; is that correct? Mr. Anderson——
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Mr. ANDERSON. Actually, at that time they have the option of filing a motion to reconsider. If we had relied strictly on 151, though, they would have been barred from filing any litigation at all.
Mr. BARRETT. It does seem, as I look through the memos, that that was a concern, if nothing else, that you want to bolster your case. Is that something that is unusual, or is that something——
Mr. ANDERSON. Having a good administrative record is something that we do try to do.
Mr. BARRETT. Did you anticipate—and maybe this is a moot question—had the decision gone the other way, do you anticipate there would have been litigation from the other tribes, for example?
Mr. ANDERSON. Yes. I frankly couldn't have signed a report that went the other way. I don't think there are any facts justified that there was no detriment and also that there was something in the best interest of the community; that clearly given the parking lot lease was something that we couldn't sign off on. Yes, there would have been litigation, I think.
Mr. BARRETT. As a safe bet. The lawyers were going to win in this one.
Mr. ANDERSON. As they usually do.
Mr. BARRETT. I am a lawyer. You are a lawyer. I understand that.
Mr. Hartman, going back to you, it makes me feel a little better knowing that you were the devil's advocate on this memo because there are a couple of things in there that I looked at and I thought, holy moly, we are looking at a different document here. I would like to go over a couple of those.
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One, perhaps a minor one, yesterday we had Sandra Berg testify here, and one of the statements in here is that she asserted, I think, that the opposition was receiving money from the tribes in opposition to this, and the county supervisor who was here yesterday said that wasn't true, and, in fact, Ms. Berg indicated that she has in the past, and may even currently, and I hope I am not misstating this, that she has done work with the track. Were you aware of that when you put that in here?
Mr. HARTMAN. Not that specific fact, no.
Mr. BARRETT. One of the other things that surprised me as I looked through it was your reference to the April 1993 constitutional amendment. As a resident of the State of Wisconsin, I didn't view that as a technical constitutional change. That was a pretty big deal. In fact, I don't know if you were here yesterday, but when we saw the video yesterday, Governor Thompson in the video boasted that he and Attorney General Doyle were the ones responsible for having that referendum, that constitutional amendment and subsequent referendum placed on the ballot. What was your basis for thinking it was just a technical amendment?
Mr. HARTMAN. I don't remember exact specifics, but in the record there is a description of the process that was being conducted at the time, and apparently the—there was some doubt as to whether the Wisconsin State lottery actually complied with the constitution of Wisconsin back in the—I think the late 1980's, so the constitution was changed. I think there was a constitutional prohibition against gambling, and there had been some controversial rulings by attorneys general that tried to slip the State lottery in there, but it was pretty unclear so that the State of Wisconsin went back out and changed its constitution.
And I have forgotten even who it was I talked to about the 1993 ballot, but most of the issues on the 1993 ballot were advisory. And it is my recollection that the one on the constitutional issue was the one to bring the constitution into conformance with the actual public policy of allowing gambling by the State in the form of a State lottery.
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Mr. BARRETT. In case——
Mr. HARTMAN. But I am not an attorney.
Mr. BARRETT. In case you meet this issue again, and for some reason I think it is possible that you do, I should point out that what happened in the 1980's was that there were two constitutional amendments. One to permit pari-mutuel betting, the other to permit the lottery. Subsequent to those decisions was the time when you had decisions made essentially by either the Federal district court, and perhaps the State Attorney General played a role, too, that opened the door to the Indian casino gambling. I don't think that that is disputed.
My perception of this was that this was an attempt by the legislature and the public to assert that what they meant in the 1980's was not all types of gambling, but to limit it to a lottery and casino. I realize that under the interpretations of IGRA and other Federal court rulings that the State may not have the authority to do so, but that was the intention, that lottery, as you define it, was a lottery as I think we use it, a common description of it, and not lottery in terms of a broad definition of gambling. So just for your benefit.
I also just want to state for the record, as we all know, there are several different proceedings going on. There is this proceeding. There is the civil litigation in the Western District of the State of Wisconsin, and there is the pending decision by the Attorney General. Earlier I made reference to that. I wanted to clarify for the record that I recognize that that decision has not been made at this point.
Mr. BURTON. Mr. Cummings.
Mr. CUMMINGS. Thank you very much, Mr. Chairman.
First of all, to the witnesses, I want to thank you for being here. I was very impressed with your testimony.
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I want to go to you, Mr. Anderson, just to clarify some things. A little bit earlier in the testimony, the chairman, I think, was asking you about your statements with regard to environmental impact. And it may have been—I can't remember whether it was counsel or the chairman, but they said that when this—when the race track was approved, apparently it was they had anticipated a certain amount of cars coming into the area, and then when you looked at it or your staff looked at it, one of your concerns was the number of cars that would be coming in. First of all, let us clarify, when a dog track was established, you all had nothing to do with that; is that right?
Mr. ANDERSON. That is right. That is a State assessment.
Mr. CUMMINGS. That is a State assessment. So you had nothing to do with that.
And would you go back—would it be your normal course, in looking at the environmental impact, to go back and see, look at records from when they approved a dog track to determine how many cars they anticipated and then make any kind of comparisons or contrasts? Would that be your normal, or was this such a unique kind of case that you don't have a precedent?
Mr. ANDERSON. Well, typically you would use that as baseline data and then try to update the information that came forward.
Mr. CUMMINGS. Do you know whether that was done in this case?
Mr. ANDERSON. I believe most of the information relied upon was from 1988 as to the effects, and that was one of the problems here.
Mr. CUMMINGS. Can you elaborate on that a little bit?
Mr. ANDERSON. Well, particularly with regard to the St. Croix scenic riverway, the effects that the dog track would have, that there was actually dog waste that was going to go into the river, the status of what facilities were able to treat wastewater at that time was different than occurred in 1995. So the environmental analysts had to look at a different situation in 1995 versus 1988, I think, when the first assessment was done.
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Mr. CUMMINGS. So did you—would you go back and talk about the number of cars that you were concerned about? The chairman said that there would be still—the implication was that there would be less cars now, I mean with regard to the casino, as opposed to the dog track. I am just wondering what was your feelings on that? I know you had talked a little bit earlier about the fact that the dog track was not doing well, so therefore the traffic was not as high as maybe it was anticipated from the beginning. But can you elaborate on that, because it did not come through very clearly?
Mr. ANDERSON. I think the car traffic would be higher for the casino than the current dog track. Whether the 1988 assessment analyzed 8,000 cars, I don't know, I haven't studied the record that far, but certainly it could be expected, given the traffic of this casino would be greater than what the dog track had currently enjoyed.
Mr. CUMMINGS. And you had no doubt about that. What was that based upon?
Mr. ANDERSON. Well, there were facts and impacts on the infrastructure in the record at the time. Now, as I mentioned in my testimony, I was briefed on the record and did not read the 14 volumes. This is basically information that was in with the career people.
Mr. CUMMINGS. Now, it is interesting that so often here on the Hill we hear the other side talking about big government interfering and the fact that decisions should be—we should give local government more say. As I listen to your testimony, it sounds like that is basically what you did. You gave a lot of credence to what the local people were saying. Is there anything unusual about that?
Mr. ANDERSON. No, that is actually what section 20 of IGRA requires that you give credence. I think the big debate was how much. That is the disagreement that some of us had within the office; in fact, that Tom and I had about can a bare assertion of opposition be enough. And I didn't agree with that either. I agreed with some of the Solicitor's Office. But that is not what our letter said. It did have evidence based on community objections, based on traffic, based on the jurisdictional conflicts with their land use plans. So—but certainly you try to invest in the local governments when they express their opinion.
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Mr. CUMMINGS. Now, let me ask you, do you know a Troy W. Woodward, who is an attorney advising the Office of the Solicitor?
Mr. ANDERSON. Yes, I do.
Mr. CUMMINGS. Do you know a Paula Hart, who is a paralegal specialist?
Mr. ANDERSON. Yes.
Mr. CUMMINGS. You testified a little bit earlier about the staff, I think, when the chairman asked you some questions, and you said that you felt very comfortable with the staff that prepared all the documents for you with regard to their honesty and integrity. Do you feel that way about Paula Hart and Troy M. Woodward?
Mr. ANDERSON. Yes, I do.
Mr. CUMMINGS. Mr. Chairman, I would ask unanimous consent that we submit, make a part of the record the affidavits of Paula
Hart and Troy M. Woodward wherein they state that, I am unaware of any improper interference by any political appointee in the decisionmaking process with respect to the application, referring to all of the things that we have been talking about today.
Mr. BURTON. No objection.
[The affidavits referred to follows:]
INSERT OFFSET FOLIOS 145 TO 148 HERE
[The official committee record contains additional material here.]
Mr. CUMMINGS. Thank you very much.
Mr. BURTON. Let me end up by saying—yes, we have someone else who wants to speak. Oh, Henry, of course.
The gentleman from California is recognized for 5 minutes.
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Mr. WAXMAN. Thank you very much, Mr. Chairman. I appreciate the long day it has been for all of us.
Let me recap what we have learned in the last 2 days. Yesterday we had the accusations that this decision was based on political pressure, that there were campaign contributions, lobbyists, and that the victims were a poor tribe. Yet we also found out that one of the so-called victims was Mr. Havenick, who stood to gain financially a lot because he was the one behind the whole dog track and then the casino and very much wanted this approval. He has hired as many lobbyists and lawyers as anyone else. As a matter of fact, Mr. Havenick has been here all day with three of his lawyers. It has been a long day. And he was here yesterday as well. He is now in litigation, and he is trying to overturn this decision.
But the Members all agreed, Democrats and Republicans, that the decision to deny the application for a casino was the right one. The local community didn't want it. The Republican Governor didn't want it. The Republican Congressman didn't want it. There is nobody in the delegation in the House that wanted it. The people in Minnesota were screaming about it. And it didn't make sense to have another source of gambling, another casino, so far away from the tribes and so close to population centers and other gambling sites. So then the issue was not whether the decision was right, because everybody seemed to think the decision was right. The question then shifted to was there improper political pressure.
Today, we have had four people at the Department of Interior testify under oath that they made the decision on the merits without political interference, that nobody was telling them to reach this decision. The affidavits in support of Mr. Skibine that he did not mention political pressure in his meetings with Havenick have already been entered into the record, so we have those who didn't have a financial interest, who were public servants and were at that meeting, asserting that Mr. Skibine did not say there were political pressures. The only ones who are asserting that there were political pressures are those who have a financial interest in getting this casino approved. I think that is an accurate summary of where we are to date.
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There was a suggestion by Mr. Havenick for the first time about Mr. McAuliffe, and we have no one to verify it. It came out of left field. It never had been mentioned before. And you would think, Mr. Anderson, you were a classmate of his, Mr. McAuliffe would have contacted you if he really wanted to do something to affect the decision on this casino proposal. He did, evidently, if he said anything at all, what a lot of lobbyists do, what a lot of fund-raisers do. They try to puff up their role and take credit for something, thinking it was scoring points with Mr. Havenick as a contributor, and then he found out that he stepped in it, and he was mistaken, and, in fact, he was taking credit for something that Mr. Havenick was very unhappy about. So, lo and behold, as Mr. Havenick described, his face dropped, if this all took place.
We are hoping to hear from Mr. McAuliffe directly. I think he ought to be allowed to testify or at least submit an affidavit.
So I use my 5 minutes to make clear to people what has happened in these last 2 days. A decision on the merits that everyone agrees was right—the chairman laughs. I assume he is not arguing the decision should have been made contrary, that they should have forced a casino on the local population that didn't want it. So a decision on the merits that no one has argued was a wrong decision, and those who have made it, those people who actually made it, have told us they made it on the merits without political interference.
Let me ask you again, is there anything different that you know about than what I have just said?
Mr. ANDERSON. No, absolutely not. I have been waiting here patiently as a decisionmaker for the mystery witness or the smoking memo or the affidavit, and I have seen certainly none over the course of these last 2 days.
I did want to say in closing, I talked to my mother last night about these hearings. She saw your chart about the $50 billion. She said, when are we going to get to that issue? That seems to be an important issue.
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Mr. WAXMAN. That is a very good question. When are we going to talk about real corruption the way the tobacco industry got the Republican leadership to put in a $50 billion—sneak in a $50 billion tax break for them after they have given so much money?
Any of the other witnesses, Mr. Hartman?
Mr. HARTMAN. I am aware of no influence. Nobody ever asked me to modify what I think we can agree are fairly strong comments and opinions. I saw and know of no undue influence anywhere in the process.
Mr. WAXMAN. Mr. Jaeger, you don't know one way or the other, but I will ask.
Mr. BARRETT. Which is usually the best place to be.
Mr. JAEGER. No, sir, I am not aware of any undue political pressure.
Mr. WAXMAN. Mr. Chairman, I yield back the balance of my time.
Mr. BURTON. You have no more time.
Mr. Waxman, that was a great summary to the jury. Unfortunately the jury has not yet reached a decision. I am sure that they will at some point in the future.
Let me just say my conclusions don't jibe with yours, and I think that we will see how this all turns out. If you look at the memo 1 year after the decision was made by Mr. Skibine, when you look at the tremendous amount of campaign contributions and the benefits that were derived by people who were high up in the Interior Department when they went to work lobbying for the tribes that won, questions still remain.
I will thank our witnesses for being here with us today. We stand in recess until 10 a.m., Wednesday next.
[Whereupon, at 4:45 p.m., the committee was adjourned, to reconvene at 10 a.m., Wednesday, January 28, 1998.]
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