2.  STATEMENT TO
BUREAU OF INDIAN AFFAIRS

The letter below is dated June 21, 2002 and was addressed to top officials at the U.S. Department of the Interior. It provides depth regarding the HVCEO anti-casino position:

Dear Secretary Norton and
Assistant Secretary McCaleb:

We are writing to you on behalf of ten local governments in western Connecticut to express our concern over the effect of federal Indian policy on our region and on the entire State of Connecticut.

At the outset, we acknowledge the need to treat tribes and tribal acknowledgment petitioners fairly and equitably. We are aware of, and support, providing Indian tribes with the rights to which they are entitled. Native Americans have experienced much hardship and unfairness, and we support federal policy that takes these circumstances into consideration in assisting tribes reclaim their heritage and achieve self-sufficiency.

Advancing these Indian and tribal interests, however, should not be accomplished without due attention to the consequences for other parties also with legitimate interests. Fairness to Native Americans can, and must, be achieved with rigorous adherence to the principles of law and fairness.

The purpose of this letter is to inform you of how actions of the Department of the Interior on Indian matters may affect the ten municipalities in the Housatonic Valley Planning Region, encompassing the entire Greater Danbury, CT Metropolitan Area, to point out concerns about future consequences for our area, and to request definitive actions to address fundamental problems.

BACKGROUND
Connecticut has two recognized tribes, Mashantucket Pequot and Mohegan. The Mashantucket Pequot Tribe received recognition through an act of Congress in 1983. The federal government acknowledged the Mohegan Tribe under federal law in 1994, as a result of the tribal acknowledgment process.

These two tribes have existing reservations. They run fabulously successful casinos. A portion of the slot machine revenues from these casinos is shared with the State; $400 million is estimated for this fiscal year. While this is a generous contribution to the State, this payment represents a business transaction for the Tribes. Those payments are made so long as the State does not allow any other parties to operate slot machine gaming in Connecticut.

These two casinos have also created many jobs and produced economic benefits. However, they also have created problems. Large casinos produce significant adverse environmental impacts, traffic congestion, land use conflict, increased crime rates, depleted tax rolls, and new costs and service burdens on local governments.

They also affect property values, and introduce a predictable range of social ills including gambling addiction, drugs, prostitution, and an increase in a series of other civil and criminal offenses. Clearly, for the areas of Connecticut already affected by the casinos, these problems are substantial and real.

Four tribal groups are now undergoing active consideration of their acknowledgment petitions; Eastern Pequot, Paucatuck Eastern Pequot, Golden Hill Paugussett, and Schaghticoke. Each group is supported by wealthy non-Indian financial backers seeking to reap business benefits from the major casinos that could result if acknowledgment is achieved.

Another tribal group in Massachusetts undergoing review, the Nipmuc, would have an impact in Connecticut based on its land claims. Ten or more groups affecting Connecticut are waiting to have their petitions taken up. Taken together, these petitions affect virtually every part of the State, ranging from the populous southwestern sector from New York to New Haven, our area along I-84 and the New York border, to the rural northeastern corner near Massachusetts.

Some of the petitioner groups have already filed land claim lawsuits. Others have threatened these lawsuits. The clear intent of all the groups is to secure a land base exempt from State and local taxation and regulatory control, establish their right to expand that land base through trust acquisition, and open massive casinos on a scale comparable to Mohegan Sun and Foxwoods.

The consequences of these events for local governments and businesses in Danbury and environs will be dramatic and, on balance, highly detrimental. For example, a major casino in the southwestern sector of the State is expected to produce a potentially disastrous scenario. This part of Connecticut is already suffering from massive traffic congestion as a result of a transportation system that is overtaxed.

Studies have shown that a major new casino, such as that proposed by the Golden Hill Paugussett and Schaghticoke groups, will tax this already overburdened transportation network, and the air and water resources of the region, to the point of collapse. An additional study concerning potential traffic impacts in our Greater Danbury Area is now in progress.

The impact on transportation alone will cause serious economic consequences. A number of important businesses are expected to leave. The employment base will be diluted. The economic diversity crucial to the future of this region will be compromised. Major land use conflicts will result. Environmental degradation will increase, and the quality of life will decline.

In addition, major new developments will emerge on land in Danbury or a nearby town that is beyond State and local control, producing burdens that cannot be compensated through tax revenues. In a small, densely-populated planning region such as ours, the significant and pervasive nature of these impacts will have long-lasting and sweeping consequences.

As difficult as these complex factors and significant impacts are for us to deal with as local governments and businesses, our concern is magnified by the fact that the decisions which control them are largely dependent upon the actions of the federal government in an area where far too little attention is paid to voices such as ours. Indian policy, in the context of large-scale gaming in a state like Connecticut, does far more than affect tribes, tribal petitioner groups, and their members. It will affect the majority of our State's residents.

Because of these extraordinarily high stakes, we ask that you ensure that future Indian policy decisions in Connecticut be considered with this pervasive public interest dimension in mind. Set forth below are the areas that we believe require your consideration and actions in their regard.

Before addressing each of these issues, we congratulate you for taking measures that have already made a difference.

Actions such as withdrawal of the January 16, 2001, trust land regulations, reopening the comment period on the September 14, 2000, section 20 Indian Gaming Regulatory Act ("IGRA") proposed regulations, setting forth proposed reforms to the acknowledgment process in response to the GAO report, reversing the politically motivated Nipmuc positive proposed acknowledgment finding that overruled BIA's negative recommendation, and expressing a policy concern for the need for tribes to work together with local communities to achieve consensus have all been welcome and well-informed actions.

We appreciate these policy initiatives, and hopefully they point the way to a lasting new direction in the federal Indian policy. As for the measures important to the future of Connecticut, we ask you to consider each of the following areas for action and response.

TRIBAL ACKNOWLEDGMENT
We encourage you to continue to pursue the general reforms identified in your response to GAO. Those reforms are all the more important in light of the recent Inspector General's Report detailing the manner in which former BIA officials manipulated the acknowledgment process to promote their own objectives and pro-acknowledgment policy goals.

While these reforms are being developed, however, action on the pending acknowledgment petitions is still going forward. A moratorium appears to be in order while reforms are achieved. But, if review of these petitions is to proceed, we request that, above all, an objective and apolitical review process be followed, unlike the actions described in the Inspector General's Report on the Nipmuc, Pequot, and other petitions.

A clear and full showing under all criteria must be made by the petitioners in each case to meet their respective burdens of proof, and BIA should rigorously adhere to the highest standards of integrity, legality, and scholarship.

In this regard, we ask that you ensure the highest level of scrutiny and objectivity is extended to the question of the weight given in the acknowledgment process to past actions by Connecticut involving Indians. In the apparently politically motivated Pequot proposed findings, the previous Assistant Secretary overturned negative proposed findings by applying a principle that the Stateęs past recognition of this Tribe should be given great weight and allow the petitioner to overcome otherwise serious deficiencies.

Such a principle, in our opinion, is out-of-touch with Area and Connecticut history, ignores the facts of past State dealings with Indians in Connecticut, has nothing to do with the internal social and political interactions of the petitioner groups over time, and improperly skews the acknowledgment process in favor of petitioners. We call upon you to ensure that such a improper and unfair principle not be allowed to bias the review of the pending petitions.

In addition, BIA should ensure that parties such as those who have signed onto this letter are able to play a full role in the acknowledgment review. Interested party status should be granted liberally and expeditiously, and all relevant documents should be made available on a timely basis to allow for participation and the development of a complete and objective record.

In this regard, we join the many others in asking you to rescind the unlawful and unwise policy directive issued by the last Assistant Secretary on February 11, 2000, that weakened the rights of interested parties without even requesting public comment.

ENVIRONMENTAL REVIEW
BIA has for too long ignored the environmental consequences of the decisions it makes under IGRA. In particular, we are deeply troubled to learn that BIA does not apply the National Environmental Policy Act ("NEPA") to IGRA decisions that enable gaming to occur, such as compact approval or the implementation of Secretarial procedures in the place of compacts. Under any objective reading of NEPA, these decisions should be subject to an EIS.

No more dramatic illustration of this legal prerequisite can be found than in Connecticut, where BIA actions (as well as those of the National Indian Gaming Commission) are visiting massive environmental impacts on our State.

In other arenas, BIA's environmental compliance record is equally troubling. We note with great concern the fact that no EIS has ever been prepared for a BIA trust land decision in Connecticut. How is it that the largest casino in the world, Foxwoods, could have been built, on federal watch, without more than a "finding of no significant impact" issued by the government?

In addition, it is clear that the mandates of the Clean Air Act conformity requirement apply. The federal Clean Air Act requires every state to adopt an implementation plan, or SIP, to attain and maintain air quality standards for specified pollutants. For "nonattainment areas" (i.e., those that do not meet air quality standards), the Clean Air Act requires all federal actions (such as providing financial assistance, issuing licenses, permits and approvals) to be in conformity with the SIP for that state.

"Conformity" means that the activity will not: (1) cause or contribute to any new violation of any standard; (2) increase the frequency or severity of any existing violation of any standard; or (3) delay timely attainment of any standard. The Grater Danbury Area is officially classified as "severe nonattainment area" for ozone. In southwest Connecticut, a conformity determination is required where "the total of direct and indirect emissions ... caused by a Federal action" would exceed 25 tons per year of volatile organic compounds ("VOCs").

In our view, BIA decisions involving casino approval, trust land acquisition, compact approval, and similar actions trigger this "conformity" requirement. The test is whether that action "causes" the subsequent traffic increase from casino development. Under the Clean Air Act regulations, it appears that such "causation" is present when the Federal government has continuing responsibility for the land in question.

We believe there are good arguments that, for example, a trust land decision meets this test because: (1) trust land is owned by the United States for the benefit of a tribe, and therefore the land will be under federal ownership and control; and (2) the agency must administer the land to insure its beneficial use and fulfill its fiduciary duty to the tribe; therefore, the land will remain subject to continuing BIA oversight and approval.

In Connecticut, the air pollution impacts from casinos would be significant. According to a study conducted by Connecticutęs South Western Regional Planning Agency, a casino of 15,000 gaming places in a location such as Bridgeport would conservatively result in a 13-14% increase in traffic volume on Interstate 95, a transportation corridor already clogged with congestion. If this figure were annualized, an emissions increase of 146 tons of VOCs per year would result. Similar rates of increase are anticipated for Interstate 84 thru this adjacent region.

Thus, once the causation requirement has been met, it appears almost indisputable that the casino would be subject to conformity review. That review, at a minimum, would impose new and complex procedures on casino approval. Depending on the facts, conformity review should lead to disapproval of casino construction on air quality grounds alone.

Some of these same questions under the Clean Air Act also apply to expansion plans for existing casinos in Connecticut. They will certainly become major precedent-setting issues should any additional petitioners in Connecticut achieve acknowledged status. As a result, it is necessary for BIA, probably with EPA consultation, to factor the Clean Air Act into its future decisions involving Indian lands and casinos in Connecticut.


TRUST LAND
Many of the problems encountered by local communities associated with Indian policy result from trust land expansion. In highly developed, urbanized areas such as Greater Danbury, any land taken into trust is likely to have major consequences.

The land use, environmental, and tax revenue problems presented by granting tribes with gaming interests the ability to add trust land to their reservations are augmented by the fact that such tribes generally have no legitimate need for such land. They have, invariably, achieved an extraordinary degree of success and self-sufficiency.

As noted above, we are aware that you are taking serious steps to reconsider federal trust land policy. Our local governments and businesses support that effort, and we intend to participate fully in that process.

In the meantime, it is important for BIA to recognize the significance of the trust land issue and to avoid making any further decisions on controversial trust land applications in the absence of enforceable agreements entered into by the affected parties.

We ask that you carefully consider all trust land requests, especially those in the gaming context or involving gaming tribes, to prevent similar problems from arising again.

In conclusion, we have come to realize that the State of Connecticut is now the principal proving ground for some of the most significant issues of federal Indian law and policy. We intend to participate cooperatively and constructively in all proceedings related to these issues, but a fair resolution of these issues will require strong, fair and objective leadership from your Department and full consideration of the implications of your decisions on state and local communities.

Please feel free to call upon us to the extent we can be of assistance. Thank you for considering these views, and we look forward to hearing from you.

Sincerely yours, 

Herbert C. Rosenthal,
HVCEO Chairman and
First Selectman of Newtown, Connecticut

cc: Senator Joseph Lieberman
Senator Chris Dodd
Representative James Maloney
Representative Nancy Johnson
State Legislative Delegation
Other Regional Planning Organizations
Housatonic Valley Economic Development Partnership
Joseph McGee, Southwestern Area commerce and Industry Association
Eric Gottschalk, Danbury Corporation Counsel
Attorney Guy Martin, Perkins Coie