[Senate Report 114-199]
[From the U.S. Government Publishing Office]
Calendar No. 342
114th Congress } { Report
SENATE
1st Session } { 114-199
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TO PROHIBIT GAMING ACTIVITIES ON CERTAIN INDIAN LAND IN ARIZONA UNTIL
THE EXPIRATION OF CERTAIN GAMING COMPACTS
_______
December 18, 2015.--Ordered to be printed
_______
Mr. Barrasso, from the Committee on Indian Affairs,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 152]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 152) to prohibit gaming activities on certain Indian
land in Arizona until the expiration of certain gaming
compacts, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
PURPOSE
The purpose of the bill is to prohibit Class II and Class
III gaming activities, as defined by the Indian Gaming
Regulatory Act, from being conducted on lands within the
Phoenix metropolitan area acquired by the Secretary of the
Interior in trust for the benefit of an Indian tribe after
April 9, 2013. This prohibition would expire on January 1,
2027.
OVERVIEW
The bill involves the interplay of two Federal statutes
governing the use of certain lands by the Tohono O'odham Nation
in Arizona: the Gila Bend Indian Reservation Lands Replacement
Act\1\ (Gila Bend Act) and the Indian Gaming Regulatory Act\2\
(IGRA). Enacted in 1986, the Gila Bend Act, among other things,
authorized the purchase of certain lands for the use of the
Tohono O'odham Nation for economic purposes.
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\1\Gila Bend Indian Reservation Lands Replacement Act, Public Law
99-503, 100 Stat. 1798.
\2\Indian Gaming Regulatory Act, 25 U.S.C. Sec. Sec. 2701, et al.
(1988).
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Two years later, the IGRA was enacted and established a
regulatory framework for gaming activities on Indian lands. How
this framework affects the economic uses under the Gila Bend
Act has been the source of considerable controversy in the
State of Arizona and underlies the purpose of this legislation.
THE GILA BEND INDIAN RESERVATION LANDS REPLACEMENT ACT
Background. The Gila Bend Act was a legislative settlement
to replace the Tohono O'odham Nation's Gila Bend reservation
land flooded by the Painted Rock Dam which had been constructed
by the U.S. Army Corps of Engineers on the Gila River,
approximately ten miles downstream from the tribe's Gila Bend
reservation.\3\ At the time of the Dam's completion in 1960,
the potential flooding of reservation lands from the Dam was
estimated to be infrequent and would not impair the tribe's use
of the land.\4\
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\3\An extensive history is also discussed in the Committee Report
for the Gila Bend Indian Reservation Lands Replacement Clarification
Act, H.R. 2938. H.R. Rep. No. 112-440 (2012). See also 132 Cong. Rec.
S14457-01 (1986) and 132 Cong. Rec. H8106-02 (1986). This reservation
is one of three established for the O'odham people. H.R. Rep. No. 99-
851, at 4.
\4\Id., at 5.
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However, a later study by the U.S. Geological Survey in
1963 found that the entire reservation would be inundated
``when the reservoir behind the Dam fills to the level of the
spillway.''\5\ Likewise, subsequent flooding in 1978-79, and
1981 proved to be much more damaging than previously
estimated.\6\
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\5\Id., at 5 citing the 1963 U.S. Geological Survey (Water-supply
paper 1647-A).
\6\Subsequent to the passage of the Southern Arizona Water Rights
Settlement Act of 1982, the reservation experienced two more major
flooding incidents in 1983 and 1984.
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Facing the loss of its arable lands on the reservation and
a Bureau of Indian Affairs unwilling to assist in restoring the
land to its prior usefulness, the tribe ``petitioned Congress
for a new reservation on lands in the public domain which would
be suitable for agriculture.''\7\ Congress passed the Southern
Arizona Water Rights Settlement Act of 1982 to authorize the
Secretary of the Interior to conduct a study and find suitable
replacement lands for the tribe. The study essentially
confirmed that the flooding rendered the reservation unusable
and unproductive.\8\ However, suitable Federal replacement
lands within a 100-mile radius could not be found. The ensuing
attempts by the tribe and the Department of the Interior to
resolve the matter eventually led to the Gila Bend Act.
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\7\H.R. Rep. No. 99-851, at 6.
\8\Id.
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Purpose. The Gila Bend Act was intended to ``facilitate
replacement of reservation lands with lands suitable for
sustained economic use which is not principally farming and . .
. promote the economic self-sufficiency of the O'odham Indian
people.''\9\ It authorized the Tohono O'odham Nation to
purchase up to 9,880 acres of lands within Pima, Pinal, and
Maricopa counties in Arizona. These replacement lands had to be
outside the corporate limits of any city or town.
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\9\Pub. L. No. 99-503, 100 Stat. 1798.
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On the Tohono O'odham Nation's request, this Act also
required the Secretary of the Interior to place those lands
purchased into trust for the tribe. The Federal Government
would provide $10 million per year over a three-year period for
a total of $30 million, plus interest, to purchase those lands.
The tribe would then waive all claims against the United States
for the past damages to the tribe's land and water rights.
In 2003, the tribe acquired unincorporated land within
Maricopa County, just west of the City of Phoenix. This land is
located approximately 49 miles from the Gila Bend Reservation
and more than 100 miles from the tribal headquarters.
The tribe sought to have this land taken into trust
pursuant to the Gila Bend Act with the goal of establishing,
pursuant to the IGRA, a gaming facility which would host other
related businesses such as an event center, restaurants, and
retail and meeting spaces. After legal challenges involving
this then-pending trust land acquisition were addressed by the
courts, the Assistant Secretary for Indian Affairs for the
Department of the Interior issued a final decision to take the
land into trust on July 3, 2014.
THE INDIAN GAMING REGULATORY ACT
Purpose. Prior to the enactment of the IGRA, the regulation
of gaming on Indian lands was left largely to Indian tribes,
without Federal oversight or state involvement.\10\ At the
time, tribal gaming operations offered primarily bingo and card
games.\11\ According to testimony before the Committee by the
Department of the Interior, ``[r]eceipts of some tribes exceed
$1 million annually, and the Department estimates that the
combined receipts exceed $100 million annually.''\12\
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\10\See California v. Cabazon, 480 U.S. 202 (1987) and S. Rep. No.
99-493, at 2 (1986). Early iterations of bills regulating gaming on
Indian lands were pending before the Committee. See e.g., H.R. 1920,
99th Cong. (1985); S. 902, 99th Cong. (1985); and S. 2557, 99th Cong.
(1986). Several consistent themes were in these bills, most notably the
balance of interests of tribal, Federal, and state governments.
\11\S. Rep. No. 99-493, at 2 (1986).
\12\Id. at 3 and see S. Rep. No. 100-446, at 2 (1988).
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The IGRA was enacted to establish a regulatory framework
governing gaming on Indian lands. It provides ``a statutory
basis for the operation of gaming by Indian tribes as a means
of promoting tribal economic development, self-sufficiency, and
strong tribal governments.''\13\ This Act also represents a
delicate balance of many interests in the conduct of gaming
``as a means of generating needed tribal revenues and
employment'' and the protection against ``the intrusion of
crime into tribal gaming operations in Indian country.''\14\
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\13\25 U.S.C. Sec. 2702 (1988).
\14\S. Rep. No. 99-493 (1986). Both the House Interior and Insular
Affairs Committee and the then-Senate Select Committee on Indian
Affairs held numerous hearings on the various gaming bills and received
testimony from Federal agencies, Indian and non-Indian witnesses as
well as numerous statements relating to the subject of the legislation.
Id. at 7-8.
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Classes of Games. The IGRA established three classes of
gaming. Class I gaming, within exclusive tribal jurisdiction,
consists of social games played solely for prizes of minimal
value or traditional gaming played in connection with tribal
ceremonies or celebrations.\15\ Class II gaming includes bingo,
games similar to bingo, and certain card games.\16\ Class III
gaming includes all other types of games, including slot
machines, craps, and roulette.\17\
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\15\25 U.S.C. Sec. 2703(6) (1988).
\16\25 U.S.C. Sec. 2703(7) (1988).
\17\25 U.S.C. Sec. 2708 (1988).
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Federal Role. The IGRA also set forth the responsibilities
for the Federal government. Class II and Class III gaming
activities are subject to Federal regulation or oversight.
The IGRA established the National Indian Gaming Commission
(NIGC) to regulate and oversee different aspects of Class II
and III gaming, such as reviewing and approving (or
disapproving) tribal gaming ordinances and management
contracts.\18\
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\18\25 U.S.C. Sec. Sec. 2704, 2706, 2710, 2711, 2712 (1988).
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Under the statute, the Secretary of the Interior is
responsible for reviewing and approving (or disapproving)
compacts between the tribe and state.\19\ Under the IGRA,
tribal-state compacts establish the terms governing the
regulation of the Class III gaming activities.
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\19\Pursuant to other Federal laws, the Secretary is responsible
for processing the trust land acquisitions for gaming purposes. While
these processes are separate and distinct, the Secretary may need to
determine whether an exception to the prohibition on gaming on that
trust land applies in the course of evaluating the trust land
application.
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The Secretary also conducts the ``two-part
determination,''\20\ and reviews and approves (or disapproves)
tribal revenue allocation plans.\21\ The Secretary is
responsible for evaluating whether trust land to be acquired is
eligible for gaming. While the trust land acquisition process
is an independent process, governed by other separate and
distinct Federal laws,\22\ the Secretary may need to determine
whether an exception to the prohibition on gaming on that trust
land applies in the course of evaluating the trust land
application.
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\20\See infra note 30 and text accompanying.
\21\25 U.S.C. Sec. 2710(3) (1988).
\22\See the Indian Reorganization Act of June 18, 1934, 25 U.S.C.
Sec. 461 (1934). This process, however, provides the public, state and
local governments, and other tribal governments with ``many
opportunities to participate throughout the trust acquisition
process.'' Indian Gaming: The Next 25 Years: Hearing Before the S.
Comm. on Indian Affairs, 113th Cong. 2 (2014) (statement of Kevin K.
Washburn, Assistant Secretary for Indian Affairs, Department of the
Interior) at 17.
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The IGRA governs gaming activities occurring on Indian
lands. In the course of fulfilling their responsibilities under
the statute, both the Secretary and the NIGC may make a
determination of whether the lands at issue qualify as Indian
lands for IGRA purposes.
State Role--Compacts. The IGRA provided a role for states
in gaming on Indian lands. The primary involvement is through a
tribal-state compact which the IGRA requires to be in place
before Class III gaming activities may occur.\23\ The compact
was intended to reflect the balance of state public safety and
law enforcement concerns with tribal concerns regarding the
imposition of state jurisdiction in tribal lands. This
mechanism appears to be efficacious as there are numerous
tribal-state compacts in operation since the enactment of the
IGRA. According to the 2015 Government Accountability Office
study on Indian gaming,
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\23\``After lengthy hearings, negotiations, and discussions, the
Committee concluded that the use of compacts between tribes and states
is the best mechanism to assure that the interests of both sovereign
entities are met with respect to the regulation of complex gaming
enterprises such as . . . casino gaming * * * * The Committee concluded
that the compact process is a viable mechanism for setting various
matters between two equal sovereigns.'' S. Rep. No. 100-446, at 13
(1988).
``[f]rom 1998 through fiscal year 2014, Interior
reviewed and approved most of the 516 compacts and
compact amendments that were submitted * * * 78 percent
(405) were approved; 12 percent (60) were deemed
approved; 6 percent (32) were withdrawn or returned;
and about 4 percent (19) were disapproved. As of
October, 2014, a total of 276 compacts, not including
amendments, were in effect.''\24\
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\24\U.S. Gov't Accountability Office, GAO-15-143T, Indian Gaming:
Regulation and Oversight by the Federal Government, States, and Tribes
18 (2015).
The IGRA sets forth a process governing mediation when
compact negotiations between the state and tribe fail. In the
event the tribe and state cannot reach an agreement, then the
Secretary may issue procedures for the tribe to govern the
operation of Class III gaming.\25\ ``According to [the
Department of the] Interior, three tribes conduct [C]lass III
gaming under Secretarial procedures (Arapaho Tribe of the Wind
River Reservation, Mashantucket Pequot Indian Tribe, and the
Rincon Band of Luiseno Mission Indians of the Rincon
Reservation).''\26\
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\25\U.S.C. Sec. 2710 (1988).
\26\U.S. Gov't Accountability Office, GAO-15-143T (2015).
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These Class III gaming activities may also be subject to
state regulation to the extent specified in the tribal-state
compacts. The Government Accountability Office, in its 2015
study on Indian gaming, ``categorized 7 states as having an
active regulatory role, 11 states with a moderate role, and 6
states with a limited role.''\27\ The monitoring activities of
states ``ranged from basic informal observation of gaming
operations to testing of gaming machine computer functions and
reviews of surveillance systems and financial records.''\28\
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\27\Id.
\28\Id., at 23. The range indicates the types of specific state
involvement in day-to-day regulatory activities. Neither the Committee
nor the GAO imply nor conclude that the limited role of states
indicates a lack of regulation of Indian gaming. To the contrary, the
Indian gaming industry is highly regulated.
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State Role--Two-Part Determination. In addition, the IGRA
prohibits gaming on trust land acquired after October 17, 1988,
unless certain exceptions exist.\29\ ``These limited and narrow
exceptions operate to provide equal footing for certain tribes
that were disadvantaged in relation to land.''\30\
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\29\The other exceptions include lands taken into trust as part of
a land claim settlement, lands restored as part of the restoration of
the tribe and an initial reservation for the tribe acknowledge under
the Federal acknowledgement process found at 25 C.F.R. pt. 83.
\30\Indian Gaming: The Next 25 Years: Hearing Before the S. Comm.
on Indian Affairs, 113th Cong. 2 (2014) (Statement of Kevin K.
Washburn, Assistant Secretary for Indian Affairs, Department of the
Interior) at 17.
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One particular exception requires the governor of the state
to concur in a Secretarial action commonly referred to as the
``two-part determination'' before gaming may take place on the
particular parcel at issue. The ``two-part determination'' may
be requested by a tribe when the other exceptions to the
prohibition against gaming on after-acquired land do not apply.
This process authorizes the Secretary of the Interior to
make a determination, after consultation with the Indian tribe
seeking the determination, appropriate state and local
officials and officials of nearby Indian tribes, that the
proposed gaming establishment
``would be in the best interest of the Indian tribe
and its members, and would not be detrimental to the
surrounding community, but only if the Governor of the
State in which the gaming activity is to be conducted
concurs in the Secretary's determination.''\31\
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\31\25 U.S.C. Sec. 2719 (1988).
According to the Department of the Interior, since IGRA was
enacted only sixteen applications for a two-part determination
have been submitted and eight of those sixteen applications
have been approved.\32\
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\32\This process is not widely used by tribes seeking to conduct
gaming. Most tribes operate, or seek to operate, gaming on existing
tribal trust land. According to the Department of the Interior, the
other exceptions to the prohibition have been sought only 26 times. Out
of 459 existing operations, 26 operations are indeed a nominal amount.
Likewise, gaming is not the most frequently identified purpose for
trust land applications. In fact, gaming as a purpose constitutes less
than four percent of the total tribal trust land applications submitted
to the Department of the Interior.
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Indian Land Claim Settlement. Another exception to the
prohibition against gaming on after-acquired trust land applies
to land ``taken into trust as part of a settlement of a land
claim. . . .''\33\ Neither the IGRA nor the legislative history
set forth a specific definition of what constitutes a land
claim.
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\33\25 U.S.C. Sec. 2719(b)(1)(B) (1988).
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The Department of the Interior and the NIGC have opined to
some degree on what might fall within a land claim for IGRA
purposes.\34\ The Department of the Interior regulations define
``land claim'' as any claim by a tribe concerning the
impairment of title or other real property interest or loss of
possession that:
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\34\See Indian lands opinions at http://www.nigc.gov/images/
uploads/indianlands (last reviewed November 12, 2015).
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(1) Arises under the United States Constitution,
Federal common law, Federal statute or treaty;
(2) Is in conflict with the right, or title or other
real property interest claimed by an individual or
entity (private, public, or governmental); and
(3) Either accrued on or before October 17, 1988, or
involves lands held in trust or restricted fee for the
tribe prior to October 17, 1988.\35\
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\35\25 C.F.R. Sec. 292.2 (2015).
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These regulations further provide that ``gaming may occur
on newly acquired lands if the land at issue is either:
(a) Acquired under a settlement of a land claim that
resolves or extinguishes with finality the tribe's land
claim in whole or in part, thereby resulting in the
alienation or loss of possession of some or all of the
lands claimed by the tribe, in legislation enacted by
Congress; or
(b) Acquired under a settlement of a land claim that:
(1) Is executed by the parties, which
includes the United States, returns to the
tribe all or part of the land claimed by the
tribe, and resolves or extinguishes with
finality the claims regarding the returned
land; or
(2) Is not executed by the United States, but
is entered as a final order by a court of
competent jurisdiction or is an enforceable
agreement that in either case predates October
17, 1988 and resolves or extinguishes with
finality the land claim at issue.\36\
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\36\25 C.F.R. Sec. 292.5 (2015).
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INDIAN GAMING
According to the National Indian Gaming Commission, the
revenues generated by the Indian gaming industry in 2014
totaled $28.5 billion, an increase of 1.7% over 2013 figure of
$28 billion.\37\
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\37\The net revenues have been approximately forty percent of the
total revenues, or $11.3 billion, in fiscal year 2013. See U.S. Gov't
Accountability, GAO-15-743T, at 7.
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There are 240 tribes, in 28 states, that conduct some form
of gaming, with a total of over 459 operations. Most of the
operations report only modest revenues. In 2014, 56 percent of
the gaming operations reported revenue of less than $25
million. Of the 459 total operations, 164 generated revenues of
less than $10 million.
Only 26, or 5.6 percent, of the total 459 operations
generated revenues of more than $250 million per operation.
However, that 5.6 percent accounted for 22.8 percent of the
$28.5 billion in total revenue.
The IGRA limits the use of these revenues to funding tribal
government operations or programs, providing for the general
welfare of the tribe and its members, promoting economic
development, donating to charitable organizations, or helping
fund local government agencies' operations. According to the
GAO, tribal officials reported that the revenues were used ``to
enhance or develop health and wellness programs for their
members, offer educational programs for tribal children and
youth, and provide tribal housing, among other uses.''\38\
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\38\Id.
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THE KEEP THE PROMISE ACT
Overview. The Keep the Promise Act, S. 152, is intended to
prohibit gaming activities on land within the Phoenix
metropolitan area acquired by the Secretary of the Interior in
trust after April 9, 2013. This prohibition would end on
January 1, 2027, when the tribal-state gaming compacts between
the State of Arizona and several Indian tribes in Arizona
expire.
The effect of this bill would be to prohibit on a temporal
basis, until January 1, 2027, the Tohono O'odham Nation from
conducting both Class II and Class III gaming, as defined by
the IGRA, on its land which is now held in trust in Maricopa
County, west of Phoenix, Arizona. It would also prohibit the
tribe from gaming on any other land the Secretary may take into
trust after April 9, 2013, which is within the Phoenix
metropolitan area as defined under the bill.
The bill, however, would not prohibit the tribe from
acquiring land into trust within the three counties as
authorized by the Gila Bend Act and conducting other non-gaming
forms of economic activity in the Phoenix metropolitan area
defined by the bill. It also does not affect the current gaming
activities conducted by the tribe at its three other existing
gaming facilities in southern Arizona.
Local Concerns. This bill was borne out of concerns of
neighboring Indian tribes, various local governments, and the
State of Arizona regarding the Tohono O'odham Nation's proposed
gaming facility on its new trust lands in Maricopa County.\39\
Opponents of the tribe's plans have sought recourse through
numerous legal challenges as well, thus far to no avail.
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\39\Not every local government opposes the proposed gaming
facility. For example, the cities of Glendale, Peoria, Surprise, and
Tolleson support the proposed gaming facility. These cities are also in
the closest proximity to the proposed site. The Tohono O'odham Nation
gaming facility would be located in between Glendale and Peoria.
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The Committee recognizes that strong views exist both in
favor and against the casino. In fact, the four surrounding
towns in closest proximity to the proposed casino support it.
On the other hand, the State of Arizona and various other towns
located in the three counties hold strong objections to
expanding the tribe's gaming operations in the area.
A primary complaint has been that the Tohono O'odham
Nation's proposal does not comport with what the opponents
argue is the intent of the state referendum, Proposition 202,
which essentially authorized the type of gaming activities to
be conducted in the tribal-state compacts. Opponents contend
that, as part of obtaining voter support for this Proposition,
the tribes agreed that there would be limited gaming in the
state, including a limited number of gaming facilities in the
Phoenix area.
The opponents are also concerned that the tribe may seek to
place other lands within the three counties into trust and
pursue gaming opportunities on those additional trust
lands.\40\ Such proliferation would also be contrary to the
intent of the referendum and potentially jeopardize future
support and compact negotiations when those compacts expire in
2027.
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\40\The Committee has not been informed of other parcels within the
Phoenix metropolitan area that are either contemplated or currently
being sought to be placed into trust for gaming purposes.
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On the other hand, the Tohono O'odham Nation contends that
neither the referendum nor the compacts placed such limitations
on the tribe.\41\ The tribe further argues that it is not
prohibited by the IGRA to pursue the gaming operations on the
land now held in trust in Maricopa County pursuant to the Gila
Bend Act because this acquisition qualifies for the land claim
settlement exception to the gaming prohibition on after-
acquired land.\42\
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\41\The tribe also points to court cases in support of its
position. See e.g., State of Arizona v. Tohono O'odham Nation, 944
F.Supp.2d 748 (May 7, 2013) and Gila River Indian Community, et al. v.
U.S.A, et al., 729 F.3d 1139 (May 20, 2013).
\42\Neither the Department of Interior nor the NIGC have made this
determination. The Assistant Secretary for Indian Affairs testified
before the Committee that the court appears to have made the
determination suggesting that it is not necessary for the Department to
do so. See Keep the Promise Act of 2014: Hearing on S. 2670 Before the
S. Comm. on Indian Affairs, 113th Cong. 2 (2014).
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The issues involving the intent of the state referendum and
effect upon the compact negotiations are typically local
matters for the State and tribes.\43\ However, the
implementation of the IGRA and the balance of interests in the
conduct of Indian gaming are matters that this Committee has
had to carefully examine over the years.
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\43\Notwithstanding the court cases relating to this matter, the
continued operation of tribal gaming facilities in Arizona pursuant to
the tribal-state compacts is a matter for negotiation between the State
and the tribes as the compacts expire in 2027.
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As stated in the Committee Report for S. 555 which
eventually became the IGRA, ``Congress ultimately has the
responsibility, consistent with its plenary power over Indian
affairs, to balance competing policy interests and to adjust,
where appropriate, the jurisdictional framework for regulation
of gaming on Indian lands.''\44\ That action was taken even
though the Supreme Court has issued its decision in Cabazon and
the Department of Interior had significant authority in
facilitating tribal actions underlying the activities at issue.
This current issue at hand is no less a responsibility and
within the authority of this Committee to examine and make
appropriate adjustments to ensure the implementation of a law
is consistent with the policies and intent of that law.
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\44\S. Rep. No. 100-446, at 3 (1988).
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Balance of Interests. The complex and controversial nature
of gambling has not diminished even though the IGRA was enacted
over 27 years ago. In enacting the IGRA, Congress and this
Committee, in particular, struggled to find the appropriate
level and method of oversight and regulation which would
assuage state and local governmental concerns for law
enforcement and public policy and safety, yet still uphold
tribal sovereignty.
The IGRA was ``intended to provide a means by which tribal
and state governments can realize their unique and individual
governmental objectives, while at the same time, work together
to develop a regulatory and jurisdictional pattern that will
foster a consistency and uniformity in the manner in which laws
regulating the conduct of gaming activities are applied.''\45\
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\45\``The process of enacting IGRA was complex, but in the end, I
believe that it has achieved a careful balance between the concepts of
tribal sovereignty and States' rights.'' Indian Gaming: The Next 25
Years: Hearing Before the S. Comm. on Indian Affairs, 113th Cong. 2
(2014) (Statement of Senator John McCain) at 3.
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The legislative history of the IGRA indicates that the
concerns of the states, as well as the Department of Justice,
were so strongly held that Congress took the extraordinary step
of authorizing the extension of state roles and, to the extent
negotiated in compacts, authority in these activities on Indian
lands.
This role was such that the more significant gaming
activities could not be conducted without the state
involvement. Senator Inouye, during the debate on the bill
which became the IGRA, stated that ``[i]t is also true that S.
555 does not contemplate and does not provide for the conduct
of Class III gaming activities on Indian lands in the absence
of a tribal-state compact.''\46\
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\46\134 Cong. Rec. 24023 (Sept. 15, 1988). (Statement of Senator
Daniel Inouye). (emphasis added). In the unique situation where a Court
has found that the state has acted in bad faith in negotiating for a
compact, the tribe may pursue Secretarial procedures which may not
include state involvement. See 25 U.S.C. Sec. 2710 (1988).
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However, Congress ``intend[ed] that the two sovereigns--the
tribes and the States--will sit down together in negotiations
on equal terms and come up with a recommended methodology for
regulating Class III gaming on Indian lands.''\47\ These
compacts were intended to be the ``means by which differing
public policies of these respective governmental entities
(tribes, states, and Federal) can be accommodated and
reconciled.''\48\
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\47\134 Cong. Rec. 24024 (Sept. 15, 1988). (Statement of Senator
Daniel Evans).
\48\S. Rep. No. 100-446, at 6 (1988).
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Today, the Committee is once again called upon to balance
dueling concerns against a backdrop and convergence of Federal
laws. This bill, S.152, is intended to harmonize the intent of
the IGRA with the implementation of the Gila Bend Act.
It is limited to narrowly apply in the sole context of
gaming and ensure the intent of the IGRA is followed. Indeed,
even the IGRA was of limited scope within the jurisprudence of
Federal Indian law and policy.\49\ Just as the passage of IGRA
was not intended to ``signal any new Congressional policy. . .
.,''\50\ this bill is not intended to signal any new policy as
well.\51\
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\49\``Gambling is a unique situation and [Congress'] limited
intrusion on the right of tribal self-governance in this area has no
implications for any other area of tribal self-governance or State-
tribal relations.''\49\ 134 Cong. Rec. 24024 (Sept. 15, 1988).
(Statement of Senator Daniel Evans). Senator Inouye echoed that view
when debating the justification for inserting a state role in gaming.
(``The exigencies caused by the rapid growth of gaming in Indian
country and the threat of corruption and infiltration by criminal
elements in Class III gaming warranted the utilization of existing
State regulatory capabilities in this one narrow area.'') 134 Cong.
Rec. 24025 (Sept. 15, 1988).
\50\134 Cong. Rec. 24024 (Sept. 15, 1988) (Statement of Senator
Daniel Evans).
\51\In response to a Committee Member question regarding what the
policy implication of this bill might be on future negotiations and
settlements between tribes, the Assistant Secretary for Indian Affairs
contended that tribes may feel that this is ``just continuing in the
mode of breaking treaties and breaking promises to tribes.'' Keep the
Promise Act of 2014: Hearing on S. 2670 Before the S. Comm. on Indian
Affairs, 113th Cong. 2 (2014) (Statement of Kevin K. Washburn,
Assistant Secretary for Indian Affairs, Department of the Interior) at
9. The Committee strongly disagrees.
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The measure has been the subject of at least two hearings
before this Committee.\52\ Testifying before the Committee on a
predecessor bill, the Assistant Secretary for Indian Affairs,
Kevin K. Washburn, asserted concerns that the bill would
effectively amend the Gila Bend Act and would unilaterally
amend the Arizona state-tribal gaming compact for the Tohono
O'odham Nation.\53\
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\52\See Id. The Committee on Natural Resources of the House of
Representatives has also held hearings on the bill and predecessor
bills.
\53\Id. (Statement of Kevin K. Washburn, Assistant Secretary for
Indian Affairs, Department of the Interior) at 6.
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Land Claim Settlement. In the first determination on the
land claim settlement exception under IGRA, the Secretary of
the Interior voiced concerns about stretching ``the principles
underlying the enactment of IGRA . . . in ways Congress never
imagined when enacting IGRA.''\54\ We agree that these
provisions should be interpreted consistent with the intent of
IGRA.
---------------------------------------------------------------------------
\54\This determination arose in the course of the review process
for the Seneca Nation-State of New York compact. Letter to Cyrus
Schindler from Secretary Norton, November 12, 2002, at 3. Available at
http://www.nigc.gov/images/uploads/indianlands/
47_senecanationofindns.pdf (last reviewed November 12, 2015). In the
case of the Seneca Nation, the issue of the land claim settlement
exception was not a contentious matter (between the tribe and state)
when presented to the Secretary of the Interior. By contrast, the State
of Arizona adamantly opposes the Tohono O'odham Nation's proposed
casino.
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The Committee anticipated that with the passage of IGRA,
some changes to tribal activity might occur. The Committee
noted that even rights under then-existing business
arrangements could be affected.\55\
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\55\``The Committee believes that the plenary power of Congress
over Indian affairs, and the extensive government regulation of
gambling, provides authority to insist that certain minimum standards
be met by non-Indians when dealing with Indians. The Secretary's powers
with respect to Indians are always subject to alteration or change by
the Congress. In the area of gaming where many factors other than
ordinary business risk enter into the equation, the Committee has no
reluctance in requiring changes to existing gambling enterprise
contracts, whether or not such contracts have been given a stamp of
approval by the Secretary.'' S. Rep. No. 100-446, at 15 (1988).
---------------------------------------------------------------------------
In the exercise of its plenary authority, Congress defined
in IGRA the contours of tribal land use for gaming
purposes.\56\ Most notably, any trust land acquired after the
enactment of the IGRA could not be used for gaming, unless an
exception applied, so the ability to use such trust land for
gaming purposes was not an absolute and unlimited right.\57\
Since that time, Congress has enacted other laws which restrict
gaming even beyond that found in the IGRA.\58\ These
restrictions are typically enacted contemporaneously with an
underlying action and may be included to assuage concerns
regarding gaming. In this case, the restrictions may not have
been contemplated in the original Gila Bend Act.
---------------------------------------------------------------------------
\56\``It was left to Congress to address several unresolved
questions such as the appropriate level of Federal, State and tribal
oversight, and what tribal lands are eligible for gaming facilities.''
Indian Gaming: The Next 25 Years: Hearing Before the S. Comm. on Indian
Affairs, 113th Cong. 2 (2014) (Statement of Senator John McCain) at 3.
Congress has acted to limit and even prohibit gaming on trust lands in
other statutes.
\57\One Court even went so far as to hold that the IGRA impliedly
repealed prior statutes. See Rhode Island v. Narragansett Indian Tribe,
19 F.3d 685 (1st Cir. 1994).
\58\See e.g., Rhode Island Indian Claims Settlement Act, 25 U.S.C.
Sec. 1708(b) (1996), and the Indian Pueblo Cultural Center
Clarification Act, Pub.L.No. 111-354 (2011).
---------------------------------------------------------------------------
The Indian gaming industry is also highly regulated. In
fact, the Committee has received testimony regarding how
heavily Indian gaming is regulated by three sovereigns in many
regards.\59\ With a heavily regulated industry, land use
changes sometimes may occur, particularly when needed to
conform to the principles and intent of the underlying law.
---------------------------------------------------------------------------
\59\See Indian Gaming: The Next 25 Years: Hearing Before the S.
Comm. on Indian Affairs, 113th Cong. 2 (2014).
---------------------------------------------------------------------------
Compact. The disputes between the Tohono O'odham Nation and
the State of Arizona over the proposed casino, however,
suggests that the balance of interests intended to be
negotiated and agreed upon in the compact has been disrupted.
At a minimum, the Governor has opined that the proposed casino
is contrary to the public interest. The Committee has not since
been informed that the State of Arizona has reversed its
positions against the legality of the proposed gaming facility
or that its concerns have been assuaged--even despite all the
court decisions regarding this proposed casino.
Unless there is some other information not provided to the
Committee, the existing compact between the Tohono O'odham
Nation and the State of Arizona remains in effect. While the
bill effectively adds a limitation not expressly included in
the compact, the bill does not terminate that compact or amend
its terms nor does it require the tribe's three existing
casinos located in southern Arizona, to close or alter
operations.
The Committee is concerned about what effect this situation
may have on future tribal gaming efforts as well as proposed
trust land acquisitions for gaming purposes.\60\ The other
tribes in the state have also expressed concerns about how this
situation may affect their ability to negotiation for their
compacts which expires in 2027.
---------------------------------------------------------------------------
\60\See Carcieri: Bringing Certainty to Trust Land Acquisitions:
Hearing Before the S. Comm. on Indian Affairs, 113th Cong. 1 (2013).
---------------------------------------------------------------------------
The bill would allow the parties the opportunity to work to
resolve the various interests at play.\61\ While the Committee
urges the parties to work to resolve the differences, the
Committee also reminds the parties that IGRA prohibits bad
faith in negotiations.
---------------------------------------------------------------------------
\61\See Indian Gaming: The Next 25 Years: Hearing Before the S.
Comm. on Indian Affairs. 113th Cong. 2 (2014) (Statement of Senator
John McCain). (``It is my desire that the Committee fully understand
the tremendous amount of controversy that this situation has generated
in Arizona and how the courts are applying the land claim settlement
exception under IGRA. * * * I still hope that we can resolve this issue
by sitting down, party to party, individual to individual, tribe to
government, and try and resolve this issue which has caused so much
controversy and difficulties in our State of Arizona.'') at 4.
---------------------------------------------------------------------------
The IGRA was intended to ``achieve a fair balancing of
competitive economic interests''\62\ not to provide an economic
monopoly to any particular entity. The Committee has previously
noted and reiterates once again that the ``compact requirement
for Class III not be used as a justification . . . for the
protection of other State-licensed gaming enterprises from free
market competition with Indian tribes.''\63\
---------------------------------------------------------------------------
\62\S. Rep. No. 100-446, at 2 (1988).
\63\S. Rep. No. 100-446, at 13 (1988).
---------------------------------------------------------------------------
However, the Committee would also stress that once compacts
have been negotiated and entered into by the parties and
approved by the Secretary, Congress is not the appropriate
forum for revisiting these negotiated compacts or for
protecting markets, thereby circumventing free and open
competition.\64\
---------------------------------------------------------------------------
\64\In the first determination on the land claim settlement
exception under IGRA, the Secretary of the Interior also noted a
reluctance to restrict competition. (`` * * * I still find a provision
excluding other Indian gaming anathema to basic notions of fairness in
competition and, if pushed to its extreme by future compacts,
inconsistent with the goals of IGRA.'') Letter to Cyrus Schindler from
Secretary Norton, November 12, 2002, at 5. Available at http://
www.nigc.gov/images/uploads/indianlands/47_senecanationofindns.pdf
(last reviewed November 12, 2015).
---------------------------------------------------------------------------
LEGISLATIVE HISTORY
Senators McCain and Flake introduced S.152 on January 13,
2015. The Committee did not hold a hearing on this bill, but
held a hearing on a predecessor bill during the 113th Congress.
The Committee held a business meeting on April 29, 2015, at
which the bill was ordered reported, without amendment, by
majority voice vote.
The House companion bill, H.R. 308, the Keep the Promise
Act of 2015, was introduced on January 12, 2015, by
Representative Franks and is cosponsored by Representatives
Conyers, Gosar, Kildee, Kirkpatrick, and Salmon. On March 25,
2015, the House Natural Resources Committee considered the
bill, without a hearing, at a business meeting and, by voice
vote, ordered the bill reported to the House of
Representatives. On November 16, 2015, the House of
Representatives voted not to suspend the rules to consider H.R.
308.
These two bills are substantively identical to each other
and, with only minor technical differences, to previous
iterations of the legislation introduced in the 113th Congress.
These bills are drafted somewhat differently than the prior
bill introduced in the 112th Congress. However, the purpose and
intent of these bills are essentially the same.
113th Congress. In the 113th Congress, Senators McCain and
Flake introduced the Keep the Promise Act of 2014, S. 2670, on
July 28, 2014. The Committee eld a hearing on the bill on
September 17, 2014, at which the Administration, through the
Assistant Secretary for Indian Affairs, Kevin Washburn,
testified.
In addition to this legislative hearing, the Committee also
held an oversight hearing on Indian gaming on July 23, 2014,
entitled ``Indian Gaming: The Next 25 Years'' at which one
panel of witnesses provided testimony on the issues involved
with the bill.
In the 113th Congress, Representative Franks introduced the
House bill, H.R. 1410, the Keep the Promise Act of 2013 on
April 9, 2013. On May 16, 2013, the Subcommittee on Indian and
Alaska Native Affairs of the Natural Resources Committee held a
hearing on the bill. On July 24, 2013, the House Natural
Resources Committee ordered the bill to be favorably reported
to the full House of Representatives by a roll call vote of 35-
5. The House of Representatives passed H.R. 1410 by voice vote
on September 17, 2013. The bill was received in the Senate the
following day and referred to the Committee on Indian Affairs.
No further action was taken on either S. 2670 or H.R. 1410.
112th Congress. In the 112th Congress, Representative
Franks introduced H.R. 2938, the Gila Bend Indian Reservation
Lands Replacement Clarification Act on September 15, 2011. It
was co-sponsored by Representatives Baca, Boren, Flake, Gosar,
Kildee, McCollum, Quayle, and Schweikert. On October 4, 2011,
the Subcommittee on Indian and Alaska Native Affairs of the
House Natural Resources Committee held a hearing on the bill.
On November 17, 2011, the Committee ordered the bill, as
amended, to be reported by a rollcall vote of 32-11.
The House of Representatives passed the bill on June 19,
2012. It was received by the Senate the following day and
referred to the Committee on Indian Affairs. No further action
was taken on the bill.
COMMITTEE ACTION AND RECOMMENDATION
On April 29, 2015, the Committee held a duly called
business meeting to consider S.152. No amendments were offered
to the bill. By majority voice vote, the Committee ordered the
bill to be reported and recommended that the bill, without
amendment, do pass.
SECTION-BY-SECTION ANALYSIS OF S. 152
Section 1. Short title
This Act may be cited as the ``Keep the Promise Act of
2015''.
Section 2. Findings
Section 2 provides that in 2002, the voters in the state of
Arizona passed Proposition 202 and, to gain support for the
vote, Indian tribes agreed to limit the number of casinos in
the state and Phoenix metropolitan area; and this bill would
preserve that agreement until the expiration of the gaming
compacts authorized by Proposition 202.
Section 3. Definitions
Section 3 defines key terms used in the Act. The terms
``Indian tribe'', ``class II gaming'', and ``class III gaming''
have the same meaning as the terms are defined in the Indian
Gaming Regulatory Act. This section also provides a defined
area for the ``Phoenix metropolitan area'' in Maricopa and
Pinal counties in Arizona.
Section 4. Gaming clarification
Section 4 prohibits Class II gaming and Class III gaming on
land within the Phoenix metropolitan area acquired by the
Secretary of the Interior in trust for the benefit of an Indian
tribe after April 9, 2013. This prohibition expires on January
1, 2027.
COST AND BUDGETARY CONSIDERATIONS
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 12, 2015.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 152, the Keep the
Promise Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten.
Sincerely,
Keith Hall.
Enclosure.
S. 152--Keep the Promise Act of 2015
S. 152 would prohibit gambling (other than social games for
prizes of minimal value) on property near Glendale, Arizona
that is owned by the Tohono O'odham Nation and held in trust by
the United States for the benefit of the tribe. That
prohibition would last until 2027. The Tohono O'odham Nation is
currently constructing a resort and casino on this property and
expects to begin operations within a year.
Based on information from the Tohono O'odham Nation, CBO
expects that if S. 152 were enacted, the tribe would pursue
litigation against the federal government to recover its
financial losses caused by the prohibition on gambling. Whether
the tribe would prevail in such litigation and when those
proceedings might be concluded are both uncertain. The basis
for any judicial determination of the tribe's financial losses
is also uncertain. CBO estimates that possible compensation
payments from the government could range from nothing to more
than $1 billion; however, we have no basis for estimating the
outcome of the future litigation. Because enacting S. 152 could
increase direct spending, pay-as-you-go procedures apply.
Enacting S. 152 would not affect revenues.
CBO estimates that enacting S. 152 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2026.
By prohibiting gambling on land that the tribe is currently
planning to use for such a purpose, the bill would impose an
intergovernmental mandate, as defined in the Unfunded Mandates
Reform Act (UMRA). Absent the bill, CBO estimates that the
tribe will collect more than $100 million annually once the
casino begins operations, probably in 2016. Those costs would
exceed the annual threshold established in UMRA ($77 million in
2015, adjusted annually for inflation) in at least one of the
first five years after enactment of the bill.
S. 152 contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: CBO expects that
the Tohono O'odham Nation would pursue litigation against the
federal government if S. 152 is enacted. CBO has no basis for
judging the outcome of that litigation. It is possible that the
federal government would incur no compensation costs, or that
it would pay the tribe a settlement or be ordered to pay
compensation by a court. Any such payment would increase direct
spending, and the amount could exceed $1 billion. The federal
government also would incur discretionary costs, which are
subject to appropriation, to defend itself in the expected
litigation. The amount of such costs would depend on the length
and extent of the legal challenges.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the end of 2015 and that under
current law the Tohono O'odham Nation will probably commence
gambling operations and begin generating gambling revenue in
2016.
Outcome of future litigation
CBO expects that enacting the legislation would probably
result in litigation against the federal government by the
Tohono O'odham Nation. Based on information from the tribe, CBO
expects the tribe would seek compensation for financial losses
caused by S.152. To date, the tribe has prevailed in disputes
with Arizona and other tribes about its planned gaming
operations on the property. A 2013 district court decision on
whether gambling on the site is consistent with current federal
law concluded that ``the Glendale-area land acquired by the
Nation with LRA\65\ funds qualifies for gaming under IGRA\66\
Sec. 2719(b)(1)(B)(1). The land also qualifies for gaming under
Sec. 3(j)(1) of the Compact, which specifically authorizes
gaming on after-acquired lands that qualify for gaming under
Sec. 2719.''\67\
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\65\Gila Bend Indian Reservation Lands Replacement Act, Public Law
99-503.
\66\Indian Gaming Regulatory Act, Public Law 100-497.
\67\State of Arizona, et al. v Tohono O'odham Nation, 944 F. Supp.
2d 748, 756 (D. Ariz. 2013).
---------------------------------------------------------------------------
That decision is now under appeal at the Ninth Circuit
Court of Appeals. Although the tribe has been successful in
litigation thus far and construction of its resort and casino
is underway, it may be more difficult for the tribe to prevail
in a claim brought after enactment of S. 152 because of the
types of claims available to it and the facts of this
particular situation. The outcome of such litigation is
uncertain. CBO expects the tribe would argue that the
legislation caused either a regulatory taking of the tribe's
property interest in gaming on that land, or a breach of the
settlement agreement that permitted the tribe to acquire the
land for nonagricultural economic development purposes. In
either circumstance, the federal government could be required
to compensate the tribe. Any such compensation would probably
be paid from the Judgment Fund (a permanent, indefinite
appropriation for claims and judgments against the United
States).
Amount of compensation
To estimate the amount of compensation that might be due to
the tribe, CBO reviewed the outcome of other cases involving
regulatory takings, tribal land settlements, and gaming
disputes. We also consulted with the Tohono O'odham Nation,
other Arizona tribes, and federal and state agencies that
regulate tribal gaming to estimate the net receipts that the
tribe may realize from the casino operations of the resort now
under construction.
CBO concluded that:
Regulatory taking claims are often
unsuccessful and usually do not lead to significant
economic awards when (as in this case) the taking does
not fully diminish the economic value of the property;
The outcomes of disputes about tribal gaming
and land settlement agreements vary and are generally
dependent on the specific facts of each dispute, making
it difficult to use past disputes to predict the
outcome of new cases;
Prohibiting the tribe from operating
gambling activities at the resort and casino near
Glendale could result in a loss of net income to the
tribe of more than $1 billion over the next decade; and
Whether gaming was among the nonagricultural
economic development activities envisioned under the
tribe's land settlement agreement is unclear because
the property was acquired as a result of a land
settlement agreement with the federal government that
was enacted two years before the Indian Gaming
Regulatory Act, which authorized gambling on tribal
lands under certain circumstances.
CBO estimates that possible awards to the tribe following
litigation could range from no monetary award to more than $1
billion. After considering the uncertainties about whether the
tribe would prevail in a future lawsuit against the federal
government, and the unpredictability of the amount of any
award, CBO concluded that there is no basis to predict the
amount of monetary award or settlement, if any, that the tribe
would receive as a result of the enactment of S. 152.
Pay-As-You-Go-considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget reporting and enforcement
procedures for legislation affecting direct spending or
revenues. Enacting S. 152 could increase direct spending over
the 2015-2025 period; however, CBO has no basis for estimating
the amount or timing of such spending, if any.
Increase in long term direct spending and deficits: CBO
estimates that enacting S. 152 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2026.
Estimated impact on state, local, and tribal governments:
By prohibiting gaming on land that the tribe is currently
planning to use for such a purpose, the bill would impose an
intergovernmental mandate, as defined in UMRA. Absent the bill,
CBO estimates that the tribe will net more than $100 million
annually once the casino begins operations, probably in 2016.
That estimate is a probabilistic assessment based on
information from the tribe about projected revenues, accounting
for uncertainty of projected revenues, operating expenses, and
payments the tribe is required to make from gaming revenue,
which all may be higher or lower than expected. It also
accounts for the possibility that already pending legal actions
could delay or prohibit gaming activities on the land. The cost
of that mandate on the tribe would exceed the annual threshold
established in UMRA ($77 million in 2015, adjusted annually for
inflation) in at least one of the first five years after
enactment of the bill, CBO estimates.
If the bill is enacted and the tribe submits a successful
claim for damages against the federal government, such
settlement amounts would benefit the tribe.
Estimated impact on the private sector: S. 152 contains no
private-sector mandates as defined in UMRA.
Previous CBO estimate: On April 24, 2015, CBO transmitted a
cost estimate for H.R. 308, the Keep the Promise Act of 2015,
as ordered reported by the House Committee on Natural Resources
on March 25, 2015. The two bills are very similar, and the CBO
cost estimates are the same.
Estimate prepared by: Federal Costs: Kim Cawley; Impact on
State, Local, and Tribal Governments: Melissa Merrell; Impact
on the Private Sector: Amy Petz.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
REGULATORY IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 152 would
have a minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has not received any Executive Communications
on S. 152.
ADDITIONAL VIEWS OF JON TESTER
While proponents of the bill discuss the issue as one of
purely local concern for the State of Arizona and tribes
located in the state, it should be pointed out that the
solution provided by S. 152 could impact future negotiations to
settle claims by tribes against the United States. In the Gila
Bend Act, the Tohono O'odham Tribe entered into a settlement
waiving its claims against the United States related to the
flooding of its lands. For waiving its claims, the Tribe
secured new lands to be held in trust for the Tribe by the
United States, which Congress intended to be used specifically
for sustained economic development to ``promote the economic
self-sufficiency of the O'odham Indian people.''[1]
Passage of S. 152 would run counter to fulfilling the goals of
the Gila Bend Act.
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\[1]\Pub. L. No. 99-503, Section 2(4)
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The Majority correctly points out that other Acts of
Congress have included gaming restrictions. However, these
restrictions are usually included contemporaneously with an
underlying action and the tribal stakeholder has agreed to its
inclusion to gain support for the underlying action. Here,
Congress would be establishing a land use restriction on
settlement lands nearly thirty years after passage of the
underlying action and imposing the restriction on the Tribe's
settlement lands over the Tribe's objections.
In its discussion and footnotes, the Majority disagrees
with the assertion that passage of S. 152 would harm future
negotiations resolving tribal claims against the United States.
While tribes are already aware that Congress' plenary authority
over Indian Affairs poses some risk to the certainty of any
settlement between tribes and the United State, passage of S.
152 would only highlight that agreements ratified by Congress
decades earlier could still be altered by a future Congress
over tribal objections. While the extent of the impact on
future negotiations cannot be known, it is plausible that
tribes would be more reluctant to enter into settlement
agreements due to the passage of S. 152 or similar acts that
place restrictions on tribal development.
Finally, The Congressional Budget Office has raised
concerns that the cost of litigation against the United States
could result in significant liability to the American
taxpayer--perhaps as much as $1 billion. While such analysis is
speculative, it should not be dismissed.
Jon Tester.
ADDITIONAL VIEWS OF JOHN McCAIN
I introduced this legislation on behalf of Arizona mayors
and other local-elected officials who objected strenuously that
the Tohono O'odham Nation, or any other Indian tribe, would be
allowed by the Interior Department to airdrop a gaming facility
into their community. During the wake of the Supreme Court's
landmark Cabazon decision, the Senate contemplated the impact
that Indian gaming facilities could have on non-Indian
communities. Congress then enacted the Indian Gaming Regulatory
Act of 1988 (IGRA) that, among other things, prohibits Indian
gaming on land not contiguous to an extant Indian reservation
but for very limited exceptions. As one of the authors of IGRA,
as well as the Gila Bend Indian Reservation Replacement Lands
Act, I can attest that it was not the intent of Congress that
IGRA's land-claim settlement exception would apply to the West
Valley lands now held in trust by the Department of the
Interior for the Tohono O'odham Nation.
The imminent opening of the Tohono O'odham Nation gaming
facility has created tremendous controversy in Arizona among
non-Indian communities and tribal governments alike. Therefore,
this legislation would prohibit the operation of class II and
class III Indian gaming in the Phoenix metropolitan until 2027
when state and tribal parties may address this matter through
the state-tribal gaming compact renegotiation process.
John McCain.
CHANGES IN EXISTING LAW
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the bill, S. 152, as ordered
reported, would make no changes in existing law.
[all]